UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

Form 10-K

 

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2015

Commission File Number 1-12804

 

(Exact name of registrant as specified in its charter)

 

 

Delaware

86-0748362

(State or other jurisdiction of

incorporation or organization)

(I.R.S. Employer

Identification No.)

4646 E. Van Buren Street, Suite 400

Phoenix, Arizona 85008

(Address of principal executive offices) (Zip Code)

(480) 894-6311

(Registrant’s telephone number, including area code)

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

Name of each exchange on which registered

Common Stock, $.01 par value

Nasdaq Global Select Market

Preferred Share Purchase Rights

 

Securities registered pursuant to Section 12(g) of the Act:

None

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes   x     No   o

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.    Yes   o     No   x

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   x     No   o

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   x     No   o

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.   o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer

x

Accelerated filer

o

 

 

 

 

Non-accelerated filer

o   (Do not check if a smaller reporting company)

Smaller reporting company

o

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).    Yes   o     No   x

The aggregate market value on June 30, 2015 of the voting common stock held by non-affiliates of the registrant was approximately $1.9 billion.

As of January 25, 2016 there were outstanding 44,708,474 shares of the registrant’s common stock, par value $.01.

DOCUMENTS INCORPORATED BY REFERENCE:

Portions of the Proxy Statement for the registrant’s 2016 Annual Meeting of Stockholders are incorporated herein by reference in Part III of this Annual Report on Form 10-K to the extent stated herein. Certain exhibits are incorporated in Item 15 of this Annual Report on Form 10-K by reference to other reports and registration statements of the registrant which have been filed with the Securities and Exchange Commission.

 

 

 

 

 

 

MOBILE MINI, INC.

2015 FORM 10-K ANNUAL REPORT

TABLE OF CONTENTS

 

 

 

 

Page

 

 

PART I

 

ITEM 1

 

BUSINESS

4

ITEM 1A

 

RISK FACTORS

14

ITEM 1B

 

UNRESOLVED STAFF COMMENTS

21

ITEM 2

 

PROPERTIES

21

ITEM 3

 

LEGAL PROCEEDINGS

22

ITEM 4

 

MINE SAFETY DISCLOSURES

22

 

 

 

 

 

 

PART II

 

ITEM 5

 

MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

23

ITEM 6

 

SELECTED FINANCIAL DATA

25

ITEM 7

 

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

29

ITEM 7A

 

QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

47

ITEM 8

 

FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

48

ITEM 9

 

CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

92

ITEM 9A

 

CONTROLS AND PROCEDURES

92

ITEM 9B

 

OTHER INFORMATION

92

 

 

 

 

 

 

PART III

 

ITEM 10

 

DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

93

ITEM 11

 

EXECUTIVE COMPENSATION

93

ITEM 12

 

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

93

ITEM 13

 

CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

93

ITEM 14

 

PRINCIPAL ACCOUNTING FEES AND SERVICES

93

 

 

 

 

 

 

PART IV

 

ITEM 15

 

EXHIBITS, FINANCIAL STATEMENT SCHEDULES

94

 

 

 

2

 

Cautionary Statement about Forward Looking Statements

Unless otherwise indicated, the terms “Mobile Mini,” the “Company,” “we,” “us” and “our” refer to Mobile Mini, Inc. together with its consolidated subsidiaries.

Our discussion and analysis in this Annual Report on Form 10-K, our 2015 Annual Report to Stockholders, our other reports that we file with the Securities and Exchange Commission (the “SEC”), our press releases and in public statements of our officers and corporate spokespersons contain “forward-looking” statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Private Securities Litigation Reform Act of 1995. Forward-looking statements give our current expectations or forecasts of future events. You can identify these statements by the fact that they do not relate strictly to historical or current events. We have tried, wherever possible, to identify such statements by using words such as “may,” “plan,” “seek,” “will,” “expect,” “intend,” “estimate,” “anticipate,” “believe,” “continue,” “project,” “should,” “likely,” “future,” “target,” “forecast,” “goal,” “observe,” and “strategy” or the negative thereof or variations thereon or similar terminology. The forward-looking statements in this Annual Report on Form 10-K reflect management’s beliefs, plans, objectives, goals, expectations, anticipations and intentions with respect to our financial condition, results of operations, future performance and business, and include statements regarding, among other things, our future actions; financial position; management forecasts; efficiencies; cost savings, synergies and opportunities to increase productivity and profitability; our plans and expectations regarding acquisitions; income and margins; liquidity; anticipated growth; the economy; business strategy; budgets; projected costs and plans and objectives of management for future operations; sales efforts; taxes; refinancing of existing debt; and the outcome of contingencies such as legal proceedings and financial results.

Forward-looking statements are neither historical facts nor assurances of future performance.  Instead, they are based only on our current beliefs, expectations and assumptions regarding the future of our business, future plans and strategies, projections, anticipated events and trends, the economy and other future conditions. Because forward-looking statements relate to the future, they are subject to certain risks and uncertainties, including, without limitation, an economic slowdown in the U.S. and/or the U.K. that affects any significant portion of our customer base, or the geographic regions where we operate in those countries; our ability to manage growth at existing or new locations; our ability to obtain borrowings under our revolving credit facility or additional debt or equity financings on acceptable terms; changes in the supply and price of used containers; our ability to increase revenue and control operating costs; our ability to raise or maintain rental rates; our ability to leverage and protect our information technology systems; our ability to protect our patents and other intellectual property; currency exchange and interest rate fluctuations; governmental laws and regulations affecting domestic and foreign operations, including tax obligations, and labor laws; changes in the supply and cost of the raw materials we use in refurbishing or remanufacturing storage units; competitive developments affecting our industry, including pricing pressures; the timing, effectiveness and number of new markets we enter; our ability to cross-sell our portable storage and specialty containment products; our ability to integrate recent acquisitions; our ability to achieve the expected benefits of the divestiture of the wood mobile offices; our ability to develop a new scalable enterprise resource platform; changes in generally accepted accounting principles; changes in local zoning laws affecting either our ability to operate in certain areas or our customer’s ability to use our products; any changes in business, political and economic conditions due to the threat of future terrorist activity in the U.S. and other parts of the world and related U.S. military action overseas; our ability to utilize our deferred tax assets; and those other risks and uncertainties discussed herein, that could cause actual results to differ materially from historical results or those anticipated.  In light of these risks and uncertainties, there can be no assurance that the forward-looking information contained in this Annual Report on Form 10-K will in fact transpire or prove to be accurate.  Readers are cautioned to consider the specific risk factors described herein and in “Item 1A. Risk Factors” of this Annual Report Form 10-K, and not to place undue reliance on the forward-looking statements contained herein, which speak only as of the date hereof.

The Company undertakes no obligation to update or publicly revise any forward-looking statement whether as a result of new information, future developments or otherwise.  All subsequent written or oral forward-looking statements attributable to the Company or persons acting on its behalf are expressly qualified in their entirety by this paragraph.  You are advised, however, to consult any further disclosures we make on related subjects in our subsequently filed Form 10-Q and Form 8-K reports and our other filings with the SEC.  Also note that we provide a cautionary discussion of risks, uncertainties and possibly inaccurate assumptions relevant to our business under “Item 1A. Risk Factors” of this Annual Report Form 10-K.  We note these factors for investors as permitted by the Private Securities Litigation Reform Act of 1995.  You should understand it is not possible to predict or identify all such factors.

3

 

PART  I

ITEM 1.

BUSINESS.

Mobile Mini, Inc. - General

We believe we are the world’s leading provider of portable storage solutions, and are committed to providing our customers with superior service and access to a high-quality and diverse fleet.  Through our wholly owned subsidiary, Evergreen Tank Solutions, Inc. (“ETS”) we are also a leading provider of specialty containment solutions in the United States (“U.S.”).  Our mission is to uphold our leadership positions in portable storage solutions to customers throughout North America and the United Kingdom (“U.K.”) and become the provider of choice for specialty containment products in the U.S.

Business Model

Mobile Mini, founded in 1983, focuses on renting rather than selling our units, with rental revenues representing approximately 93% of our total revenues for the year ended December 31, 2015.  We believe this strategy provides us with predictable, recurring revenue.  Additionally, our assets have long useful lives, low maintenance and generally maintain their value throughout their useful lives.  We also sell new and used units and provide delivery, installation and other ancillary products and value-added services.

Our business is comprised primarily of two product categories:

 

-

Portable Storage Solutions

This category consists of our container and ground level office product offerings. We offer a wide range of portable storage products in varying lengths and widths with an assortment of differentiated features such as patented locking systems, premium doors, electrical wiring and shelving. Our portable storage units provide secure, accessible storage for a diversified client base of approximately 83,000 customers across various industries, including retail and consumer services, construction, industrial, commercial and governmental. As of December 31, 2015, we offered our portable storage fleet of approximately 205,200 units to our customers who use these products for a wide variety of storage applications, including retail and manufacturing, inventory, maintenance supplies, construction materials and equipment, documents and records, household goods, and as portable offices.

 

-

Specialty Containment Solutions

Our specialty containment products consist primarily of liquid and solid containment units, pumps and filtration equipment.  Additionally, we provide an offering to our customers of value-added services designed to enhance the efficiency of managing liquid and solid waste. The client base for our specialty containment products includes customers in specialty industries, including chemical, refinery, oil and natural gas drilling, mining and environmental.

As of December 31, 2015, our network includes 133 portable storage locations, 19 specialty containment locations and 7 combined locations.  Included in our portable storage network are 16 locations in the U.K., where we are a leading provider and two in Canada. Our portable storage fleet consists of approximately 205,200 units and our specialty containment business has a fleet of approximately 11,700 units.  In the discussions below, we generally refer to our business and assets as either “portable storage” or “specialty containment.”

Recent Strategic Transactions

On December 10, 2014, we completed the acquisition of ETS, which we refer to as the “ETS Acquisition.”  ETS is the third largest provider of specialty containment solutions in the U.S. and the leading provider in the Gulf Coast.  ETS operates as a separate subsidiary under the ETS name, as does its wholly owned subsidiary, Water Movers, Inc. (“Water Movers”) which primarily offers specialty pump equipment and related services.  Like Mobile Mini, ETS rents long-lived assets with low maintenance requirements.  The acquisition expands Mobile Mini’s product lines and provides significant cross-selling and expansion opportunities as well as modest costs synergies.  These operations are included in our results of operations for the periods subsequent to the acquisition date of December 10, 2014, which includes the entire twelve-month period ended December 31, 2015.

On May 15, 2015, we completed the divestiture of our fleet of approximately 9,400 wood mobile office units within our North American portable storage segment for a cash price of $92.0 million, less associated assumed liabilities of approximately $6.8 million.  Our business strategy is to invest in high return, low maintenance, long-lived assets.  Wood mobile offices require more maintenance and upkeep than Mobile Mini’s steel containers and steel ground level offices, resulting in lower margins as compared to our other portable storage products, and our specialty containment products.

4

 

Industry Overview

Portable Storage Solutions

The storage industry includes two principal sectors, fixed self-storage and portable storage. The fixed self-storage sector consists of permanent structures located away from customer locations to store excess household goods. We do not participate in the fixed self-storage sector.

The portable storage sector, upon which our business focuses, differs from the fixed self-storage sector, as it brings the storage solution to the customer’s location and fulfills the need for secure storage with immediate access to the storage unit. The advantages of portable storage include convenience, immediate accessibility, and lower price. In contrast to the fixed self-storage sector, the portable storage sector is primarily used by businesses. This sector of the storage industry is highly fragmented and remains primarily local in nature. Although there are no published estimates of the size of the portable storage market, we believe the sector is expanding due to the increasing awareness of the advantages of portable storage and that portable storage units are achieving increased market share compared to other portable options because containers provide ground level access, better protection against wind or water damage, higher security and improved aesthetics, compared to certain other portable storage alternatives such as van trailers.

Certain of our portable storage products serve the modular space industry, which includes mobile offices and other modular structures. We offer steel ground level offices either custom designed and manufactured or made from converted ISO (International Organization for Standardization) containers as well as combination steel ground level office/storage units in varying lengths and widths to serve the various requirements of our customers.

Specialty Containment Solutions

In the specialty containment sector services industry, we service different markets: the industrial market comprised mainly of chemical facilities and refineries, which we call the “downstream” market and, to a lesser extent, companies engaged in the exploration and production of oil and natural gas, which we call the “upstream” market.  Additionally, we serve a diversified group of customers engaged in projects in the construction, pipeline and mining markets.  Downstream customers utilize our equipment and services to manage and remove liquid and solid waste generated by ongoing operating activities as well as turn-around projects and large-scale expansion projects, while upstream customers tend to rent steel tanks to store and transport water and propellant used in well hydraulic fracturing (“fracing”).  Other customers utilize a wide variety of our products differentiated by the type of project in which they are engaged. The liquid and solid containment industry is highly fragmented, consisting principally of local providers, with a handful of regional and national providers.

Business Environment and Outlook

Excluding the divested wood mobile office business, approximately 61% of our estimated combined rental revenue during the twelve-month period ended December 31, 2015 was derived from our North American portable storage business, 21% was derived from our specialty containment business in North America and 18% was derived from our U.K. portable storage business. Our business is subject to the general health of the economy and we utilize a variety of general economic indicators to assess market trends and determine the direction of our business.

Based on our assessment, we expect that the majority of our end markets will continue to drive increased 2016 demand for our products.  In particular, construction, which represents approximately 41% of our consolidated rental revenue, is forecasted for continued growth for the next several years.  While only 3% of our consolidated rental revenue is generated by upstream oil and gas customers, the oil and gas industry is forecasted to continue to remain challenged in the near term.

Competitive Strengths

Our competitive strengths include the following:

Market Leader.  We believe we are the world’s largest provider of portable storage solutions, a market leader in portable storage solutions in the U.K. where we have nearly 100% geographic coverage, and the third largest provider of specialty containment solutions in the U.S.

The Mobile Mini brand name is associated with high quality portable storage products, superior customer service and value-added storage solutions. Similarly, within the markets and sectors served, the ETS brand name is associated with high quality containment products and services, and the Water Movers name is associated with exceptional quality pump and filtration equipment and service.  We believe we are one of a few competitors in the U.S. and the U.K. who possess the brand awareness, network of locations, customer relationships and infrastructure to compete on a national and regional basis while maintaining a strong local market presence.

5

 

Superior, Differentiated Products and Service.   We remanufacture used ISO containers and have designed and manufactured our own portable storage units which allows us to offer a wide range of products and proprietary features, including features that provide high-levels of security. This product differentiation within the portable storage sector as well as superior service allows us to gain market share and c harge premium rental rates.

We also offer a broad range of specialty containment equipment and value-added services, which enables us to meet customers’ ongoing needs throughout the various life cycles of projects unique to the petrochemical and industrial industry.  Our comprehensive turnkey solutions to customers’ containment, storage, pumping and filtration needs drives the creation of strong long-term partnerships with our customers.

Sales and Marketing Emphasis.  We target a diverse customer base and, unlike most of our competitors, have developed sophisticated sales and marketing programs enabling us to expand market awareness of our products and generate strong organic growth. We have a dedicated commissioned sales team that is provided with our highly customized contact management system and intensive sales training programs. We manage our salespersons’ effectiveness through extensive sales call monitoring, mentoring and training programs. Our digital advertising includes paid and organic search marketing products, industry targeted content, social messaging, and industry and customer partnerships.  External market research vendors are an integral part of our sales and marketing approach.  Additionally, our Web site includes value-added features such as product video tours, payment capabilities and real time sales inquiries that enable customers to chat live with salespeople.

National Presence with Local Service.   We have invested significant capital developing a national network of locations that serve most major metropolitan areas in the U.S. and the U.K. Our nationwide presence allows us to offer our products to larger customers who wish to centralize the procurement of portable storage and specialty containment products on a multi-regional or national basis.  We believe we will be able to leverage our national presence and infrastructure in the portable storage U.S. market to facilitate the geographic expansion of our specialty containment business.  In the field, our local managers, sales force and drivers develop and maintain critical personal relationships with customers that benefit from our wide selection of products.

Geographic and Customer Diversification.   Our network of portable storage locations covers nearly all major markets in both the U.S. and U.K., providing us with a broad geographical reach.  Additionally, since portable storage units are used in a multitude of applications, we have established strong relationships with a well-diversified base of portable storage customers, ranging from leading Fortune 500 companies to sole proprietorships. The operation of specialty containment locations concentrated in the Gulf Coast region, further diversifies our geographic presence and customer base.

As a combined company, our geographically- and industry-diversified customer base reduces our susceptibility to the effects of economic downturns in any individual market and industry in which we operate. 

Customer Service Focus.  The portable storage industry is particularly service intensive. To position ourselves to understand our customers’ needs, we have trained our sales force to focus on all aspects of customer service from the sales call onward. We use Salesforce.com® as our Customer Relationship Management (“CRM”) platform to increase our responsiveness to customer inquiries and to efficiently monitor our sales force’s performance. We use a Net Promoter Score (“NPS”) system to measure customer satisfaction and loyalty through real time surveys conducted by a third party. We utilize customer feedback to drive service improvements across the Company, from our field locations to our corporate headquarters, resulting in proven success as evidenced by our best in class NPS score of 78.6% for 2015. We differentiate ourselves by providing security, convenience, product quality, broad product selection and availability, and customer service. We believe our superior customer service drives customer satisfaction and we survey our customers to ensure that we are easy to do business with.  Approximately 66% of our 2015 portable storage rental revenues were derived from repeat customers.

Within the specialty containment industry, we have leveraged our broad range of products and expertise to differentiate ourselves from competitors. ETS offers a full suite of the liquid and solid containment equipment required to execute a comprehensive containment solution that often must meet stringent regulatory and technical requirements.  In addition we offer a proprietary, sophisticated technology platform that provides detailed real-time data capture, tracking and customized reporting capabilities.  This technology, which may be integrated with customers’ enterprise systems, is a unique customer service tool that enables us to develop strong, long-term relationships with our larger customers.  Many of our specialty containment customers are large, blue-chip companies.

Customized Management Information Systems.  We continue to make significant investments in the management information systems supporting our operations. Our systems enable us to optimize fleet utilization, control pricing, dispatch and track our trucks, capture detailed customer data, evaluate and approve credit applications, monitor company results, gain efficiencies in internal control compliance, and support our growth by projecting near-term capital needs. Our customized management information systems provide insight into estimating our forward-looking market potential by

6

 

territory.  This enables us to be more proactive and timely responsive to drive specific rev enue streams.  Field employees and decision makers at all levels have access to real-time information about the business. In addition, we are able to capture relevant customer demographic and usage information, which we use to target new customers within o ur existing and new markets. These capabilities result in a competitive advantage over smaller, less sophisticated local and regional competitors.

Business Strategy

Our strategic goal is to accelerate rental revenue growth and expand our operating margins by leveraging our infrastructure, focusing on higher returning assets and driving continuous improvements in efficiency.  To achieve this goal, we intend to continue execution of the following strategies:

Focus on Core Rental Business with Higher Returning Assets. Our rental business provides predictable recurring revenue and high margins.  We are constantly evaluating our portfolio of product offerings to ensure our capital is invested in products that provide optimal returns. For example, during 2015 we made the strategic decision to divest our wood mobile offices which require significantly more resources to repair, rent and prepare for rental than our other products.

Generate Strong Organic Growth.  We focus on increasing market penetration and gaining additional revenues from existing customers as well as gaining new customers through sophisticated sales and marketing programs aimed at increasing brand recognition, expanding market awareness of the uses of portable storage and differentiating our superior products from those of our competitors.

Opportunistic Geographic Expansion.  We believe we have attractive expansion opportunities and have identified over 50 potential new geographic, or underserved, markets in North America where we believe demand for portable storage units is underdeveloped. In 2014 and 2015 we executed an aggregate of ten portable storage acquisitions, which have enabled us to enter new markets, as well as establish new customers in existing markets.  We expect to continue to execute on opportunistic acquisitions in the future.  We also have a proven strategy to enter markets by migrating available fleet to new markets that can be serviced by nearby full-service field locations. From these start-up operational yards, we are able to redeploy existing available fleet, allowing for cost effective new location openings with minimal capital expenditures. We also believe we have the opportunity to geographically expand the markets in which we offer ETS products.

Innovative Product Offering.  Our wide offering of products with varying features expands the applications and overall market for our portable storage products. Within our specialty containment products, we offer one of the broadest ranges of services and containment equipment in the industry accompanied by an assortment of pumps and filtration units designed to allow us to partner with customers through every project stage.  We believe that our rental products can continue to generate substantial demand throughout North America and the U.K.

Opportunities for Cross-selling and Expansion. The ETS Acquisition allows us to leverage the combination of Mobile Mini’s portable storage national presence with ETS’ specialty containment expertise to grow revenue by providing new products and services to existing Mobile Mini customers, and by expanding the geographic reach of our specialty containment products to serve customers previously outside of ETS’ historic service area.  Additionally, our significant presence in downstream and industrial markets, particularly in the Gulf Coast region, will allow us to leverage established, long-term specialty containment relationships for their portable storage needs.  We are currently expanding our specialty containment business geographically with openings in Dallas, Philadelphia and are in the process of expanding into Southern California.

Increase Fleet Utilization. We are focused on increasing utilization through improving sales representatives’ productivity and expanding our sales force and increasing the market’s awareness of our products.  Increasing utilization will result in higher rental margins and reduce capital expenditure requirements to meet growth.

Drive Profitability of Existing Locations.   We have established key performance indicators to optimize profitability at individual locations and incentivize local management teams based on the performance of their branch.  We also compare results across locations and regions to identify areas of opportunity for growth or for increased efficiencies.

Continuous Improvement in Our Systems.   We have made significant investments in our management information systems supporting our operations and believe these systems give us a competitive advantage. We have identified newly available technologies to further increase efficiency and data management.  As such, since late 2014 we have been in the process of implementing a new SAP® Enterprise Resource Planning (“ERP”) system, which we expect to execute in stages beginning in the first quarter of 2016.  We believe this investment will result in a scalable platform to support future growth.

7

 

Products

We protect our products and brands through the use of trademarks and patents. In particular, we have patented our proprietary tri-cam locking system, our Container Guard Lock and other continued improvements in our locking technology both in the markets in which we operate as well as in Europe and China.

Portable Storage Solutions

We offer customers a wide range of portable storage and office products with an assortment of differentiated features such as patented locking systems, premium and multiple door options and approximately 100 different configuration options. Our portable storage units provide secure, accessible storage. Our principal products are listed below:

 

·

Steel Storage Containers.   Standard portable storage containers are available in lengths ranging from 5 to 45 feet, widths of either 8 feet or 10 feet and a variety of customization options. Doors can be placed at the front, front and back, or the sides of containers. Other options include partitions and shelving. We also market portable records storage units. Records storage units feature high-security doors and locks, electrical wiring, shelving, folding work tables and air filtration systems. We believe our steel storage containers are a cost-effective alternative to mass warehouse storage, with a high level of fire and water damage protection.

 

·

Steel Ground Level Offices.  We offer steel ground level offices from 10 to 40 feet in length in various configurations, including office and storage combination units that provide a 10- or 15-foot office with the remaining area available for storage. We manufactured many of the units in our fleet and continue to strategically convert portable storage containers into ground level offices. Our office units provide the advantage of ground accessibility for ease of access and high security in an all-steel design. Our U.K. products include canteen units and drying rooms for the construction industry. For customers with space limitations, the U.K. office/canteen units can also be stacked two-high with stairs for access to the top unit. These office units are equipped with electrical wiring, heating and air conditioning, phone jacks, carpet or tile, high security doors and windows with security bars or shutters. Some of these offices are also equipped with sinks, hot water heaters, cabinets and restrooms.

Specialty Containment Solutions

We offer a broad range of specialty containment equipment and services accompanied by an assortment of pumps, filtration units and waste hauling services. In addition, we offer ancillary products for rental and for sale to our customers, such as: hoses, pipes, filters and spill containment. Our principal products and services include those listed below:

 

·

Steel Tanks.  Our fleet of steel tanks offers flexible sizes and other options such as gas buster steel tanks and open top steel tanks. Applications include:  temporary storage of water and other liquids, thorough mixing, agitation and circulation of stored liquids with other products, removal of gas from fluids circulated in the wellbore - such as mud used during drilling operations, and settling of solids in liquids prior to filtration or discharge.

 

·

Stainless Steel Tank Trailers.  Our stainless steel tankers meet department of transportation specifications for use in the storage and transportation of chemical, caustics and other liquids. Stainless steel tanks are offered insulated or non-insulated with level indication and vapor recovery capability. 

 

·

Roll-Off Boxes.  Utilized for a variety of containment applications where it is necessary to maintain the homogeneity of the contents, our roll-off boxes provide simple, leak-proof storage and transportation of solid industrial byproducts. A roll-tarp or rolling metal lid is provided to protect the contents from the elements during transport.

 

·

Vacuum boxes. Vacuum roll-off boxes are also offered to pair with a vacuum truck to efficiently vacuum liquids, dry materials, and sludge, whereby the contents vacuumed may be collected directly in the roll-off vacuum box, allowing the air-mover truck to remain on-site and in service during vacuum pumping applications.

 

·

Dewatering Boxes.  Our dewatering boxes are configured to provide for the draining of excess liquid from slurry or sludge which reduces storage, transportation and disposal costs.  Upon completion of dewatering, the container is generally picked up by a roll-off truck for content disposal.  Vacuum dewatering boxes are also offered.

 

·

Pumps and Filtration Equipment.  We offer a variety of pumps and filtration equipment differentiated by size and power.  This equipment is used primarily for liquid circulation and filtration.

 

·

Services.  Value-added services performed by our employees include:

 

-

Transportation of containers for waste management between multiple locations or in-plant,

 

-

Waste management oversight and service provision by an on-site dedicated team,

8

 

 

-

System design including assessment of pumping, filtration and temporary storage needs, and  

 

-

Field services to correctly install and connect customer containment equipment.

Product Lives and Durability

We rent containers and equipment that have been in our fleet for various lengths of time at similar rates, without regard to the age of the unit.  As such, we have no need for a systematic program to sell rental fleet units as they age.  Generally, sales from our fleet occur due to a particular customer need, having fleet in excess of rental demand at a particular location, or damage beyond economical repair for rental purposes.

Appraisals on our rental fleet are required by our lenders on a regular basis. The appraisal typically reports no difference in the value of the unit due to the age or length of time it has been in our fleet.  Based on the values assigned in this appraisal our rental fleet net orderly liquidation appraisal value as of December 31, 2015 was approximately $1.1 billion.  Our net book value for this fleet as of December 31, 2015 was $951.3 million.

Portable Storage Solutions

Steel containers have a long useful life with no technical obsolescence. Our steel portable storage containers and steel ground level offices have estimated useful lives of 30 years from the date we build or acquire and remanufacture them, with residual values of 55%. We maintain our steel containers on a regular basis by painting them with rust inhibiting paint, removing rust, and occasionally replacing the wooden floor or a rusted panel. Repainting the outside of storage units is the most common maintenance item.  A properly maintained container is essentially in the same condition as when we initially remanufactured it.

Specialty Containment Solutions

When purchased new, our steel tanks and stainless steel tank trailers have estimated useful lives of 25 years, dewatering and roll-off boxes have useful lives ranging from 15 to 20 years and our pumps and filtration equipment have estimated lives of 7 years.  We do not assume any residual value at the end of the assets’ useful lives.  There is a limited secondary market for specialty containment products. We have outlined a stringent quality control and maintenance program to ensure that only equipment of the highest quality is released to the field. Each container undergoes a thorough visual inspection, hydro-testing and ultrasonic thickness testing to identify maintenance requirements.  Tank maintenance includes repainting with rust inhibiting paint, replacing interior liners, and repairing valves, gaskets and rails. This periodic maintenance keeps the specialty container in essentially the same condition as when we initially purchased it and is designed to maintain the unit’s value.

Depreciation

We depreciate our rental fleet using the straight-line method over each unit’s estimated useful life, after the date we place the unit in service, and the units are depreciated down to their estimated residual values, if any.  Assets obtained through acquisitions are recorded at their then current fair market value and depreciated to their estimated residual value over each asset’s estimated remaining life.

Remanufacturing and Manufacturing of Portable Storage Containers

We purchase used ISO containers from leasing companies, shipping lines and brokers. These containers were originally built to ISO standards and are 8 feet wide, up to 9.5 feet high and 20, 40 or 45 feet long. After acquisition, we remanufacture and modify these ISO containers. Remanufacturing typically involves cleaning, removing rust and dents, repairing floors and sidewalls, painting, adding our signs and further customizing units by adding our proprietary easy opening door system and our patented locking system. Modification typically involves splitting some containers into differing lengths.  The capitalized cost for remanufactured units includes the price we paid for the unit, plus the cost of customizing units and freight charges to our location when the unit is first placed in service.  For manufactured units, cost includes our manufacturing cost, customization costs and freight charges to our location when the unit is first placed in service.

We believe we are able to procure ISO containers at competitive prices because of our volume purchasing power. If needed in the manufacturing or remanufacturing process, we purchase raw materials such as steel, vinyl, wood, glass and paint. Typically we do not have long-term contracts with vendors for the supply of any raw materials.

Additionally, we manufacture custom sale orders at our Maricopa, Arizona facility as well as, remanufacture and perform repairs and maintenance on our existing rental fleet.

9

 

Rental Fleet Composition

The table below outlines the composition of our portable storage rental fleet at December 31, 2015:

 

 

 

Rental Fleet

 

 

Number   of

Units

 

 

Percentage of

Units

 

 

 

 

(In thousands)

 

 

 

 

 

 

 

 

 

 

Steel storage containers

 

$

612,782

 

 

 

173,668

 

 

 

85

 

%

Steel ground level offices

 

 

346,233

 

 

 

29,337

 

 

 

14

 

 

Other

 

 

7,052

 

 

 

2,233

 

 

 

1

 

 

Portable storage rental fleet

 

 

966,067

 

 

 

205,238

 

 

 

100

 

%

Accumulated depreciation

 

 

(142,338

)

 

 

 

 

 

 

 

 

 

Portable storage rental fleet, net

 

$

823,729

 

 

 

 

 

 

 

 

 

 

 

The table below outlines the composition of our specialty containment rental fleet at December 31, 2015:

 

 

 

Rental Fleet

 

 

Number of

Units

 

 

Percentage of

Units

 

 

 

 

(In thousands)

 

 

 

 

 

 

 

 

 

 

Steel tanks

 

$

55,467

 

 

 

2,902

 

 

 

25

 

%

Roll-off boxes

 

 

25,161

 

 

 

5,058

 

 

 

43

 

 

Stainless steel tank trailers

 

 

28,160

 

 

 

647

 

 

 

6

 

 

Vacuum boxes

 

 

9,852

 

 

 

1,129

 

 

 

10

 

 

Dewatering boxes

 

 

5,383

 

 

 

647

 

 

 

6

 

 

Pumps and filtration equipment

 

 

13,964

 

 

 

1,361

 

 

 

10

 

 

Other

 

 

6,843

 

 

n/a

 

 

 

 

 

 

Specialty containment rental fleet

 

 

144,830

 

 

 

11,744

 

 

 

100

 

%

Accumulated depreciation

 

 

(17,236

)

 

 

 

 

 

 

 

 

 

Specialty containment rental fleet, net

 

$

127,594

 

 

 

 

 

 

 

 

 

 

 

Operations

Our senior management analyzes and manages our business as (i) two portable storage solutions business segments: North America and the U.K. and (ii) one specialty containment business segment. To effectively manage this business across different geographic areas, we divide these business segments into smaller management areas we call divisions, regions and locations. Each of our locations, in their respective segment, generally has similar economic characteristics covering all products rented or sold, including similar customer base, sales personnel, advertising, yard facilities, general and administrative costs and field operations management.  Further financial information by segment is provided in Note 16 to the accompanying consolidated financial statements.

To accelerate the integration and facilitate the execution of cross-selling opportunities, during 2015 the North American field operations were reorganized to reflect a geographic customer-focused organization, whereby division management is responsible for marketing, renting and servicing all product lines within their geographic area.

We locate our field operations in markets with attractive demographics and strong growth prospects. Within each market, we are located in areas that allow for easy delivery of units to our customers over a wide geographic area. In addition, when cost effective, we seek locations that are visible from high traffic roads in order to advertise our products and our name. A typical branch consists of outdoor storage space for units not currently on rent and a small office.

Each branch has a manager who has overall supervisory responsibility for all operational activities. Field location managers report to regional managers who each generally oversee multiple locations. Our regional managers, in turn, report to one of our operational senior vice presidents (called a managing director in the U.K.). Performance-based incentive bonuses are a substantial portion of the compensation for these senior vice presidents, regional managers and field managers.

Locations have dedicated sales staff and transportation personnel that deliver and pick up units from customers. We also supplement our delivery fleet by outsourcing delivery services to independent haulers when appropriate. The locations have delivery trucks and forklifts to load, transport and unload units and a yard staff responsible for unloading and stacking units. Portable storage steel units can be stored by stacking them to maximize usable ground area. Our field locations perform preventive maintenance tasks, but outsource major repairs and other maintenance requirements either externally or to a senior repair team.

10

 

Sales and Marketing

Portable Storage Solutions

We approach the market through a hybrid sales model consisting of a dedicated sales staff at our field locations as well as at our National Sales Center (“NSC”). Our field sales representatives handle local inbound calls and work to develop their branch territory and local relationships through effective networking and sales calls. The NSC handles overflow inbound calls and digital leads from new customers and initiates outbound sales campaigns to new and existing customers not serviced by sales representatives at our local locations.  Our entire staff works with our local field managers and dispatchers to ensure customers receive integrated first-class, one-call service from initial call to delivery.  We believe that offering local salesperson presence for customers, along with the efficiencies of a centralized sales operation for customers not needing a local sales contact, allows us to provide high levels of customer service and serve all of our customers in a dedicated, efficient manner.

Our sales and marketing personnel provide information about our products to prospective customers by handling inbound calls and initiating outbound marketing calls. We have ongoing sales and marketing training programs covering all aspects of rental and customer service. Our field locations communicate with one another and with corporate headquarters through our ERP system and our CRM platform, Salesforce.com®. This centralization of information enables the sales team to share leads and other information and permits management to monitor and review sales and rental productivity on a location-by-location basis. We improve our sales efforts by recording and rating the sales calls made and received by our trained sales force. Our sales personnel are compensated largely on a commission basis.

Our nationwide presence in the U.S. and the U.K. allows us to offer our products to larger customers who wish to centralize the procurement of portable storage on a multi-regional or national basis. Within our portable storage business, we are well equipped to meet these customers’ needs through our National Account Program, which centralizes and simplifies the procurement, rental and billing process for those customers.  Our largest customers tend to participate in our National Account Program. We provide our national account customers with service guarantees, which assure them they will receive the same superior customer service and access to high quality, diverse fleet from any of our field locations. This program has helped us succeed in leveraging customer relationships developed at one location across our entire network of locations.

We focus a significant portion of our marketing expenditures on digital initiatives for both existing and potential customers. We also use targeted direct email and digital programs to build brand awareness by communicating market specific features and tying them to industry benefits of using portable storage solutions. We have implemented aspects of search engine marketing like remarketing, Pay Per Click, content curation, and organic search best practices to drive our customers to on-line lead generation with real-time access to our CRM platform. Immediately after completion of the online form, our dedicated sales force will make contact with the customer and complete the request.  External market research vendors are an integral part of our sales and marketing approach.  Additionally, our Web site includes value-added features such as product video tours, payment capabilities and real time sales inquiries that enable customers to chat live with salespeople.

Specialty Containment Solutions

Each specialty containment branch is responsible for targeting potential new customers in the branch’s service area and to be available to respond to customers 24 hours a day, 365 days a year.  The branches are supported by a corporate team, including a sales and marketing department, business development representatives and national account management.  ETS branch managers and business development representatives work with customers to design customized solutions and identify new service and product applications.  National account management maintains contractual relationships with numerous blue-chip customers and coordinates the provision of services to customers with locations across multiple areas.  Our sales personnel are compensated largely on a commission basis.

Additionally, ETS utilizes an advanced prospect and customer management software package across its sales force and branch network, providing enhanced visibility and tracking on all prospective customer accounts.  ETS personnel have access to real-time critical customer information regardless of location.  This access facilitates targeted marketing and sharing of relevant customer information across the ETS branches.

Customers

Portable Storage Solutions

In 2015, we served approximately 83,000 customers.  Within the portable storage solutions product lines, our first and second largest customers accounted for 4.4% and 0.9%, respectively, of portable storage rental revenues and our 20 largest customers combined accounted for approximately 10.5% of portable storage rental revenues.  During 2015, approximately 56% of our customers

11

 

rented a single unit. We target cust omers who we believe can benefit from our portable storage solutions, either for seasonal, temporary or long-term storage needs. Customers use our portable storage units for a wide range of purposes.

Specialty Containment Solutions

Our specialty containment customers are concentrated in the Gulf Coast region of the U.S. and are generally large companies, including blue-chip companies, with whom we have long-term relationships. During the year ended December 31, 2015, our first and second largest specialty containment customers accounted for approximately 14.1% and 5.8%, respectively, of specialty containment rental revenues and our 20 largest customers combined accounted for approximately 51.8% of specialty containment rental revenues.  Generally, our specialty containment customers belong in one of the following three categories:

 

·

Downstream customers that focus on refining petroleum crude oil as well as processing and purifying raw natural gas.  These customers may also market and distribute products derived from crude oil and natural gas including such products as gasoline, kerosene, jet fuel, diesel oil, lubricants, asphalt, natural gas and hundreds of varieties of petrochemicals.

 

·

Upstream customers focusing on exploration for underground crude oil and natural gas fields.  Upstream companies perform such activities as well drilling, operation of producing wells and bringing crude oil and/or raw natural gas to the surface using alternative methods.  This category includes companies that perform fracing.

 

·

Diversified customers consist of all other companies to whom we provide products or services.  These customers primarily perform pump and filtration activities such as:  municipal sewer and water infrastructure, mining pit pump work, pipeline construction and maintenance, non-residential construction and other major projects.

We estimate that total 2015 ETS revenue was 64%, 14% and 22% from downstream, upstream and diversified customers, respectively.

Combined Customer Base

The following table provides an overview of our customers and the estimated portion of total rental revenue, excluding revenue related to the divested wood mobile business, generated by each customer group during the year ended December 31, 2015:  

 

Business

 

Estimated

Percentage

 

 

Representative

Customers

Construction

 

 

41%

 

 

General, electrical, plumbing and mechanical contractors, landscapers, residential homebuilders, and equipment rental companies

 

 

 

 

 

 

 

Consumer service and retail businesses

 

 

22%

 

 

Department, drug, grocery and strip mall stores, hotels, restaurants, dry cleaners and service stations

 

 

 

 

 

 

 

Industrial and commercial

 

 

23%

 

 

Major processing plants for organic and inorganic chemicals, refineries, distributors and trucking and utility companies.

 

 

 

 

 

 

 

Government and institutions

 

 

3%

 

 

National, state and local agencies and municipalities,  schools, hospitals, medical centers, military, Native American tribal governments and reservations.

 

 

 

 

 

 

 

Oil and gas

 

 

3%

 

 

Companies performing such activities as exploratory well drilling, operation of producing wells and bringing crude oil and/or raw natural gas to the surface using alternative methods (including fracing)

 

 

 

 

 

 

 

Other

 

 

8%

 

 

 

 

 

 

 

 

 

 

Total

 

 

100%

 

 

 

 

12

 

Rental Terms

Portable Storage Solutions

We enter into contracts with our portable storage customers based on a monthly rate.  The rental continues until cancelled by the customer or the Company. On average, the steel storage containers on rent at December 31, 2015, have been in place for 30 months, and the steel ground level offices on rent at December 31, 2015 have been in place for 14 months. Our rental contracts provide that the customer is responsible for the cost of delivery and pickup and specify that the customer is liable for any damage done to the unit beyond ordinary wear and tear. Customers may purchase a damage waiver from us to avoid damage liability in certain circumstances, which provides us with an additional source of recurring revenue. Customer possessions stored within a portable storage unit are the responsibility of that customer.

Specialty Containment Solutions

Specialty containment product rental contracts specify that the customer is responsible for carrying commercial general liability insurance, is liable for any damage to the unit beyond ordinary wear and tear, and for all materials the customer contains in rented equipment. The customer is contractually responsible for the cost of delivery and pickup, as well as thoroughly emptying and cleaning the equipment before return.  Rental contracts typically offer daily, weekly or monthly rates.  Duration of rental varies widely by application, and the rental continues until the unit is returned clean.

Competition

In all segments, we face competition from local and regional companies, as well as national companies, in substantially all of our current markets. We compete with several large national and international companies in our ground level office product line. Our competitors include lessors of storage units, mobile offices, van trailers and other structures used for portable storage. We also compete with conventional fixed self-storage facilities. In our portable storage segment, we compete primarily in terms of security, convenience, product quality, broad product selection and availability, rental rates and customer service. In our core portable storage business, our largest competitors are Algeco Scotsman, PODS, Pac-Van, 1-800-PACK-RAT, Haulaway Storage Containers, ModSpace, McGrath RentCorp, and Wernick Hire, along with other national, regional and local companies. In our specialty containment business we compete based on factors including:  quality and breadth of equipment, technical applications expertise, knowledgeable and experienced sales and service personnel, on-time delivery and proactive logistics management, geographic areas serviced, rental rates and customer service. Our competitors include BakerCorp, Rain For Rent and Adler Tanks.

Employees

As of December 31, 2015, we employed 1,982 employees, the majority of which are full time.  Of these employees, 1,589 are employed in North America and 393 are employed in the U.K.  No employees are currently covered by a collective bargaining agreement, and we have never experienced a work stoppage. We believe that our relations with our employees are good.

Seasonality

Demand from our portable storage customers is somewhat seasonal. Construction customers typically reflect higher demand during months with more temperate weather, while demand for our portable storage units by large retailers is stronger from September through December because these retailers need to store more inventories for the holiday season. Our retail customers usually return these rented units to us in December and early in the following year. In the specialty containment business, demand from customers is typically higher in the middle of the year from March to October, driven by the timing of customer maintenance projects. The demand for rental of our pumps may also be impacted by weather, specifically when temperatures drop below freezing.

Environmental and Safety

Our operations, and the operations of certain of our customers, are subject to numerous federal and local laws and regulations governing environmental protection and transportation. These laws regulate such issues as wastewater, storm water and the management, storage and disposal of, or exposure to, hazardous substances.  We are not aware of any pending environmental compliance or remediation matters that are reasonably likely to have a material adverse effect on our business, financial position or results of operations.  However, failure by us to comply with applicable environmental and other requirements could result in fines, penalties, enforcement actions, third party claims, remediation actions, and could negatively impact our reputation with customers. We have a company-wide focus on safety and have implemented a number of measures to promote workplace safety. Customers are increasingly focused on safety records in their sourcing decisions due to increased regulations to report all incidents that occur at their sites and the costs associated with such incidents.

13

 

Access to Information

Our Internet address is www.mobilemini.com. We make available at this address, free of charge, our Annual Report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. In this Form 10-K, we incorporate by reference as identified herein certain information from parts of our proxy statement for the 2016 Annual Meeting of Stockholders, which we will file with the SEC and which will be available free of charge on our Web site. Reports of our executive officers, directors and any other persons required to file securities ownership reports under Section 16(a) of the Exchange Act are also available through our Web site. Information contained on our Web site is not part of this Annual Report on Form 10-K.

 

 

ITEM 1A.

RISK FACTORS .

Our business, results of operations and financial condition are subject to numerous risks and uncertainties. Set forth below and elsewhere in this Annual Report on Form 10-K and in other documents we file with the SEC are descriptions of the risks and uncertainties that could cause our actual results to differ materially from the results contemplated by the forward-looking statements contained in this Annual Report on Form 10-K. Should any of these risks materialize, our business, results of operations, financial condition and future prospects could be negatively impacted, which in turn could affect the trading value of our securities.

RISKS RELATED TO OUR BUSINESS

We may experience difficulties implementing our new global ERP system.

We are engaged in a multi-year development of a new global ERP system. We expect this implementation to begin in the first quarter of 2016.  The ERP system is designed to accurately maintain our books and records and provide information important to the operation of the business to our management team. Our ERP system will continue to require significant investment of human and financial resources. In implementing the ERP system, we may experience significant delays, increased costs and other difficulties. Any significant disruption or deficiency in the design and implementation of the ERP system could adversely affect our ability to process orders, deliver units, send invoices and track payments, fulfill contractual obligations or otherwise operate our business. While we have invested significant resources in planning and project management, significant implementation issues may arise which could significantly impact our operations and financial performance.

We may not be able to successfully integrate past acquisitions, or complete and integrate future acquisitions, or greenfield expansions.

Any acquisition or expansion may result in additional and unexpected expenses, and the anticipated benefits of the integration of an acquisition or expansion may not be realized. In addition, we may assume certain liabilities in connection with any acquisition.  To the extent there are unrecorded liabilities, including current or future environmental-related costs, which we failed to discover during our due diligence investigations and that are not subject to indemnification or reimbursement, our future operations could be materially and adversely affected.

We may not be able to successfully complete future strategic acquisitions if we cannot reach agreement on acceptable terms or for other reasons. We may have to incur debt or issue equity securities to pay for any future acquisition, the issuance of which could involve the imposition of restrictive covenants or be dilutive to our existing stockholders.

In connection with potential future acquisitions, we may experience difficulty integrating personnel and operations, which could negatively affect our operating results in the following manner:

 

·

key personnel of the acquired company may decide not to work for us;

 

·

we may experience business disruptions as a result of information technology systems conversions;

 

·

we may experience additional financial and accounting challenges and complexities in areas such as tax planning, treasury management, and financial reporting;

 

·

we may be held liable for environmental risks and liabilities as a result of our acquisitions or expansion, some of which we may not have discovered during our due diligence;

 

·

we may assume the liabilities of companies we acquire or properties we expand to in the future, including liabilities for environmental-related costs, which could materially and adversely affect our business;

14

 

 

·

our ongoing core business may be disrupted or receive insufficient management attention; and  

 

·

we may not be able to realize anticipated cost savings, synergies or other financial benefits.

Our operational measures designed to increase revenue while continuing to control operating costs may not generate the improvements and efficiencies we expect and may impact customers.

We have responded to past economic slowdowns by employing a number of operational measures designed to increase revenue while continuing to pursue our strategy of reducing operating costs where available. Additionally, our hybrid sales strategy of using local sales people in addition to a centralized call center team is designed to meet customer needs and drive revenue growth but differs from our historic sales structure.  No assurance can be given that these strategies will achieve the desired goals and efficiencies in the future. The success of these strategies is dependent on a number of factors that are beyond our control.

Even if we carry out these measures in the manner we currently expect, we may not achieve the improvements or efficiencies we anticipate, or on the timetable we anticipate. There may be unforeseen productivity, revenue or other consequences resulting from our strategies that will adversely affect us. Therefore, there can be no guarantee that our strategies will prove effective in achieving desired profitability or margins. Additionally, these strategies may have adverse consequences if our cost cutting and operational changes are deemed by customers to adversely impact product quality or service levels.

We face intense competition that may lead to our inability to increase or maintain our prices, which could have a material adverse impact on our results of operations.

The portable storage and specialty containment industries are highly competitive and highly fragmented. Many of the markets in which we operate are served by numerous competitors, ranging from national companies like ourselves, to smaller multi-regional companies and small, independent businesses with a limited number of locations. See “Business — Competition.” Some of our principal competitors are less leveraged than we are and may have lower fixed costs and may be better able to withstand adverse market conditions within the industry. Additionally, some of our competitors currently offer products outside of our offerings or may have better brand recognition in some end customer sectors. If these competitors use their brand awareness to enter our product offerings, customers may choose these competitors’ products over ours and we could lose business. Our competitors typically compete aggressively on the basis of pricing and may continue to impact our ability to attract and retain customers or maintain the rental rates we charge. Additionally, general economic factors could negatively impact the rental rates we are able to charge. To the extent that we choose to match our competitors’ declining prices, it could harm our results of operations as we would have lower margins. To the extent that we choose not to match or remain within a reasonable competitive distance from our competitors’ pricing, it could also harm our results of operations, as we may lose rental volume.

We rely heavily on information technology in our operations, and any cyber-security issue, material failure, inadequacy, interruption or breach of security of that technology could harm our ability to effectively operate our business.

We rely heavily on information systems across our operations. Our ability to effectively manage our business depends significantly on the reliability and capacity of these systems. In addition, we utilize third-party cloud providers to host certain of our applications and to store data. Like other companies, our information technology systems may be vulnerable to a variety of interruptions due to our own error or events beyond our control, including, but not limited to, cyber-security breaches, interruptions or delays in service from our third-party cloud providers, natural disasters, terrorist attacks, telecommunications failures, computer viruses, hackers, and other security issues. The failure of these systems to operate effectively, could result in substantial harm or inconvenience to us or our customers. This could include the theft of our intellectual property or trade secrets, or the improper use of personal information or other “identity theft.” Each of these situations or data privacy breaches may cause delays in customer service, reduce efficiency in our operations, require significant capital investments to remediate the problem, or result in negative publicity that could harm our reputation and results.

We intend to continue to launch operations into new geographic markets, which may be costly and may not be successful.

We have in the past, and intend in the future, to expand our operations into new geographic markets, primarily in North America.  This expansion could require financial resources that would not therefore be available for other aspects of our business.  In addition, this expansion could require the time and attention of management, leaving less time to focus on existing business. If we fail to manage the risks inherent in our geographic expansion, we could incur capital and operating costs without any related increase in revenue, which would harm our operating results.

15

 

Unionization by some or all of our employees could cause increases in operating costs.

None of our employees are presently covered by collective bargaining agreements.  From time to time various unions attempt to organize certain of our employees. We cannot predict the outcome of any continuing or future efforts to organize our employees, the terms of any future labor agreements, or the effect, if any, those agreements might have on our operations or financial performance.

We believe that a unionized workforce would generally increase our operating costs, divert the attention of management from servicing customers and increase the risk of work stoppages, all of which could have a material adverse effect on our business, results of operations or financial condition.

The supply and cost of used ISO containers fluctuates, which can affect our pricing and our ability to grow.

As needed, we purchase, remanufacture and modify used ISO containers in order to expand our rental fleet. If used ISO container prices increase substantially these price increases could increase our expenses and reduce our earnings, particularly if we are not able (due to competitive reasons or otherwise) to raise our rental rates to absorb this increased cost. Conversely, an oversupply of used ISO containers may cause container prices to fall. In such event, competitors may then lower the rental rates on their storage units. As a result, we may need to lower our rental rates to remain competitive. These events could cause our revenues and our earnings to decline.

We depend on our suppliers for the specialty containment equipment we rent to customers.

Nearly all the specialty containment equipment we rent to customers is manufactured for us by a limited number of suppliers, none of with whom we maintain long-term contracts. If our suppliers were unable or unwilling to provide us with such equipment, our operations would be affected if we were unable to obtain the equipment necessary to operate and grow our business.  Also, should our suppliers substantially increase their prices (due to increased demand in certain products, or otherwise), we may not be able to raise our rental rates to absorb such increased cost.  These events could cause our revenues and earnings to decline.

The supply and cost of raw materials we use in remanufacturing and repairing units fluctuates and could increase our operating costs.

As needed, we remanufacture and repair units for our rental fleet and for sale. In these processes, we purchase steel, paint, glass and other raw materials from various suppliers. We cannot be sure that an adequate supply of these materials will continue to be available on terms acceptable to us. The raw materials we use are subject to price fluctuations that we cannot control. Changes in the cost of raw materials can have a significant effect on our operations and earnings. Rapid increases in raw material prices are often difficult to pass through to customers, particularly to rental customers. If we are unable to pass on these higher costs, our profitability could decline. If raw material prices decline significantly, we may have to write down our raw materials inventory values. If this happens, our results of operations and financial condition could decline.

We are exposed to various possible claims relating to our business and our insurance may not fully protect us.

We are exposed to various possible claims relating to our business. These possible claims include those relating to: (i) personal injury or death caused by products rented or sold by us; (ii) motor vehicle accidents involving our vehicles and our employees; (iii) employment-related claims; (iv) property damage, (v) cyber-security breaches, and (vi) commercial claims. Our insurance policies have deductibles or self-insured retentions which would require us to expend amounts prior to taking advantage of coverage limits. Currently, we believe that we have adequate insurance coverage for the protection of our assets and operations. However, our insurance may not fully protect us for certain types of claims, such as claims for punitive damages or for damages arising from intentional misconduct, which are often alleged in third party lawsuits. In addition, we may be exposed to uninsured liability at levels in excess of our policy limits.

If we are found liable for any significant claims that are not covered by insurance, our liquidity and operating results could be materially adversely affected. It is possible that our insurance carrier may disclaim coverage for any class action and derivative lawsuits against us. It is also possible that some or all of the insurance that is currently available to us will not be available in the future on economically reasonable terms or not available at all. In addition, whether we are covered by insurance or not, certain claims may have the potential for negative publicity surrounding such claims, which may lead to lower revenues, as well as additional similar claims being filed.

16

 

We may not be able to adequately protect our intellectual property and other proprietary rights that are material to our business.

Our ability to compete effectively depends in part upon protection of our rights in trademarks, copyrights and other intellectual property rights we own or license, including patents to our locking system for our portable storage solutions. Our use of contractual provisions, confidentiality procedures and agreements, and trademark, copyright, unfair competition, trade secret and other laws to protect our intellectual property and other proprietary rights may not be adequate. Litigation may be necessary to enforce our intellectual property rights and protect our proprietary information and patents, or to defend against claims by third parties that our services or our use of intellectual property infringe their intellectual property rights. Any litigation or claims brought by or against us could result in substantial costs and diversion of our resources. A successful claim of trademark, copyright or other intellectual property infringement against us could prevent us from providing services, which could harm our business, financial condition or results of operations. In addition, a breakdown in our internal policies and procedures may lead to an unintentional disclosure of our proprietary, confidential or material non-public information, which could in turn harm our business, financial condition or results of operations.

If we determine that our goodwill or other intangible assets have become impaired, we may incur significant charges to our pre-tax income.

At December 31, 2015, we had $706.4 million of goodwill and $73.2 million of unamortized intangible assets on our Consolidated Balance Sheet. In the future, goodwill and intangible assets may increase as a result of future acquisitions. Goodwill is reviewed at least annually for impairment. Both goodwill and intangible assets are reviewed for impairment when an indicator is present. Impairment may result from, among other things, deterioration in the performance of the business, adverse market conditions, stock price, and adverse changes in applicable laws or regulations, including changes that restrict the activities of the Company.

For more information, see the “Notes to Consolidated Financial Statements” included in our financial statements contained in this Annual Report on Form 10-K.

If we fail to attract and retain key management and personnel, we may be unable to implement our business plan.

One of the most important factors in our ability to profitably execute our business plan is our ability to attract, develop and retain qualified personnel, including our chief executive officer (“CEO”) and operational management. Our success in retaining a CEO and attracting and retaining qualified people, particularly local operational and sales management, is dependent on the resources available in individual geographic areas and the impact on the labor supply due to general economic conditions, as well as our ability to provide a competitive compensation package, including the implementation of adequate drivers of retention and rewards based on performance, and work environment. The departure of any key personnel and our inability to enforce non-competition agreements could have a negative impact on our business.

RISKS RELATED TO OUR INDEBTEDNESS, THE ECONOMY, AND GLOBAL CAPITAL AND CREDIT MARKETS

Our business is subject to the general health of the economy, including non-residential spending and energy prices, accordingly any slowdowns or decreases in the U.S. or international economy could materially affect our revenue and operating results.

An economic slowdown in the U.S. or international economy, including non-residential spending and energy prices, may cause substantial volatility in the stock market and layoffs and other restrictions on spending by companies in almost every business sector which could impact our business in a variety of ways, including:

 

·

a reduction in consumer and business spending, which would result in a reduction in demand for our products;

 

·

a negative impact on the ability of our customers to timely pay their obligations to us or our vendors to timely supply services, thus reducing our cash flow; and

 

·

an increase in payment risk with others we do business with, including financial institutions.

Without similar changes in expenses, which may be difficult to achieve, our margins will contract if revenue falls, and ultimately may result in having a material adverse effect on our financial condition.

We operate with a high amount of debt and we may incur significant additional indebtedness.

Our operations are capital intensive, and we operate with a high amount of debt relative to our size. At December 31, 2015, we had $200.0 million in aggregate principal amount of 7.875% senior notes due 2020 (the “Senior Notes”) and $667.7 million of

17

 

indebtedness under our Amended and Restated ABL Credit Agreement with Deutsche Bank AG New York Branch, as administrative agent, and other lenders party thereto (the “Credit Agreement”). Our substantial inde btedness could have adverse consequences. For example, it could:

 

·

require us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness, which could reduce the availability of our cash flow to fund future working capital, pay dividends, capital expenditures, acquisitions and other general corporate purposes;

 

·

make it more difficult for us to satisfy our obligations with respect to the Senior Notes;

 

·

expose us to the risk of increased interest rates, as approximately 73.7% of our borrowings are at variable rates of interest;

 

·

require us to sell assets to reduce indebtedness or influence our decisions about whether to do so;

 

·

increase our vulnerability to general adverse economic and industry conditions;

 

·

limit our flexibility in planning for, or reacting to, changes in our business and our industry;

 

·

restrict us from making strategic acquisitions or pursuing business opportunities; and

 

·

limit, along with the financial and other restrictive covenants in our indebtedness, among other things, our ability to borrow additional funds. Failing to comply with those covenants could result in an event of default which, if not cured or waived, could have a material adverse effect on our business, financial condition and results of operations.

Covenants in our debt instruments restrict or prohibit our ability to engage in or enter into a variety of transactions.

Our Credit Agreement requires us, under certain limited circumstances, to maintain certain financial ratios and limits our ability to make capital expenditures. These covenants and ratios could have an adverse effect on our business by limiting our ability to take advantage of financing, merger and acquisition or other corporate opportunities and to fund our operations. Breach of a covenant in our debt instruments could cause acceleration of a significant portion of our outstanding indebtedness. Any future debt could also contain financial and other covenants more restrictive than those imposed under the indenture governing the Senior Notes, and the Credit Agreement.

The indenture governing the 7.875% Senior Notes contains various covenants that limit our discretion in operating our business. In particular, we are limited in our ability to merge, consolidate or transfer substantially all of our assets, issue preferred stock of subsidiaries and create liens on our assets to secure debt. In addition, if there is a default, and we do not maintain borrowing availability in excess of certain pre-determined levels, we may be unable to incur additional indebtedness, make restricted payments (including paying cash dividends on our capital stock) and redeem or repurchase our capital stock. The Senior Notes do not contain financial maintenance covenants and the financial maintenance covenants under the Credit Agreement are not applicable unless we fall below specific borrowing availability levels.

A breach of a covenant or other provision in any debt instrument governing our current or future indebtedness could result in a default under that instrument and, due to cross-default and cross-acceleration provisions, could result in a default under our other debt instruments. Upon the occurrence of an event of default under the Credit Agreement or any other debt instrument, the lenders could elect to declare all amounts outstanding to be immediately due and payable and terminate all commitments to extend further credit. If we were unable to repay those amounts, the lenders could proceed against the collateral granted to them, if any, to secure the indebtedness. If the lenders under our current or future indebtedness accelerate the payment of the indebtedness, we cannot assure you that our assets or cash flow would be sufficient to repay in full our outstanding indebtedness, including the Senior Notes.

The amount we can borrow under our Credit Agreement depends in part on the value of our rental fleet. If the value of our rental fleet declines under appraisals our lenders receive, the amount we can borrow will similarly decline. We are required to satisfy several covenants with our lenders that are affected by changes in the value of our rental fleet. We would be in breach of certain of these covenants if the value of our rental fleet drops below specified levels. If this happens, we may not be able to borrow the amounts we need to expand our business, and we may be forced to liquidate a portion of our existing fleet.

We may not be able to generate sufficient cash to service all of our debt, and may be forced to take other actions to satisfy our obligations under such indebtedness, which may not be successful.

Our ability to make scheduled payments on or to refinance our obligations under our debt will depend on our financial and operating performance and that of our subsidiaries, which, in turn, will be subject to prevailing economic and competitive conditions and to financial and business factors, many of which may be beyond our control. See the table under “Management’s Discussion and

18

 

Analysis of Financial Condition and Results of Operations — Liquidity and Cap ital Resources — Contractual Obligations” for disclosure regarding the amount of cash required to service our debt.

We may not maintain a level of cash flow from operating activities sufficient to permit us to pay the principal, premium, if any, and interest on our indebtedness. If our cash flow and capital resources are insufficient to fund our debt service obligations, we may be forced to reduce or delay capital expenditures, sell assets, seek to obtain additional equity capital or restructure our debt. Such alternative measures may not be successful and may not enable us to meet our scheduled debt service obligations. We may not be able to refinance any of our indebtedness or obtain additional financing, particularly because of our anticipated high levels of debt and the debt incurrence restrictions imposed by the agreements governing our debt, as well as prevailing market conditions. In the absence of such operating results and resources, we could face substantial liquidity problems and might be required to dispose of material assets or operations to meet our debt service and other obligations. The instruments governing our indebtedness restrict our ability to dispose of assets and use the proceeds from any such dispositions. We may not be able to consummate those sales, or if we do, at an opportune time, or the proceeds that we realize may not be adequate to meet debt service obligations when due.

Fluctuations between the British pound and U.S. dollar could adversely affect our results of operations.

We derived approximately 16.6% of our total revenues in 2015 from our operations in the U.K. The financial position and results of operations of our U.K. subsidiaries are measured using the British pound as the functional currency. As a result, we are exposed to currency fluctuations both in receiving cash from our U.K. operations and in translating our financial results back into U.S. dollars. We believe the impact on us of currency fluctuations from an operations perspective is mitigated by the fact that the majority of our expenses, capital expenditures and revenues in the U.K. are in British pounds. We do, however, have significant currency exposure as a result of translating our financial results from British pounds into U.S. dollars for purposes of financial reporting. Assets and liabilities of our U.K. subsidiaries are translated at the period-end exchange rate in effect at each balance sheet date. Our income statement accounts are translated at the average rate of exchange prevailing during each month. Translation adjustments arising from differences in exchange rates from period to period are included in accumulated other comprehensive loss in stockholders’ equity.

A strengthening of the U.S. dollar against the British pound reduces the amount of income or loss we recognize on a consolidated basis from our U.K. business. We cannot predict the effects of further exchange rate fluctuations on our future operating results. We are also exposed to additional currency transaction risk when our U.S. operations incur purchase obligations in a currency other than in U.S. dollars and our U.K. operations incur purchase obligations in a currency other than in British pounds. As exchange rates vary, our results of operations and profitability may be harmed. We do not currently hedge our currency transaction or translation exposure, nor do we have any current plans to do so. The risks we face in foreign currency transactions and translation may continue to increase as we further develop and expand our U.K. operations. Furthermore, to the extent we expand our business into other countries, we anticipate we will face similar market risks related to foreign currency translation caused by exchange rate fluctuations between the U.S. dollar and the currencies of those countries.

Global capital and credit market conditions could have an adverse effect on our ability to access the capital and credit markets, including our revolving credit facility.

Disruptions in the global credit markets that materially impact liquidity in the debt market, making financing terms for borrowers less attractive or, in some cases, unavailable altogether, have occurred in the past and may occur again in the future. Such a disruption could result in the unavailability of certain types of debt financing, including access to revolving lines of credit. We engage in borrowing and repayment activities under our revolving credit facility on an almost daily basis and have not had any disruption in our ability to access our revolving credit facility as needed. However, future credit market conditions could increase the likelihood that one or more of our lenders may be unable to honor its commitments under our revolving credit facility, which could have an adverse effect on our business, financial condition and results of operations.

Additionally, in the future we may need to raise additional funds to, among other things, fund our existing operations, improve or expand our operations, respond to competitive pressures, or make acquisitions. If adequate funds are not available on acceptable terms, we may be unable to meet our business or strategic objectives or compete effectively. If we raise additional funds by issuing equity securities, stockholders may experience dilution of their ownership interests, and the newly issued securities may have rights superior to those of the common stock. If we raise additional funds by issuing debt, we may be subject to further limitations on our operations arising out of the agreements governing such debt. If we fail to raise capital when needed, our business will be negatively affected.

19

 

RISKS RELATED TO GOVERNMENT REGULATIONS

As Department of Transportation regulations increase, our operations could be negatively impacted and competition for qualified drivers could increase.

We operate in the U.S. pursuant to operating authority granted by the U.S. Department of Transportation (“DOT”). Our Company drivers must comply with the safety and fitness regulations of the DOT, including those relating to drug and alcohol testing and hours-of-service. Such matters as equipment weight and dimensions also are subject to government regulations. Our safety record could be ranked poorly compared to our peer firms.  A poor fleet ranking may result in the loss of customers or difficulty attracting and retaining qualified drivers which could affect our results of operations. Should additional rules be enacted in the future, compliance with such rules could result in additional costs.

We are subject to environmental regulations and could incur costs relating to environmental matters.

Federal, state, local, foreign and provincial laws and regulations regulate such issues as wastewater, storm water, air quality and the management, storage and disposal of, or exposure to, hazardous substances and hazardous and solid wastes. Several aspects of our businesses may involve risks related to environmental and health and safety liability. For example, we own, transport and rent tanks and boxes in which waste materials are placed by our customers. While we have a policy which, with certain limited exceptions, requires customers to return tanks and containers clean of any substances, they may fail to comply with these obligations.  Additionally, we provide waste hauling services, which involves environmental risks during transport.  While we endeavor to comply with all regulatory requirements, failure to be in compliance with any environmental regulatory requirements may increase our compliance or remediation costs or cause restrictions on our business, either of which could have a material effect on our financial position or results of operations.

We are also required to obtain environmental permits from governmental authorities for certain of our operations. If we violate or fail to obtain or comply with these laws, regulations, or permits, we could be fined or otherwise sanctioned by regulators. We could also become liable if employees or other parties are improperly exposed to hazardous materials.

Under certain environmental laws, we could be held responsible for all of the costs relating to any contamination at, or migration to or from, our or our predecessors’ past or present facilities. These laws often impose liability even if the owner, operator or lessor did not know of, or was not responsible for, the release of such hazardous substances.

Environmental laws are complex, change frequently, and have tended to become more stringent over time. The costs of complying with current and future environmental and health and safety laws, and our liabilities arising from past or future releases of, or exposure to, hazardous substances, may adversely affect our business, results of operations, or financial condition.

Ongoing governmental review of hydraulic fracturing (“fracing”) and its environmental impact could lead to changes to this activity or its substantial curtailment, which could adversely affect our revenue and results of operations.

Approximately 14% of ETS’ rental revenue for the year ended December 31, 2015, is related to customers involved in the upstream exploration and production of oil and natural gas.  A portion of this revenue involves rentals to customers that use the fracing method to extract natural gas.  The Environmental Protection Agency is studying the potential adverse effects that fracing may have on the environment and public health, and has issued regulations or guidance regarding certain aspects of the process.  Other federal, state and local governments and governmental agencies have also begun to investigate and/or regulate fracing.  Additional governmental regulation could result in increased costs of compliance or the curtailment of fracing in the future, which would adversely affect our revenue and results of operations.

Some zoning laws in the U.S. and Canada and temporary planning permission regulations in the U.K. restrict the use of our portable storage and office units and therefore limit our ability to offer our products in all markets.

Most of our customers use our storage units to store their goods on their own properties for various lengths of time. Local zoning laws and temporary planning permission regulations in some of our markets do not allow some of our customers to keep portable storage and office units on their properties or do not permit portable storage units unless located out of sight from the street or may limit the type of product they may use or how long it can be at their locations. If local zoning laws or planning permission regulations in one or more of our markets no longer allow our units to be stored on customers’ sites, our business in that market will suffer.

20

 

We face unique regulatory and political challenges presented by international markets.

In connection with our business outside the U.S., we face exposure to additional regulatory requirements, including certain trade barriers, changes in political and economic conditions, and exposure to additional and potentially adverse tax regimes. Our success in the U.K. depends, in part, on our ability to anticipate and effectively manage these and other risks.  Our failure to manage these risks may adversely affect our growth, in the U.K. and elsewhere, and lead to increased administrative costs.

RISKS RELATED TO OUR COMMON STOCK

The market price of our common stock has been volatile and may continue to be volatile and the value of your investment may decline.

Volatility may cause wide fluctuations in the price of our common stock on the NASDAQ Global Select Market. The market price of our common stock is likely to be affected by:

 

·

changes in general conditions in the economy, geopolitical events or the financial markets;

 

·

variations in our quarterly operating results;  

 

·

changes in financial estimates by securities analysts;

 

·

other developments affecting us, our industry, customers or competitors;

 

·

changes in demand for our products or the prices we charge due to changes in economic conditions, competition or other factors;

 

·

general economic conditions in the markets where we operate;

 

·

the cyclical nature of our customers’ businesses, particularly those operating in the construction sectors;

 

·

the market perception that we are exposed to oil and gas production more than we currently are, and the related stock market volatility around oil and gas production companies;

 

·

rental rate changes in response to competitive factors;

 

·

bankruptcy or insolvency of our customers, thereby reducing demand for our used units;

 

·

seasonal rental patterns;

 

·

acquisitions or divestitures and related costs;

 

·

labor shortages, work stoppages or other labor difficulties;

 

·

possible unrecorded liabilities of acquired companies;

 

·

possible write-offs or exceptional charges due to changes in applicable accounting standards, goodwill impairment, or divestiture or impairment of assets;

 

·

the operating and stock price performance of companies that investors deem comparable to us; and

 

·

the number of shares available for resale in the public markets under applicable securities laws.

 

 

ITEM 1B.

UNRESOLVED STAFF COMMENTS .

We have received no written comments regarding our periodic or current reports from the Staff of the SEC that were issued 180 days or more preceding the end of our 2015 fiscal year and that remain unresolved.

 

 

ITEM 2.

PROPERTIES .

The location and general character of our principal properties are as follows:

Corporate and administrative:

 

·

Our corporate and administrative offices are located in Phoenix, Arizona. These leased offices occupy approximately 50,000 square feet of office space, including our NSC. The lease term expires in October 2025.

21

 

 

·

Our U.K. headquarters are located in Stockton-on-Tees, United Kin gdom, where we lease approximately 10,000 square feet of office space. The lease term expires in July 2017.  

Field Locations . We locate our field operations in markets with attractive demographics and strong growth prospects. Within each market, we are located in areas that allow for easy delivery of units to our customers over a wide geographic area. In addition, when cost effective, we seek locations that are visible from high traffic roads in order to advertise our products and our name. A typical branch consists of outdoor storage space for units not currently on rent and a small office. These properties tend to be one to five acre sites with little development needed for us to use them, other than a paved or hard-packed surface, utilities and proper zoning.  In North America we own 3 locations, and in the U.K., we own 2 locations. We lease the remaining locations in which we operate.

Other . We own a 43-acre facility in Maricopa, Arizona that is primarily used to rebrand, remanufacture and perform major repairs and maintenance on our existing rental fleet and build custom sale units.

We believe that satisfactory alternative properties can be found in all of our markets if we do not renew these existing leased properties.

 

 

ITEM 3.

LEGAL PROCEEDINGS .

We are party from time to time to various claims and lawsuits that arise in the ordinary course of business, including claims related to employment matters, contractual disputes, personal injuries and property damage. In addition, various legal actions, claims and governmental inquiries and proceedings are pending or may be instituted or asserted in the future against us and our subsidiaries.  

Litigation is subject to many uncertainties, and the outcome of the individual litigated matters is not predictable with assurance. It is possible that certain of the actions, claims, inquiries or proceedings, including those discussed above, could be decided unfavorably to us or any of our subsidiaries involved. Although we cannot predict with certainty the ultimate resolution of lawsuits, investigations and claims asserted against us, we do not believe that the ultimate resolution of these claims or lawsuits will have a material adverse effect on our business, financial condition, results of operations or cash flows.

 

 

ITEM  4.

MINE SAFETY DISCLOSURES .

Not applicable.

 

 

22

 

PART  II

ITEM 5.

MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES.

Common Stock Prices

Our common stock trades on The NASDAQ Global Select Market under the symbol “MINI”. The following are the high and low sale prices for the common stock during the periods indicated as reported by the NASDAQ Stock Market.

 

 

 

2015

 

 

2014

 

 

 

High

 

 

Low

 

 

High

 

 

Low

 

Quarter ended March 31,

 

$

44.47

 

 

$

35.60

 

 

$

45.68

 

 

$

37.69

 

Quarter ended June 30,

 

 

44.45

 

 

 

36.38

 

 

 

49.02

 

 

 

40.14

 

Quarter ended September 30,

 

 

42.79

 

 

 

29.07

 

 

 

49.68

 

 

 

34.97

 

Quarter ended December 31,

 

 

37.16

 

 

 

29.52

 

 

 

45.48

 

 

 

34.32

 

 

We had 66 holders of record of our common stock on January 25, 2016.  The number of beneficial owners is substantially greater than the number of record holders because a large portion of our common stock is held of record in broker “street names.”

Dividend Policy

In November 2013, our Board of Directors (the “Board”) authorized the initiation of a quarterly cash dividend program to all of our common stockholders with the first quarterly common stock cash dividend paid in the first quarter of 2014. Each dividend payment is subject to review and approval by the Board.  During fiscal 2015, we paid cash dividends of approximately $0.75 per share for a total of $33.7 million.  Our Credit Agreement contains certain restrictions on the declaration and payment of dividends.

Issuer Purchases of Equity Securities

On November 6, 2013, the Board approved a share repurchase program authorizing up to $125.0 million of our outstanding shares of common stock to be repurchased. On April 17, 2015, the Board authorized up to an additional $50.0 million of our outstanding shares of common stock to be repurchased, for a total of $175.0 million under the share repurchase program. The shares may be repurchased from time to time in the open market or in privately negotiated transactions. The share repurchases are subject to prevailing market conditions and other considerations. The share repurchase program does not have an expiration date and may be suspended or terminated at any time by the Board. All shares repurchased are held in treasury.

During fiscal 2015, we purchased approximately 1.7 million shares of our common stock at a cost of $61.0 million under the authorized share repurchase program.  During fiscal 2015, we also withheld approximately 21,000 shares of vested stock awards from employees, for an approximate value of $0.8 million, upon vesting of stock awards to satisfy minimum tax withholding obligations.  These shares were not acquired pursuant to the share repurchase program.

The table below summarizes the information about purchases of our common stock during the quarterly period ended December 31, 2015:

 

Period

Total Number of

Shares Purchased (1)

 

 

Average Price Paid

per Share (2)

 

 

Total Number of Shares

Purchased as Part of

Publicly Announced

Plans or Programs (3)

 

 

Approximate Dollar

Value of Shares

That May Yet be

Purchased Under the

Plans or Programs (3)

 

October 2015

 

41

 

 

$

33.83

 

 

 

—

 

 

$

94,654

 

November 2015

 

110,607

 

 

 

33.96

 

 

 

108,055

 

 

 

90,988

 

December 2015

 

72,105

 

 

 

31.25

 

 

 

63,995

 

 

 

88,990

 

Total

 

182,753

 

 

 

 

 

 

 

172,050

 

 

 

 

 

 

(1)

Shares not purchased as part of a publicly announced plan or program represent shares withheld from employees to satisfy minimum tax withholding obligations upon the vesting of restricted stock.

(2)

The weighted average price paid per share of common stock does not include the cost of commissions.

(3)

In November 2013, the Company’s Board approved a share repurchase program authorizing up to $125.0 million of the Company’s outstanding shares of common stock to be repurchased.  In April 2015, the Board approved an increase of $50.0 million to the share repurchase program.  The shares may be repurchased from time to time in the open market or in privately

23

 

negotiated transactions.  The share repurchase program does not have an expiration date and may be suspended or terminated at any time by the Board.  

Stock Performance Graph

The following Performance Graph and related information shall not be deemed “soliciting material” or “filed” with the SEC, nor should such information be incorporated by reference into any future filings under the Securities Act or the Exchange Act, except to the extent that Mobile Mini specifically incorporates it by reference in such filing.

The following graph compares the five-year cumulative total return on our common stock with the cumulative total returns (assuming reinvestment of dividends) on the Standard and Poor’s SmallCap 600 and the NASDAQ US Benchmark TR Index if $100 were invested in our common stock and each index on December 31, 2010.

Comparison of Five Year Cumulative Total Return*

Among Mobile Mini, Inc., the Standard & Poor’s SmallCap 600 and the NASDAQ US Benchmark TR Index

 

 

 

 

2010

 

 

2011

 

 

2012

 

 

2013

 

 

2014

 

 

2015

 

Mobile Mini, Inc.

 

$

100.00

 

 

$

88.62

 

 

$

105.89

 

 

$

209.14

 

 

$

209.11

 

 

$

163.93

 

Standard & Poor's SmallCap 600

 

 

100.00

 

 

 

101.02

 

 

 

117.51

 

 

 

166.05

 

 

 

175.61

 

 

 

172.14

 

NASDAQ US Benchmark TR Index

 

 

100.00

 

 

 

100.31

 

 

 

116.79

 

 

 

155.90

 

 

 

175.33

 

 

 

177.82

 

 

*

Total Return based on $100 initial investment and reinvestment of dividends.

 

 

24

 

ITEM 6.

SELECTED FINANCIAL DATA.  

The following selected financial data reflect the results of operations, cash flow and balance sheet data as of and for the years ended December 31, 2011 through 2015.  You should read this material with “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and the financial statements and related footnotes included elsewhere in this Annual Report on Form 10-K.

 

 

 

For the Years Ended December 31,

 

 

 

2015

 

 

2014

 

 

2013

 

 

2012

 

 

2011

 

 

 

(In thousands, except per share and operating data)

 

Consolidated Statements of Income Data:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental

 

$

494,715

 

 

$

410,362

 

 

$

366,286

 

 

$

339,975

 

 

$

314,695

 

Sales

 

 

29,953

 

 

 

31,585

 

 

 

38,051

 

 

 

37,759

 

 

 

41,675

 

Other

 

 

6,109

 

 

 

3,527

 

 

 

2,149

 

 

 

2,162

 

 

 

2,700

 

Total revenues

 

 

530,777

 

 

 

445,474

 

 

 

406,486

 

 

 

379,896

 

 

 

359,070

 

Costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental, selling and general expenses

 

 

326,252

 

 

 

280,948

 

 

 

237,567

 

 

 

218,709

 

 

 

201,239

 

Cost of sales

 

 

19,671

 

 

 

21,944

 

 

 

25,413

 

 

 

23,178

 

 

 

26,149

 

Restructuring expenses

 

 

20,798

 

 

 

3,542

 

 

 

2,402

 

 

 

7,123

 

 

 

1,059

 

Asset impairment charge and loss on divestiture, net

 

 

66,128

 

 

 

557

 

 

 

38,705

 

 

 

—

 

 

 

—

 

Depreciation and amortization

 

 

60,344

 

 

 

39,334

 

 

 

35,432

 

 

 

35,982

 

 

 

35,432

 

Total costs and expenses

 

 

493,193

 

 

 

346,325

 

 

 

339,519

 

 

 

284,992

 

 

 

263,879

 

Income from operations

 

 

37,584

 

 

 

99,149

 

 

 

66,967

 

 

 

94,904

 

 

 

95,191

 

Other income (expense):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest income

 

 

1

 

 

 

—

 

 

 

1

 

 

 

1

 

 

 

—

 

Interest expense

 

 

(35,900

)

 

 

(28,729

)

 

 

(29,467

)

 

 

(37,268

)

 

 

(46,120

)

Debt restructuring/extinguishment expense

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(2,812

)

 

 

(1,334

)

Deferred financing costs write-off

 

 

(931

)

 

 

—

 

 

 

—

 

 

 

(1,889

)

 

 

—

 

Foreign currency exchange

 

 

(2

)

 

 

(1

)

 

 

(2

)

 

 

(4

)

 

 

(6

)

Income from continuing operations before income tax

   (benefit) provision

 

 

752

 

 

 

70,419

 

 

 

37,499

 

 

 

52,932

 

 

 

47,731

 

Income tax (benefit) provision

 

 

(4,822

)

 

 

26,033

 

 

 

12,275

 

 

 

18,509

 

 

 

16,578

 

Income from continuing operations

 

 

5,574

 

 

 

44,386

 

 

 

25,224

 

 

 

34,423

 

 

 

31,153

 

Loss from discontinued operation, net of tax

 

 

—

 

 

 

—

 

 

 

(1,302

)

 

 

(245

)

 

 

(557

)

Net income

 

 

5,574

 

 

 

44,386

 

 

 

23,922

 

 

 

34,178

 

 

 

30,596

 

Earnings allocable to preferred stockholders

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(966

)

Net income available to common stockholders

 

$

5,574

 

 

$

44,386

 

 

$

23,922

 

 

$

34,178

 

 

$

29,630

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Earnings per Share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Income from continuing operations

 

$

0.12

 

 

$

0.96

 

 

$

0.55

 

 

$

0.77

 

 

$

0.72

 

Loss from discontinued operation

 

 

—

 

 

 

—

 

 

 

(0.02

)

 

 

—

 

 

 

(0.01

)

Net income

 

$

0.12

 

 

$

0.96

 

 

$

0.53

 

 

$

0.77

 

 

$

0.71

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Diluted

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Income from continuing operations

 

$

0.12

 

 

$

0.95

 

 

$

0.55

 

 

$

0.76

 

 

$

0.70

 

Loss from discontinued operation

 

 

—

 

 

 

—

 

 

 

(0.03

)

 

 

—

 

 

 

(0.01

)

Net income

 

$

0.12

 

 

$

0.95

 

 

$

0.52

 

 

$

0.76

 

 

$

0.69

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted average number of common and common

   share equivalents outstanding

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

 

44,953

 

 

 

46,026

 

 

 

45,481

 

 

 

44,657

 

 

 

41,566

 

Diluted

 

 

45,460

 

 

 

46,725

 

 

 

46,096

 

 

 

45,102

 

 

 

44,569

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Other Data:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net cash from operating activities

 

$

152,814

 

 

$

120,625

 

 

$

116,111

 

 

$

90,949

 

 

$

84,969

 

Net cash from investing activities

 

 

(14,415

)

 

 

(446,752

)

 

 

(6,020

)

 

 

(29,383

)

 

 

(12,787

)

Net cash from financing activities

 

 

(140,576

)

 

 

329,780

 

 

 

(110,345

)

 

 

(60,719

)

 

 

(71,063

)

 

25

 

 

 

For the Years Ended December 31,

 

 

 

2015

 

 

2014

 

 

2013

 

 

2012

 

 

2011

 

 

 

(Dollars in thousands)

 

Operating Data (unaudited):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Number of portable storage stand-alone locations

   (at year end)

 

 

133

 

 

 

136

 

 

 

136

 

 

 

135

 

 

 

132

 

Number of specialty containment stand-alone

   locations (at year end)

 

 

19

 

 

 

24

 

 

 

—

 

 

 

—

 

 

 

—

 

Combined portable storage and specialty

   containment locations (at year end)

 

 

7

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

 

 

Portable storage rental fleet units (at year end)

 

 

205,695

 

 

 

213,546

 

 

 

212,898

 

 

 

233,728

 

 

 

236,685

 

Specialty containment rental fleet units (at year end)

 

 

11,744

 

 

 

10,265

 

 

 

—

 

 

 

—

 

 

 

—

 

Portable Storage rental fleet utilization

   (annual average) (1)

 

 

69.4

 

%

 

68.6

%

 

 

65.8

%

 

 

60.0

%

 

 

57.1

%

Specialty Containment rental fleet utilization

   (annual average) (1)(2)

 

 

68.0

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

(1)

Average utilization defined as average units on rent divided by average rental fleet size in units.

(2)

Specialty containment business acquired in December 2014.  The twelve months ended December 31, 2015 is the first meaningful period for this statistic.

 

 

 

December 31,

 

 

 

2015

 

 

2014

 

 

2013

 

 

2012

 

 

2011

 

 

 

(In thousands)

 

Consolidated Balance Sheet Data:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental fleet, net

 

$

951,323

 

 

$

1,087,056

 

 

$

979,276

 

 

$

1,028,773

 

 

$

1,016,031

 

Total assets

 

 

1,979,222

 

 

 

2,103,174

 

 

 

1,677,374

 

 

 

1,727,560

 

 

 

1,707,500

 

Total debt

 

 

905,982

 

 

 

930,436

 

 

 

528,095

 

 

 

643,343

 

 

 

696,472

 

Stockholders' equity

 

 

765,529

 

 

 

854,531

 

 

 

855,544

 

 

 

809,519

 

 

 

753,914

 

 

Non-GAAP Data and Reconciliations

EBITDA and Adjusted EBITDA. EBITDA is defined as net income before discontinued operation, net of tax (if applicable), interest expense, income taxes, depreciation and amortization, and debt restructuring or extinguishment expense (if applicable), including any write-off of deferred financing costs. Adjusted EBITDA further excludes certain non-cash expenses, as well as transactions that management believes are not indicative of our ongoing business.  Because EBITDA and adjusted EBITDA, as defined, exclude some but not all items that affect our cash flow from operating activities, they may not be comparable to similarly titled performance measures presented by other companies.

We present EBITDA and adjusted EBITDA because we believe that they provide an overall evaluation of our financial condition and useful information regarding our ability to meet our future debt payment requirements, capital expenditures and working capital requirements. EBITDA and adjusted EBITDA have certain limitations as analytical tools and should not be used as substitutes for net income, cash flows, or other consolidated income or cash flow data prepared in accordance with generally accepted accounting principles in the U.S. (“GAAP”).

EBITDA and adjusted EBITDA margins are calculated as EBITDA and adjusted EBITDA divided by total revenues expressed as a percentage. The GAAP financial measure that is most directly comparable to EBITDA margin is operating margin, which represents operating income divided by revenues.

 

 

 

For the Years Ended December 31,

 

 

 

2015

 

 

2014

 

 

2013

 

 

2012

 

 

2011

 

 

 

(In thousands, except percentages)

 

Non-GAAP Data:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EBITDA

 

$

97,927

 

 

$

138,482

 

 

$

102,398

 

 

$

130,883

 

 

$

130,617

 

EBITDA margin

 

 

18.4

%

 

 

31.1

%

 

 

25.2

%

 

 

34.5

%

 

 

36.4

%

Adjusted EBITDA

 

$

200,836

 

 

 

162,141

 

 

 

157,465

 

 

 

145,447

 

 

 

140,130

 

Adjusted EBITDA margin

 

 

38.1

%

 

 

36.4

%

 

 

38.7

%

 

 

38.3

%

 

 

39.0

%

Free cash flow

 

$

73,644

 

 

 

104,819

 

 

 

109,414

 

 

 

65,129

 

 

 

79,965

 

26

 

 

Reconciliation of net income to EBITDA and adjusted EBITDA is as follows:

 

 

 

For the Years Ended December 31,

 

 

 

 

2015

 

 

2014

 

 

2013

 

 

2012

 

 

2011

 

 

 

 

(In thousands)

 

 

Net income

 

$

5,574

 

 

$

44,386

 

 

$

23,922

 

 

$

34,178

 

 

$

30,596

 

 

Loss from discontinued operation, net of tax

 

 

—

 

 

 

—

 

 

 

1,302

 

 

 

245

 

 

 

557

 

 

Interest expense

 

 

35,900

 

 

 

28,729

 

 

 

29,467

 

 

 

37,268

 

 

 

46,120

 

 

Income tax (benefit) provision

 

 

(4,822

)

 

 

26,033

 

 

 

12,275

 

 

 

18,509

 

 

 

16,578

 

 

Depreciation and amortization

 

 

60,344

 

 

 

39,334

 

 

 

35,432

 

 

 

35,982

 

 

 

35,432

 

 

Debt restructuring/extinguishment expense

 

 

—

 

 

 

—

 

 

 

—

 

 

 

2,812

 

 

 

1,334

 

 

Deferred financing costs write-off

 

 

931

 

 

 

—

 

 

 

—

 

 

 

1,889

 

 

 

—

 

 

EBITDA

 

 

97,927

 

 

 

138,482

 

 

 

102,398

 

 

 

130,883

 

 

 

130,617

 

 

Share-based compensation expense (1)

 

 

12,277

 

 

 

14,490

 

 

 

13,956

 

 

 

7,151

 

 

 

6,438

 

 

Restructuring expenses (2)

 

 

20,798

 

 

 

3,542

 

 

 

2,402

 

 

 

7,123

 

 

 

1,059

 

 

Acquisition-related expenses (3)

 

 

2,650

 

 

 

5,070

 

 

 

4

 

 

 

139

 

 

 

610

 

 

Asset impairment charge and loss on divestiture, net (4)

 

 

66,128

 

 

 

557

 

 

 

38,705

 

 

 

—

 

 

 

—

 

 

Sales tax refund (5)

 

 

(1,176

)

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

Transition services revenue (6)

 

 

(2,997

)

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

Transition services expense (6)

 

 

4,357

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

Other (7)

 

 

872

 

 

 

—

 

 

 

—

 

 

 

151

 

 

 

1,406

 

 

Adjusted EBITDA

 

$

200,836

 

 

$

162,141

 

 

$

157,465

 

 

$

145,447

 

 

$

140,130

 

 

EBITDA margin

 

 

18.4

 

%

 

31.1

 

%

 

25.2

 

%

 

34.5

 

%

 

36.4

 

%

Adjusted EBITDA, margin (8)

 

 

38.1

 

 

 

36.4

 

 

 

38.7

 

 

 

38.3

 

 

 

39.0

 

 

 

 

 

Reconciliation of net cash provided by operating activities to EBITDA is as follows:

 

 

 

For the Years Ended December 31,

 

 

 

2015

 

 

2014

 

 

2013

 

 

2012

 

 

2011

 

 

 

(In thousands)

 

Net cash provided by operating activities

 

$

152,814

 

 

$

120,625

 

 

$

116,111

 

 

$

90,949

 

 

$

84,969

 

Discontinued operation

 

 

—

 

 

 

—

 

 

 

732

 

 

 

11

 

 

 

362

 

Interest paid

 

 

32,372

 

 

 

24,559

 

 

 

25,947

 

 

 

35,145

 

 

 

42,683

 

Income and franchise taxes paid

 

 

4,935

 

 

 

1,103

 

 

 

1,114

 

 

 

831

 

 

 

816

 

Share-based compensation expense, including

   share-based restructuring expense (1)(2)

 

 

(13,827

)

 

 

(15,071

)

 

 

(14,714

)

 

 

(9,575

)

 

 

(6,456

)

Asset impairment charge and loss on divestiture, net (4)

 

 

(66,128

)

 

 

(557

)

 

 

(38,217

)

 

 

—

 

 

 

—

 

Non-cash restructuring expense, excluding

   share-based compensation (2)

 

 

(12,411

)

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

Loss on disposal of discontinued operation

 

 

—

 

 

 

—

 

 

 

(1,948

)

 

 

—

 

 

 

—

 

Gain on sale of rental fleet

 

 

6,402

 

 

 

5,732

 

 

 

9,682

 

 

 

11,781

 

 

 

13,800

 

(Gain) loss on disposal of property, plant and equipment

 

 

(2,188

)

 

 

(348

)

 

 

(247

)

 

 

130

 

 

 

(91

)

Change in certain assets and liabilities, net of effect of

   businesses acquired:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Receivables

 

 

479

 

 

 

4,419

 

 

 

1,480

 

 

 

2,899

 

 

 

4,148

 

Inventories

 

 

(945

)

 

 

(2,680

)

 

 

393

 

 

 

(1,352

)

 

 

1,242

 

Deposits and prepaid expenses

 

 

833

 

 

 

1,416

 

 

 

(653

)

 

 

(537

)

 

 

(1,067

)

Other assets and intangibles

 

 

22

 

 

 

(17

)

 

 

(10

)

 

 

161

 

 

 

33

 

Accounts payable and accrued liabilities

 

 

(4,431

)

 

 

(699

)

 

 

2,728

 

 

 

440

 

 

 

(9,822

)

EBITDA

 

$

97,927

 

 

$

138,482

 

 

$

102,398

 

 

$

130,883

 

 

$

130,617

 

 

(1)

Share-based compensation represents non-cash compensation expense associated with the granting of equity instruments. The reconciliation of net cash provided by operating activities to EBITDA includes share-based compensation recognized within restructuring expense.

27

 

(2)

The Company has undergone restructuring actions to align its business operations.  For more i nformation related to the 2015, 2014 and 2013 restructuring costs, see Note 15 to the accompanying consolidated financial statements.  In 2012 restructuring expenses primarily relate to a transition in leadership, including our then President and CEO.  In 2011 restructuring expenses primarily relate to reductions in our workforce.    

(3)

Incremental costs associated with acquisitions.

(4)

In 2015 these costs represent asset impairment charge and loss on divestiture of the wood mobile offices, net.  In 2014 and 2013, these costs  primarily represent the non-cash impairment charge for the write-down on certain assets classified as held for sale in the second quarter of 2013 and the loss upon completion of sale (offset by gains upon completion of sale) of assets that were written down to fair value in 2013.

(5)

Revenue of $1.2 million associated with a sales tax refund.

(6)

Transition services revenue and operating expenses associated with the provision of transition services related to the wood mobile divestiture, including expenses related to wood mobile offices on our leased properties.

(7)

Other expenses in 2015 are related to the settlement of an outstanding unclaimed property liability with the state of Delaware.  In 2011, these expenses primarily include start-up costs related to our new locations and asset repositioning expenses.

(8)

Revenue discussed above associated with the sales tax refund and the transition services were excluded in the calculation of the adjusted EBITDA margin.

Free Cash Flow. Free cash flow is defined as net cash provided by operating activities, minus or plus, net cash used in or provided by investing activities, excluding acquisitions and certain transactions. Free cash flow is a non-GAAP financial measure and is not intended to replace net cash provided by operating activities, the most directly comparable financial measure prepared in accordance with GAAP. We present free cash flow because we believe it provides useful information regarding our liquidity and ability to meet our short-term obligations. In particular, free cash flow indicates the amount of cash available after capital expenditures for, among other things, investments in our existing business, debt service obligations, payment of authorized quarterly dividends, repurchase of our common stock and strategic small acquisitions.

Reconciliation of net cash provided by operating activities to free cash flow is as follows:

 

 

 

For the Years Ended December 31,

 

 

 

2015

 

 

2014

 

 

2013

 

 

2012

 

 

2011

 

 

 

(In thousands)

 

Net cash provided by operating activities

 

$

152,814

 

 

$

120,625

 

 

$

116,111

 

 

$

90,949

 

 

$

84,969

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Additions to rental fleet

 

 

(74,732

)

 

 

(27,279

)

 

 

(28,826

)

 

 

(43,934

)

 

 

(29,824

)

Proceeds from sale of rental fleet

 

 

16,865

 

 

 

23,053

 

 

 

35,951

 

 

 

29,358

 

 

 

36,201

 

Additions to property, plant and equipment

 

 

(31,163

)

 

 

(15,779

)

 

 

(15,792

)

 

 

(12,741

)

 

 

(11,498

)

Proceeds from sale of property, plant and equipment

 

 

9,860

 

 

 

4,199

 

 

 

1,970

 

 

 

1,497

 

 

 

117

 

Net capital expenditures

 

 

(79,170

)

 

 

(15,806

)

 

 

(6,697

)

 

 

(25,820

)

 

 

(5,004

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Free cash flow

 

$

73,644

 

 

$

104,819

 

 

$

109,414

 

 

$

65,129

 

 

$

79,965

 

 

 

28

 

ITEM 7.

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS.  

The following discussion of our financial condition and results of operations should be read together with the consolidated financial statements and the accompanying notes included elsewhere in this Annual Report. This discussion contains forward-looking statements that involve risks and uncertainties. Our actual results may differ materially from those anticipated in those forward-looking statements as a result of certain factors, including, but not limited to, those described under “Item 1A. “Risk Factors.” The tables and information in this “Management’s Discussion and Analysis of Financial Conditions and Results of Operations” section were derived from exact numbers and may have immaterial rounding differences.

Overview

Executive Summary

We believe we are the world’s leading provider of portable storage solutions, maintaining a strong leadership position in virtually all markets served. Our mission is to be the leader in portable storage solutions to customers throughout North America and the U.K. and specialty containment solutions in the U.S.  We are committed to providing our customers with superior service and access to a high-quality and diverse fleet.  In managing our business, we focus on renting rather than selling our units, with rental revenues representing approximately 93.2% of our total revenues for the year ended December 31, 2015.  We believe this strategy provides us with predictable, recurring revenue.  Additionally, our assets have long useful lives, low maintenance costs and generally maintain their value throughout their useful lives. We also sell new and used units, and provide delivery, installation and other ancillary products and value-added services.

On December 10, 2014 we completed the ETS Acquisition. ETS is the third largest provider of specialty containment solutions in the U.S. and the leading provider in the Gulf Coast region.  ETS operates as a separate subsidiary of ours under the ETS name (as does its wholly owned subsidiary, Water Movers), and its operations are included in our results of operations for all of 2015, and the portion of 2014 subsequent to the acquisition date, which is less than one month.

On May 15, 2015, we completed the divestiture of our North American wood mobile office fleet.  Our business strategy is to invest in high-return, low-maintenance, long-lived assets. Wood mobile offices require more maintenance and upkeep than Mobile Mini’s steel containers and steel ground level offices, resulting in lower margins as compared to our other portable storage products and our specialty containment products. The total impairment and loss on the divestiture of the wood mobile offices was $66.1 million during the year ended December 31, 2015.  See additional discussion regarding the impairment and the divestiture of the wood mobile offices in Note 4 to the accompanying consolidated financial statements.

As part of overall integration and expansion of ETS into the existing Mobile Mini footprint, in the fourth quarter the Company determined that certain of our current locations in Southern California would either not be optimal or available to accommodate efficient operations and provide desired proximity to our combined customer base.  To accommodate the needs of the planned combined operations, the Company is leasing new property, exiting certain properties and has abandoned approximately 5,000 units of the portable storage fleet in Southern California legacy yards.  This abandonment resulted in $13.7 million of restructuring expense in the fourth quarter, representing the write-down of the fleet to zero value. Our restructuring activities, including the ETS integration, the shift to managing operations on a geographic basis and the alignment of our salesforce and processes with our new product-centered focus resulted in total restructuring charges of $20.8 million in 2015.

Throughout 2015, our operational strategic goals included growing revenue and expanding our operating margins by leveraging our infrastructure, focusing on higher returning assets and driving continuous improvements in efficiency.  To achieve this goal, we concentrated on generating growth in our core rental business through strong organic growth and opportunistic geographic expansions.  We also actively manage fleet utilization and seek to control costs.

Also in 2015, key initiatives included a focus on opportunities for cross-selling of products and growth by leveraging Mobile Mini’s and ETS’ respective geographic coverage and customer bases and the development of a new ERP system to further increase efficiency and data management, and provide a scalable platform for growth.

As of December 31, 2015, our network includes 133 portable storage locations, 19 specialty containment locations and 7 combined locations.  Our portable storage fleet consists of approximately 205,200 units and our specialty containment business has a fleet of approximately 11,700 units.

 

29

 

For the year ended December 31, 2015, our achievements include:

 

·

Grew total rental revenues 20.6% year-over-year,

 

·

Increased adjusted EBITDA to $200.8 million and increased adjusted EBITDA margin to 38.1%,

 

·

Successfully continued execution on our strategy to focus on high-return, low-maintenance assets by divesting our wood mobile office business,

 

·

Within the portable storage business, excluding the divested wood mobile office business:

 

-

Increased year-over-year portable storage solutions rental rates by 4.5%, and yield by 4.6% when adjusting for unfavorable currency rates,

 

-

Grew total rental revenues 6.7% when adjusting for unfavorable currency fluctuations, and

 

-

Increased year-end units on rent by 4.3%,

 

·

Created more capital flexibility and positioned Mobile Mini for future growth through the refinancing of our prior ABL Credit Agreement, dated February 22, 2012, with Deutsche Bank, as administrative agent, and the other lenders party thereto (as amended and supplemented, the “Prior Credit Agreement”) to extend the maturity of the Credit Agreement to December 2020 and reduce interest rate borrowing margins,

 

·

Utilized $73.6 million in free cash flow and $83.3 million received in conjunction with our wood mobile office divestiture to create and return shareholder value:

 

-

Repurchased $61.8 million in treasury shares,

 

-

Paid $33.7 million in shareholder dividends, and

 

-

Reduced the balance on our lines of credit by $37.8 million, and

 

·

Drove continuous improvement in safety as a result of continued company-wide focus:  

 

-

Over the past two years we have reduced the Occupational Health and Safety Act, or OSHA, Incident Rate for our portable storage business by 26%, the number of Department of Transportation violations by 52% and our auto incidents by 53%.

Business Environment and Outlook.   Excluding the divested wood mobile office business, approximately 61% of our revenue during the twelve-month period ended December 31, 2015 was derived from our North American portable storage business, 21% was derived from our specialty containment business in North America and 18% was derived from our UK portable storage business. Our business is subject to the general health of the economy and we utilize a variety of general economic indicators to assess market trends and determine the direction of our business.

Based on our assessment, we expect that the majority of our end markets will continue to drive demand for our products.  In particular, construction, which represents approximately 41% of our consolidated rental revenue is forecasted for continued growth for the next several years.  While only 3% of our consolidated rental revenue is generated by oil and gas customers, the oil and gas industry is forecasted to continue to remain challenged in the near term.

Accounting and Operating Overview

Our principal operating revenues and expenses are:

Revenues:

 

·

Rental revenues include all rent and ancillary revenues we receive for our rental fleet.

 

·

Sales revenues consist primarily of sales of new and used portable storage products, used specialty containment fleet, and to a lesser extent, parts and supplies sold to specialty containment customers.

Costs and expenses:

 

·

Rental, selling and general expenses include, among other expenses, payroll and payroll-related costs including share-based compensation and commissions for our sales team, fleet transportation and fuel costs, repair and maintenance costs for our rental fleet and transportation equipment, real estate lease expense, insurance costs, and general corporate expenses.

30

 

 

·

Cost of sales is the net book value of the units that were sold during the reported period and includes both our cost to buy, transport, remanufacture and modify used containers and our cost to manufacture portable storage units and other structures.  To a lesser extent, cost of sales includes parts and supplies sold to specialty containment customers.  

 

·

Depreciation and amortization includes depreciation on our rental fleet, our property, plant and equipment, and amortization of definite-lived intangible assets.

In addition to focusing on GAAP measurements, we focus on EBITDA, adjusted EBITDA, and free cash flow to measure our operating results.  As such, we include in this Annual Report on Form 10-K reconciliations to their most directly comparable GAAP financial measures. These reconciliations and descriptions of why we believe these measures provide useful information to investors as well as a description of the limitations of these measures are included in “Item 6. Selected Financial Data.”

 


31

 

Results of Operations

Twelve Months Ended December 31, 2015, Compared to Twelve Months Ended December 31, 2014

The following table sets forth for each of the periods indicated our statements of operations data and expresses revenue and expense data as percentage of total revenues for the periods presented:

 

 

 

Years Ended

December 31,

 

 

Percent of Revenue

Years Ended

December 31,

 

Increase (Decrease)

 

 

 

 

2015

 

 

2014

 

 

2015

 

2014

 

2015 versus 2014

 

 

 

 

(In thousands, except percentages)

 

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental

 

$

494,715

 

 

$

410,362

 

 

 

93.2

 

%

 

 

92.1

 

%

 

$

84,353

 

 

 

20.6

 

%

Sales

 

 

29,953

 

 

 

31,585

 

 

 

5.6

 

 

 

 

7.1

 

 

 

 

(1,632

)

 

 

(5.2

)

 

Other

 

 

6,109

 

 

 

3,527

 

 

 

1.2

 

 

 

 

0.8

 

 

 

 

2,582

 

 

 

73.2

 

 

Total revenues

 

 

530,777

 

 

 

445,474

 

 

 

100.0

 

 

 

 

100.0

 

 

 

 

85,303

 

 

 

19.1

 

 

Costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental, selling and general expenses

 

 

326,252

 

 

 

280,948

 

 

 

61.5

 

 

 

 

63.1

 

 

 

 

45,304

 

 

 

16.1

 

 

Cost of sales

 

 

19,671

 

 

 

21,944

 

 

 

3.7

 

 

 

 

4.9

 

 

 

 

(2,273

)

 

 

(10.4

)

 

Restructuring expenses

 

 

20,798

 

 

 

3,542

 

 

 

3.9

 

 

 

 

0.8

 

 

 

 

17,256

 

 

n/a

 

 

Asset impairment charge and loss

   on divestiture, net

 

 

66,128

 

 

 

557

 

 

 

12.5

 

 

 

 

0.1

 

 

 

 

65,571

 

 

n/a

 

 

Depreciation and amortization

 

 

60,344

 

 

 

39,334

 

 

 

11.4

 

 

 

 

8.8

 

 

 

 

21,010

 

 

 

53.4

 

 

Total costs and expenses

 

 

493,193

 

 

 

346,325

 

 

 

92.9

 

 

 

 

77.7

 

 

 

 

146,868

 

 

 

42.4

 

 

Income from operations

 

 

37,584

 

 

 

99,149

 

 

 

7.1

 

 

 

 

22.3

 

 

 

 

(61,565

)

 

 

(62.1

)

 

Other income (expense):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest income

 

 

1

 

 

 

—

 

 

 

—

 

 

 

 

—

 

 

 

 

1

 

 

n/a

 

 

Interest expense

 

 

(35,900

)

 

 

(28,729

)

 

 

(6.8

)

 

 

 

(6.4

)

 

 

 

(7,171

)

 

 

25.0

 

 

Deferred financing costs write-off

 

 

(931

)

 

 

—

 

 

 

(0.2

)

 

 

 

—

 

 

 

 

(931

)

 

n/a

 

 

Foreign currency exchange

 

 

(2

)

 

 

(1

)

 

 

-

 

 

 

 

—

 

 

 

 

(1

)

 

n/a

 

 

Income before income tax provision

 

 

752

 

 

 

70,419

 

 

 

0.1

 

 

 

 

15.8

 

 

 

 

(69,667

)

 

 

 

 

 

Income tax provision

 

 

(4,822

)

 

 

26,033

 

 

 

(0.9

)

 

 

 

5.8

 

 

 

 

(30,855

)

 

 

 

 

 

Net income

 

$

5,574

 

 

$

44,386

 

 

 

1.1

 

%

 

 

10.0

 

%

 

$

(38,812

)

 

 

 

 

 

 

 

 

Years Ended

December 31,

 

 

Percent of Revenue

Years Ended

December 31,

 

 

 

Increase (Decrease)

 

 

 

 

2015

 

 

2014

 

 

2015

 

2014

 

 

 

2015 versus 2014

 

 

 

 

(In thousands, except percentages)

 

 

EBITDA

 

$

97,927

 

 

$

138,482

 

 

 

18.4

 

%

 

 

31.1

 

%

 

$

(40,555

)

 

 

(29.3

)

%

Adjusted EBITDA (1)

 

 

200,836

 

 

 

162,141

 

 

 

38.1

 

 

 

 

36.4

 

 

 

 

38,695

 

 

 

23.9

 

 

Free Cash Flow

 

 

73,644

 

 

 

104,819

 

 

 

13.9

 

 

 

 

23.5

 

 

 

 

(31,175

)

 

 

(29.7

)

 

 

(1)

The calculation of adjusted EBITDA as a percentage of revenue for 2015 includes a reduction to revenues related to transactions not indicative of our business.  See “Non-GAAP Data and Reconciliations” earlier in this Annual Report on Form 10-K.

 

32

 

Revenues

The following table depicts revenue by type of business for the twelve-month periods ended December 31:

 

 

 

Portable Storage

 

 

 

 

2015

 

 

2014

 

 

Increase (Decrease)

2015 versus 2014

 

 

 

 

(In thousands, except percentages)

 

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental

 

$

395,091

 

 

$

404,939

 

 

$

(9,848

)

 

 

(2.4

)

%

Sales

 

 

22,387

 

 

 

31,422

 

 

 

(9,035

)

 

 

(28.8

)

 

Other

 

 

6,037

 

 

 

2,681

 

 

 

3,356

 

 

 

125.2

 

 

Total revenues

 

$

423,515

 

 

$

439,042

 

 

$

(15,527

)

 

 

(3.5

)

 

 

 

 

Specialty Containment

 

 

 

2015

 

 

2014

 

 

Increase (Decrease)

2015 versus 2014

 

 

 

(In thousands)

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

Rental

 

$

99,624

 

 

$

5,423

 

 

$

94,201

 

Sales

 

 

7,566

 

 

 

163

 

 

 

7,403

 

Other

 

 

72

 

 

 

846

 

 

 

(774

)

Total revenues

 

$

107,262

 

 

$

6,432

 

 

$

100,830

 

 

Total revenues in 2015 increased $85.3 million, or 19.1%, to $530.8 million from $445.5 million in 2014. The increase is due to a $100.8 million increase related to our recently acquired specialty containment business, partially offset by a $15.5 million decrease in the portable storage business related to the divested wood mobile office business, which contributed $46.1 million of total revenue in the prior year, compared to $17.0 million in the current year, a decrease of $29.1 million. Rental, our primary revenue focus, accounted for approximately 93.2% of total revenues during 2015, and increased $84.4 million, or 20.6%.  Increased rental revenue in the specialty containment business was partially offset by a decrease in the portable storage business due to the divested wood mobile office business.

Within the portable storage business the $9.8 million decrease in rental revenues is a result of the second quarter 2015 divestiture of our wood mobile office business, as discussed previously in this Annual Report on Form 10-K.  The divested business contributed rental revenue of $15.8 million in the current year, compared to $43.4 million in the prior year, a decrease of $27.6 million.  Rental revenue related to the remaining portable storage business increased approximately $17.8 million, or 4.9%, driven by a 4.5% increase in rental rates as well as a 2.0% increase in units on rent.  These increases in rental revenue were partially offset by unfavorable currency translation rates in the current year, as compared to the prior year.  Adjusted for the change in currency translation rates and the divested wood mobile office business, rental revenue increased approximately 6.7%.  Excluding the divested wood mobile office business and adjusted for the unfavorable currency effect, yield (calculated as rental revenues divided by average units on rent) increased approximately 4.6% as compared to the prior year.

Portable storage sales revenue for the year ended December 31, 2015 decreased $9.0 million, or 28.8%, to $22.4 million, compared to $31.4 million in the prior year. Revenue from specialty containment sales was $7.6 million for the year ended December 31, 2015. We focus on rental revenues; as such, in general, sales of units from our fleet occur due to a particular customer need, or due to having fleet in excess of demand at a particular location.

33

 

Costs and expenses

The following table depicts costs and expenses by type of business for the twelve-month periods ended December 31:

 

 

 

Portable Storage

 

 

 

 

2015

 

 

2014

 

 

Increase (Decrease)

2015 versus 2014

 

 

 

 

(In thousands, except percentages)

Costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental, selling and general expenses

 

$

263,746

 

 

$

277,594

 

 

$

(13,848

)

 

 

(5.0

)

%

Cost of sales

 

 

14,580

 

 

 

21,838

 

 

 

(7,258

)

 

 

(33.2

)

 

Restructuring expenses

 

 

17,790

 

 

 

3,542

 

 

 

14,248

 

 

n/a

 

 

Asset impairment charge and loss

   on divestiture, net

 

 

66,128

 

 

 

557

 

 

 

65,571

 

 

n/a

 

 

Depreciation and amortization

 

 

34,828

 

 

 

37,460

 

 

 

(2,632

)

 

 

(7.0

)

 

Total costs and expenses

 

$

397,072

 

 

$

340,991

 

 

$

56,081

 

 

 

16.4

 

 

 

 

 

Specialty Containment

 

 

 

2015

 

 

2014

 

 

Increase (Decrease)

2015 versus 2014

 

 

 

(In thousands, except percentages)

 

Costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

Rental, selling and general expenses

 

$

62,506

 

 

$

3,354

 

 

$

59,152

 

Cost of sales

 

 

5,091

 

 

 

106

 

 

 

4,985

 

Restructuring expenses

 

 

3,008

 

 

 

—

 

 

 

3,008

 

Depreciation and amortization

 

 

25,516

 

 

 

1,874

 

 

 

23,642

 

Total costs and expenses

 

$

96,121

 

 

$

5,334

 

 

$

90,787

 

 

Rental selling and general expenses. Rental, selling and general expenses for portable storage decreased $13.8 million, or 5.0%, and as a percentage of total portable storage revenues decreased to 62.3% from 63.2% for the years ended December 31, 2015 and 2014, respectively.  Included in rental, selling and general expenses for the current year are certain expenses totaling $7.9 million that management does not consider indicative of our business.  These 2015 expenses include $2.6 million in acquisition-related expenses, including consulting costs to integrate business functions in conjunction with the ETS Acquisition, $4.4 million incurred to provide transition services in conjunction with the divestiture of our wood mobile office business and $0.9 million related to an unclaimed property settlement.  In 2014 we incurred $5.1 million of expenses related to acquisitions, primarily the ETS Acquisition.  

The increase in expenses due to the above items was more than offset by approximately $16.6 million of other net decreases in the portable storage business rental, selling and general expenses.  The $16.6 million decrease was driven by lower fleet freight and fuel, and repairs and maintenance due largely to the decreased activity related to our wood mobile office divestiture, decreasing fuel prices and lower fleet positioning activity.  Excluding expenses associated with providing transition services, repairs and maintenance on our portable storage rental fleet as a percentage of rental revenue was 5.0%, compared to 6.7% in the prior year.  These decreases in costs were partially offset by smaller increases related to salaries and professional fees and service contracts, including technology-related upgrades and non-capitalizable expenses associated with our ERP system implementation. Specialty containment rental, selling and general expenses was $62.5 million for the year ended December 31, 2015, or 58.3% of total specialty containment revenues.

The approximately $4.4 million incurred to provide transition services related to the divestiture of our wood mobile office business includes direct expenses to transport and maintain the assets on behalf of the purchase, as well as expenses related to wood mobile offices on our leased properties, and the provision of certain administrative services such as billing and cash collection.

Cost of sales. The cost of sales is the cost related to our sales revenue only. Within the portable storage business, cost of sales was $14.6 million and $21.8 million in the years ended December 31, 2015 and 2014, respectively.  Portable storage sales revenue, less cost of sales (sales profit), was $7.8 million and $9.6 million for the twelve-month periods ended December 31, 2015 and 2014, respectively.  Sales profit expressed as a percentage of sales revenue (sales profit margin) was 34.9% in the year ended December 31, 2015 and 30.5% in the prior-year.  Cost of sales related to our specialty containment products was $5.1 million in the year ended December 31, 2015. Specialty containment products sales profit and profit margin were $2.5 million and 32.7% in the year ended December 31, 2015.

34

 

Restructuring expenses.   Of the $20.8 million in restructuring expenses recognized in 2015, $19.7 million relates to activitie s associated with the integration of ETS into the existing Mobile Mini infrastructure, including our shift from managing operations on a product-oriented basis to a geographic, customer-focused organization; and, to support this shift, the re-alignment of sales leadership with operational leadership.  

Integration includes such activities as:

 

·

Combining portable storage and specialty containment locations in markets where both lines of business are present,

 

·

Expanding either line of business to new geographies where we maintain a presence in the other,

 

·

Eliminating duplicative or redundant positions at both the corporate level and in operations, and

 

·

Determining the appropriate processes, including the sales process, necessary to support the new geographically-based structure, and eliminating infrastructure that does not function optimally in the new environment.

During the fourth quarter of 2015, as the Company was finalizing locations in Southern California for combined portable storage and specialty containment equipment operations, we determined that certain of our current locations in Southern California would either not be optimal or available to accommodate efficient operations and provide desired proximity to our combined customer base. To accommodate the needs of the planned combined operations, the Company is leasing new property, exiting certain properties and has abandoned approximately 5,000 units of the portable storage fleet in Southern California at the legacy yards. This abandonment resulted in $13.7 million of restructuring expense in the fourth quarter, representing the write-down of this fleet to zero value.

Other costs in 2015 related to execution of the ETS integration and geographic expansion included $4.6 million for severance and benefits (including $1.6 million of share-based compensation) and $1.4 million for the write-off and loss on sale of property, plant and equipment.  

The remaining 2015 restructuring costs of $1.1 million relate primarily to costs involved to shift our business away from the wood mobile office business, including abandonment of yards. Of the total $20.8 million of restructuring expense recognized in the twelve months ended December 31, 2015, approximately $17.0 million was non-cash.  We expect to recognize approximately $4.0 million in restructuring expenses related to these restructurings in 2016.

The 2014 restructuring costs primarily relate to the transition of key leadership positions, as well as the closure of our Belfast, North Ireland location.

Asset impairment charge and loss on divestiture, net. As discussed previously in this Annual Report on Form 10-K, during the twelve months ended December 31, 2015, we recorded impairment charges and loss on divestiture of $66.1 million related to our wood mobile offices in our North American portable storage segment.  See additional discussion regarding the impairment and divestiture of the wood mobile office assets in Note 4 to the accompanying consolidated financial statements. Asset impairment charges, net of recoveries, were $0.6 million for the twelve months ended December 31, 2014 and relate to net gains and losses upon completion of sale, or other disposal of assets impaired in a 2013 assessment of the rental fleet.

Depreciation and amortization. Depreciation and amortization expense increased $21.0 million for the twelve months ended December 31, 2015, as compared to the prior-year.  Increased depreciation of $23.6 million related to the specialty containment business was partially offset by a decrease of $2.6 million related to the portable storage business.  Subsequent to the impairment of the wood mobile office units, no additional depreciation was recognized on these assets.

Adjusted EBITDA, interest expense, income taxes and net income

Adjusted EBITDA. Adjusted EBITDA increased $38.7 million, or 23.9%, to $200.8 million in 2015, compared to $162.1 million in 2014. Of this increase, $1.5 million related to our portable storage business and $37.2 million related to our specialty containment business.  Adjusted EBITDA margins were 38.1% and 36.4% for 2015 and 2014, respectively. Adjusted EBITDA margins for the twelve-month period ended December 31, 2015 were 38.3% for our portable storage business and 37.4% for our specialty containment business.

Interest Expense . Interest expense increased $7.2 million, or 25.0%, to $35.9 million in 2015. In December 2014 we borrowed funds under our Prior Credit Agreement to facilitate the ETS Acquisition. Our average debt outstanding in the twelve-month period ended December 31, 2015 was $902.9 million as compared to $539.0 million in the prior-year. The weighted average interest rate on our debt was 3.6% and 4.8% for the twelve months ended December 31, 2015 and 2014, respectively, excluding the amortization of

35

 

debt issuan ce costs. Taking into account the amortization of debt issuance costs, the weighted average interest rate was 4.0% and 5.3% for the twelve-month periods ended December 31, 2015 and 2014, respectively.  The decrease in the average interest rate is primarily due to the increase of our lower rate line of credit, as a percentage of our overall debt.

Deferred financing costs write-off.   As discussed in Note 6 to the accompanying consolidated financial statements, we entered into the Credit Agreement in December 2015, resulting in the write-off of $0.9 million of deferred financing costs related to the Prior Credit Agreement.  

(Benefit) provision for income taxes . During the twelve-month period ended December 31, 2015, we had a $4.8 million benefit for income taxes on pre-tax income of $0.8 million.  In the prior-year we had a $26.0 million provision for tax on pre-tax income of $70.4 million.  Our effective income tax rate in the current year was affected by an enacted change in the U.K. income tax rate, as well as losses in North America driven by the asset impairment and restructuring expenses as discussed previously. The change in the U.K. income tax rate resulted in a $1.4 million benefit when applied to our December 31, 2014 deferred tax liability, and a $0.5 million benefit to current year taxes.  

Excluding the $1.9 million total tax benefit related to the rate change, our tax benefit would have been approximately $2.9 million, which is in excess of our pre-tax income, due primarily to the magnitude of the loss in North America, which has a higher income tax rate.  Not including the North America asset impairment and $1.4 million cumulative effect on prior-year deferred liabilities of the U.K. rate change, our tax rate for the year ended December 31, 2015 would have been 33.4%.  See Note 9 to the accompanying consolidated financial statements for further discussion on income taxes.

At December 31, 2015, we had a federal net operating loss carryforward of approximately $278.2 million, which expires, if unused, from 2028 to 2034. In addition, we had net operating loss carryforwards in the various states in which we operate. Over the past three years, we have generated $172.4 million of federal taxable income.  At December 31, 2015, we had $118.0 million of gross deferred tax assets included within the net deferred tax liability on our balance sheet, and a $1.1 million valuation allowance. We believe, based on internal projections, that we will generate sufficient taxable income needed to realize the corresponding unreserved federal and state deferred tax assets to the extent they are recorded as deferred tax assets in our balance sheet.  However, given that the federal net operating loss carryforwards that give rise to the deferred tax asset expire over 7 years beginning in 2028, there could be changes in management’s judgment in future periods with respect to the recoverability of these assets.

Net income . Primarily due to the $66.1 million impairment and divestiture loss, the $20.8 million restructuring expenses and the other income statement activity discussed above, including the ETS Acquisition, our net income decreased to $5.6 million for the year ended December 31, 2015, compared to net income of $44.4 million in the prior-year.

36

 

Twelve Months Ended December 31 , 2014, Compared to Twelve Months Ended December 31, 2013

The following table sets forth for each of the periods indicated our statements of operations data and expresses revenue and expense data as percentage of total revenues for the periods presented:

 

 

 

Years Ended

December 31,

 

 

Percent of Revenue

Years Ended

December 31,

 

Increase (Decrease)

 

 

 

 

2014

 

 

2013

 

 

2014

 

2013

 

2014 versus 2013

 

 

 

 

(In thousands, except percentages)

 

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental

 

$

410,362

 

 

$

366,286

 

 

 

92.1

 

%

 

 

90.1

 

%

 

$

44,076

 

 

 

12.0

 

%

Sales

 

 

31,585

 

 

 

38,051

 

 

 

7.1

 

 

 

 

9.4

 

 

 

 

(6,466

)

 

 

(17.0

)

 

Other

 

 

3,527

 

 

 

2,149

 

 

 

0.8

 

 

 

 

0.5

 

 

 

 

1,378

 

 

 

64.1

 

 

Total revenues

 

 

445,474

 

 

 

406,486

 

 

 

100.0

 

 

 

 

100.0

 

 

 

 

38,988

 

 

 

9.6

 

 

Costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental, selling and general expenses

 

 

280,948

 

 

 

237,567

 

 

 

63.1

 

 

 

 

58.4

 

 

 

 

43,381

 

 

 

18.3

 

 

Cost of sales

 

 

21,944

 

 

 

25,413

 

 

 

4.9

 

 

 

 

6.3

 

 

 

 

(3,469

)

 

 

(13.7

)

 

Restructuring expenses

 

 

3,542

 

 

 

2,402

 

 

 

0.8

 

 

 

 

0.6

 

 

 

 

1,140

 

 

 

47.5

 

 

Asset impairment charge, net

 

 

557

 

 

 

38,705

 

 

 

0.1

 

 

 

 

9.5

 

 

 

 

(38,148

)

 

 

(98.6

)

 

Depreciation and amortization

 

 

39,334

 

 

 

35,432

 

 

 

8.8

 

 

 

 

8.7

 

 

 

 

3,902

 

 

 

11.0

 

 

Total costs and expenses

 

 

346,325

 

 

 

339,519

 

 

 

77.7

 

 

 

 

83.5

 

 

 

 

6,806

 

 

 

2.0

 

 

Income from operations

 

 

99,149

 

 

 

66,967

 

 

 

22.3

 

 

 

 

16.5

 

 

 

 

32,182

 

 

 

48.1

 

 

Other income (expense):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest income

 

 

—

 

 

 

1

 

 

 

—

 

 

 

 

—

 

 

 

 

(1

)

 

 

(100.0

)

 

Interest expense

 

 

(28,729

)

 

 

(29,467

)

 

 

(6.4

)

 

 

 

(7.2

)

 

 

 

738

 

 

 

(2.5

)

 

Foreign currency exchange

 

 

(1

)

 

 

(2

)

 

 

—

 

 

 

 

—

 

 

 

 

1

 

 

 

(50.0

)

 

Income from continuing operations before

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

income tax provision

 

 

70,419

 

 

 

37,499

 

 

 

15.8

 

 

 

 

9.3

 

 

 

 

32,920

 

 

 

87.8

 

 

Income tax provision

 

 

26,033

 

 

 

12,275

 

 

 

5.8

 

 

 

 

3.0

 

 

 

 

13,758

 

 

 

112.1

 

 

Income from continuing operations

 

 

44,386

 

 

 

25,224

 

 

 

10.0

 

 

 

 

6.3

 

 

 

 

19,162

 

 

 

76.0

 

 

Loss from discontinued operation, net of tax

 

 

—

 

 

 

(1,302

)

 

 

—

 

 

 

 

(0.3

)

 

 

 

1,302

 

 

 

(100.0

)

 

Net income

 

$

44,386

 

 

$

23,922

 

 

 

10.0

 

%

 

 

6.0

 

%

 

$

20,464

 

 

 

85.5

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Years Ended

December 31,

 

 

Percent of Revenue

Years Ended

December 31,

 

 

 

Increase (Decrease)

 

 

 

 

2014

 

 

2013

 

 

2014

 

2013

 

2014 versus 2013

 

 

 

 

(In thousands, except percentages)

 

 

EBITDA

 

$

138,482

 

 

$

102,398

 

 

 

31.1

 

%

 

 

25.2

 

%

 

$

36,084

 

 

 

35.2

 

%

Adjusted EBITDA

 

 

162,141

 

 

 

157,465

 

 

 

36.4

 

 

 

 

38.7

 

 

 

 

4,676

 

 

 

3.0

 

 

Free Cash Flow

 

 

104,819

 

 

 

109,414

 

 

 

23.5

 

 

 

 

26.9

 

 

 

 

(4,595

)

 

 

(4.2

)

 

 

Revenues .  The following table depicts revenue by type of business for the twelve-month periods ended December 31:

 

 

 

Portable Storage

 

 

 

Specialty

Containment

 

 

 

2014

 

 

2013

 

 

Increase (Decrease)

2014 versus 2013

 

 

 

2014

 

 

 

(In thousands, except percentages)

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental

 

$

404,939

 

 

$

366,286

 

 

$

38,653

 

 

 

10.6

 

%

 

$

5,423

 

Sales

 

 

31,422

 

 

 

38,051

 

 

 

(6,629

)

 

 

(17.4

)

 

 

 

163

 

Other

 

 

2,681

 

 

 

2,149

 

 

 

532

 

 

 

24.8

 

 

 

 

846

 

Total revenues

 

$

439,042

 

 

$

406,486

 

 

$

32,556

 

 

 

8.0

 

 

 

$

6,432

 

 

Total revenues in 2014 increased $39.0 million, or 9.6%, to $445.5 million from $406.5 million in 2013. Of this total increase, $6.4 million is attributable to our newly acquired specialty containment business.  Rental, our primary revenue focus, accounted for

37

 

approximately 92.1% of total revenues during 2014, and increased $44.1 million, or 12.0%.  Of this increase $5.4 million is attributable to the sp ecialty product business.  The $38.7 million, or 10.6% increase in portable storage rental revenue was driven by a 10.5% increase in yield (rental revenues divided by average units on rent).  The increase in yield reflects a rate increase of 7.3% over 2013 .  Average units on rent of approximately 147,000 in 2014 is consistent with the prior year.  Our sales of portable storage units decreased $6.6 million to $31.4 million in 2014 from $38.1 million in 2013. The decrease from the prior year primarily relates to a large sale to the U.K. military in 2013 that did not recur in 2014.

Costs and expenses . The following table depicts costs and expenses by type of business for the twelve-month periods ended December 31:

 

 

 

Portable Storage

 

 

 

Specialty

Containment

 

 

 

2014

 

 

2013

 

 

Increase (Decrease)

2014 versus 2013

 

 

 

2014

 

 

 

(In thousands, except percentages)

 

Costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental, selling and general expenses

 

$

277,594

 

 

$

237,567

 

 

$

40,027

 

 

 

16.8

 

%

 

$

3,354

 

Cost of sales

 

 

21,838

 

 

 

25,413

 

 

 

(3,575

)

 

 

(14.1

)

 

 

 

106

 

Restructuring expenses

 

 

3,542

 

 

 

2,402

 

 

 

1,140

 

 

 

47.5

 

 

 

 

—

 

Asset impairment charge, net

 

 

557

 

 

 

38,705

 

 

 

(38,148

)

 

 

(98.6

)

 

 

 

—

 

Depreciation and amortization

 

 

37,460

 

 

 

35,432

 

 

 

2,028

 

 

 

5.7

 

 

 

 

1,874

 

Total costs and expenses

 

$

340,991

 

 

$

339,519

 

 

$

1,472

 

 

 

0.4

 

 

 

$

5,334

 

 

Within the portable storage business, rental, selling and general expenses increased $40.0 million, or 16.8%; and as a percentage of total portable storage revenues these expenses increased to 63.2% from 58.4% in 2013. Included in the 2014 amount is $5.1 million of expenses related to acquisitions, primarily the ETS Acquisition.  Excluding the acquisition-related expenses, portable storage rental, selling and general expenses increased $34.9 million, or 14.7%, and as a percentage of total portable storage revenue grew from 58.4% to 62.1%.  The $34.9 million increase primarily corresponds to increased business levels to support the 8.0% growth in total revenue.  In addition, within this business, repairs and maintenance costs related to our fleet increased $10.3 million to $27.0 million from $16.8 million, due primarily to our focus on bringing our rental fleet to a rent-ready state.

Also within the portable storage business, as a percentage of rental revenue, repairs and maintenance on our rental fleet increased to 6.7% in 2014 as compared to 4.6% in 2013.  Other increases in rental, selling and general expenses for 2014 include: (i) an 8.8% increase in payroll-related costs (including share-based compensation expense) from $100.2 million to $109.1 million, (ii) a 16.9% increase in transportation costs from $40.6 million to $47.4 million, as we continue to focus on repositioning our fleet to high utilization markets and (iii) an increase in professional fees and service contracts of $3.4 million, or 35.6% from $9.6 million to $13.0 million due to upgraded technology, network and telephone systems, increased marketing research, and non-capitalizable expenses associated with our ERP system implementation.

Specialty containment rental, selling and general expense was $3.4 million for the period from the ETS Acquisition date of December 10, 2014 through the end of the year.  As a percentage of specialty containment revenues, rental, selling and general expense was 52.2%.  

Cost of sales is the cost related to our sales revenue only. Within the portable storage business, cost of sales was $21.8 million and $25.4 million in 2014 and 2013, respectively.  As a percentage of sales revenue, portable storage cost of sales was 69.5% and 66.8% in 2014 and 2013, respectively. This increase in cost of sales as a percentage of revenue is largely due to continued right-sizing of our fleet, including selling under-utilized fleet at a lower profit.  Cost of sales related to our specialty containment products was $0.1 million.

Restructuring expenses for 2014 were $3.5 million, compared to $2.4 million in 2013. The 2014 amount includes the sale of our Belfast, North Ireland location that management determined was nonstrategic. In addition, we made other organization changes in North America. In 2013, these charges primarily consist of reductions in our workforce and lease abandonment costs.

For 2013, the asset impairment charge, net was $38.7 million and primarily relates to the write-down of certain assets to fair value and classified as held for sale, less subsequent recovery of assets sold in excess of the fair values. Asset impairment charge, net of recoveries, was $0.6 million for 2014 and relates to gains and losses on the impaired assets upon completion of sale, or other disposal.

38

 

Depreciation and amortization expenses increased $3.9 million in 2014, as compared to the prior year, of which $1.9 million relates to the specialty co ntainment business.  Within the portable storage business, the $2.0 million increase in 2014 as compared to 2013 relates largely to transportation equipment acquired through capital leases to support new locations.

Adjusted EBITDA . Adjusted EBITDA increased $4.7 million, or 3.0%, to $162.1 million, compared to $157.5 million in 2013. Of this increase, $1.7 million related to our portable storage business and $3.0 million related to our specialty containment business.  Adjusted EBITDA margins were 36.4% and 38.7% for 2014 and 2013, respectively. Excluding specialty containment business, our adjusted EBITDA margin was 36.3%.

Interest Expense . Interest expense decreased $0.7 million, or 2.5%, to $28.7 million in 2014. Although we borrowed funds under the Prior Credit Agreement to facilitate the ETS Acquisition, resulting in a balance of $705.5 million as of December 31, 2014, our average debt outstanding throughout 2014 decreased $49.6 million, or 8.4%, as compared to 2013.  This decrease is principally due to the use of operating cash flow to reduce our debt prior to the ETS Acquisition. The annual weighted average interest rate on our debt was 4.8% for 2014, compared to 4.5% for 2013, excluding the amortizations of debt issuance and other costs. Taking into account the amortization of debt issuance costs, the annual weighted average interest rate was 5.3% in 2014 and 5.0% in 2013.

Provision for income taxes . Our annual effective tax rate was 37.0% for 2014, compared to 32.7% for 2013. Our 2013 tax rate reflected a corporate income tax rate reduction authorized by the U.K.’s government in July 2013. This rate reduction resulted in a $1.9 million tax benefit that lowered our 2013 effective tax rate.  Excluding the rate reduction benefit, the 2013 effective tax rate would have been approximately 37.6%.  The remaining difference in our effective tax rate in 2014, as compared to 2013 is due primarily to a shift in the percentage of our pre-tax profit attributable to the U.K., which is taxed at a lower rate than North America.  See Note 9 to the accompanying consolidated financial statements for a further discussion on income taxes.

Net income from continuing operations . Income from continuing operations in 2014 increased to $44.4 million, compared to $25.2 million in 2013. Excluding restructuring expenses, acquisition expenses and asset impairment charges, income from continuing operations increased $1.1 million due primarily to the reduced interest expense and the ETS Acquisition.

Loss from discontinued operation, net of tax, of $1.3 million in 2013 related to the sale of our Netherlands operation in December 2013.

LIQUIDITY AND CAPITAL RESOURCES

Renting is a capital-intensive business that requires us to acquire assets before they generate revenues, cash flow and earnings. The majority of the assets that we rent have very long useful lives and require relatively little maintenance expenditures. Most of the capital we have deployed in our rental business historically has been used to expand our operations geographically, to execute opportunistic acquisitions, to increase the number of units available for rent at our existing locations, and to add to the mix of products we offer. During recent years, our operations have generated annual cash flow that exceeds our pre-tax earnings, particularly due to cash flow from operations and the deferral of income taxes caused by accelerated depreciation of our fixed assets in our tax return filings. Our strong cash from operating activities for the years ended December 31, 2015, 2014 and 2013 of $152.8 million, $120.6 million and $116.1 million, respectively, resulted in free cash flow of $73.6 million, $104.8 million and $109.4 million, respectively.  In addition to free cash flow, our principal current source of liquidity is the Credit Agreement described below.

Revolving Credit Facility . On December 14, 2015, we entered into the Credit Agreement with Deutsche Bank AG New York Branch, as administrative agent, and other lenders party thereto. The Credit Agreement replaces the Prior Credit Agreement that had a February 2017 maturity date.  The Credit Agreement provides for a five-year, $1 billion first lien senior secured revolving credit facility maturing on or before the earlier of (i) December 14, 2020 and (ii) the date that is 90 days prior to the final maturity date of the Senior Notes if such Senior Notes remain outstanding on such date.  The Credit Agreement also provides for the issuance of irrevocable standby letters of credit by U.S. lenders in amounts totaling up to $50 million, by U.K.-based lenders in amounts totaling up to $20 million, and by Canadian-based lenders in amounts totaling up to $20 million.  The refinancing of our lines of credit extends the maturity dates, provides us with ongoing financial flexibility and results in reduced borrowing margins of 50 basis points, which we expect to result in interest rate savings.

The obligations of us and our subsidiary guarantors under the Credit Agreement are secured by a blanket lien on substantially all of our assets. At December 31, 2015, we had $667.7 million of borrowings outstanding and $324.9 million of additional borrowing availability under the Credit Agreement. We were in compliance with the terms of the Credit Agreement as of December 31, 2015 and were above the minimum borrowing availability threshold and therefore not subject to any financial maintenance covenants.

Amounts borrowed under the Credit Agreement and repaid or prepaid during the term may be reborrowed. Outstanding amounts under the Credit Agreement bear interest at our option at either: (i) the London interbank offered rate (“LIBOR”) plus an applicable

39

 

ma rgin (“LIBOR Loans”), or (ii) the prime rate plus an applicable margin (“Base Rate Loans”). The applicable margin for each type of loan is based on an availability-based pricing grid and ranges from 1.25% to 1.75% for LIBOR Loans and 0.25% to 0.75% for Bas e Rate Loans at each measurement date.  Pursuant to the terms of the Credit Agreement, outstanding amounts will bear interest at the highest level in the pricing grid until the first measurement date subsequent to March 31, 2016.  Had the margins specified in the Credit Agreement pricing grid been in effect as of December 31, 2015, our applicable margins would have been 1.50% for LIBOR Loans and 0.50% for Base Rate Loans.

Availability of borrowings under the Credit Agreement is subject to a borrowing base calculation based upon a valuation of our eligible accounts receivable, eligible rental fleet (including units held for sale, work-in-process and raw materials) and machinery and equipment, each multiplied by an applicable advance rate or limit. The rental fleet is appraised at least once annually by a third-party appraisal firm and up to 90% of the net orderly liquidation value, as defined in the Credit Agreement, is included in the borrowing base to determine how much we may borrow under the Credit Agreement.  

The Credit Agreement provides for U.K. borrowings, which are, at our option, denominated in either Pounds Sterling or Euros, by our U.K. subsidiary based upon a U.K. borrowing base; Canadian borrowings, which are denominated in Canadian dollars, by our Canadian subsidiary based upon a Canadian borrowing base; and U.S. borrowings, which are denominated in U.S. dollars, based upon a U.S. borrowing base along with any Canadian assets not included in the Canadian subsidiary.

The Credit Agreement also contains customary negative covenants, including covenants that restrict our ability to, among other things: (i) allow certain liens to attach to Mobile Mini or subsidiary assets, (ii) repurchase or pay dividends or make certain other restricted payments on capital stock and certain other securities, or prepay certain indebtedness, (iii) incur additional indebtedness or engage in certain other types of financing transactions, and (iv) make acquisitions or other investments.  In addition, we must comply with a minimum fixed charge coverage ratio of 1.00 to 1.00 as of the last day of each quarter, upon the minimum availability amount under the Credit Agreement falling below the greater of (y) $90 million and (z) 10% of the lesser of the then total revolving loan commitment and aggregate borrowing base.

We believe our cash provided by operating activities will provide for our normal capital needs for the next twelve months. If not, we have sufficient borrowings available under our Credit Agreement to meet any additional funding requirements. We monitor the financial strength of our lenders on an ongoing basis using publicly-available information. Based upon that information, we do not presently believe that there is a likelihood that any of our lenders will be unable to honor their respective commitments under the Credit Agreement.

Senior Notes.  At December 31, 2015, we had outstanding $200.0 million aggregate principal amount of the Senior Notes due December 2020. Interest on the Senior Notes is payable semiannually in arrears on June 1 and December 1 of each year.

Operating Activities .  Net cash provided by operating activities was $152.8 million for the twelve months ended December 31, 2015, compared to $120.6 million in the prior year, an increase of $32.2 million. Although the twelve months ended December 31, 2015 reflects a decrease in net income of $38.8 million to $5.6 million, compared to net income of $44.4 million in the prior-year, the difference is due primarily to non-cash items.  Non-cash items in the current year include a $66.1 million asset impairment charge and loss on divestiture, $12.4 million of non-cash restructuring charges, $60.3 million in depreciation and amortization and $13.8 million of share-based compensation expense, offset by a $5.6 million decrease in deferred taxes.  Non-cash items in the prior year include $25.4 million in deferred tax expense, $39.3 million of depreciation and amortization and $15.1 million of share-based compensation expense.

Excluding the net non-cash income statement items of $150.6 million in the current year and $80.7 million in the prior year, cash generated by net income increased $31.0 million to $156.1 million, from $125.1 million in the prior-year period.  The increase is due primarily to the acquired specialty containment business, as well as increased margins in the portable storage business, offset by the decreased portable storage revenue related to the divested wood mobile offices.  The change in working capital accounts resulted in cash outflow of $3.3 million in the 2015 period and $4.4 million in the 2014 period, due to normal operating fluctuations.

Net cash provided by operating activities was $120.6 million in 2014, compared to $116.1 million in 2013, an increase of $4.5 million.  Net cash from operating activities in 2014 includes a reduction of $5.1 million due to acquisition-related expenses. Although net income was $20.5 million greater in the twelve months ended December 31, 2014 than in the twelve months ended December 31, 2013, non-cash add backs decreased from $96.4 million to $80.7 million, or $15.7 million.  Non-cash items in the 2013 year include a $38.2 million asset impairment charge, $11.0 million in deferred taxes, $35.6 million in depreciation and amortization and $14.7 million of share-based compensation expense.  These addbacks were partially offset by a net reduction to cash of $3.2 million related to other non-cash income statement items.  Non-cash items in 2014 include $25.4 million in deferred taxes, $39.3 million of depreciation and amortization, $15.1 million of share-based compensation and a net addition of $0.9 million related to other non-cash income statement items.  The change in working capital accounts was consistent for both 2014 and 2013.

40

 

Cash provided by operating activ ities is enhanced by the deferral of most income taxes due to the rapid tax depreciation rate of our assets and our federal and state net operating loss carryforwards. At December 31, 2015, we had a federal net operating loss carryforward of approximately $278.2 million and a net deferred tax liability of $219.6 million.

Investing Activities . Net cash used in investing activities was $14.4 million in 2015 compared to $446.8 million in 2014 and $6.0 million in 2013. Cash received upon the divestiture of the wood mobile offices, less associated deferred revenue and customer deposits was $83.3 million, while cash paid for businesses acquired was $18.5 million in the current year. In 2014, we made payments for acquisitions, primarily the ETS Acquisition, of $430.9 million.  We did not acquire any businesses in 2013.

Net capital expenditures for our rental fleet was $57.9 million in 2015, compared to net capital expenditures of $4.2 million in 2014 and $7.1 million in 2013. Rental fleet capital expenditures increased in 2015, as we purchased assets in areas of high demand.  Of the $74.7 million of rental fleet additions in 2015, $24.0 million related primarily to downstream specialty containment products and $22.2 million related to the U.K.  Of the $28.3 million of capital expenditures related to the North American portable storage business, our expenditures were primarily to meet the demand in geographic areas of high utilization for which it does not make economic sense to reposition our fleet, and to meet customer demand for specific types of units. The majority of these expenditures related to markets in the Midwest and eastern United States.  In 2014 and 2013, we had minimal net capital expenditures as we alternatively invested in our existing fleet through repairs and maintenance, which is expensed as incurred.  Proceeds from sale of rental fleet units in 2015 decreased 26.8%, compared to 2014 and decreased 35.9% in 2014 compared to 2013. The $36.0 million in proceeds from sale of rental fleet units in 2013 includes a bulk sale to the U.K. military of approximately $4.3 million and approximately $7.8 million from the impaired assets held for sale.

Capital expenditures for property, plant and equipment, net of proceeds from any sale of property, plant and equipment, were $21.3 million in 2015, $11.6 million in 2014 and $13.8 million in 2013. Included in the $9.9 million of proceeds for 2015 is $6.8 million of proceeds received in conjunction with the sale of a legacy location in Southern California, which was disposed of in conjunction with restructuring activity.  Approximately $16.0 million of the 2015 capital expenditures related to our new ERP system.  The remaining 2015 expenditures for property, plant and equipment and the 2014 and 2013 expenditures were primarily for replacement of our transportation equipment and upgrades to technology equipment.

The amount of cash that we use during any period in investing activities is almost entirely within management’s discretion. We have no contracts or other arrangements pursuant to which we are required to purchase a fixed or minimum amount of goods or services in connection with any portion of our business. Maintenance capital expenditures includes expenses such as the cost to replace old forklifts, trucks and trailers that we use to move and deliver our products to our customers, and for replacements to enhance our computer information and communication systems. Our maintenance capital expenditures were approximately $6.9 million in 2015, $3.3 million in 2014 and $8.3 million in 2013. In addition, we acquired property, plant and equipment through capital leases totaling $17.6 million, $16.5 million and $8.5 million in 2015, 2014 and 2013, respectively.  These leases were primarily for transportation related equipment. We anticipate our near term investing activities will be primarily focused on supporting growth in the U.K. and downstream specialty containment, additional portable storage rental fleet through remanufacturing, and the addition of transportation equipment. In addition, we may invest in opportunistic acquisitions. Also, in the near term we will be developing and implementing our new ERP system.  

Financing Activities . Net cash used in financing activities was $140.6 million in 2015 and $110.3 million in 2013, compared to net cash provided by financing activities of $329.8 million in 2014.  In December 2014, we financed the ETS Acquisition by borrowing under the Prior Credit Agreement, resulting in net borrowings for the year of $386.2 million as compared to net repayments of lines of credit of $37.8 million in 2015 and $123.1 million in 2013.  In 2015 we used free cash flow, along with proceeds from our wood mobile office divestiture to purchase treasury stock, pay down borrowings and pay dividends.  In 2015 and 2014, we paid cash dividends of $33.7 million and $31.4 million, respectively, to our stockholders and purchased shares of our common stock of $61.8 million and $26.0 million (primarily under our share repurchase program), respectively.  We received $1.7 million, $3.6 million, and $13.8 million from the exercise of employee stock options in 2015, 2014 and 2013, respectively. As of December 31, 2015, we had $667.7 million of borrowings outstanding under our Credit Agreement and approximately $324.9 million of additional borrowings were available to us.  In conjunction with entering into the Credit Agreement in the fourth quarter of 2015 we incurred approximately $4.4 million in third-party costs and lender fees, which were capitalized and included in deferred financing costs.

Contractual Obligations and Commitments

Our contractual obligations primarily consist of our outstanding balance under the Credit Agreement, $200.0 million aggregate principal amount of the Senior Notes and obligations under capital leases. We also have operating lease commitments for: (i) real estate properties for the majority of our locations with remaining lease terms typically ranging from one to ten years (ii) delivery, transportation and yard equipment, typically under a five-year lease with purchase options at the end of the lease term at a stated or fair market value price, and (iii) office related equipment. At December 31, 2015, primarily in connection with securing our insurance

41

 

policies, we provided certain insurance carrie rs and others with approximately $7.4 million in letters of credit. We currently do not have any obligations under purchase agreements or commitments.

The table below provides a summary of our contractual commitments as of December 31, 2015. Lease renewal options that we currently anticipate exercising at the end of the initial lease period have been included in the schedule below.

 

 

 

Total

 

 

Less Than

1 Year

 

 

1 - 3 Years

 

 

3 - 5 Years

 

 

More than

5 Years

 

 

 

(In thousands)

 

Revolving credit facility

 

$

667,708

 

 

$

—

 

 

$

—

 

 

$

667,708

 

 

$

—

 

Interest payment obligations under our revolving credit

   facility (1)

 

 

62,619

 

 

 

12,974

 

 

 

25,114

 

 

 

24,531

 

 

 

—

 

Senior Notes

 

 

200,000

 

 

 

—

 

 

 

—

 

 

 

200,000

 

 

 

—

 

Interest payment obligations under our Senior Notes (2)

 

 

78,750

 

 

 

15,750

 

 

 

31,500

 

 

 

31,500

 

 

 

—

 

Obligations under capital leases

 

 

38,274

 

 

 

5,363

 

 

 

10,159

 

 

 

11,088

 

 

 

11,664

 

Interest payment obligations under our capital leases (3)

 

 

3,519

 

 

 

929

 

 

 

1,413

 

 

 

894

 

 

 

283

 

Operating leases (4)

 

 

59,885

 

 

 

18,417

 

 

 

21,406

 

 

 

8,900

 

 

 

11,162

 

Total contractual obligations

 

$

1,110,755

 

 

$

53,433

 

 

$

89,592

 

 

$

944,621

 

 

$

23,109

 

 

(1)

Scheduled interest rate obligations under our Credit Agreement, which is subject to a variable rate of interest, were calculated using our weighted average rate of 2.1% at December 31, 2015 through April 2016. Subsequent interest obligations were calculated at a rate of 1.9% in accordance with the Credit Agreement pricing grid that will be in effect at that time.

(2)

Scheduled interest rate obligations under our Senior Notes were calculated using the stated rate of 7.875%.

(3)

Scheduled interest rate obligations under capital leases were calculated using imputed rates primarily ranging from 1.8% to 12.7%.

(4)

Operating lease obligations include operating commitments and restructuring related commitments and are net of sub-lease income. For further discussion see Note 13 to the accompanying consolidated financial statements.

Off-Balance Sheet Transactions

We do not maintain any off-balance sheet transactions, arrangements, obligations or other relationships with unconsolidated entities or others that are reasonably likely to have a material current or future effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources.  

Seasonality

Demand from our portable storage customers is somewhat seasonal. Construction customers typically reflect higher demand during months with more temperate weather, while demand for our portable storage units by large retailers is stronger from September through December because these retailers need to store more inventories for the holiday season. Our retail customers usually return these rented units to us in December and early in the following year. In the specialty containment business, demand from customers is typically higher in the middle of the year from March to October, driven by the timing of customer maintenance projects. The demand for rental of our pumps may also be impacted by weather, specifically when temperatures drop below freezing.

Critical Accounting Policies, Estimates and Judgments

Our significant accounting policies are disclosed in Note 2 to the accompanying consolidated financial statements. The following discussion addresses our most critical accounting policies, some of which require significant judgment.

Our consolidated financial statements have been prepared in accordance with GAAP. The preparation of these consolidated financial statements requires us to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses during the reporting period. These estimates and assumptions are based upon expert information, our evaluation of historical results and anticipated future events, and these estimates may change as additional information becomes available. We have identified below our accounting policies that we believe could potentially produce materially different results if we were to change underlying estimates or assumptions.

Revenue Recognition . Rental revenue is generated from the direct rental of our fleet to our customers, including ancillary revenue such as fleet delivery and pickup.  We enter into contracts with our customers to rent equipment based on a monthly rate for our portable storage fleet and a daily, weekly or monthly rate for our specialty containment fleet.  Revenues from renting are recognized ratably over the rental period. The rental continues until cancelled by the customer or the Company. Customers may utilize

42

 

our equipment delivery and pick-up services in conjunction with the rental of equipment, but it is not required. Revenue pursuant to the pick up or delivery of a rented unit is recognized in rental revenue upon completion of the service.  When customers are billed in ad vance, we defer recognition of revenue and record unearned rental revenue at the end of the period. If equipment is returned prior to the end of the contractually obligated period, the excess, if any, between the amount the customer is contractually requir ed to pay, over the cumulative amount of revenue recognized to date, is recognized as incremental revenue upon return.

Sales revenue is primarily generated by the sale of new and used units, and to a lesser extent, parts and supplies sold to specialty containment customers.  We recognize revenues from sales of units upon delivery when the risk of loss passes, the price is fixed and determinable and collectability is reasonably assured. We sell our units pursuant to sales contracts stating the fixed sales price.

Share-Based Compensation . We calculate the fair value of stock options using the Black-Scholes-Merton option pricing valuation model, which incorporates various assumptions including volatility, expected life and risk-free interest rates.  The fair value of restricted stock awards is estimated as the closing price of our common stock on the date of grant.  Compensation related to service-based awards is recognized on a straight-line basis over the vesting period, which is generally three to five years. Compensation expense related to performance-based awards is recognized over the implicit service period of the award based on management’s estimate of the probability of the performance criteria being satisfied, adjusted at each balance sheet date.  Expense related to performance-based awards that have multiple vesting dates, is recognized using the accelerated attribution approach, whereby each vesting tranche is treated as a separate award for purposes of determining the implicit service period.  Share-based compensation expense is reduced for forfeitures which are estimated at the time of grant based on historical experience, and revised in subsequent periods if actual forfeitures differ from estimates.

Purchase Accounting . We account for acquisitions under the acquisition method. Under the acquisition method of accounting, we record assets acquired and liabilities assumed at their estimated fair market value on the date of acquisition.  Goodwill is measured as the excess of the fair value of the consideration transferred over the fair value of the identifiable net assets. Estimated fair values of acquired assets and liabilities is provisional and could change as additional information is received. We finalize valuations as soon as practicable, but not later than one-year from the acquisition date. Any subsequent changes to purchase price allocations results in a corresponding adjustment to goodwill.

The determination of the fair value of intangible assets requires the use of significant judgment with regard to (i) the fair value; and (ii) whether such intangibles are amortizable or non-amortizable and, if amortizable, the period and the method by which the intangible asset will be amortized. We estimate the fair value of acquisition-related intangible assets principally based on projections of cash flows that will arise from identifiable intangible assets of acquired businesses. The projected cash flows are discounted to determine the present value of the assets at the dates of acquisition.

Goodwill .  For acquired businesses, we record assets acquired and liabilities assumed at their estimated fair values on the respective acquisition dates. Based on these values, the excess purchase prices over the fair value of the net assets acquired is recorded as goodwill. Of the $706.4 million total goodwill at December 31, 2015, $463.6 million relates to the North America portable storage segment, $61.5 million relates to the U.K. portable storage segment and $181.2 million relates to the specialty containment segment.

Goodwill impairment testing requires judgment, including:  the identification of the reporting units; determination of the fair value of each reporting unit; the assignment of assets, liabilities and goodwill to each reporting unit; estimates and assumptions regarding future cash flows and discount rates; and an assumption regarding the form of the transaction in which the reporting unit would be acquired by a market participant. Management assesses potential impairment of goodwill on an annual basis at December 31, or whenever events or changes in circumstances indicate that the carrying value may not be recoverable.  

Some factors management considers important which could indicate an impairment review include the following:

 

·

significant under-performance relative to historical, expected or projected future operating results;

 

·

significant changes in the manner of our use of the acquired assets or the strategy for the overall business;

 

·

market capitalization relative to net book value; and

 

·

significant negative industry or general economic trends.

Management may choose to assess qualitative factors to determine if it is more-likely-than-not that goodwill might be impaired and whether or not to perform the two-step goodwill impairment test.  When the two-step impairment test is performed, the first step requires a comparison of the fair value of each of our reporting unit’s net assets to the respective carrying value of net assets.  If the carrying value of a reporting unit’s net assets is less than its fair value, no indication of impairment exists and a second step is not performed. If the carrying amount of a reporting unit’s net assets is higher than its fair value, there is an indication that an impairment

43

 

may exist and a second step must be performed.  If the second step is necessary, management is required to determine the implied fair value of the goodwill and compare it to the carrying value of the goodwill. The fair value of the reporting units would be assigned to the respective assets and liabilities of e ach reporting unit as if the reporting units had been acquired in separate and individual business combinations and the fair value of the reporting units was the price paid to acquire the reporting units. The excess of the fair value of the reporting units over the amounts assigned to their respective assets and liabilities is the implied fair value of goodwill. If the carrying amount of the reporting unit’s goodwill is greater than the implied fair value of its goodwill, an impairment loss must be recogniz ed for the difference.

In assessing the fair value of the reporting units, management considers both the market approach and the income approach. Under the market approach, the fair value of the reporting unit is based on quoted market prices of companies comparable to the reporting unit being valued. Under the income approach, the fair value of the reporting unit is based on the present value of estimated cash flows. The income approach is dependent on a number of significant management assumptions, including estimated future revenue growth rates and discount rates.  Other estimates relate to tax payments, operating margins and capital expenditures. Each approach is given equal weight in arriving at the fair value of the reporting unit.

In connection with our goodwill impairment test that was conducted as of December 31, 2015, we chose to perform the first step of the goodwill impairment test for each of our reporting units.  Our goodwill impairment testing as of this date indicated that both of our portable storage reporting units and our specialty containment reporting unit had estimated fair values which substantially exceeded their respective carrying amounts. The second step of the impairment test was not required for any of the reporting units.

As of December 31, 2014, management assessed qualitative factors and determined it is more likely than not each of the reporting unit’s assigned goodwill had estimated fair values greater than the respective reporting unit’s individual net asset carrying values; therefore, the two step impairment test was not required.

Impairment of Long-Lived Assets (Other than Goodwill) . Our rental fleet, property, plant and equipment, and finite-lived intangibles are reviewed for impairment whenever events or changes in circumstances indicate the carrying amount of such assets may be impaired. (See potential impairment indicators under “Goodwill” above.) If this review indicates the carrying value of these assets will not be recoverable, as measured based on estimated undiscounted cash flows over their remaining life, the carrying amount would be adjusted to fair value.  The cash flow estimates contain management’s best estimates using appropriate and customary assumptions and projections at the time of evaluation.

During the first quarter of 2015, we entered into discussions regarding the possible sale of our wood mobile offices within our North American portable storage segment.  The discussions indicated that the wood mobile offices might be sold at an amount below carrying value and we conducted a review for impairment for these long-lived assets as of March 31, 2015. Based on this review, an impairment loss was recorded in the quarter ended March 31, 2015. The total impairment of the wood mobile offices was $64.6 million during 2015.  See additional discussion regarding the impairment and the divestiture of the wood mobile offices in Note 4 to the accompanying consolidated financial statements.

In the second quarter of 2013, we conducted an assessment of the rental fleet and determined that certain of these units were either non-core to our rental strategy or were uneconomic to repair.  In connection with this evaluation, we determined to place these assets for sale, resulting in a non-cash impairment charge on long-lived assets of $37.6 million in the second quarter of 2013.  As these assets have been sold or otherwise disposed of, additional adjustments have been made to the impairment charge resulting in total asset impairment charges, net of recoveries, of $0.6 million in 2014 and $38.7 million in 2013.

There were no indicators of further impairment at December 31, 2015 or at December 31, 2014.

Rental Fleet . Rental fleet is capitalized at cost and depreciated over the estimated useful life of the unit using the straight-line method. Rental fleet is depreciated whether or not it is out on rent. Capitalized cost of our rental fleet includes the price paid to acquire the unit and freight charges to the location when the unit is first placed in service, and when applicable, the cost of our manufacturing or remanufacturing, which includes the cost of customizing units. Ordinary repair and maintenance costs are charged to operations as incurred.

We periodically review depreciable lives and residual values against various factors, including the results of our lenders’ independent appraisal of our rental fleet, practices of our competitors in comparable industries and profit margins achieved on sales of depreciated units.

44

 

The table below depicts the estimated useful lives and residual val ues (presented as a percentage of capitalized cost) for our major categories of portable storage rental fleet.

 

 

 

Residual

Value as

Percentage of

Original Cost

 

Useful Life

in Years

 

Portable Storage:

 

 

 

 

 

 

Steel storage containers

 

55%

 

 

30

 

Steel ground level offices

 

55

 

 

30

 

 

The table below depicts the estimated useful lives for our major categories of specialty containment rental fleet when purchased new. We estimate zero residual value for our specialty containment fleet as there is a limited secondary market for specialty containment products.

 

 

 

Useful Life

in Years

Specialty Containment:

 

 

Steel tanks

 

25

Roll-off boxes

 

15 - 20

Vacuum boxes

 

20

Stainless steel tank trailers

 

25

De-watering boxes

 

20

Pumps and filtration equipment

 

7

 

The estimated useful lives and residual values of or our rental fleet might change in the future based on changing circumstances.  If these estimates change in the future, we may be required to recognize increased or decreased depreciation expense for these assets. For instance, if all our rental fleet units had been placed in service with useful lives 25% less or greater than our current estimated useful lives, we estimate that our annual depreciation expense for the year ended December 31, 2015 would have been $11.4 million higher or $6.8 million lower, respectively.

Similarly, if our rental fleet units had been placed in service with estimated residual values decreased by 10% of the original cost, for example from 55% to 45% (with specialty containment residual values remaining at 0%), depreciation expense would have been approximately $3.5 million higher for the year ended December 31, 2015.  If our rental fleet units had been placed in service with estimated residual values increased by 10% of the original cost, for example, from 55% to 65% for steel storage containers and from 0% to 10% for specialty containment, our depreciation expense would have been lower by approximately $5.3 million, for the year ended December 31, 2015.

Insurance Reserves . We maintain insurance coverage for our operations and employees with appropriate aggregate, per occurrence and deductible limits as we reasonably determine is necessary or prudent considering current operations and historical experience. The majority of these coverages have large deductible programs which allow for potential improved cash flow benefits based on our loss control efforts, while guarantying a maximum premium liability.

Our employee group health insurance program is a self-insured program with individual and aggregate stop loss limits. The insurance provider is responsible for funding all claims in excess of the calculated monthly maximum liability. This calculation is based on a variety of factors including the number of employees enrolled in the plan. Actual results may vary from estimates based on our actual experience at the end of the plan policy periods based on the carrier’s loss predictions and our historical claims data.  

We expense the deductible portion of the individual claims. However, we generally do not know the full amount of our exposure to a deductible in connection with any particular claim during the fiscal period in which the claim is incurred and for which we must make an accrual for the deductible expense. We make these accruals based on a combination of the claims development experience of our staff and our insurance companies, and, at year end, the accrual is reviewed and adjusted, in part, based on an independent actuarial review of historical loss data and using certain actuarial assumptions followed in the insurance industry. A high degree of judgment is required in developing these estimates of amounts to be accrued, as well as in connection with the underlying assumptions. In addition, our assumptions will change as our loss experience is developed. All of these factors have the potential for significantly impacting the amounts previously reserved with respect to anticipated deductible expenses and we may be required in the future to increase or decrease amounts previously accrued.

45

 

Income Taxes . In preparing our consolidated financial statements, we recognize income taxes in each of the jurisdictions in which we operate. For each jurisdiction, we estimate the actual amount of taxes current ly payable or receivable as well as deferred tax assets and liabilities attributable to temporary differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred income tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which these temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is r ecognized in income in the period that includes the enactment date.

A valuation allowance is provided for those deferred tax assets for which it is more likely than not that the related benefits will not be realized. In determining the amount of the valuation allowance, we consider estimated future taxable income as well as feasible tax planning strategies in each jurisdiction. If we determine that we will not realize all or a portion of our deferred tax assets, we will increase our valuation allowance with a charge to income tax expense. Conversely, if we determine that we will ultimately be able to realize all or a portion of the related benefits for which a valuation allowance has been provided, all or a portion of the related valuation allowance will be reduced with a credit to income tax expense.

The majority of our deferred tax asset relates to federal net operating loss carryforwards that have future expiration dates. Management believes that adequate future taxable income will be generated through future operations, or through available tax planning strategies to recover the unreserved portion of these assets. However, given that the federal net operating loss carryforwards that give rise to the deferred tax asset expire over 7 years beginning in 2028, there could be changes in management’s judgment in future periods with respect to the recoverability of these assets.

Tax regulations within the various jurisdictions within which we operate are subject to interpretation of the related tax laws and regulations and require the application of significant judgment.  Our income taxes are subject to examination by federal, state and foreign tax authorities.  There may be differing interpretations of tax laws and regulations, and as a result, disputes may arise with these tax authorities involving the timing and amount of deductions and allocation of income.

A deferred U.S. tax liability has not been provided on the undistributed earnings of certain foreign subsidiaries because it is our intent to permanently reinvest such earnings.  If the undistributed earnings at December 31, 2015 are repatriated, we would need to accrue and pay income taxes at that time.

See additional information regarding income taxes in Note 9 to the accompanying financial statements.

Recent Accounting Pronouncements

Simplifying the Presentation of Debt Issuance Costs .  In April 2015, the Financial Accounting Standards Board (“FASB”) issued accounting guidance on the presentation of debt issuance costs in the balance sheet.  This standard requires that certain debt issuance costs related to a recognized debt liability be presented in the balance sheet as a direct deduction from the carrying amount of that debt liability, consistent with debt discounts. The recognition and measurement guidance for debt issuance costs are not affected by this guidance.  We will adopt this guidance for accounting periods subsequent to December 31, 2015.  Unamortized debt issuance costs are included in other assets.  The application of this guidance will not affect our statement of operations or cash flow.

Revenue from Contracts with Customers .  In May 2014, FASB issued an accounting standard on revenue from contracts with customers.  The standard provides a single model for revenue arising from contracts with customers and supersedes current revenue recognition guidance.  The standard requires an entity to recognize the amount of revenue to which it expects to be entitled for the transfer of goods or services.  The standard is effective for annual and interim periods beginning after December 15, 2017.  Early adoption is permitted for the annual and interim periods beginning after December 15, 2016, but not prior to that time.  The revenue recognition standard permits the use of either the retrospective or cumulative effect transition method.  We are evaluating the impact, if any, of the adoption of the standard to our financial statements and related disclosures.  We have not yet selected a transition method nor determined the effect of the standard on our ongoing financial reporting.

Reporting Discontinued Operations and Disclosures of Disposals of Components of an Entity .  In April 2014, FASB issued accounting guidance on reporting discontinued operations and disclosures of disposals of components of an entity.  The new guidance raises the threshold for a disposal to qualify as a discontinued operation and requires new disclosures of both discontinued operations and certain other disposals that do not meet the definition of a discontinued operation.  The guidance is effective for fiscal years beginning after December 15, 2014.  We have applied this guidance prospectively to transactions occurring after December 31, 2014.

 

46

 

ITEM 7A.

QUANTITATIVE AND QUALITAT IVE DISCLOSURES ABOUT MARKET RISK.  

The following table sets forth the scheduled maturities and the total fair value of our debt portfolio as of December 31, 2015:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total Fair

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total at

 

 

Value at

 

 

 

Principal Maturing in the Twelve Months Ended December 31,

 

 

December   31,

 

 

December 31,

 

 

 

2016

 

 

2017

 

 

2018

 

 

2019

 

 

2020

 

 

Thereafter

 

 

2015

 

 

2015

 

 

 

(In thousands, except percentages)

 

Debt:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Fixed rate

 

$

5,363

 

 

$

5,214

 

 

$

4,945

 

 

$

5,282

 

 

$

205,806

 

 

$

11,664

 

 

$

238,274

 

 

$

245,274

 

Average interest rate

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6.96

%

 

 

 

 

Floating rate

 

$

—

 

 

$

—

 

 

$

—

 

 

$

—

 

 

$

667,708

 

 

$

—

 

 

$

667,708

 

 

$

667,708

 

Average interest rate

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2.13

%

 

 

 

 

Operating leases

 

$

18,417

 

 

$

12,927

 

 

$

8,479

 

 

$

5,212

 

 

$

3,688

 

 

$

11,162

 

 

$

59,885

 

 

 

 

 

 

Impact of Foreign Currency Rate Changes. We currently have operations outside the U.S., and we bill those customers primarily in their local currency, which is subject to foreign currency rate changes. Our operations in Canada are billed in the Canadian dollar and operations in the U.K. are billed in Pound Sterling. We are exposed to foreign exchange rate fluctuations as the financial results of our non-U.S. operations are translated into U.S. dollars. The impact of foreign currency rate changes has historically been insignificant with our Canadian operations, but we have more exposure to volatility with our U.K. operations. In order to help minimize our exchange rate gain and loss volatility, we finance our U.K. entities through our revolving lines of credit, which allows us, at our option, to borrow funds locally in Pound Sterling denominated debt.  We do not currently hedge our currency transaction or translation exposure, nor do we have any current plans to do so.

 

 

47

 

ITEM 8.

FINANCIAL STATEMENT S AND SUPPLEMENTARY DATA.  

INDEX TO CONSOLIDATED FINANCIAL STATEMENTS AND SCHEDULE

 

Report of Independent Registered Public Accounting Firm

49

Consolidated Balance Sheets — December 31, 2015 and 2014

50

Consolidated Statements of Income — For the Years Ended December 31, 2015, 2014 and 2013

51

Consolidated Statements of Comprehensive Income — For the Years Ended December 31, 2015, 2014 and 2013

52

Consolidated Statements of Stockholders’ Equity — For the Years Ended December 31, 2015, 2014 and 2013

53

Consolidated Statements of Cash Flows — For the Years Ended December 31, 2015, 2014 and 2013

54

Notes to Consolidated Financial Statements

55

 

 

 

48

 

Report of Independent Regist ered Public Accounting Firm

The Board of Directors and Stockholders

Mobile Mini, Inc.:

We have audited the accompanying consolidated balance sheets of Mobile Mini, Inc. and subsidiaries as of December 31, 2015 and 2014, and the related consolidated statements of income, comprehensive income (loss), stockholders’ equity, and cash flows for each of the years in the three-year period ended December 31, 2015. We also have audited Mobile Mini, Inc.’s internal control over financial reporting as of December 31, 2015, based on criteria established in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Mobile Mini, Inc.’s management is responsible for these consolidated financial statements, for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying “Report of Management on Internal Control Over Financial Reporting”. Our responsibility is to express an opinion on these consolidated financial statements and an opinion on the Company’s internal control over financial reporting based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement and whether effective internal control over financial reporting was maintained in all material respects. Our audits of the consolidated financial statements included examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Mobile Mini, Inc. and subsidiaries as of December 31, 2015 and 2014, and the results of their operations and their cash flows for each of the years in the three-year period ended December 31, 2015, in conformity with U.S. generally accepted accounting principles. Also in our opinion, Mobile Mini, Inc. maintained, in all material respects, effective internal control over financial reporting as of December 31, 2015, based on criteria established in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) .

/s/ KPMG LLP

Phoenix, Arizona

February 5, 2016

 

 

49

 

MOBILE MINI, INC.

CONSOLIDATED BALANCE SHEETS

(In thousands except par value data)

 

 

 

December 31,

 

 

 

2015

 

 

2014

 

ASSETS

 

Cash and cash equivalents

 

$

1,613

 

 

$

3,739

 

Receivables, net of allowance for doubtful accounts of $2,162 and $1,636 at

   December 31, 2015 and December 31, 2014, respectively

 

 

80,191

 

 

 

81,031

 

Inventories

 

 

15,596

 

 

 

16,736

 

Rental fleet, net

 

 

951,323

 

 

 

1,087,056

 

Property, plant and equipment, net

 

 

131,687

 

 

 

113,175

 

Deposits and prepaid expenses

 

 

8,651

 

 

 

8,586

 

Deferred financing costs, net and other assets

 

 

10,562

 

 

 

8,858

 

Intangibles, net

 

 

73,212

 

 

 

78,385

 

Goodwill

 

 

706,387

 

 

 

705,608

 

Total assets

 

$

1,979,222

 

 

$

2,103,174

 

 

 

 

 

 

 

 

 

 

LIABILITIES AND STOCKHOLDERS’ EQUITY

 

Liabilities:

 

 

 

 

 

 

 

 

Accounts payable

 

$

29,086

 

 

$

22,933

 

Accrued liabilities

 

 

59,024

 

 

 

63,727

 

Lines of credit

 

 

667,708

 

 

 

705,518

 

Obligations under capital leases

 

 

38,274

 

 

 

24,918

 

Senior Notes

 

 

200,000

 

 

 

200,000

 

Deferred income taxes

 

 

219,601

 

 

 

231,547

 

Total liabilities

 

 

1,213,693

 

 

 

1,248,643

 

Commitments and contingencies

 

 

 

 

 

 

 

 

Stockholders' equity:

 

 

 

 

 

 

 

 

Preferred stock $.01 par value, 20,000 shares authorized, none issued

 

 

—

 

 

 

—

 

Common stock $.01 par value, 95,000 shares authorized, 49,145 issued and 44,594

   outstanding at December 31, 2015 and 49,015 issued and 46,157 outstanding at

   December 31, 2014

 

 

491

 

 

 

490

 

Additional paid-in capital

 

 

584,447

 

 

 

569,083

 

Retained earnings

 

 

352,262

 

 

 

380,504

 

Accumulated other comprehensive loss

 

 

(44,162

)

 

 

(29,870

)

Treasury stock, at cost, 4,551 and 2,858 shares at December 31, 2015 and

   December 31, 2014, respectively

 

 

(127,509

)

 

 

(65,676

)

Total stockholders' equity

 

 

765,529

 

 

 

854,531

 

Total liabilities and stockholders' equity

 

$

1,979,222

 

 

$

2,103,174

 

 

 

 

 

 

 

 

 

 

 

 

 

 

See accompanying notes.

 

50

 

MOBILE MINI, INC.

CONSOLIDATED STATEMENTS OF INCOME

(In thousands except per share data)

 

 

 

For the Years Ended December 31,

 

 

 

2015

 

 

2014

 

 

2013

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

Rental

 

$

494,715

 

 

$

410,362

 

 

$

366,286

 

Sales

 

 

29,953

 

 

 

31,585

 

 

 

38,051

 

Other

 

 

6,109

 

 

 

3,527

 

 

 

2,149

 

Total revenues

 

 

530,777

 

 

 

445,474

 

 

 

406,486

 

Costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

Rental, selling and general expenses

 

 

326,252

 

 

 

280,948

 

 

 

237,567

 

Cost of sales

 

 

19,671

 

 

 

21,944

 

 

 

25,413

 

Restructuring expenses

 

 

20,798

 

 

 

3,542

 

 

 

2,402

 

Asset impairment charge and loss on divestiture, net

 

 

66,128

 

 

 

557

 

 

 

38,705

 

Depreciation and amortization

 

 

60,344

 

 

 

39,334

 

 

 

35,432

 

Total costs and expenses

 

 

493,193

 

 

 

346,325

 

 

 

339,519

 

Income from operations

 

 

37,584

 

 

 

99,149

 

 

 

66,967

 

Other income (expense):

 

 

 

 

 

 

 

 

 

 

 

 

Interest income

 

 

1

 

 

 

—

 

 

 

1

 

Interest expense

 

 

(35,900

)

 

 

(28,729

)

 

 

(29,467

)

Deferred financing costs write-off

 

 

(931

)

 

 

—

 

 

 

—

 

Foreign currency exchange

 

 

(2

)

 

 

(1

)

 

 

(2

)

Income from continuing operations before income tax (benefit) provision

 

 

752

 

 

 

70,419

 

 

 

37,499

 

Income tax (benefit) provision

 

 

(4,822

)

 

 

26,033

 

 

 

12,275

 

Income from continuing operations

 

 

5,574

 

 

 

44,386

 

 

 

25,224

 

Loss from discontinued operation, net of tax

 

 

—

 

 

 

—

 

 

 

(1,302

)

Net income

 

$

5,574

 

 

$

44,386

 

 

$

23,922

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Earnings per Share:

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

 

 

 

 

 

 

 

 

 

 

 

Income from continuing operations

 

$

0.12

 

 

$

0.96

 

 

$

0.55

 

Loss from discontinued operation

 

 

—

 

 

 

—

 

 

 

(0.02

)

Net income

 

$

0.12

 

 

$

0.96

 

 

$

0.53

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Diluted

 

 

 

 

 

 

 

 

 

 

 

 

Income from continuing operations

 

$

0.12

 

 

$

0.95

 

 

$

0.55

 

Loss from discontinued operation

 

 

—

 

 

 

—

 

 

 

(0.03

)

Net income

 

$

0.12

 

 

$

0.95

 

 

$

0.52

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted average number of common and common share equivalents

   outstanding:

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

 

44,953

 

 

 

46,026

 

 

 

45,481

 

Diluted

 

 

45,460

 

 

 

46,725

 

 

 

46,096

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash dividends declared per share

 

$

0.75

 

 

$

0.68

 

 

$

—

 

 

 

 

 

 

 

 

See accompanying notes.

 

51

 

 

MOBILE MINI, INC.

CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (LOSS)

(In thousands)

 

 

 

For the Years Ended December 31,

 

 

 

2015

 

 

2014

 

 

2013

 

Net income

 

$

5,574

 

 

$

44,386

 

 

$

23,922

 

Other comprehensive (loss) income:

 

 

 

 

 

 

 

 

 

 

 

 

Foreign currency translation adjustment, net of income tax benefit

   of $184, $213 and $194 and in 2015, 2014 and 2013,

   respectively

 

 

(14,292

)

 

 

(14,430

)

 

 

2,377

 

Other comprehensive (loss) income

 

 

(14,292

)

 

 

(14,430

)

 

 

2,377

 

Comprehensive (loss) income

 

$

(8,718

)

 

$

29,956

 

 

$

26,299

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

See accompanying notes.

 

 

52

 

MOBILE MINI, INC.

CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY

For the years ended December 31, 2013, 2014 and 2015

(In thousands)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Accumulated

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Additional

 

 

 

 

 

 

Other

 

 

 

 

 

 

 

 

 

 

Total

 

 

 

Common Stock

 

 

Paid-In

 

 

Retained

 

 

Comprehensive

 

 

Treasury Stock

 

 

Stockholders'

 

 

 

Shares

 

 

Amount

 

 

Capital

 

 

Earnings

 

 

Income (Loss)

 

 

Shares

 

 

Amount

 

 

Equity

 

Balance at January 1, 2013

 

 

46,036

 

 

$

482

 

 

$

522,372

 

 

$

343,782

 

 

$

(17,817

)

 

 

2,175

 

 

$

(39,300

)

 

$

809,519

 

Net income

 

 

—

 

 

 

—

 

 

 

—

 

 

 

23,922

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

23,922

 

Common stock dividends declared

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(7,926

)

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(7,926

)

Other comprehensive income

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

2,377

 

 

 

—

 

 

 

—

 

 

 

2,377

 

Exercise of stock options

 

 

647

 

 

 

6

 

 

 

13,812

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

13,818

 

Tax shortfall on equity award

   transactions

 

 

—

 

 

 

—

 

 

 

(837

)

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(837

)

Purchase of treasury stock

 

 

(9

)

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

9

 

 

 

(369

)

 

 

(369

)

Restricted stock grants, net

 

 

(48

)

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

Share-based compensation

 

 

—

 

 

 

—

 

 

 

15,040

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

15,040

 

Balance at December 31, 2013

 

 

46,626

 

 

 

488

 

 

 

550,387

 

 

 

359,778

 

 

 

(15,440

)

 

 

2,184

 

 

 

(39,669

)

 

 

855,544

 

Net income

 

 

—

 

 

 

—

 

 

 

—

 

 

 

44,386

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

44,386

 

Common stock dividends declared

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(23,660

)

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(23,660

)

Other comprehensive loss

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(14,430

)

 

 

—

 

 

 

—

 

 

 

(14,430

)

Exercise of stock options

 

 

164

 

 

 

2

 

 

 

3,640

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

3,642

 

Tax shortfall on equity award

   transactions

 

 

—

 

 

 

—

 

 

 

(15

)

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(15

)

Purchase of treasury stock

 

 

(674

)

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

674

 

 

 

(26,007

)

 

 

(26,007

)

Restricted stock grants, net

 

 

41

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

Share-based compensation

 

 

—

 

 

 

—

 

 

 

15,071

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

15,071

 

Balance at December 31, 2014

 

 

46,157

 

 

 

490

 

 

 

569,083

 

 

 

380,504

 

 

 

(29,870

)

 

 

2,858

 

 

 

(65,676

)

 

 

854,531

 

Net income

 

 

—

 

 

 

—

 

 

 

—

 

 

 

5,574

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

5,574

 

Common stock dividends declared

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(33,816

)

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(33,816

)

Other comprehensive loss

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(14,292

)

 

 

—

 

 

 

—

 

 

 

(14,292

)

Exercise of stock options

 

 

62

 

 

 

—

 

 

 

1,703

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

1,703

 

Tax shortfall on equity award

   transactions

 

 

—

 

 

 

—

 

 

 

(166

)

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

(166

)

Purchase of treasury stock

 

 

(1,693

)

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

1,693

 

 

 

(61,833

)

 

 

(61,833

)

Restricted stock grants, net

 

 

68

 

 

 

1

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

1

 

Share-based compensation

 

 

—

 

 

 

—

 

 

 

13,827

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

—

 

 

 

13,827

 

Balance at December 31, 2015

 

 

44,594

 

 

$

491

 

 

$

584,447

 

 

$

352,262

 

 

$

(44,162

)

 

 

4,551

 

 

$

(127,509

)

 

$

765,529

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

See accompanying notes.

 

 

53

 

MOBILE MINI, INC.

CONSOLIDATED STATEMENTS OF CASH FLOWS

(In thousands)

 

 

 

For the Years Ended December 31,

 

 

 

2015

 

 

2014

 

 

2013

 

Cash Flows from Operating Activities:

 

 

 

 

 

 

 

 

 

 

 

 

Net income

 

$

5,574

 

 

$

44,386

 

 

$

23,922

 

Adjustments to reconcile net income to net cash provided by operating

   activities:

 

 

 

 

 

 

 

 

 

 

 

 

Deferred financing costs write-off

 

 

931

 

 

 

—

 

 

 

—

 

Asset impairment charge and loss on divestiture, net

 

 

66,128

 

 

 

557

 

 

 

38,217

 

Non-cash restructuring expense, excluding share-based

   compensation

 

 

12,411

 

 

 

—

 

 

 

—

 

Provision for doubtful accounts

 

 

3,705

 

 

 

2,777

 

 

 

2,481

 

Amortization of deferred financing costs

 

 

3,131

 

 

 

2,829

 

 

 

2,811

 

Amortization of long-term liabilities

 

 

101

 

 

 

88

 

 

 

169

 

Share-based compensation expense

 

 

13,827

 

 

 

15,071

 

 

 

14,714

 

Depreciation and amortization

 

 

60,344

 

 

 

39,334

 

 

 

35,626

 

Loss on disposal of discontinued operation

 

 

—

 

 

 

—

 

 

 

1,948

 

Gain on sale of rental fleet

 

 

(6,402

)

 

 

(5,732

)

 

 

(9,682

)

Loss on disposal of property, plant and equipment

 

 

2,188

 

 

 

348

 

 

 

247

 

Deferred income taxes

 

 

(5,629

)

 

 

25,424

 

 

 

11,012

 

Tax shortfall on equity award transactions

 

 

(166

)

 

 

(15

)

 

 

(837

)

Foreign currency transaction loss

 

 

2

 

 

 

1

 

 

 

1

 

Changes in certain assets and liabilities, net of effect of businesses acquired:

 

 

 

 

 

 

 

 

 

 

 

 

Receivables

 

 

(4,184

)

 

 

(7,196

)

 

 

(3,961

)

Inventories

 

 

945

 

 

 

2,680

 

 

 

(393

)

Deposits and prepaid expenses

 

 

(833

)

 

 

(1,416

)

 

 

653

 

Other assets and intangibles

 

 

(22

)

 

 

17

 

 

 

10

 

Accounts payable

 

 

4,605

 

 

 

(723

)

 

 

337

 

Accrued liabilities

 

 

(3,842

)

 

 

2,195

 

 

 

(1,164

)

Net cash provided by operating activities

 

 

152,814

 

 

 

120,625

 

 

 

116,111

 

Cash Flows from Investing Activities:

 

 

 

 

 

 

 

 

 

 

 

 

Proceeds from wood mobile office divestiture, net

 

 

83,280

 

 

 

—

 

 

 

—

 

Proceeds from sale of discontinued operation

 

 

—

 

 

 

—

 

 

 

677

 

Cash paid for businesses acquired, net of cash acquired

 

 

(18,525

)

 

 

(430,946

)

 

 

—

 

Additions to rental fleet, excluding acquisitions

 

 

(74,732

)

 

 

(27,279

)

 

 

(28,826

)

Proceeds from sale of rental fleet

 

 

16,865

 

 

 

23,053

 

 

 

35,951

 

Additions to property, plant and equipment, excluding acquisitions

 

 

(31,163

)

 

 

(15,779

)

 

 

(15,792

)

Proceeds from sale of property, plant and equipment

 

 

9,860

 

 

 

4,199

 

 

 

1,970

 

Net cash used in investing activities

 

 

(14,415

)

 

 

(446,752

)

 

 

(6,020

)

Cash Flows from Financing Activities:

 

 

 

 

 

 

 

 

 

 

 

 

Net borrowings (repayments) under lines of credit

 

 

(37,810

)

 

 

386,204

 

 

 

(123,076

)

Deferred financing costs

 

 

(4,683

)

 

 

(719

)

 

 

—

 

Principal payments on notes payable

 

 

—

 

 

 

—

 

 

 

(310

)

Principal payments on capital lease obligations

 

 

(4,253

)

 

 

(1,956

)

 

 

(408

)

Issuance of common stock

 

 

1,703

 

 

 

3,642

 

 

 

13,818

 

Dividend payments

 

 

(33,700

)

 

 

(31,384

)

 

 

—

 

Purchase of treasury stock

 

 

(61,833

)

 

 

(26,007

)

 

 

(369

)

Net cash (used in) provided by financing activities

 

 

(140,576

)

 

 

329,780

 

 

 

(110,345

)

Effect of exchange rate changes on cash

 

 

51

 

 

 

(1,170

)

 

 

(427

)

Net (decrease) increase in cash

 

 

(2,126

)

 

 

2,483

 

 

 

(681

)

Cash and cash equivalents at beginning of year

 

 

3,739

 

 

 

1,256

 

 

 

1,937

 

Cash and cash equivalents at end of year

 

$

1,613

 

 

$

3,739

 

 

$

1,256

 

Supplemental Disclosure of Cash Flow Information:

 

 

 

 

 

 

 

 

 

 

 

 

Cash paid during the year for interest

 

$

32,372

 

 

$

24,559

 

 

$

25,947

 

Cash paid during the year for income and franchise taxes

 

 

4,935

 

 

 

1,103

 

 

 

1,114

 

Equipment and other acquired through capital lease obligations

 

 

17,638

 

 

 

16,508

 

 

 

8,547

 

Capital expenditures accrued or payable

 

 

4,210

 

 

 

819

 

 

 

345

 

 

See accompanying notes.

 

 

54

 

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

(1) Mobile Mini, Organization and Description of Business

Mobile Mini, Inc., a Delaware corporation, is a leading provider of portable storage and specialty containment solutions. In these notes, the terms “Mobile Mini,” the “Company,” “we,” “us,” and “our” refer to Mobile Mini, Inc. In November 2014, we entered into a Stock Purchase Agreement to acquire Gulf Tanks Holdings (“GTH”), Inc., the parent company of Houston, Texas-based Evergreen Tank Solutions (“ETS”).  The transaction, referred to as the “ETS Acquisition,” closed on December 10, 2014.  See additional information regarding the acquisition in Note 3. On May 15, 2015, we closed a transaction to sell our wood mobile offices within our North American portable storage segment for a cash price of $92.0 million, less associated assumed liabilities.  See additional information regarding the divestiture in Note 4.

At December 31, 2015, we have a fleet of portable storage and office units operating throughout the U.S., Canada and the U.K. serving a diversified customer base, including large and small retailers, construction companies, medical centers, schools, utilities, distributors, the military, hotels, restaurants, entertainment complexes and households. These customers use the products for a wide variety of applications, including the storage of retail and manufacturing inventory, construction materials and equipment, documents and records and other goods. We also have a fleet of specialty containment products, concentrated in the U.S. gulf coast, including liquid and solid containment units, serving a specialty sector in the industry.  Specialty products are leased primarily to chemical, refinery, oil and natural gas drilling, mining and environmental service customers.

Basis of Presentation and Consolidation

The consolidated financial statements include the accounts of Mobile Mini and our wholly owned subsidiaries. We do not have any subsidiaries in which we do not own 100% of the outstanding stock. All significant intercompany balances and transactions have been eliminated.

Use of Estimates

The preparation of financial statements in conformity with U.S. generally accepted accounting principles (“GAAP”) requires management to make estimates and assumptions that affect the amounts reported in the accompanying consolidated financial statements and the notes to those statements. Actual results could differ from those estimates. Significant estimates affect the calculation of depreciation and amortization, the calculation of the allowance for doubtful accounts, the analysis of goodwill and long-lived assets for potential impairment and certain accrued liabilities.

Discontinued Operation

In December 2013, we sold the subsidiary comprising our Netherlands operation. The Netherlands operation is reflected as discontinued operations. See Note 17.

 

 

(2) Summary of Significant Accounting Policies

Cash Equivalents

We consider all highly liquid instruments with insignificant interest rate risk and with maturities of three months or less at purchase to be cash equivalents.

Receivables and Allowance for Doubtful Accounts

Receivables are stated net of an allowance for doubtful accounts. We estimate the amount of customer receivables that are uncollectible and record an estimated provision for bad debts through a charge to operations. The provision is based on historical collection experience and evaluation of past-due accounts. Specific accounts are written off against the allowance when management determines the account is uncollectible. We require a security deposit on most leased office units to cover the cost of damages or unpaid balances, if any.  Our provision for doubtful accounts was less than 1% of total revenues in the years ended December 31, 2015, 2014 and 2013.

55

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

The information presented in the table below reflects the activity in the allowance for doubtful accoun ts during the periods presented.

 

 

 

For the Years Ended December 31,

 

 

 

2015

 

 

2014

 

 

2013

 

 

 

(In thousands)

 

Allowance for doubtful accounts

 

 

 

 

 

 

 

 

 

 

 

 

Balance at beginning of year

 

$

1,636

 

 

$

1,377

 

 

$

1,640

 

Provision charged to expense

 

 

3,705

 

 

 

2,777

 

 

 

2,481

 

Write-offs

 

 

(3,179

)

 

 

(2,518

)

 

 

(2,744

)

Balance at end of year

 

$

2,162

 

 

$

1,636

 

 

$

1,377

 

 

Concentration of Credit Risk

Financial instruments which potentially expose us to concentrations of credit risk consist primarily of receivables. Concentration of credit risk with respect to receivables is limited due to our large number of customers spread over a broad geographic area in many industry sectors. No single customer accounts for more than 10% of our receivables at December 31, 2015 and 2014. Receivables related to sold units are generally secured by the product sold to the customer. We typically have the right to repossess rented portable storage units, including any customer goods contained in the unit, following non-payment of rent.

Inventories

Inventories are valued at the lower of cost (principally on a standard cost basis which approximates the first-in, first-out method) or net realizable value. Raw materials and supplies principally consist of raw steel, wood, glass, paint, vinyl and other assembly components used in manufacturing and remanufacturing processes, and to a lesser extent, parts used for internal maintenance and ancillary items held for sale in our specialty containment segment. Work-in-process primarily represents partially assembled units pre-sold or for use as fleet. Finished portable storage units primarily represent purchased or assembled containers held in inventory until the container is either sold as is, remanufactured and sold, or remanufactured and deployed as rental fleet.

Inventories at December 31 consisted of the following:  

 

 

 

2015

 

 

2014

 

 

 

(In thousands)

 

Raw materials and supplies

 

$

13,436

 

 

$

14,241

 

Work-in-process

 

 

189

 

 

 

201

 

Finished portable storage units

 

 

1,971

 

 

 

2,294

 

Inventories

 

$

15,596

 

 

$

16,736

 

 

Rental fleet

Rental fleet is capitalized at cost and depreciated over the estimated useful life of the unit using the straight-line method. Rental fleet is depreciated whether or not it is out on rent. Capitalized cost of rental fleet includes the price paid to acquire the unit and freight charges to the location when the unit is first placed in service, and when applicable, the cost of manufacturing or remanufacturing, which includes the cost of customizing units. Ordinary repair and maintenance costs are charged to operations as incurred.

We periodically review depreciable lives and residual values against various factors, including the results of our lenders’ independent appraisal of our rental fleet, practices of our competitors in comparable industries and profit margins achieved on sales of depreciated units.

Property, Plant and Equipment

Property, plant and equipment are stated at cost, net of accumulated depreciation and amortization. Depreciation is recorded using the straight-line method over the assets’ estimated useful lives. Our depreciation expense related to property, plant and equipment for 2015, 2014 and 2013 was $20.2 million, $15.1 million and $12.7 million, respectively. Normal repairs and maintenance to property, plant and equipment are expensed as incurred. When property or equipment is retired or sold, the net book value of the

56

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

asset, reduced by any proceeds, is charged to gain or loss on the disposal of property, plant and equipment and is included in rental, selling and general expenses in the Consolidated Statements of Income.

Property, plant and equipment at December 31 consisted of the following:

 

 

 

Residual Value

as Percentage of

Original Cost

 

Useful Life

in Years

 

2015

 

 

2014

 

 

 

 

 

 

 

(In thousands)

 

Land

 

 

 

 

 

$

4,045

 

 

$

10,920

 

Vehicles and machinery

 

0 - 55%

 

5 - 30

 

 

118,185

 

 

 

114,150

 

Buildings and improvements (1)

 

0 - 25

 

3 - 30

 

 

21,549

 

 

 

19,365

 

Office fixtures and equipment

 

0

 

3 - 5

 

 

47,063

 

 

 

33,942

 

Property, plant and equipment

 

 

 

 

 

 

190,842

 

 

 

178,377

 

Accumulated depreciation and amortization

 

 

 

 

 

 

(59,155

)

 

 

(65,202

)

Property, plant and equipment, net

 

 

 

 

 

$

131,687

 

 

$

113,175

 

 

(1)

Improvements made to leased properties are depreciated over the lesser of the estimated useful life or the remaining term of the respective lease.

Capitalized Software Development Costs

We capitalize qualifying computer software costs incurred during the application development state for internally developed software.  Additionally, we capitalize qualifying costs incurred for upgrades and enhancements to existing software that result in additional functionality.  Costs related to preliminary project planning activities, post-implementation activities, maintenance and minor modifications are expensed as incurred.  Internal-use software is amortized on a straight line basis over its estimated useful life.  Capitalized software development costs are included in property, plant and equipment.  As of December 31, 2015 and 2014, we had $22.5 million and $6.0 million, respectively, of capitalized software, net of accumulated depreciation, included in property, plant and equipment.  Of the $22.5 million of capitalized software, $19.6 million relates to the development of our new enterprise resource planning system, which we expect to execute in stages beginning in the first quarter of 2016.

Deferred Financing Costs

Deferred financing costs consists of the costs of obtaining long-term financing.  These costs are amortized over the term of the related debt, using the straight-line method, which approximates the effective interest method. Amortization expense for deferred financing costs was approximately $3.1 million, $2.8 million and $2.8 million in 2015, 2014 and 2013, respectively. As discussed in Note 6, we entered into the Credit Agreement in December 2015, resulting in the capitalization of $4.4 million in third-party and lender fees.  In addition, in 2015, we wrote off $0.9 million of deferred financing costs related to the Prior Credit Agreement.  As of December 31, 2015, $6.8 million of the total $9.8 million unamortized deferred financing costs, related to the Credit Agreement.  A portion of our deferred financing fees relates to potential financing that has not been finalized. Excluding the $0.6 million of deferred financing related to potential financing, the annual amortization of remaining deferred financing costs is expected to be as follows (in thousands):

 

2016

 

$

1,861

 

2017

 

 

1,861

 

2018

 

 

1,861

 

2019

 

 

1,861

 

2020

 

 

1,761

 

Total

 

$

9,205

 

 

Goodwill

For acquired businesses, we record assets acquired and liabilities assumed at their estimated fair values on the respective acquisition dates. Based on these values, the excess purchase prices over the fair value of the net assets acquired is recorded as goodwill. Of the $706.4 million total goodwill at December 31, 2015, $463.6 million relates to the North America portable storage segment, $61.5 million relates to the U.K. portable storage segment and $181.2 million relates to the specialty containment segment.

57

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Goodwill impairment testing requires judgment, including:  the identification of the reporting units; deter mination of the fair value of each reporting unit; the assignment of assets, liabilities and goodwill to each reporting unit; estimates and assumptions regarding future cash flows and discount rates; and an assumption regarding the form of the transaction in which the reporting unit would be acquired by a market participant. Management assesses potential impairment of goodwill on an annual basis at December 31, or whenever events or changes in circumstances indicate that the carrying value may not be recove rable.

Some factors management considers important which could indicate an impairment review include the following:

 

·

significant under-performance relative to historical, expected or projected future operating results;

 

·

significant changes in the manner of our use of the acquired assets or the strategy for the overall business;

 

·

market capitalization relative to net book value; and

 

·

significant negative industry or general economic trends.

Management may choose to assess qualitative factors to determine if it is more-likely-than-not that goodwill might be impaired and whether or not to perform the two-step goodwill impairment test.  When we review goodwill for impairment utilizing a two-step process, the first step of the impairment test requires a comparison of the fair value of each of our reporting unit’s net assets to the respective carrying value of net assets.  If the carrying value of a reporting unit’s net assets is less than its fair value, no indication of impairment exists and a second step is not performed. If the carrying amount of a reporting unit’s net assets is higher than its fair value, there is an indication that an impairment may exist and a second step must be performed.  If the second step is necessary, management is required to determine the implied fair value of the goodwill and compare it to the carrying value of the goodwill. The fair value of the reporting units would be assigned to the respective assets and liabilities of each reporting unit as if the reporting units had been acquired in separate and individual business combinations and the fair value of the reporting units was the price paid to acquire the reporting units. The excess of the fair value of the reporting units over the amounts assigned to their respective assets and liabilities is the implied fair value of goodwill. If the carrying amount of the reporting unit’s goodwill is greater than the implied fair value of its goodwill, an impairment loss must be recognized for the difference.

In assessing the fair value of the reporting units, management considers both the market approach and the income approach. Under the market approach, the fair value of the reporting unit is based on quoted market prices of companies comparable to the reporting unit being valued. Under the income approach, the fair value of the reporting unit is based on the present value of estimated cash flows. The income approach is dependent on a number of significant management assumptions, including estimated future revenue growth rates, gross margins on sales, operating margins, capital expenditures, tax payments and discount rates. Each approach is given equal weight in arriving at the fair value of the reporting unit.

In connection with our goodwill impairment test that was conducted as of December 31, 2015, we bypassed the qualitative assessment for each of our reporting units and proceeded directly to the first step of the goodwill impairment test.  Our goodwill impairment testing as of this date indicated that both of our portable storage reporting units and our specialty containment reporting unit had estimated fair values which substantially exceeded their respective carrying amounts.  The second step of the impairment test was not required for any of the reporting units.

As of December 31, 2014, management assessed qualitative factors and determined it is more likely than not each of the reporting unit’s assigned goodwill had estimated fair values greater than the respective reporting unit’s individual net asset carrying values; therefore, the two step impairment test was not required.

The following table shows the activity and balances related to goodwill from January 1, 2014 to December 31, 2015:

 

 

 

(In thousands)

 

Balance at January 1, 2014 (1)

 

$

519,222

 

ETS Acquisition

 

 

181,972

 

Other acquisitions

 

 

8,840

 

Foreign currency (2)

 

 

(4,426

)

Balance at December 31, 2014 (1)

 

 

705,608

 

Acquisitions

 

 

5,371

 

Adjustments (3)

 

 

(717

)

Foreign currency (2)

 

 

(3,875

)

Balance at December 31, 2015 (1)

 

$

706,387

 

58

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

 

(1)

Includes accumulated amortization of $2.0 million and accumulated impairment of $12.5 million.

(2)

Represents foreign currency translation adjustments related to the U.K. portable storage reporting unit.

(3)

Primarily related to the ETS Acquisition.

Intangibles

Intangible assets are amortized over the estimated useful life of the asset utilizing a method which reflects the estimated pattern in which the economic benefits will be consumed.  Customer relationships are amortized based on the estimated attrition rates of the underlying customer base, other intangibles are amortized using the straight-line method.

The following table reflects balances related to intangible assets for the years ended December 31:

 

 

 

 

 

2015

 

 

2014

 

 

 

Estimated

Useful

Life

 

Gross

Carrying

Amount

 

 

Accumulated

Amortization

 

 

Net

Carrying

Amount

 

 

Gross

Carrying

Amount

 

 

Accumulated

Amortization

 

 

Net

Carrying

Amount

 

 

 

 

 

(In thousands)

 

Customer relationships

 

11 - 20

 

$

92,304

 

 

$

(24,875

)

 

$

67,429

 

 

$

91,990

 

 

$

(20,484

)

 

$

71,506

 

Trade names/trademarks

 

1 - 5

 

 

6,025

 

 

 

(1,684

)

 

 

4,341

 

 

 

6,065

 

 

 

(919

)

 

 

5,146

 

Non-compete agreements

 

2 - 5

 

 

1,839

 

 

 

(433

)

 

 

1,406

 

 

 

1,772

 

 

 

(78

)

 

 

1,694

 

Other

 

1 - 19

 

 

60

 

 

 

(24

)

 

 

36

 

 

 

61

 

 

 

(22

)

 

 

39

 

Total

 

 

 

$

100,228

 

 

$

(27,016

)

 

$

73,212

 

 

$

99,888

 

 

$

(21,503

)

 

$

78,385

 

Amortization expense for amortizable intangibles was approximately $6.0 million, $1.6 million and $1.6 million in 2015, 2014 and 2013, respectively. See information regarding intangibles acquired in conjunction with company acquisitions in Note 3.  Based on the carrying value at December 31, 2015, future amortization of intangible assets is expected to be as follows for the years ended December 31 (in thousands): 

 

2016

 

$

6,115

 

2017

 

 

6,063

 

2018

 

 

6,081

 

2019

 

 

6,089

 

2020

 

 

4,986

 

Thereafter

 

 

43,878

 

Total

 

$

73,212

 

 

Impairment of Long-Lived Assets (Other than Goodwill) 

Our rental fleet, property, plant and equipment, and finite-lived intangibles are reviewed for impairment whenever events or changes in circumstances indicate the carrying amount of such assets may be impaired. (See potential impairment indicators under “Goodwill” above). If this review indicates the carrying value of these assets will not be recoverable, as measured based on estimated undiscounted cash flows over their remaining life, the carrying amount would be adjusted to fair value.  The cash flow estimates contain management’s best estimates using appropriate and customary assumptions and projections at the time of evaluation.

During the first quarter of 2015, we entered into discussions regarding the possible sale of our wood mobile offices within our North American portable storage segment.  The discussions indicated that the fleet might be sold at an amount below carrying value and we conducted a review for impairment for these long-lived assets as of March 31, 2015. Based on this review, an impairment loss was recorded in the quarter ended March 31, 2015. The total impairment of the wood mobile offices was $64.6 million during 2015.  See additional discussion regarding the impairment and the divestiture of the wood mobile offices in Note 4.

In the second quarter of 2013, we conducted an assessment of the rental fleet and determined that certain of these units were either non-core to our rental strategy or were uneconomic to repair.  In connection with this evaluation, we determined to place these assets for sale, resulting in a non-cash impairment charge on long-lived assets of $37.6 million in the second quarter of 2013.  As these assets have been sold or otherwise disposed of, additional adjustments have been made to the impairment charge resulting in total asset impairment charges, net of recoveries, of $0.6 million in 2014 and $38.7 million in 2013.

59

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

There were no indicators of further impairment at December 31, 2015 or at December 31, 2014.

Purchase Accounting

We account for acquisitions under the acquisition method. Under the acquisition method of accounting, we record assets acquired and liabilities assumed at their estimated fair market value on the date of acquisition.  Goodwill is measured as the excess of the fair value of the consideration transferred over the fair value of the identifiable net assets. Estimated fair values of acquired assets and liabilities is provisional and could change as additional information is received. We finalize valuations as soon as practicable, but not later than one-year from the acquisition date. Any subsequent changes to purchase price allocations results in a corresponding adjustment to goodwill.

The determination of the fair value of intangible assets requires the use of significant judgment with regard to (i) the fair value; and (ii) whether such intangibles are amortizable or non-amortizable and, if amortizable, the period and the method by which the intangible asset will be amortized. We estimate the fair value of acquisition-related intangible assets principally based on projections of cash flows that will arise from identifiable intangible assets of acquired businesses. The projected cash flows are discounted to determine the present value of the assets at the dates of acquisition.

Revenue Recognition

Rental revenue is generated from the direct rental of our fleet to our customers, including ancillary revenue such as fleet delivery and pickup.  We enter into contracts with our customers to rent equipment based on a monthly rate for our portable storage fleet and a daily, weekly or monthly rate for our specialty containment fleet.  Revenues from renting are recognized ratably over the rental period. The rental continues until cancelled by the customer or the Company. Customers may utilize our equipment delivery and pick-up services in conjunction with the rental of equipment, but it is not required. Revenue pursuant to the pick up or delivery of a rented unit is recognized in rental revenue upon completion of the service.  When customers are billed in advance, we defer recognition of revenue and record unearned rental revenue at the end of the period. If equipment is returned prior to the end of the contractually obligated period, the excess, if any, between the amount the customer is contractually required to pay, over the cumulative amount of revenue recognized to date, is recognized as incremental revenue upon return.

Sales revenue is primarily generated by the sale of new and used units, and to a lesser extent, parts and supplies sold to specialty containment customers.  We recognize revenues from sales of units upon delivery when the risk of loss passes, the price is fixed and determinable and collectability is reasonably assured. We sell our units pursuant to sales contracts stating the fixed sales price.

Cost of Sales

Cost of sales in our consolidated statements of income includes the costs for units we sell, and to a lesser extent the costs of parts and supplies sold to specialty containment customers. Similar costs associated with units that we rent are capitalized in the balance sheet under “Rental fleet”.

Advertising Costs

Advertising expense was $4.1 million, $5.2 million and $5.8 million in 2015, 2014 and 2013, respectively. The balance of prepaid advertising costs, which are never amortized more than twelve months, was less than $0.1 million at both December 31, 2015 and 2014.

Income Taxes

In preparing our consolidated financial statements, we recognize income taxes in each of the jurisdictions in which we operate. For each jurisdiction, we estimate the actual amount of taxes currently payable or receivable as well as deferred tax assets and liabilities attributable to temporary differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred income tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which these temporary differences are expected to be recovered or settled. The effect on deferred tax assets and liabilities of a change in tax rates is recognized in income in the period that includes the enactment date.

A valuation allowance is provided for those deferred tax assets for which it is more likely than not that the related benefits will not be realized. In determining the amount of the valuation allowance, we consider estimated future taxable income as well as feasible

60

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

tax planning strategies in each jurisdiction. If we determine that we will not realize all or a p ortion of our deferred tax assets, we will increase our valuation allowance with a charge to income tax expense. Conversely, if we determine that we will ultimately be able to realize all or a portion of the related benefits for which a valuation allowance has been provided, all or a portion of the related valuation allowance will be reduced with a credit to income tax expense.

Earnings per Share

Basic earnings per share (“EPS”) is calculated by dividing net income by the weighted average number of common shares outstanding during the period.  Diluted EPS is calculated under the treasury stock method.  Potential common shares included restricted common stock, which is subject to risk of forfeiture, incremental shares of common stock issuable upon the exercise of stock options and vesting of restricted stock awards.

The following table is a reconciliation of net income and weighted-average shares of common stock outstanding for purposes of calculating basic and diluted EPS for the years ended December 31:

 

 

 

For the Years Ended December 31,

 

 

 

2015

 

 

2014

 

 

2013

 

 

 

(In thousands, except per share data)

 

Numerator:

 

 

 

 

 

 

 

 

 

 

 

 

Income from continuing operations

 

$

5,574

 

 

$

44,386

 

 

$

25,224

 

Loss on discontinued operation, net of tax

 

 

—

 

 

 

—

 

 

 

(1,302

)

Net income

 

$

5,574

 

 

$

44,386

 

 

$

23,922

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Denominator:

 

 

 

 

 

 

 

 

 

 

 

 

Weighted average shares outstanding - basic

 

 

44,953

 

 

 

46,026

 

 

 

45,481

 

Dilutive effect of share-based awards

 

 

507

 

 

 

699

 

 

 

615

 

Weighted average shares outstanding - diluted

 

 

45,460

 

 

 

46,725

 

 

 

46,096

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Earnings per share:

 

 

 

 

 

 

 

 

 

 

 

 

Basic:

 

 

 

 

 

 

 

 

 

 

 

 

Income from continuing operations

 

$

0.12

 

 

$

0.96

 

 

$

0.55

 

Loss from discontinued operation

 

 

—

 

 

 

—

 

 

 

(0.02

)

Net income

 

$

0.12

 

 

$

0.96

 

 

$

0.53

 

Diluted:

 

 

 

 

 

 

 

 

 

 

 

 

Income from continuing operations

 

$

0.12

 

 

$

0.95

 

 

$

0.55

 

Loss from discontinued operation

 

 

—

 

 

 

—

 

 

 

(0.03

)

Net income

 

$

0.12

 

 

$

0.95

 

 

$

0.52

 

 

Basic weighted average number of common shares outstanding does not include restricted stock awards that had not vested of 0.2 million, 0.3 million and 0.5 million shares in 2015, 2014 and 2013, respectively.

The following table represents the number of stock options and restricted stock awards that were issued or outstanding but excluded in calculating diluted EPS because their effect would have been anti-dilutive for the years ended December 31:

 

 

 

For the Years Ended December 31,

 

 

 

2015

 

 

2014

 

 

2013

 

 

 

(In thousands)

 

Stock options

 

 

1,135

 

 

 

751

 

 

 

1,741

 

Restricted stock awards

 

 

1

 

 

 

—

 

 

 

1

 

Total

 

 

1,136

 

 

 

751

 

 

 

1,742

 

 

Fair Value of Financial Instruments

Fair value is the price that would be received from selling an asset or paid to transfer a liability in an orderly transaction between market participants. Fair value is a market-based measurement determined based on assumptions that market participants would use in

61

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

pricing an asset or liability. We categorize each of our fair value measurements in one of the following three levels based on the lowest level of input that is significant to the fair value measurement:

Level 1 —  Observable input such as quoted prices in active markets for identical assets or liabilities;

Level 2 —  Observable inputs, other than Level 1 inputs in active markets, that are observable either directly or indirectly; and

Level 3 —  Unobservable inputs for which there is little or no market data, which require the reporting entity to develop its own assumptions.  

The carrying amounts of cash, cash equivalents, receivables, accounts payable and accrued liabilities approximate fair values based on their short-term nature. The fair values of our revolving credit facility and capital leases are estimated using discounted cash flow analyses, based on our current incremental borrowing rates for similar types of borrowing arrangements. Based on the borrowing rates currently available to us for bank loans with similar terms and average maturities, the fair value of our revolving credit facility debt and capital leases, which are measured using Level 2 inputs, at December 31, 2015 and 2014 approximated their respective book values.

The fair value of our $200.0 million aggregate principal amount of 7.875% senior notes due 2020 (the “Senior Notes”) is based on their latest sales price at the end of each period obtained from a third-party institution and is Level 2 in the fair value hierarchy as there is not an active market for these notes.

The carrying value and the fair value of our Senior Notes are as follows:  

 

 

 

2015

 

 

2014

 

 

 

(In thousands)

 

Carrying value

 

$

200,000

 

 

$

200,000

 

Fair value

 

 

207,000

 

 

 

206,000

 

 

At December 31, 2015 and 2014, we did not have any financial instruments required to be recorded at fair value on a recurring basis.

Derivatives

In the normal course of business, our operations are exposed to fluctuations in interest rates. We have in the past, and may again in the future, address a portion of these risks through a controlled program of risk management that includes the use of derivative financial instruments. The objective of controlling these risks is to limit the impact of fluctuations in interest rates on earnings. At December 31, 2015 and 2014, we did not have any derivative financial instruments.

Share-Based Compensation

We calculate the fair value of stock options using the Black-Scholes-Merton option pricing valuation model, which incorporates various assumptions including volatility, expected life and risk-free interest rates.  The fair value of restricted stock awards is estimated as the closing price of our common stock on the date of grant.  Compensation related to service-based awards are recognized on a straight-line basis over the vesting period, which is generally three to five years. Compensation expense related to performance-based awards is recognized over the implicit service period of the award based on management’s estimate of the probability of the performance criteria being satisfied, adjusted at each balance sheet date.  Expense related to performance-based awards that have multiple vesting dates, is recognized using the accelerated attribution approach, whereby each vesting tranche is treated as a separate award for purposes of determining the implicit service period.  Share based compensation expense is reduced for forfeitures which are estimated at the time of grant based on historical experience, and revised in subsequent periods if actual forfeitures differ from estimates. 

Foreign Currency Translation and Transactions

For our non-U.S. operations, the local currency is the functional currency. All assets and liabilities are translated into U.S. dollars at period-end exchange rates and all income statement amounts are translated at the average exchange rate for each month within the year.

62

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Impact of Recently Issued Accounting Standards

Simplifying the Presentation of Debt Issuance Costs. In April 2015, the Financial Accounting Standards Board (“FASB”) issued accounting guidance on the presentation of debt issuance costs in the balance sheet.  This standard requires that certain debt issuance costs related to a recognized debt liability be presented in the balance sheet as a direct deduction from the carrying amount of that debt liability, consistent with debt discounts. The recognition and measurement guidance for debt issuance costs are not affected by this guidance.  We will adopt the guidance for accounting periods subsequent to December 31, 2015.  Unamortized debt issuance costs are included in other assets. The application of this guidance will not affect our statement of operations or cash flow.

Revenue from Contracts with Customers.   In May 2014, FASB issued an accounting standard on revenue from contracts with customers.  The standard provides a single model for revenue arising from contracts with customers and supersedes current revenue recognition guidance.  The standard requires an entity to recognize the amount of revenue to which it expects to be entitled for the transfer of goods or services.  The standard is effective for annual and interim periods beginning after December 15, 2017.  Early adoption is permitted for the annual and interim periods beginning after December 15, 2016, but not prior to that time.  The revenue recognition standard permits the use of either the retrospective or cumulative effect transition method.  We expect to adopt this guidance when effective and are evaluating the impact, if any, of the adoption of the standard to our financial statements and related disclosures.  We have not yet selected a transition method nor determined the effect of the standard on our ongoing financial reporting.

Reporting Discontinued Operations and Disclosures of Disposals of Components of an Entity.   In April 2014, FASB issued accounting guidance on reporting discontinued operations and disclosures of disposals of components of an entity.  The new guidance raises the threshold for a disposal to qualify as a discontinued operation and requires new disclosures of both discontinued operations and certain other disposals that do not meet the definition of a discontinued operation.  The guidance is effective for fiscal years beginning after December 15, 2014.  We have applied this guidance prospectively to transactions occurring after December 31, 2014.

 

 

(3) Acquisitions

2015 Acquisitions

During the year ended December 31, 2015, we completed two acquisitions of portable storage businesses. These acquisitions expanded our existing operations in the Glasgow, Scotland market, and further strengthened our positions in Knoxville and Chattanooga, Tennessee. The accompanying consolidated financial statements include the operations of the acquired businesses from the dates of acquisition. The aggregate purchase price for the assets acquired were recorded based on their estimated fair values at the date of the acquisitions.  We have not disclosed the pro-forma impact of the acquisitions on operations as they were immaterial to our financial position or results of operations in the aggregate.

The components of the purchase price and net assets acquired during the year ended December 31, 2015 are as follows (in thousands):

 

Net Assets Acquired:

 

 

 

 

Rental fleet

 

$

12,129

 

Property, plant and equipment

 

 

157

 

Intangible assets:

 

 

 

 

Customer relationships

 

 

759

 

Non-compete agreements

 

 

74

 

Goodwill

 

 

5,371

 

Other assets

 

 

316

 

Other liabilities

 

 

(281

)

Total

 

$

18,525

 

 

2014 Acquisitions.

On December 10, 2014, we acquired all of the outstanding equity interests of GTH, the parent company of ETS, referred to as the ETS Acquisition. The acquisition results in significant growth opportunities for all product lines by leveraging Mobile Mini’s national presence and infrastructure, and ETS’ customer relationships.  Further, the combination diversifies our end market exposure and is expected to result in modest cost synergies. As a result of the ETS Acquisition, included in our consolidated statements of income for the years ended December 31, 2015 and 2014 is $107.3 million and $6.4 million, respectively, of specialty containment

63

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

revenues and $11.1 million and $1.1 million, respectively, of income from continuing operations before income tax provis ion.  Direct expenses related to the ETS Acquisition were $2.5 million in the twelve months ended December 31, 2015 and $5.0 million in the fourth quarter of 2014.

Also in 2014, we completed eight other acquisitions of portable storage businesses through both asset purchase and stock purchase agreements. The purchased assets and assumed liabilities were recorded at their estimated fair value at the date of acquisition.  Five of these acquisitions expanded our existing operations in North Dakota, North Carolina, Texas, Tennessee, Florida and South Carolina markets. The other three acquisitions created new locations in the Danbury, Connecticut, Fort Wayne, Indiana and Buffalo, New York metropolitan areas.

The accompanying consolidated financial statements include the operations of the acquired businesses from the date of acquisition. The aggregate purchase price for the assets acquired and the liabilities assumed were recorded based on their estimated fair values at the date of each acquisition. Valuations were performed based on available information at the time of acquisition. Estimated fair values of acquired assets and liabilities have changed immaterially as additional information was received.

During the twelve months ended December 31, 2015, primarily due to further analysis of the assets acquired in the ETS Acquisition, net assets and the resultant goodwill was adjusted downward by $0.7 million.

The components of the purchase price and net assets acquired for 2014 acquisitions (as adjusted during 2015), are as follows:

 

 

 

2014

 

 

 

ETS

Acquisition

 

 

Other

Acquisitions

 

 

Total

 

 

 

(In thousands)

 

Purchase Price, net of cash acquired:

 

 

 

 

 

 

 

 

 

 

 

 

Cash

 

$

410,345

 

 

$

23,299

 

 

$

433,644

 

Cash acquired

 

 

(2,698

)

 

 

—

 

 

 

(2,698

)

Total

 

$

407,647

 

 

$

23,299

 

 

$

430,946

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net Assets Acquired:

 

 

 

 

 

 

 

 

 

 

 

 

Rental fleet

 

$

120,755

 

 

$

12,697

 

 

$

133,452

 

Property, plant and equipment

 

 

14,655

 

 

 

338

 

 

 

14,993

 

Intangible assets (1):

 

 

 

 

 

 

 

 

 

 

 

 

Customer relationships

 

 

69,200

 

 

 

1,350

 

 

 

70,550

 

Trade names/trademarks

 

 

5,200

 

 

 

—

 

 

 

5,200

 

Non-compete agreements

 

 

1,500

 

 

 

204

 

 

 

1,704

 

Goodwill (2)

 

 

181,239

 

 

 

8,856

 

 

 

190,095

 

Deferred tax asset, net

 

 

4,696

 

 

 

—

 

 

 

4,696

 

Other assets (3)

 

 

25,332

 

 

 

538

 

 

 

25,870

 

Other liabilities

 

 

(14,930

)

 

 

(684

)

 

 

(15,614

)

Total

 

$

407,647

 

 

$

23,299

 

 

$

430,946

 

 

(1)

The following table reflects the estimated fair values and useful lives of intangible assets related to the ETS Acquisition identified based on our preliminary purchase accounting assessments:

 

 

 

Estimated

Life

(Years)

Customer relationships

 

15 - 20

Trade names/trademarks

 

5 - 10

Non-compete agreements

 

5

 

Customer relationships acquired in conjunction with the ETS Acquisition were evaluated separately for the wholly owned subsidiary Water Movers, Inc. (“Water Movers”). With input from an independent third party with extensive expertise and experience in this area, we determined lives for the two customer groups based upon historical and expected customer attrition rates, resulting in an expected useful life of 15 years for the Water Movers customer relationships, which were valued at $14.9

64

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

million, and an ex pected useful life of 20 years for the remaining ETS customer relationships, which were valued at $54.3 million. During our assessment, we evaluated annual historical sales data from 2009 through December 2014 for Water Movers, and 2008 through December 20 14 for the remaining ETS customers.

(2)

All of the goodwill related to the ETS Acquisition was assigned to our specialty containment segment. The goodwill arising from the acquisition consists largely of ETS' going-concern value, the value of ETS’ assembled workforce, new customer relationships expected to arise from the acquisition, and operational synergies and economies of scale that we expect to realize from the acquisition.  Goodwill from other acquisitions relates to the North America portable storage segment.  None of the goodwill assigned to ETS will be amortizable for tax purposes, while all of the goodwill from the other acquisitions will be deductible for tax purposes.

(3)

Included in other assets for the ETS Acquisition are accounts receivable with contractual amounts totaling $24.3 million.  We estimate that $0.6 million will be uncollectible, and have valued acquired accounts receivable at $23.7 million.

Supplemental Pro Forma Information

The unaudited pro forma financial information is presented for informational purposes only and is not indicative, and should not be relied on as being indicative, of the results of operations that would have been achieved if the acquisition had actually taken place at the beginning of each of the periods presented. The pro forma financial information reflects only the ETS Acquisition, as the remaining acquisitions would not have a material effect on reported results of operations.  

The following table summarizes our unaudited consolidated statements of income as if the ETS Acquisition occurred on January 1, 2013:

 

 

 

Years Ended December 31,

 

 

 

2014

 

 

2013

 

 

 

(In thousands)

 

Revenues:

 

 

 

 

 

 

 

 

Mobile Mini's historic revenues

 

$

445,474

 

 

$

406,486

 

ETS' historic revenues (1)

 

 

101,603

 

 

 

92,057

 

Pro forma revenues

 

$

547,077

 

 

$

498,543

 

 

 

 

 

 

 

 

 

 

Net income:

 

 

 

 

 

 

 

 

Mobile Mini's historic net income

 

$

44,386

 

 

$

23,922

 

ETS' historic net loss from continuing

   operations   (1)

 

 

(25,862

)

 

 

(10,332

)

Pro forma adjustments (2)

 

 

22,601

 

 

 

6,956

 

Pro forma net income

 

$

41,125

 

 

$

20,546

 

Average diluted weighted shares outstanding

 

 

46,725

 

 

 

46,096

 

Pro forma diluted earnings per share from continuing

   operations

 

$

0.88

 

 

$

0.45

 

 

(1)

ETS historic information for the year ended December 31, 2014, consists of revenues and net loss prior to the acquisition date of December 10, 2014.  Revenues and net income (loss) after the acquisition date are included in Mobile Mini’s historic information for the year ended December 31, 2014.

65

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

(2)

Pro forma adjustments consist of the following:  

 

 

 

Years Ended December 31,

 

 

 

2014

 

 

2013

 

 

 

(In thousands)

 

Pro forma increases (decreases) to income from continuing

   operations before income tax provisions:

 

 

 

 

 

 

 

 

Record the net impact to depreciation resulting from fair value

   mark-ups, offset by changes to the estimated remaining

   lives, for acquired rental fleet and property, plant

   and equipment

 

$

3,953

 

 

$

3,799

 

Remove historic gains recognized on the sale of used rental

   fleet and property, plant and equipment

 

 

(2,195

)

 

 

(1,707

)

Eliminate historic ETS amortization of intangible assets

 

 

3,387

 

 

 

3,233

 

Recognize amortization for intangible assets acquired

 

 

(5,027

)

 

 

(4,818

)

Recognize increased interest expense on amounts borrowed to

   fund the acquisition, including acquisition costs

 

 

(8,531

)

 

 

(9,078

)

Eliminate historic ETS interest and administrative expense on

   debt instruments repaid upon acquisition

 

 

22,655

 

 

 

19,882

 

Eliminate acquisition costs

 

 

15,295

 

 

 

—

 

Total

 

 

29,537

 

 

 

11,311

 

Increase in income tax provision related to pro forma

   adjustments

 

 

6,936

 

 

 

4,355

 

Total pro forma adjustments

 

$

22,601

 

 

$

6,956

 

 

We did not acquire any businesses in 2013.

 

 

(4) Impairment and Divestiture of North American Wood Mobile Offices

Our business strategy is to invest in high return, low maintenance, long-lived assets. Wood mobile offices require more maintenance and upkeep than Mobile Mini’s steel containers and steel ground level offices, resulting in lower margins as compared to our other portable storage products and our specialty containment products. During March 2015, we entered into discussions regarding the possible sale of our wood mobile offices within our North American portable storage segment.  The discussions indicated that the fleet might be sold at an amount below carrying value.

Based upon the events described above, we conducted a review for impairment for these particular long-lived assets as of March 31, 2015.  The review included assumptions of cash flows considering the likelihood of possible outcomes that existed as of the date of the review, including assigning probabilities to these outcomes.  Management estimated fair market value for the wood mobile offices based upon purchase price discussions. Based on this review, management determined that the assets were impaired as of March 31, 2015 and an impairment loss was recognized.

On April 16, 2015, we entered into a definitive agreement to sell our wood mobile offices within the North American portable storage segment for a cash price of $92.0 million, less associated deferred revenue and customer deposits of $6.8 million.  The net assets were reclassified to held for sale as of that date.  The transaction closed on May 15, 2015 and we recorded a net loss.

66

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

For the twelv e months ended December 31, 2015, the following amounts were recorded for the impairment and divestiture of the wood mobile office fleet:

 

 

 

(In thousands)

 

Estimated fair market value

 

$

92,000

 

Net book value:

 

 

 

 

Wood mobile offices in rental fleet

 

 

155,429

 

Ancillary items in property, plant and equipment

 

 

1,201

 

Impairment loss

 

$

(64,630

)

 

 

 

 

 

Sale price

 

$

92,000

 

Book value of divested assets after impairment

 

 

92,000

 

Selling expenses

 

 

1,498

 

Net loss on sale of wood mobile offices

 

$

(1,498

)

 

 

 

 

 

Asset impairment charge and loss on divestiture, net

 

$

(66,128

)

 

The Company and the purchaser entered into a transition services agreement, whereby we agreed to provide short-term direct services such as transportation and maintenance for the wood mobile offices on behalf of the purchaser, as well as house units on our leased properties and provide certain administrative services such as billing and cash collection.  The revenue related to this agreement is included in other revenue, and the expenses for providing these services are included in rental, selling and general expenses.

 

 

(5) Rental Fleet

Depreciation expense related to our rental fleet for 2015, 2014 and 2013 was $34.1 million, $22.7 million and $21.2 million, respectively. At December 31, 2015 and 2014, all rental fleet units were pledged as collateral under the Credit Agreement.  Appraisals on our rental fleet are required by our lenders on a regular basis. The appraisal typically reports no difference in the value of the unit due to the age or length of time it has been in our fleet. The latest orderly liquidation value appraisal in September 2015 was conducted by Gordon Brothers-AccuVal. Based on the values assigned in this appraisal our rental fleet net orderly liquidation appraisal value as of December 31, 2015 was approximately $1.1 billion.  Our net book value for this fleet as of December 31, 2015 was $951.3 million.

67

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Rental fleet at December 31 consisted of the following :

 

 

 

Residual Value

as Percentage of

Original Cost (1)

 

 

Useful Life

in Years

 

2015

 

 

2014

 

 

 

 

 

 

 

 

 

(In thousands)

 

Portable Storage:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Steel storage containers

 

 

55%

 

 

30

 

$

612,782

 

 

$

604,547

 

Steel ground level offices

 

 

55%

 

 

30

 

 

346,233

 

 

 

329,565

 

Wood mobile offices

 

 

50%

 

 

20

 

 

—

 

 

 

208,529

 

Other

 

 

 

 

 

 

 

 

7,052

 

 

 

5,633

 

Total

 

 

 

 

 

 

 

 

966,067

 

 

 

1,148,274

 

Accumulated depreciation

 

 

 

 

 

 

 

 

(142,338

)

 

 

(182,437

)

Total portable storage fleet, net

 

 

 

 

 

 

 

$

823,729

 

 

$

965,837

 

Specialty Containment:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Steel tanks

 

 

 

 

 

25

 

$

55,467

 

 

$

50,843

 

Roll-off boxes

 

 

 

 

 

15 - 20

 

 

25,161

 

 

 

19,820

 

Stainless steel tank trailers

 

 

 

 

 

25

 

 

28,160

 

 

 

23,283

 

Vacuum boxes

 

 

 

 

 

20

 

 

9,852

 

 

 

7,667

 

De-watering boxes

 

 

 

 

 

20

 

 

5,383

 

 

 

3,898

 

Pumps and filtration equipment

 

 

 

 

 

7

 

 

13,964

 

 

 

11,510

 

Other

 

 

 

 

 

 

 

 

6,843

 

 

 

5,468

 

Total

 

 

 

 

 

 

 

 

144,830

 

 

 

122,489

 

Accumulated depreciation

 

 

 

 

 

 

 

 

(17,236

)

 

 

(1,270

)

Total specialty containment fleet, net

 

 

 

 

 

 

 

$

127,594

 

 

$

121,219

 

Total rental fleet, net

 

 

 

 

 

 

 

$

951,323

 

 

$

1,087,056

 

 

(1)

Specialty containment fleet has been assigned zero residual value.

 

 

(6) Lines of Credit

On December 14, 2015, we entered into the Credit Agreement with Deutsche Bank AG New York Branch, as administrative agent, and other lenders party thereto. The Credit Agreement replaces the Prior Credit Agreement that had a February 2017 maturity date.  The Credit Agreement provides for a five-year, $1 billion first lien senior secured revolving credit facility maturing on or before the earlier of (i) December 14, 2020 and (ii) the date that is 90 days prior to the final maturity date of the Senior Notes if such Senior Notes remain outstanding on such date.  The Credit Agreement also provides for the issuance of irrevocable standby letters of credit by U.S. lenders in amounts totaling up to $50 million, by U.K.-based lenders in amounts totaling up to $20 million, and by Canadian-based lenders in amounts totaling up to $20 million.  The obligations of Mobile Mini and its subsidiary guarantors under the Credit Agreement are secured by a blanket lien on substantially all of our assets.

Amounts borrowed under the Credit Agreement and repaid or prepaid during the term may be reborrowed. Outstanding amounts under the Credit Agreement bear interest at our option at either: (i) the London interbank offered rate (“LIBOR”) plus an applicable margin, or (ii) the prime rate plus an applicable margin (“Base Rate Loans”). The applicable margin for each type of loan is based on an availability-based pricing grid and ranges from 1.25% to 1.75% for LIBOR Loans and 0.25% to 0.75% for Base Rate Loans at each measurement date. Pursuant to the terms of the Credit Agreement, outstanding amounts will bear interest at the highest level in the pricing grid until the first measurement date subsequent to March 31, 2016.  Had the margins specified in the Credit Agreement pricing grid been in effect as of December 31, 2015, our applicable margins would have been 1.50% for LIBOR Loans and 0.50% for Base Rate Loans.

Availability of borrowings under the Credit Agreement is subject to a borrowing base calculation based upon a valuation of the Company’s eligible accounts receivable, eligible container fleet (including containers held for sale, work-in-process and raw materials) and machinery and equipment, each multiplied by an applicable advance rate or limit. The rental fleet is appraised at least

68

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

once annually by a third-party appraisal firm and up to 90% of the net orderly liquidation value, as defined in the Credit Agreement, is included in the borrowing base to determine how much the Company may borrow under the Credit Agreement.  

The Credit Agreement provides for U.K. borrowings, which are, at the Company’s option, denominated in either Pounds Sterling or Euros, by its U.K. subsidiary based upon a U.K. borrowing base; Canadian borrowings, which are denominated in Canadian dollars, by its Canadian subsidiary based upon a Canadian borrowing base; and U.S. borrowings, which are denominated in U.S. dollars, by the Company based upon a U.S. borrowing base along with any Canadian assets not included in the Canadian subsidiary.

The Credit Agreement also contains customary negative covenants, including covenants that restrict our ability to, among other things: (i) allow certain liens to attach to Mobile Mini or subsidiary assets, (ii) repurchase or pay dividends or make certain other restricted payments on capital stock and certain other securities, or prepay certain indebtedness, (iii) incur additional indebtedness or engage in certain other types of financing transactions, and (iv) make acquisitions or other investments.  In addition we must comply with a minimum fixed charge coverage ratio of 1.00 to 1.00 as of the last day of each quarter, upon the minimum availability amount under the Credit Agreement falling below the greater of (y) $90 million and (z) 10% of the lesser of the then total revolving loan commitment and aggregate borrowing base.  We were in compliance with the terms of the Credit Agreement as of December 31, 2015 and above the minimum borrowing availability threshold and therefore not subject to any financial maintenance covenants.

The weighted average interest rate under the lines of credit was approximately 2.2% in both 2015 and 2014. The average outstanding balance was approximately $670.4 million and $323.6 million during 2015 and 2014, respectively. During December 2014, the Company borrowed approximately $410 million under the Prior Credit Agreement to fund the ETS Acquisition and associated expenses. At December 31, 2015, the Company had approximately $667.7 million of borrowings outstanding and $324.9 million of additional borrowing availability under the Credit Agreement, based upon borrowing base calculations as of such date.

 

 

(7) Obligations Under Capital Leases

At December 31, 2015 and 2014, obligations under capital leases for certain real property, transportation, technology and office related equipment were $38.3 million and $24.9 million, respectively. Certain of the lease agreements provide us with a purchase option at the end of the lease term. The leases have been capitalized using interest rates primarily ranging from approximately 1.8% to 12.7% and are secured by the property and equipment under lease.

Assets recorded under capital lease obligations totaled approximately $44.5 million as of December 31, 2015 and $24.6 million as of December 31, 2014. Related accumulated amortization totaled approximately $7.6 million as of December 31, 2015 and $2.1 million as of December 31, 2014. The assets acquired under capital leases and related accumulated amortization is included in property, plant and equipment, net, in the Consolidated Balance Sheets. The related amortization is included in depreciation and amortization expense in the Consolidated Statements of Income.

Future minimum capital lease payments at December 31, 2015 are as follows (in thousands):

 

2016

 

$

6,291

 

2017

 

 

5,986

 

2018

 

 

5,585

 

2019

 

 

5,795

 

2020

 

 

6,187

 

Thereafter

 

 

11,949

 

Total

 

 

41,793

 

Amount representing interest

 

 

(3,519

)

Present value of minimum lease payments

 

$

38,274

 

 

 

(8) Debt Issuances

On November 23, 2010, the Company issued $200.0 million aggregate principal amount of the Senior Notes due December 2020. The Senior Notes were issued by the Company at an initial offering price of 100% of their face value. The 2020 Notes have a ten-year term and mature on December 1, 2020 and bear interest at a rate of 7.875% per year. Interest is payable semiannually in

69

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

arrears on June 1 and December 1 of each year. The Senior Notes are senior unsecured obligations of the Company and are unconditionally guaranteed on a s enior unsecured basis by all of our domestic subsidiaries.

Future Debt Obligations

The scheduled maturity for debt obligations under obligations under capital leases and Senior Notes for balances outstanding at December 31, 2015 are as follows (in thousands):

 

2016

 

$

5,363

 

2017

 

 

5,214

 

2018

 

 

4,945

 

2019

 

 

5,282

 

2020

 

 

205,806

 

Thereafter

 

 

11,664

 

Total

 

$

238,274

 

 

 

(9) Income Taxes

Income before taxes from continuing operations for the years ended December 31 consisted of the following:

 

 

 

For the Years Ended December 31,

 

 

 

2015

 

 

2014

 

 

2013

 

 

 

(In thousands)

 

U.S.

 

$

(23,750

)

 

$

52,944

 

 

$

30,528

 

Foreign

 

 

24,502

 

 

 

17,475

 

 

 

6,971

 

Total

 

$

752

 

 

$

70,419

 

 

$

37,499

 

 

The provision for income taxes from continuing operations for the years ended December 31 consisted of the following:

 

 

 

For the Years Ended December 31,

 

 

 

2015

 

 

2014

 

 

2013

 

 

 

(In thousands)

 

Current:

 

 

 

 

 

 

 

 

 

 

 

 

U.S. federal

 

$

1,124

 

 

$

—

 

 

$

—

 

State

 

 

326

 

 

 

827

 

 

 

934

 

Foreign

 

 

—

 

 

 

—

 

 

 

—

 

Total current

 

 

1,450

 

 

 

827

 

 

 

934

 

Deferred

 

 

 

 

 

 

 

 

 

 

 

 

U.S. federal

 

 

(8,549

)

 

 

21,510

 

 

 

11,483

 

State

 

 

(1,190

)

 

 

2,019

 

 

 

1,100

 

Foreign

 

 

3,467

 

 

 

1,677

 

 

 

(1,242

)

Total deferred

 

 

(6,272

)

 

 

25,206

 

 

 

11,341

 

Total (benefit) provision for income taxes

 

$

(4,822

)

 

$

26,033

 

 

$

12,275

 

 

 


70

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

A reconciliation of the U.S. federal statutory rate to our effective tax rate for the years ended December 31 is as follows (1):

 

 

 

For the Years Ended December 31,

 

 

 

 

2015

 

2014

 

2013

 

 

U.S. federal statutory rate

 

 

35.0

 

%

 

 

35.0

 

%

 

 

35.0

 

%

State taxes, net of federal benefit

 

 

(222.4

)

 

 

 

3.9

 

 

 

 

3.5

 

 

Nondeductible expenses and other

 

 

128.1

 

 

 

 

1.2

 

 

 

 

1.4

 

 

Adjustment of net deferred tax liability for

   enacted tax rate change

 

 

(97.6

)

 

 

 

—

 

 

 

 

(4.9

)

 

Foreign rate differential

 

 

(484.3

)

 

 

 

(3.1

)

 

 

 

(2.3

)

 

Effective tax rate

 

 

(641.2

)

%

 

 

37.0

 

%

 

 

32.7

 

%

 

(1)

Our effective income tax rate in the year ended December 31, 2015 was affected by an enacted change in the U.K. income tax rate from 20% to 18%, as well as losses in North America driven by asset impairment and restructuring expenses. The change in the U.K. income tax rate resulted in a $1.4 million benefit when applied to our December 31, 2014 deferred tax liability, and a $0.5 million benefit to current year taxes.   Not including the North America asset impairment and $1.4 million cumulative effect on prior-year deferred liabilities of the U.K. rate change, our tax rate for the year ended December 31, 2015 would have been 33.4%. In July 2013, the U.K.’s government enacted a reduction in the corporate income tax rate to 20% from 23%.

The components of the net deferred tax liability at December 31 are approximately as follows:

 

 

 

2015

 

 

2014

 

 

 

(In thousands)

 

Deferred tax assets:

 

 

 

 

 

 

 

 

Net operating loss carryforwards

 

$

90,540

 

 

$

122,041

 

Deferred revenue and expenses

 

 

10,755

 

 

 

13,310

 

Accrued compensation and other benefits

 

 

3,666

 

 

 

1,438

 

Allowance for doubtful accounts

 

 

1,041

 

 

 

1,034

 

Equity compensation

 

 

8,888

 

 

 

4,434

 

Other

 

 

3,125

 

 

 

378

 

Total deferred tax assets

 

 

118,015

 

 

 

142,635

 

Valuation allowance

 

 

(1,126

)

 

 

(1,126

)

Net deferred tax assets

 

 

116,889

 

 

 

141,509

 

Deferred tax liabilities

 

 

 

 

 

 

 

 

Accelerated tax depreciation

 

 

(297,575

)

 

 

(333,042

)

Accelerated tax amortization

 

 

(36,704

)

 

 

(36,150

)

Other

 

 

(2,211

)

 

 

(3,864

)

Total deferred tax liabilities

 

 

(336,490

)

 

 

(373,056

)

  Net deferred tax liabilities

 

$

(219,601

)

 

$

(231,547

)

 

A net deferred tax liability of approximately $17.1 million and $16.2 million related to our U.K. operations has been combined with the net deferred tax liabilities of our U.S. operations in the Consolidated Balance Sheets at December 31, 2015 and 2014, respectively. In connection with the ETS Acquisition, we acquired $4.7 million of net deferred tax assets. This primarily consisted of deferred tax liabilities of $50.5 million related to accelerated tax depreciation and amortization along with deferred tax assets for federal and state net operating losses of $55.2 million.

At December 31, 2015, we had U.S. federal net operating loss carryforwards on our federal tax return of approximately $278.2 million, which expire if unused from 2028 to 2034. At December 31, 2015, we had net operating loss carryforwards on the various states’ tax returns in which we operate totaling $113.7 million, which expire if unused from 2016 to 2034.  In connection with the ETS Acquisition, we acquired U.S. federal net operating loss carryforwards of approximately $151.3 million and various state net operating loss carryforwards of $47.5 million.

Management evaluates the ability to realize our deferred tax assets on a quarterly basis and adjusts the amount of our valuation allowance if necessary. Over the past three years, we have generated $172.4 million of federal taxable income.  Management currently believes that adequate future taxable income will be generated through future operations, or through available tax planning strategies to recover the unreserved portion of these deferred tax assets.

71

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

For income tax purposes, deductible compensation related to share-based awards is based on the value of the award when realized, which may be different than the compensation exp ense recognized by us in our financial statements, which is based on the award value on the date of grant.  The difference between the value of the award upon grant, and the value of the award when ultimately realized, creates either additional tax benefit s or a tax shortfall.

Tax benefits resulting from tax deductions in excess of the compensation cost recognized for share-based awards are recognized as increases to additional paid in capital and as financing cash flows, only if an incremental income tax benefit would be realized after considering all other tax attributes presently available to us.  We have not recognized excess tax benefits in 2015, 2014 or 2013, because we have not paid U.S. federal income taxes in those years.

Tax shortfalls, which occur when the tax deduction for share-based awards is less than the compensation cost recognized, are recorded as a reduction to additional paid in capital to the extent that, cumulatively, the shortfalls do not exceed the cumulative excess tax benefits recognized (including excess tax benefits not yet recognized in additional paid in capital).  Should cumulative tax shortfalls exceed cumulative excess tax benefits, the difference would be reflected as additional tax expense in our financial statements.

At December 31, 2015 and 2014, our net operating losses carrying forward for tax return purposes include $17.7 million and $16.6 million, respectively, of excess tax benefits from employee stock awards. Additional paid in capital will be increased by an equivalent amount if and when such excess tax benefits are realized.

Uncertain tax positions are recognized and measured using a two-step approach. The first step is to evaluate the tax position for recognition by determining if the weight of available evidence indicates that it is more likely than not that the position will be sustained on audit, including resolution of related appeals or litigation process, if any. The second step is to measure the tax benefit as the largest amount that is more than 50% likely of being realized upon ultimate settlement.

We file U.S. federal tax returns, U.S. state tax returns, and foreign tax returns and have identified our U.S. Federal tax return as our “major” tax jurisdiction. For the U.S. Federal return, our tax years for 2014, 2013 and 2012 are subject to tax examination by the U.S. Internal Revenue Service through September 15, 2018, 2017 and 2016, respectively. No reserves for uncertain income tax positions have been recorded. We do not anticipate that the total amount of unrecognized tax benefit related to any particular tax position will change significantly within the next 12 months.  

A deferred U.S. tax liability has not been provided on the undistributed earnings of certain foreign subsidiaries because it is our intent to permanently reinvest such earnings. Undistributed earnings of foreign subsidiaries, which have been or are intended to be permanently invested, aggregated approximately $47.2 million and $25.3 million as of December 31, 2015 and 2014, respectively.  The estimated unrecognized deferred tax liability associated with these temporary differences was approximately $8.7 million as of December 31, 2015.

Our policy for recording interest and penalties associated with audits is to record such items as a component of income before taxes. Penalties and associated interest costs, if any, are recorded in rental, selling and general expenses in our Consolidated Statements of Income.

As a result of stock ownership changes during the years presented, it is possible that we have undergone a change in ownership for federal income tax purposes, which can limit the amount of net operating loss currently available as a deduction. We have determined that even if such an ownership change has occurred, it would not impair the realization of the deferred tax asset resulting from the federal net operating loss carryover.

We paid income taxes of approximately $4.9 million in 2015, $1.1 million in 2014 and $1.1 million in 2013. These amounts are lower than the recorded expense in the years due to net operating loss carryforwards and general business credit utilization.

 

 

(10) Transactions with Related Persons

With the ETS Acquisition, we acquired its wholly owned subsidiary, Water Movers, which has two real property leases with an entity partly owned by Michael Watts, a member of our board of directors (“Board”). These leases began in 2013, prior to the ETS Acquisition, and expire in 2023. Rental payments under these leases are currently approximately $18,000 per month. Any future renewals of these leases will be approved by the Board as related party transactions. It is our intention not to enter into any additional related person transactions.

72

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

 

 

(11) Share-Based Compensation

We have historically awarded stock options and restricted stock awards for employees and non-employee directors as a means of attracting and retaining quality personnel and to align employee performance with stockholder value.  Stock option plans are approved by our stockholders and administered by the stock compensation committee of the Board. The current plan allows for a variety of equity programs designed to provide flexibility in implementing equity and cash awards, including incentive stock options, nonqualified stock options, restricted stock awards, restricted stock units, stock appreciation rights, performance stock, performance units and other stock-based awards. Participants may be granted any one of the equity awards or any combination. We do not award stock options with an exercise price below the market price of the underlying securities on the date of award.  As of December 31, 2015, 2.6 million shares are available for future grants.  Generally stock options have contractual terms of ten years.

Service-based awards. We grant share-based compensation awards that vest over time subject to the employee rendering service over the vesting period.  The majority of the service–based awards vest in equal annual installments over a period of three to five years. The expense for service-based awards is expensed ratably over the full service period of the grant.

Performance-based awards . Certain executive officers have been granted stock options and restricted stock awards with vesting contingent upon the achievement of certain performance criteria related to operating performance of the Company, in addition to the fulfillment of service requirements.  Performance-based awards generally vest over a three to four year period. Expense related to performance-based awards that have multiple vesting dates, is recognized using the accelerated attribution approach, whereby each vesting tranche is treated as a separate award for purposes of determining the implicit service period.  The accelerated attribution approach results in a higher expense during the earlier years of vesting.

Generally, performance-based share awards vest annually contingent on annual operating performance criteria, however, there is also a cumulative performance objective.  Performance shares that do not vest in any given year due to failure to achieve an annual performance target may nevertheless vest at the end of the cumulative year grant period if certain cumulative targets are met.  As of December 31, 2015 approximately 0.4 million performance-based stock options and 17,000 performance-based restricted stock awards remain unvested.  No performance-based awards were issued in 2015 or 2014.

Non-employee director awards .  Each non-employee director serving on the Board receives an automatic award of shares of Mobile Mini’s common stock annually.  These awards vest 100% when granted.  For the years ended December 31, 2015, 2014 and 2013, $0.8 million, $0.9 million and $0.6 million, respectively, of expense was recognized related to these grants.

Share-based compensation expense . The following table summarizes our share-based compensation for the years ended December 31:

 

 

 

For the Years Ended December 31,

 

 

 

2015

 

 

2014

 

 

2013

 

 

 

(In thousands)

 

Share-based compensation expense included in:

 

 

 

 

 

 

 

 

 

 

 

 

Rental, selling and general expenses

 

$

12,277

 

 

$

14,490

 

 

$

13,956

 

Restructuring expenses

 

 

1,550

 

 

 

581

 

 

 

758

 

Share-based compensation expense

 

 

13,827

 

 

 

15,071

 

 

 

14,714

 

Amount capitalized

 

 

—

 

 

 

—

 

 

 

326

 

Total share-based compensation

 

$

13,827

 

 

$

15,071

 

 

$

15,040

 

 

As of December 31, 2015, total unrecognized compensation cost related to stock option awards was approximately $4.2  million and the related weighted-average period over which it is expected to be recognized is approximately 0.9 years. As of December 31, 2015, the unrecognized compensation cost related to restricted stock awards was approximately $5.4 million, which is expected to be recognized over a weighted-average period of approximately 2.1 years.

73

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Stock options . The fair va lue of each stock option award is estimated on the date of the grant using the Black-Scholes-Merton option pricing model which requires the input of assumptions. We estimate the risk-free interest rate based on the U.S. Treasury security rate in effect at the time of the grant. The expected life of the options, volatility and dividend rates are estimated based on our historical data. The following are the key assumptions used for the period noted:

 

 

 

2015

 

2014

 

2013

Risk-free interest rate

 

1.3% - 1.7%

 

1.5% - 1.7%

 

0.7% - 1.5%

Expected life of the options (years)

 

5.0

 

5.0

 

6.0 - 7.0

Expected stock price volatility

 

35.3%  -  36.0%

 

35.4%  -  38.4%

 

41.1% - 46.3%

Expected dividend rate

 

1.8% - 2.1%

 

1.5% - 1.8%

 

0.0% - 1.8%

 

The following table summarizes stock option activity for the years ended December 31 (share amounts in thousands):

 

 

 

2015

 

 

2014

 

 

2013

 

 

 

Number of

Shares

 

 

Weighted

Average

Exercise

Price

 

 

Number of

Shares

 

 

Weighted

Average

Exercise

Price

 

 

Number of

Shares

 

 

Weighted

Average

Exercise

Price

 

Options outstanding, beginning of year

 

 

2,649

 

 

$

32.33

 

 

 

2,519

 

 

$

29.80

 

 

 

1,099

 

 

$

20.02

 

Granted

 

 

381

 

 

 

42.80

 

 

 

365

 

 

 

46.83

 

 

 

2,214

 

 

 

31.26

 

Canceled/Expired

 

 

(98

)

 

 

44.60

 

 

 

(71

)

 

 

40.63

 

 

 

(147

)

 

 

15.90

 

Exercised

 

 

(62

)

 

 

27.60

 

 

 

(164

)

 

 

22.18

 

 

 

(647

)

 

 

21.35

 

Options outstanding, end of year

 

 

2,870

 

 

 

33.40

 

 

 

2,649

 

 

 

32.33

 

 

 

2,519

 

 

 

29.80

 

Options exercisable, end of year

 

 

1,643

 

 

 

 

 

 

 

854

 

 

 

29.32

 

 

 

193

 

 

 

21.51

 

 

A summary of stock options outstanding as of December 31, 2015, is as follows:

 

 

 

Number of

Shares

 

 

Weighted

Average

Exercise

Price

 

 

Weighted

Average

Remaining

Contractual

Terms

 

 

Aggregate

Intrinsic

Value

 

 

 

(In thousands)

 

 

 

 

 

 

(In years)

 

 

(In thousands)

 

Outstanding

 

 

2,870

 

 

$

33.40

 

 

 

7.43

 

 

$

5,071

 

Vested and expected to vest

 

 

2,803

 

 

 

33.18

 

 

 

7.40

 

 

 

5,052

 

Exercisable

 

 

1,643

 

 

 

30.97

 

 

 

7.09

 

 

 

3,981

 

 

The aggregate intrinsic value of options exercised during the period ended December 31, 2015, 2014 and 2013 was $0.8 million, $2.9 million and $9.0 million, respectively.

The weighted average fair value of stock options granted was $8.43, $10.46 and $10.59 for the years ended December 31, 2015, 2014 and 2013, respectively.

74

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Restricted Stock Awards . The fair value of restricted stock awards is estimated as the closing price of our common stock on the date of grant. A summary of restricted stock activity is as follows (share amounts in thousands):

 

 

 

Shares

 

 

Weighted

Average

Grant Date

Fair Value

 

Restricted stock awards at January 1, 2013

 

 

843

 

 

$

17.27

 

Awarded

 

 

153

 

 

 

30.21

 

Released

 

 

(252

)

 

 

19.15

 

Forfeited

 

 

(202

)

 

 

15.64

 

Restricted stock awards at December 31, 2013

 

 

542

 

 

 

20.65

 

Awarded

 

 

143

 

 

 

39.77

 

Released

 

 

(240

)

 

 

20.93

 

Forfeited

 

 

(102

)

 

 

22.09

 

Restricted stock awards at December 31, 2014

 

 

343

 

 

 

27.99

 

Awarded

 

 

107

 

 

 

37.17

 

Released

 

 

(169

)

 

 

28.22

 

Forfeited

 

 

(39

)

 

 

25.07

 

Restricted stock awards at December 31, 2015

 

 

242

 

 

 

31.70

 

 

The total fair value of restricted stock awards that vested in 2015, 2014 and 2013 were $4.8 million, $5.0 million and $4.8 million, respectively.

 

 

(12) Benefit Plans

In the U.S. we sponsor 401(k) retirement plans designed to provide tax-deferred retirement benefits to employees in accordance with the provisions of Section 401(k) of the Internal Revenue Code. We also sponsor defined contribution programs in the U.K., and have a Registered Retirement Savings Plan regulated by Canadian law.

Under the U.S. and Canadian plans we match a percentage of the participants’ contributions up to a specified amount.  Under the U.K. plan, we contribute a percentage of each participant’s annual salary to the plan and, depending on the plan, employees may also be required to contribute a percentage of their annual salary into the plan. In the U.S. plans Company matches vest over a period of two to five years, while Company matches for U.K. and Canadian employees are immediately vested.  Company contributions to all these benefit plans totaled approximately $1.1 million, $0.7 million and $0.5 million in 2015, 2014 and 2013, respectively. In each of the three years ending December 31, 2015, 2014 and 2013, we incurred approximately $51,000, $34,000 and $34,000, respectively, for administrative costs for these programs.

 

 

(13) Commitments and Contingencies

Leases

We lease our corporate offices and other properties and operating equipment from third parties under noncancelable operating leases. Rent expense under these agreements was approximately $22.7 million, $21.3 million and $21.2 million for the years ended December 31, 2015, 2014 and 2013, respectively.

75

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

As of December 31, 2015, contractual commitments associated with lease obligations are as follows:

 

 

 

Operating

Lease

Commitments

 

 

Restructuring

Related Lease

Commitments

 

 

Sub-lease

Income

 

 

Total

 

 

 

(In thousands)

 

2016

 

$

18,233

 

 

$

481

 

 

$

(297

)

 

$

18,417

 

2017

 

 

12,551

 

 

 

414

 

 

 

(38

)

 

 

12,927

 

2018

 

 

8,199

 

 

 

280

 

 

 

—

 

 

 

8,479

 

2019

 

 

5,189

 

 

 

23

 

 

 

—

 

 

 

5,212

 

2020

 

 

3,688

 

 

 

—

 

 

 

—

 

 

 

3,688

 

Thereafter

 

 

11,162

 

 

 

—

 

 

 

—

 

 

 

11,162

 

Total

 

$

59,022

 

 

$

1,198

 

 

$

(335

)

 

$

59,885

 

 

Future minimum lease payments under restructured non-cancelable operating leases as of December 31, 2015, are included in accrued liabilities in the Consolidated Balance Sheet. See Note 15 for a further discussion on restructuring related commitments.

Insurance Reserves

We maintain insurance coverage for our operations and employees with appropriate aggregate, per occurrence and deductible limits as we reasonably determine is necessary or prudent considering current operations and historical experience. The majority of these coverages have large deductible programs which allow for potential improved cash flow benefits based on our loss control efforts, while guarantying a maximum premium liability.

Our employee group health insurance program is a self-insured program with individual and aggregate stop loss limits. The insurance provider is responsible for funding all claims in excess of the calculated monthly maximum liability. This calculation is based on a variety of factors including the number of employees enrolled in the plan. Actual results may vary from estimates based on our actual experience at the end of the plan policy periods based on the carrier’s loss predictions and our historical claims data.  

We expense the deductible portion of the individual claims. However, we generally do not know the full amount of our exposure to a deductible in connection with any particular claim during the fiscal period in which the claim is incurred and for which we must make an accrual for the deductible expense. We make these accruals based on a combination of the claims development experience of our staff and our insurance companies, and, at year end, the accrual is reviewed and adjusted, in part, based on an independent actuarial review of historical loss data and using certain actuarial assumptions followed in the insurance industry. A high degree of judgment is required in developing these estimates of amounts to be accrued, as well as in connection with the underlying assumptions. In addition, our assumptions will change as our loss experience is developed. All of these factors have the potential for significantly impacting the amounts previously reserved in respect of anticipated deductible expenses and we may be required in the future to increase or decrease amounts previously accrued.

Our worker’s compensation, auto and general liability insurance are purchased under large deductible programs. Our current per incident deductibles are: worker’s compensation $250,000, auto $500,000 and general liability $100,000. Under our various insurance programs, we have collective reserves recorded in accrued liabilities of $3.8 million and $3.3 million at December 31, 2015 and 2014, respectively.

As of December 31, 2015, Mobile Mini and ETS have a combined insurance program.  Further, as of December 31, 2015 there are no outstanding claims related to ETS standalone insurance programs.

In connection with the issuance of our insurance policies, we have provided our various insurance carriers approximately $7.4 million in letters of credit as of December 31, 2015.

General Litigation

We are a party to various claims and litigation in the normal course of business. Our current estimated range of liability related to various claims and pending litigation is based on claims for which our management can determine that it is probable that a liability has been incurred and the amount of loss can be reasonably estimated. Because of the uncertainties related to both the probability of incurred and possible range of loss on pending claims and litigation, management must use considerable judgment in making

76

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

reasonable determination of the liability that could result from an unfavorable outcome. As additional information becomes available, we will assess the potential liability related to our pending litigation and revise our esti mates. Such revisions in our estimates of the potential liability could materially impact our results of operation. We do not anticipate the resolution of such matters known at this time will have a material adverse effect on our business or consolidated f inancial position.

 

 

(14) Stockholders’ Equity

Dividends

During the twelve months ended December 31, 2015, we paid cash dividends of $0.75 per share for a total of $33.7 million. Each future quarterly dividend payment is subject to review and approval by the Board. In addition, our Credit Agreement contains restrictions on the declaration and payment of dividends.

Treasury stock

On November 6, 2013, the Board approved a share repurchase program authorizing up to $125.0 million of our outstanding shares of common stock to be repurchased. On April 17, 2015, the Board authorized up to an additional $50.0 million of our outstanding shares of common stock to be repurchased, for a total of $175.0 million under the share repurchase program. The shares may be repurchased from time to time in the open market or in privately negotiated transactions. The share repurchases are subject to prevailing market conditions and other considerations. The share repurchase program does not have an expiration date and may be suspended or terminated at any time by the Board. All shares repurchased are held in treasury.

During the twelve months ended December 31, 2015, we purchased approximately 1.7 million shares of our common stock at a cost of $61.0 million under the authorized share repurchase program, and approximately $89.0 million is available for repurchase as of December 31, 2015.  In addition, we withheld approximately 21,000 shares of stock from employees, for an approximate value of $0.8 million, upon vesting of share awards to satisfy minimum tax withholding obligations. These shares were not acquired pursuant to the share repurchase program.

During the twelve months ended December 31, 2014, we purchased approximately 0.6 million shares of our common stock at a cost of $25.0 million under the authorized share repurchase program. In addition, we withheld approximately 25,000 shares of stock from employees, for an approximate value of $1.0 million, upon vesting of share awards to satisfy minimum tax withholding obligations. These shares were not acquired pursuant to the share repurchase program.

 

 

(15) Restructuring Costs

We have undergone restructuring actions to align our business operations.  The 2014 restructuring costs resulted from the restructuring of U.K. locations including the sale of the Belfast, North Ireland location.  In addition, the Company’s field management and sales force structures in North America were realigned in 2014 along with other organizational changes. The 2013 restructuring charges related primarily to the transition of key leadership positions.  

2015 Restructuring

Of the $20.8 million in restructuring expenses recognized in 2015, $19.7 million relates to activities associated with the integration of ETS into the existing Mobile Mini infrastructure, including our shift from managing operations on a product-oriented basis to a geographic, customer-focused organization; and, to support this shift, the re-alignment of sales leadership with operational leadership:

The integration includes such activities as

 

·

Combining portable storage and specialty containment locations in markets where both lines of business are present,

 

·

Expanding either line of business to new geographies where we maintain a presence in the other,

 

·

Eliminating duplicative or redundant positions at both the corporate level and in operations, and

 

·

Determining the appropriate processes, including the sales process, necessary to support the new geographically-based structure, and eliminating infrastructure that does not function optimally in the new environment.

77

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

D uring the fourth quarter of 2015, as the Company was finalizing locations in Southern California for combined portable st orage and specialty containment equipment operations, we determined that certain of our current locations in Southern California would either not be optimal or available to accommodate efficient operations and provide desired proximity to our combined cust omer base. To accommodate the needs of the planned combined operations, the Company is leasing new property, exiting certain properties and has abandoned approximately 5,000 units of the portable storage fleet in Southern California at the legacy yards.  T his abandonment resulted in $13.7 million of restructuring expense in the fourth quarter, representing the write-down of this fleet to zero value.  

Other costs in 2015 related to performance of the integration include $4.6 million for severance and benefits (including $1.6 million of share-based compensation) and $1.4 million for the write-off and loss on sale of property, plant and equipment. Additional 2015 restructuring costs relate primarily to costs involved to shift our business away from the wood mobile office business, including abandonment of yards.

The following table details accrued restructuring obligations (included in accrued liabilities in the Consolidated Balance Sheets) and related activity for the years ended December 31, 2015, 2014 and 2013:

 

 

 

Fleet and Property, Plant and Equipment Abandonment Costs

 

 

Severance and

Benefits

 

 

Lease

Abandonment

Costs

 

 

Other

Costs

 

 

Total

 

 

 

(In thousands)

 

Accrued obligations as of January 1, 2013

 

$

—

 

 

$

2,543

 

 

$

1,570

 

 

$

—

 

 

$

4,113

 

Restructuring expense

 

 

—

 

 

 

1,787

 

 

 

475

 

 

 

140

 

 

 

2,402

 

Settlement of obligations

 

 

—

 

 

 

(3,717

)

 

 

(982

)

 

 

(140

)

 

 

(4,839

)

Accrued obligations as of December 31, 2013

 

 

—

 

 

 

613

 

 

 

1,063

 

 

 

—

 

 

 

1,676

 

Restructuring expense

 

 

1,295

 

 

 

1,826

 

 

 

318

 

 

 

103

 

 

 

3,542

 

Settlement of obligations

 

 

(1,295

)

 

 

(1,998

)

 

 

(705

)

 

 

(103

)

 

 

(4,101

)

Accrued obligations as of December 31, 2014

 

 

—

 

 

 

441

 

 

 

676

 

 

 

—

 

 

 

1,117

 

Restructuring expense

 

 

15,274

 

 

 

4,846

 

 

 

600

 

 

 

78

 

 

 

20,798

 

Settlement of obligations

 

 

(15,274

)

 

 

(4,042

)

 

 

(781

)

 

 

(76

)

 

 

(20,173

)

Accrued obligations as of December 31, 2015

 

$

—

 

 

$

1,245

 

 

$

495

 

 

$

2

 

 

$

1,742

 

 

The majority of accrued obligations relate to our North American operations and are expected to be paid out through the year 2016, with the exception of a lease that will continue into the first quarter of 2019.

The following amounts are included in restructuring expense for the years ended December 31:

 

 

 

2015

 

 

2014

 

 

2013

 

 

 

(In thousands)

 

Fleet and property, plant and equipment abandonment costs

 

$

15,274

 

 

$

1,295

 

 

$

—

 

Severance and benefits

 

 

4,846

 

 

 

1,826

 

 

 

1,787

 

Lease abandonment costs

 

 

600

 

 

 

318

 

 

 

475

 

Other costs

 

 

78

 

 

 

103

 

 

 

140

 

Restructuring expenses

 

$

20,798

 

 

$

3,542

 

 

$

2,402

 

 

 

(16) Segment Reporting

Prior to the ETS Acquisition, our operations were comprised of two reportable segments: North America and the U.K., both of which offer portable storage solutions. Discrete financial data on each of our products is not available and it would be impractical to collect and maintain financial data in such a manner. As a result of the ETS Acquisition, we established a new specialty containment reportable segment. The assets and liabilities of ETS are included in Mobile Mini’s December 31, 2015 and 2014 consolidated balance sheet. ETS operations are included in our results of operations for all of 2015, and the portion of 2014 subsequent to the acquisition date, which is less than one month.  The results for each segment are reviewed discretely by our chief operating decision maker.

78

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

We operate in the U.S., U.K. and Canada.  All of our locations operate in their local currency and, although we are exposed to foreign exchange rate fluctuation in foreign markets wh ere we rent and sell our products, we do not believe such exposure will have a significant impact on our results of operations. Revenues recognized by our U.S. locations were $438.4 million, $353.2 million and $324.9 million for the twelve months ended Dec ember 31, 2015, 2014 and 2013, respectively.

The following tables set forth certain information regarding each of our reportable segments for the years ended December 31, 2015, 2014 and 2013:

 

 

 

For the Year Ended December 31, 2015

 

 

 

Portable Storage

 

 

 

 

 

 

 

 

 

 

 

North

America

 

 

United

Kingdom

 

 

Total

 

 

Specialty

Containment

 

 

Consolidated

 

 

 

(In thousands)

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental

 

$

310,864

 

 

$

84,227

 

 

$

395,091

 

 

$

99,624

 

 

$

494,715

 

Sales

 

 

18,833

 

 

 

3,554

 

 

 

22,387

 

 

 

7,566

 

 

 

29,953

 

Other

 

 

5,697

 

 

 

340

 

 

 

6,037

 

 

 

72

 

 

 

6,109

 

Total revenues

 

 

335,394

 

 

 

88,121

 

 

 

423,515

 

 

 

107,262

 

 

 

530,777

 

Costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental, selling and general expenses

 

 

210,323

 

 

 

53,423

 

 

 

263,746

 

 

 

62,506

 

 

 

326,252

 

Cost of sales

 

 

11,852

 

 

 

2,728

 

 

 

14,580

 

 

 

5,091

 

 

 

19,671

 

Restructuring expenses

 

 

17,790

 

 

 

—

 

 

 

17,790

 

 

 

3,008

 

 

 

20,798

 

Asset impairment charge and loss on divestiture, net

 

 

66,128

 

 

 

—

 

 

 

66,128

 

 

 

—

 

 

 

66,128

 

Depreciation and amortization

 

 

28,200

 

 

 

6,628

 

 

 

34,828

 

 

 

25,516

 

 

 

60,344

 

Total costs and expenses

 

 

334,293

 

 

 

62,779

 

 

 

397,072

 

 

 

96,121

 

 

 

493,193

 

Income from operations

 

$

1,101

 

 

$

25,342

 

 

$

26,443

 

 

$

11,141

 

 

$

37,584

 

Interest expense, net of interest income

 

$

24,249

 

 

$

876

 

 

$

25,125

 

 

$

10,774

 

 

$

35,899

 

Income tax (benefit) provision

 

 

(8,639

)

 

 

3,369

 

 

 

(5,270

)

 

 

448

 

 

 

(4,822

)

 

 

 

For the Year Ended December 31, 2014

 

 

 

Portable Storage

 

 

 

 

 

 

 

 

 

 

 

North

America

 

 

United

Kingdom

 

 

Total

 

 

Specialty

Containment

 

 

Consolidated

 

 

 

(In thousands)

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental

 

$

323,236

 

 

$

81,703

 

 

$

404,939

 

 

$

5,423

 

 

$

410,362

 

Sales

 

 

26,834

 

 

 

4,588

 

 

 

31,422

 

 

 

163

 

 

 

31,585

 

 

 

 

2,274

 

 

 

407

 

 

 

2,681

 

 

 

846

 

 

 

3,527

 

Total revenues

 

 

352,344

 

 

 

86,698

 

 

 

439,042

 

 

 

6,432

 

 

 

445,474

 

Costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental, selling and general expenses

 

 

221,405

 

 

 

56,189

 

 

 

277,594

 

 

 

3,354

 

 

 

280,948

 

Cost of sales

 

 

18,251

 

 

 

3,587

 

 

 

21,838

 

 

 

106

 

 

 

21,944

 

Restructuring expenses

 

 

1,915

 

 

 

1,627

 

 

 

3,542

 

 

 

—

 

 

 

3,542

 

Asset impairment charge, net

 

 

433

 

 

 

124

 

 

 

557

 

 

 

—

 

 

 

557

 

Depreciation and amortization

 

 

30,670

 

 

 

6,790

 

 

 

37,460

 

 

 

1,874

 

 

 

39,334

 

Total costs and expenses

 

 

272,674

 

 

 

68,317

 

 

 

340,991

 

 

 

5,334

 

 

 

346,325

 

Income from operations

 

$

79,670

 

 

$

18,381

 

 

$

98,051

 

 

$

1,098

 

 

$

99,149

 

Interest expense, net of interest income

 

$

27,816

 

 

$

905

 

 

$

28,721

 

 

$

8

 

 

$

28,729

 

Income tax provision

 

 

21,580

 

 

 

4,042

 

 

 

25,622

 

 

 

411

 

 

 

26,033

 

79

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

 

 

 

For the Year Ended December 31, 2013

 

 

 

Portable Storage

 

 

 

 

 

 

 

 

 

 

 

North

America

 

 

United

Kingdom

 

 

Total

 

 

Specialty

Containment

 

 

Consolidated

 

 

 

(In thousands)

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental

 

$

299,676

 

 

$

66,610

 

 

$

366,286

 

 

$

—

 

 

$

366,286

 

Sales

 

 

29,809

 

 

 

8,242

 

 

 

38,051

 

 

 

—

 

 

 

38,051

 

Other

 

 

1,767

 

 

 

382

 

 

 

2,149

 

 

 

—

 

 

 

2,149

 

Total revenues

 

 

331,252

 

 

 

75,234

 

 

 

406,486

 

 

 

—

 

 

 

406,486

 

Costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental, selling and general expenses

 

 

190,337

 

 

 

47,230

 

 

 

237,567

 

 

 

—

 

 

 

237,567

 

Cost of sales

 

 

19,128

 

 

 

6,285

 

 

 

25,413

 

 

 

—

 

 

 

25,413

 

Restructuring expenses

 

 

2,141

 

 

 

261

 

 

 

2,402

 

 

 

—

 

 

 

2,402

 

Asset impairment charge, net

 

 

32,157

 

 

 

6,548

 

 

 

38,705

 

 

 

—

 

 

 

38,705

 

Depreciation and amortization

 

 

28,614

 

 

 

6,818

 

 

 

35,432

 

 

 

—

 

 

 

35,432

 

Total costs and expenses

 

 

272,377

 

 

 

67,142

 

 

 

339,519

 

 

 

—

 

 

 

339,519

 

Income from operations

 

$

58,875

 

 

$

8,092

 

 

$

66,967

 

 

$

—

 

 

$

66,967

 

Interest expense, net of interest income

 

$

28,347

 

 

$

1,119

 

 

$

29,466

 

 

$

—

 

 

$

29,466

 

Income tax provision

 

 

12,258

 

 

 

17

 

 

 

12,275

 

 

 

—

 

 

 

12,275

 

 

Assets related to our reportable segments include the following:

 

 

 

Portable Storage

 

 

 

 

 

 

 

 

 

 

 

North

America

 

 

United

Kingdom

 

 

Total

 

 

Specialty

Containment

 

 

Consolidated

 

 

 

(In thousands)

 

As of December 31, 2015:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Goodwill

 

$

463,616

 

 

$

61,532

 

 

$

525,148

 

 

$

181,239

 

 

$

706,387

 

Intangibles, net

 

 

2,021

 

 

 

403

 

 

 

2,424

 

 

 

70,788

 

 

 

73,212

 

Rental fleet, net

 

 

672,080

 

 

 

151,649

 

 

 

823,729

 

 

 

127,594

 

 

 

951,323

 

Property, plant and equipment, net

 

 

96,940

 

 

 

17,835

 

 

 

114,775

 

 

 

16,912

 

 

 

131,687

 

Total assets, excluding intercompany assets

 

 

1,302,170

 

 

 

252,462

 

 

 

1,554,632

 

 

 

424,590

 

 

 

1,979,222

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As of December 31, 2014:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Goodwill

 

$

459,234

 

 

$

64,402

 

 

$

523,636

 

 

$

181,972

 

 

$

705,608

 

Intangibles, net

 

 

2,119

 

 

 

651

 

 

 

2,770

 

 

 

75,615

 

 

 

78,385

 

Rental fleet, net

 

 

825,158

 

 

 

140,679

 

 

 

965,837

 

 

 

121,219

 

 

 

1,087,056

 

Property, plant and equipment, net

 

 

82,514

 

 

 

16,488

 

 

 

99,002

 

 

 

14,173

 

 

 

113,175

 

Total assets, excluding intercompany assets

 

 

1,441,212

 

 

 

243,188

 

 

 

1,684,400

 

 

 

418,774

 

 

 

2,103,174

 

 

The above schedule includes assets in the U.S. of $1.6 billion and $1.7 billion as of December 31, 2015 and 2014, respectively.

 

 

80

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

(17) Discontinued Operation

In December 2013, we entered into a share sale and purchase agreement with Caru Group B.V. to sell Mobile Mini Holding B.V., comprising our Netherlands operation. In connection with this transaction, we recorded a $1.2 million after-tax loss on the sale in 2013. The transaction closed on December 31, 2013, and we received proceeds of $0.7 million. The results of operations of our Netherlands business are reported within discontinued operation in the consolidated financial statements. Summarized results of our Netherlands operations for the year ended December 31, 2013 are as follows (dollars in thousands):

 

Revenues

 

$

1,895

 

 

 

 

 

 

Loss from operations, including loss on disposition of

   $1.9 million

 

$

(2,101

)

Other expenses

 

 

(64

)

Income tax benefit

 

 

863

 

Loss from discontinued operations, net of tax

 

$

(1,302

)

 

Summarized results of the Netherlands cash flow activities for the year ended December 31, 2013 are as follows (dollars in thousands):

 

Net cash used in operating activities

 

$

(861

)

Net cash provided by investing activities

 

 

896

 

 

 

(18) Selected Consolidated Quarterly Financial Data (unaudited)

The following table sets forth certain unaudited selected consolidated financial information for each of the four quarters in the years ended December 31, 2015 and 2014. In management’s opinion, this unaudited consolidated quarterly selected information has been prepared on the same basis as the audited consolidated financial statements and includes all necessary adjustments, consisting only of normal recurring adjustments, which management considers necessary for a fair presentation when read in conjunction with the Consolidated Financial Statements and notes. We believe these comparisons of consolidated quarterly selected financial data are not necessarily indicative of future performance.

Quarterly EPS may not total to the fiscal year EPS due to the weighted average number of shares outstanding at the end of each period reported and rounding.

 

 

 

First Quarter

 

 

Second

Quarter

 

 

Third

Quarter

 

 

Fourth

Quarter

 

 

 

(In thousands, except per share data)

 

2015

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental revenue

 

$

123,117

 

 

$

120,245

 

 

$

124,813

 

 

$

126,540

 

Total revenues

 

 

132,629

 

 

 

130,288

 

 

 

133,343

 

 

 

134,517

 

Gross profit on sales

 

 

2,839

 

 

 

2,799

 

 

 

2,228

 

 

 

2,416

 

(Loss) income from operations

 

 

(36,298

)

 

 

23,400

 

 

 

30,474

 

 

 

20,008

 

Net (loss) income

 

 

(27,326

)

 

 

9,416

 

 

 

13,979

 

 

 

9,505

 

(Loss) earnings per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

 

(0.60

)

 

 

0.21

 

 

 

0.31

 

 

 

0.21

 

Diluted

 

 

(0.60

)

 

 

0.21

 

 

 

0.31

 

 

 

0.21

 

 

81

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

 

 

First Quarter

 

 

Second

Quarter

 

 

Third

Quarter

 

 

Fourth

Quarter

 

 

 

(In thousands, except per share data)

 

2014

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental revenue

 

$

94,080

 

 

$

98,041

 

 

$

104,798

 

 

$

113,443

 

Total revenues

 

 

102,404

 

 

 

106,533

 

 

 

113,322

 

 

 

123,215

 

Gross profit on sales

 

 

2,313

 

 

 

2,603

 

 

 

2,714

 

 

 

2,011

 

Income from operations

 

 

18,482

 

 

 

21,695

 

 

 

30,171

 

 

 

28,801

 

Net income

 

 

7,440

 

 

 

9,263

 

 

 

14,820

 

 

 

12,863

 

Earnings per share:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

 

0.16

 

 

 

0.20

 

 

 

0.32

 

 

 

0.28

 

Diluted

 

 

0.16

 

 

 

0.20

 

 

 

0.32

 

 

 

0.28

 

 

82

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

(19) Condensed Consolidating Financial Information for Guarantors

The following tables reflect the condensed consolidating financial information of our subsidiary guarantors of the Senior Notes and our non-guarantor subsidiaries. Separate financial statements of the subsidiary guarantors are not presented because the guarantee by each 100% owned subsidiary guarantor is full and unconditional, joint and several, subject to customer exceptions, and management has determined that such information is not material to investors.

MOBILE MINI, INC.

CONDENSED CONSOLIDATING BALANCE SHEETS

As of December 31, 2015

(In thousands)

 

 

 

Guarantors

 

 

Non-

Guarantors

 

 

Eliminations

 

 

Consolidated

 

ASSETS

 

Cash and cash equivalents

 

$

1,033

 

 

$

580

 

 

$

—

 

 

$

1,613

 

Receivables, net

 

 

62,043

 

 

 

18,148

 

 

 

—

 

 

 

80,191

 

Inventories

 

 

14,224

 

 

 

1,372

 

 

 

—

 

 

 

15,596

 

Rental fleet, net

 

 

790,172

 

 

 

161,151

 

 

 

—

 

 

 

951,323

 

Property, plant and equipment, net

 

 

112,877

 

 

 

18,810

 

 

 

—

 

 

 

131,687

 

Deposits and prepaid expenses

 

 

6,739

 

 

 

1,912

 

 

 

—

 

 

 

8,651

 

Deferred financing costs, net and other assets

 

 

10,562

 

 

 

—

 

 

 

—

 

 

 

10,562

 

Intangibles, net

 

 

72,751

 

 

 

461

 

 

 

—

 

 

 

73,212

 

Goodwill

 

 

640,444

 

 

 

65,943

 

 

 

—

 

 

 

706,387

 

Intercompany receivables

 

 

143,624

 

 

 

3,539

 

 

 

(147,163

)

 

 

—

 

Total assets

 

$

1,854,469

 

 

$

271,916

 

 

$

(147,163

)

 

$

1,979,222

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LIABILITIES AND STOCKHOLDERS' EQUITY

 

Liabilities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Accounts payable

 

$

22,849

 

 

$

6,237

 

 

$

—

 

 

$

29,086

 

Accrued liabilities

 

 

51,815

 

 

 

7,209

 

 

 

—

 

 

 

59,024

 

Lines of credit

 

 

665,750

 

 

 

1,958

 

 

 

—

 

 

 

667,708

 

Obligations under capital leases

 

 

37,957

 

 

 

317

 

 

 

—

 

 

 

38,274

 

Senior Notes

 

 

200,000

 

 

 

—

 

 

 

—

 

 

 

200,000

 

Deferred income taxes

 

 

199,826

 

 

 

19,775

 

 

 

—

 

 

 

219,601

 

Intercompany payables

 

 

—

 

 

 

8

 

 

 

(8

)

 

 

—

 

Total liabilities

 

 

1,178,197

 

 

 

35,504

 

 

 

(8

)

 

 

1,213,693

 

Commitments and contingencies

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Stockholders' equity:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Common stock

 

 

491

 

 

 

—

 

 

 

—

 

 

 

491

 

Additional paid-in capital

 

 

584,447

 

 

 

147,999

 

 

 

(147,999

)

 

 

584,447

 

Retained earnings

 

 

218,843

 

 

 

132,575

 

 

 

844

 

 

 

352,262

 

Accumulated other comprehensive loss

 

 

—

 

 

 

(44,162

)

 

 

—

 

 

 

(44,162

)

Treasury stock, at cost

 

 

(127,509

)

 

 

—

 

 

 

—

 

 

 

(127,509

)

Total stockholders' equity

 

 

676,272

 

 

 

236,412

 

 

 

(147,155

)

 

 

765,529

 

Total liabilities and stockholders' equity

 

$

1,854,469

 

 

$

271,916

 

 

$

(147,163

)

 

$

1,979,222

 

 

83

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

MOBILE MINI, INC.

CONDENSED CONSOLIDATING BALANCE SHEETS

As of December 31, 2014

(In thousands)

 

 

 

Guarantors

 

 

Non-

Guarantors

 

 

Eliminations

 

 

Consolidated

 

ASSETS

 

Cash and cash equivalents

 

$

2,977

 

 

$

762

 

 

$

—

 

 

$

3,739

 

Receivables, net

 

 

62,033

 

 

 

18,998

 

 

 

—

 

 

 

81,031

 

Inventories

 

 

15,371

 

 

 

1,365

 

 

 

—

 

 

 

16,736

 

Rental fleet, net

 

 

934,433

 

 

 

152,623

 

 

 

—

 

 

 

1,087,056

 

Property, plant and equipment, net

 

 

95,509

 

 

 

17,666

 

 

 

—

 

 

 

113,175

 

Deposits and prepaid expenses

 

 

7,375

 

 

 

1,211

 

 

 

—

 

 

 

8,586

 

Deferred financing costs, net and other assets

 

 

8,858

 

 

 

—

 

 

 

—

 

 

 

8,858

 

Intangibles, net

 

 

77,629

 

 

 

756

 

 

 

—

 

 

 

78,385

 

Goodwill

 

 

635,943

 

 

 

69,665

 

 

 

—

 

 

 

705,608

 

Intercompany receivables

 

 

145,018

 

 

 

33,971

 

 

 

(178,989

)

 

 

—

 

Total assets

 

$

1,985,146

 

 

$

297,017

 

 

$

(178,989

)

 

$

2,103,174

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LIABILITIES AND STOCKHOLDERS' EQUITY

 

Liabilities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Accounts payable

 

$

14,803

 

 

$

8,130

 

 

$

—

 

 

$

22,933

 

Accrued liabilities

 

 

56,104

 

 

 

7,623

 

 

 

—

 

 

 

63,727

 

Lines of credit

 

 

702,135

 

 

 

3,383

 

 

 

—

 

 

 

705,518

 

Obligations under capital leases

 

 

24,760

 

 

 

158

 

 

 

—

 

 

 

24,918

 

Senior Notes

 

 

200,000

 

 

 

—

 

 

 

—

 

 

 

200,000

 

Deferred income taxes

 

 

215,184

 

 

 

17,367

 

 

 

(1,004

)

 

 

231,547

 

Intercompany payables

 

 

—

 

 

 

94

 

 

 

(94

)

 

 

—

 

Total liabilities

 

 

1,212,986

 

 

 

36,755

 

 

 

(1,098

)

 

 

1,248,643

 

Commitments and contingencies

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Stockholders' equity:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Common stock

 

 

490

 

 

 

18,388

 

 

 

(18,388

)

 

 

490

 

Additional paid-in capital

 

 

569,083

 

 

 

160,347

 

 

 

(160,347

)

 

 

569,083

 

Retained earnings

 

 

268,263

 

 

 

111,397

 

 

 

844

 

 

 

380,504

 

Accumulated other comprehensive loss

 

 

—

 

 

 

(29,870

)

 

 

—

 

 

 

(29,870

)

Treasury stock, at cost

 

 

(65,676

)

 

 

—

 

 

 

—

 

 

 

(65,676

)

Total stockholders' equity

 

 

772,160

 

 

 

260,262

 

 

 

(177,891

)

 

 

854,531

 

Total liabilities and stockholders' equity

 

$

1,985,146

 

 

$

297,017

 

 

$

(178,989

)

 

$

2,103,174

 

 

84

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

MOBILE MINI, INC.

CONDENSED CONSOLIDATING STATEMENTS OF INCOME

For the Year Ended December 31, 2015

(In thousands)

 

 

 

Guarantors

 

 

Non-

Guarantors

 

 

Eliminations

 

 

Consolidated

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental

 

$

406,434

 

 

$

88,281

 

 

$

—

 

 

$

494,715

 

Sales

 

 

26,157

 

 

 

3,796

 

 

 

—

 

 

 

29,953

 

Other

 

 

5,764

 

 

 

345

 

 

 

—

 

 

 

6,109

 

Total revenues

 

 

438,355

 

 

 

92,422

 

 

 

—

 

 

 

530,777

 

Costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental, selling and general expenses

 

 

269,893

 

 

 

56,359

 

 

 

—

 

 

 

326,252

 

Cost of sales

 

 

16,781

 

 

 

2,890

 

 

 

—

 

 

 

19,671

 

Restructuring expenses

 

 

20,798

 

 

 

—

 

 

 

—

 

 

 

20,798

 

Asset impairment charge and loss on divestiture, net

 

 

66,110

 

 

 

18

 

 

 

—

 

 

 

66,128

 

Depreciation and amortization

 

 

53,260

 

 

 

7,084

 

 

 

—

 

 

 

60,344

 

Total costs and expenses

 

 

426,842

 

 

 

66,351

 

 

 

—

 

 

 

493,193

 

Income from operations

 

 

11,513

 

 

 

26,071

 

 

 

—

 

 

 

37,584

 

Other income (expense):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest income

 

 

10,640

 

 

 

—

 

 

 

(10,639

)

 

 

1

 

Interest expense

 

 

(45,016

)

 

 

(1,523

)

 

 

10,639

 

 

 

(35,900

)

Deferred financing costs write-off

 

 

(931

)

 

 

—

 

 

 

—

 

 

 

(931

)

Foreign currency exchange

 

 

—

 

 

 

(2

)

 

 

—

 

 

 

(2

)

(Loss) income from continuing operations before income

   tax (benefit) provision

 

 

(23,794

)

 

 

24,546

 

 

 

—

 

 

 

752

 

Income tax (benefit) provision

 

 

(8,191

)

 

 

3,369

 

 

 

—

 

 

 

(4,822

)

Net (loss) income

 

$

(15,603

)

 

$

21,177

 

 

$

—

 

 

$

5,574

 

 

MOBILE MINI, INC.

CONDENSED CONSOLIDATING STATEMENTS OF COMPREHENSIVE INCOME (LOSS)

For the Year Ended December 31, 2015

(In thousands)

 

 

 

Guarantors

 

 

Non-

Guarantors

 

 

Eliminations

 

 

Consolidated

 

Net (loss) income

 

$

(15,603

)

 

$

21,177

 

 

$

—

 

 

$

5,574

 

Other comprehensive income :

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Foreign currency translation adjustment, net of

   income tax benefit of $184

 

 

—

 

 

 

(14,292

)

 

 

—

 

 

 

(14,292

)

Other comprehensive loss

 

 

—

 

 

 

(14,292

)

 

 

—

 

 

 

(14,292

)

Comprehensive (loss) income

 

$

(15,603

)

 

$

6,885

 

 

$

—

 

 

$

(8,718

)

 

85

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

MOBILE MINI, INC.

CONDENSED CONSOLIDATING STATEMENTS OF INCOME

For the Year Ended December 31, 2014

(In thousands)

 

 

 

Guarantors

 

 

Non-

Guarantors

 

 

Eliminations

 

 

Consolidated

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental

 

$

323,563

 

 

$

86,799

 

 

$

—

 

 

$

410,362

 

Sales

 

 

26,524

 

 

 

5,061

 

 

 

—

 

 

 

31,585

 

Other

 

 

3,112

 

 

 

415

 

 

 

—

 

 

 

3,527

 

Total revenues

 

 

353,199

 

 

 

92,275

 

 

 

—

 

 

 

445,474

 

Costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental, selling and general expenses

 

 

220,951

 

 

 

59,997

 

 

 

—

 

 

 

280,948

 

Cost of sales

 

 

17,887

 

 

 

4,057

 

 

 

—

 

 

 

21,944

 

Restructuring expenses

 

 

1,915

 

 

 

1,627

 

 

 

—

 

 

 

3,542

 

Asset impairment charge, net

 

 

416

 

 

 

141

 

 

 

—

 

 

 

557

 

Depreciation and amortization

 

 

32,007

 

 

 

7,327

 

 

 

—

 

 

 

39,334

 

Total costs and expenses

 

 

273,176

 

 

 

73,149

 

 

 

—

 

 

 

346,325

 

Income from operations

 

 

80,023

 

 

 

19,126

 

 

 

—

 

 

 

99,149

 

Other income (expense):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest income

 

 

81

 

 

 

—

 

 

 

(81

)

 

 

—

 

Interest expense

 

 

(27,229

)

 

 

(1,581

)

 

 

81

 

 

 

(28,729

)

Foreign currency exchange

 

 

—

 

 

 

(1

)

 

 

—

 

 

 

(1

)

Income from continuing operations before income tax provision

 

 

52,875

 

 

 

17,544

 

 

 

—

 

 

 

70,419

 

Income tax provision

 

 

21,991

 

 

 

4,042

 

 

 

—

 

 

 

26,033

 

Net income

 

$

30,884

 

 

$

13,502

 

 

$

—

 

 

$

44,386

 

 

MOBILE MINI, INC.

CONDENSED CONSOLIDATING STATEMENTS OF COMPREHENSIVE INCOME (LOSS)

For the Year Ended December 31, 2014

(In thousands)

 

 

 

Guarantors

 

 

Non-

Guarantors

 

 

Eliminations

 

 

Consolidated

 

Net income

 

$

30,884

 

 

$

13,502

 

 

$

—

 

 

$

44,386

 

Other comprehensive income :

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Foreign currency translation adjustment, net of income tax

   benefit of $213

 

 

—

 

 

 

(14,430

)

 

 

—

 

 

 

(14,430

)

Other comprehensive loss

 

 

—

 

 

 

(14,430

)

 

 

—

 

 

 

(14,430

)

Comprehensive income (loss)

 

$

30,884

 

 

$

(928

)

 

$

—

 

 

$

29,956

 

 

86

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

MOBILE MINI, INC.

CONDENSED CONSOLIDATING STATEMENTS OF INCOME

For the Year Ended December 31, 2013

(In thousands)

 

 

 

Guarantors

 

 

Non-

Guarantors

 

 

Eliminations

 

 

Consolidated

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental

 

$

293,878

 

 

$

72,408

 

 

$

—

 

 

$

366,286

 

Sales

 

 

29,310

 

 

 

8,741

 

 

 

—

 

 

 

38,051

 

Other

 

 

1,751

 

 

 

398

 

 

 

—

 

 

 

2,149

 

Total revenues

 

 

324,939

 

 

 

81,547

 

 

 

—

 

 

 

406,486

 

Costs and expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Rental, selling and general expenses

 

 

185,834

 

 

 

51,733

 

 

 

—

 

 

 

237,567

 

Cost of sales

 

 

18,784

 

 

 

6,629

 

 

 

—

 

 

 

25,413

 

Restructuring expenses

 

 

2,140

 

 

 

262

 

 

 

—

 

 

 

2,402

 

Asset impairment charge, net

 

 

32,156

 

 

 

6,549

 

 

 

—

 

 

 

38,705

 

Depreciation and amortization

 

 

28,084

 

 

 

7,348

 

 

 

—

 

 

 

35,432

 

Total costs and expenses

 

 

266,998

 

 

 

72,521

 

 

 

—

 

 

 

339,519

 

Income from operations

 

 

57,941

 

 

 

9,026

 

 

 

—

 

 

 

66,967

 

Other income (expense):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest income

 

 

250

 

 

 

—

 

 

 

(249

)

 

 

1

 

Interest expense

 

 

(27,726

)

 

 

(1,990

)

 

 

249

 

 

 

(29,467

)

Dividend income

 

 

274

 

 

 

—

 

 

 

(274

)

 

 

—

 

Foreign currency exchange

 

 

—

 

 

 

(2

)

 

 

—

 

 

 

(2

)

Income from continuing operations before income tax provision

   (benefit)

 

 

30,739

 

 

 

7,034

 

 

 

(274

)

 

 

37,499

 

Income tax provision (benefit)

 

 

12,355

 

 

 

(35

)

 

 

(45

)

 

 

12,275

 

Income from continuing operations

 

 

18,384

 

 

 

7,069

 

 

 

(229

)

 

 

25,224

 

Loss from discontinued operation, net of tax

 

 

(1,229

)

 

 

(73

)

 

 

—

 

 

 

(1,302

)

Net income

 

$

17,155

 

 

$

6,996

 

 

$

(229

)

 

$

23,922

 

 

MOBILE MINI, INC.

CONDENSED CONSOLIDATING STATEMENTS OF COMPREHENSIVE INCOME

For the Year Ended December 31, 2013

(In thousands)

 

 

 

Guarantors

 

 

Non-

Guarantors

 

 

Eliminations

 

 

Consolidated

 

Net income

 

$

17,155

 

 

$

6,996

 

 

$

(229

)

 

$

23,922

 

Other comprehensive income :

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Foreign currency translation adjustment, net of income tax

   benefit of $194

 

 

—

 

 

 

2,377

 

 

 

—

 

 

 

2,377

 

Other comprehensive income

 

 

—

 

 

 

2,377

 

 

 

—

 

 

 

2,377

 

Comprehensive income

 

$

17,155

 

 

$

9,373

 

 

$

(229

)

 

$

26,299

 

 

 

87

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

MOBILE MINI, INC.

CONDENSED CONSOLIDATING STATEMENTS OF CASH FLOWS

For the Year Ended December 31, 2015

(In thousands)

 

 

 

Guarantors

 

 

Non-

Guarantors

 

 

Eliminations

 

 

Consolidated

 

Cash Flows from Operating Activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net (loss) income

 

 

(15,603

)

 

 

21,177

 

 

 

—

 

 

$

5,574

 

Adjustments to reconcile net (loss) income to net cash provided by

   operating activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Deferred financing costs write-off

 

 

931

 

 

 

—

 

 

 

—

 

 

 

931

 

Asset impairment charge and loss on divestiture, net

 

 

66,110

 

 

 

18

 

 

 

 

 

 

 

66,128

 

Non-cash restructuring expense, excluding share-based

   compensation

 

 

12,411

 

 

 

—

 

 

 

—

 

 

 

12,411

 

Provision for doubtful accounts

 

 

3,065

 

 

 

640

 

 

 

—

 

 

 

3,705

 

Amortization of deferred financing costs

 

 

3,073

 

 

 

58

 

 

 

—

 

 

 

3,131

 

Amortization of long-term liabilities

 

 

99

 

 

 

2

 

 

 

—

 

 

 

101

 

Share-based compensation expense

 

 

13,426

 

 

 

401

 

 

 

—

 

 

 

13,827

 

Depreciation and amortization

 

 

53,260

 

 

 

7,084

 

 

 

—

 

 

 

60,344

 

Gain on sale of rental fleet

 

 

(5,934

)

 

 

(468

)

 

 

—

 

 

 

(6,402

)

Loss on disposal of property, plant and equipment

 

 

1,873

 

 

 

315

 

 

 

—

 

 

 

2,188

 

Deferred income taxes

 

 

(8,832

)

 

 

3,203

 

 

 

—

 

 

 

(5,629

)

Tax shortfall on equity award transactions

 

 

(166

)

 

 

—

 

 

 

—

 

 

 

(166

)

Foreign currency transaction loss

 

 

—

 

 

 

2

 

 

 

—

 

 

 

2

 

Changes in certain assets and liabilities, net of effect of

   businesses acquired:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Receivables

 

 

(3,345

)

 

 

(839

)

 

 

—

 

 

 

(4,184

)

Inventories

 

 

1,032

 

 

 

(87

)

 

 

—

 

 

 

945

 

Deposits and prepaid expenses

 

 

21

 

 

 

(854

)

 

 

—

 

 

 

(833

)

Other assets and intangibles

 

 

(23

)

 

 

1

 

 

 

—

 

 

 

(22

)

Accounts payable

 

 

6,156

 

 

 

(1,551

)

 

 

—

 

 

 

4,605

 

Accrued liabilities

 

 

(3,823

)

 

 

(19

)

 

 

—

 

 

 

(3,842

)

Intercompany

 

 

1,305

 

 

 

(1,305

)

 

 

—

 

 

 

—

 

Net cash provided by operating activities

 

 

125,036

 

 

 

27,778

 

 

 

—

 

 

 

152,814

 

Cash Flows from Investing Activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Proceeds from wood mobile office divestiture, net

 

 

83,252

 

 

 

28

 

 

 

—

 

 

 

83,280

 

Cash paid for businesses acquired, net of cash acquired

 

 

(17,325

)

 

 

(1,200

)

 

 

—

 

 

 

(18,525

)

Additions to rental fleet, excluding acquisitions

 

 

(52,366

)

 

 

(22,366

)

 

 

—

 

 

 

(74,732

)

Proceeds from sale of rental fleet

 

 

14,777

 

 

 

2,088

 

 

 

—

 

 

 

16,865

 

Additions to property, plant and equipment, excluding acquisitions

 

 

(25,231

)

 

 

(5,932

)

 

 

—

 

 

 

(31,163

)

Proceeds from sale of property, plant and equipment

 

 

8,985

 

 

 

875

 

 

 

—

 

 

 

9,860

 

Net cash provided by (used) in investing activities

 

 

12,092

 

 

 

(26,507

)

 

 

—

 

 

 

(14,415

)

Cash Flows from Financing Activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net repayments under lines of credit

 

 

(36,386

)

 

 

(1,424

)

 

 

—

 

 

 

(37,810

)

Deferred financing costs

 

 

(4,683

)

 

 

 

 

 

 

—

 

 

 

(4,683

)

Principal payments on capital lease obligations

 

 

(4,173

)

 

 

(80

)

 

 

—

 

 

 

(4,253

)

Issuance of common stock

 

 

1,703

 

 

 

—

 

 

 

—

 

 

 

1,703

 

Dividend payments

 

 

(33,700

)

 

 

—

 

 

 

—

 

 

 

(33,700

)

Purchase of treasury stock

 

 

(61,833

)

 

 

—

 

 

 

—

 

 

 

(61,833

)

Net cash (used in) provided by financing activities

 

 

(139,072

)

 

 

(1,504

)

 

 

—

 

 

 

(140,576

)

Effect of exchange rate changes on cash

 

 

—

 

 

 

51

 

 

 

—

 

 

 

51

 

Net (decrease) increase in cash

 

 

(1,944

)

 

 

(182

)

 

 

—

 

 

 

(2,126

)

Cash and cash equivalents at beginning of year

 

 

2,977

 

 

 

762

 

 

 

—

 

 

 

3,739

 

Cash and cash equivalents at end of year

 

$

1,033

 

 

$

580

 

 

$

—

 

 

$

1,613

 

 

88

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

MOBILE MINI, INC.

CONDENSED CONSOLIDATING STATEMENTS OF CASH FLOWS

For the Year Ended December 31, 2014

(In thousands)

 

 

 

Guarantors

 

 

Non-

Guarantors

 

 

Eliminations

 

 

Consolidated

 

Cash Flows from Operating Activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net income

 

$

30,884

 

 

$

13,502

 

 

$

—

 

 

$

44,386

 

Adjustments to reconcile net income to net cash provided by

   operating activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Asset impairment charge, net

 

 

416

 

 

 

141

 

 

 

—

 

 

 

557

 

Provision for doubtful accounts

 

 

2,166

 

 

 

611

 

 

 

—

 

 

 

2,777

 

Amortization of deferred financing costs

 

 

2,769

 

 

 

60

 

 

 

—

 

 

 

2,829

 

Amortization of long-term liabilities

 

 

86

 

 

 

2

 

 

 

—

 

 

 

88

 

Share-based compensation expense

 

 

14,369

 

 

 

702

 

 

 

—

 

 

 

15,071

 

Depreciation and amortization

 

 

32,007

 

 

 

7,327

 

 

 

—

 

 

 

39,334

 

(Gain) loss on sale of rental fleet

 

 

(6,436

)

 

 

704

 

 

 

—

 

 

 

(5,732

)

Loss on disposal of property, plant and equipment

 

 

28

 

 

 

320

 

 

 

—

 

 

 

348

 

Deferred income taxes

 

 

21,398

 

 

 

4,026

 

 

 

—

 

 

 

25,424

 

Tax shortfall on equity award transactions

 

 

(15

)

 

 

—

 

 

 

—

 

 

 

(15

)

Foreign currency transaction loss

 

 

—

 

 

 

1

 

 

 

—

 

 

 

1

 

Changes in certain assets and liabilities, net of effect of

   businesses acquired:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Receivables

 

 

(4,122

)

 

 

(3,074

)

 

 

—

 

 

 

(7,196

)

Inventories

 

 

2,258

 

 

 

422

 

 

 

—

 

 

 

2,680

 

Deposits and prepaid expenses

 

 

(1,533

)

 

 

117

 

 

 

—

 

 

 

(1,416

)

Investment in subsidiaries

 

 

4,823

 

 

 

—

 

 

 

(4,823

)

 

 

—

 

Other assets and intangibles

 

 

66

 

 

 

(49

)

 

 

—

 

 

 

17

 

Accounts payable

 

 

(926

)

 

 

203

 

 

 

—

 

 

 

(723

)

Accrued liabilities

 

 

850

 

 

 

1,345

 

 

 

—

 

 

 

2,195

 

Intercompany

 

 

1,711

 

 

 

(1,711

)

 

 

—

 

 

 

—

 

Net cash provided by operating activities

 

 

100,799

 

 

 

24,649

 

 

 

(4,823

)

 

 

120,625

 

Cash Flows from Investing Activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash paid for businesses acquired, net of cash acquired

 

 

(430,946

)

 

 

—

 

 

 

—

 

 

 

(430,946

)

Additions to rental fleet, excluding acquisitions

 

 

(16,525

)

 

 

(10,754

)

 

 

—

 

 

 

(27,279

)

Proceeds from sale of rental fleet

 

 

19,214

 

 

 

3,839

 

 

 

—

 

 

 

23,053

 

Additions to property, plant and equipment, excluding acquisitions

 

 

(11,793

)

 

 

(3,986

)

 

 

—

 

 

 

(15,779

)

Proceeds from sale of property, plant and equipment

 

 

3,688

 

 

 

511

 

 

 

—

 

 

 

4,199

 

Net cash used in investing activities

 

 

(436,362

)

 

 

(10,390

)

 

 

—

 

 

 

(446,752

)

Cash Flows from Financing Activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net borrowings (repayments) under lines of credit

 

 

395,127

 

 

 

(8,923

)

 

 

—

 

 

 

386,204

 

Deferred financing costs

 

 

(719

)

 

 

—

 

 

 

—

 

 

 

(719

)

Principal payments on capital lease obligations

 

 

(1,929

)

 

 

(27

)

 

 

—

 

 

 

(1,956

)

Issuance of common stock

 

 

3,642

 

 

 

—

 

 

 

—

 

 

 

3,642

 

Dividend payments

 

 

(31,384

)

 

 

—

 

 

 

—

 

 

 

(31,384

)

Purchase of treasury stock

 

 

(26,007

)

 

 

—

 

 

 

—

 

 

 

(26,007

)

Repayment of investment

 

 

—

 

 

 

(4,823

)

 

 

4,823

 

 

 

—

 

Net cash provided by (used in) financing activities

 

 

338,730

 

 

 

(13,773

)

 

 

4,823

 

 

 

329,780

 

Effect of exchange rate changes on cash

 

 

—

 

 

 

(1,170

)

 

 

—

 

 

 

(1,170

)

Net increase (decrease) in cash

 

 

3,167

 

 

 

(684

)

 

 

—

 

 

 

2,483

 

Cash and cash equivalents at beginning of year

 

 

(190

)

 

 

1,446

 

 

 

—

 

 

 

1,256

 

Cash and cash equivalents at end of year

 

$

2,977

 

 

$

762

 

 

$

—

 

 

$

3,739

 

 

89

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

MOBILE MINI, INC.

CONDENSED CONSOLIDATING STATEMENTS OF CASH FLOWS

For the Year Ended December 31, 2013

(In thousands)

 

 

 

Guarantors

 

 

Non-

Guarantors

 

 

Eliminations

 

 

Consolidated

 

Cash Flows from Operating Activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net income

 

$

17,155

 

 

$

6,996

 

 

$

(229

)

 

$

23,922

 

Adjustments to reconcile net income to net cash provided by

   operating activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Asset impairment charge, net

 

 

31,310

 

 

 

6,907

 

 

 

—

 

 

 

38,217

 

Provision for doubtful accounts

 

 

1,566

 

 

 

915

 

 

 

—

 

 

 

2,481

 

Amortization of deferred financing costs

 

 

2,749

 

 

 

62

 

 

 

—

 

 

 

2,811

 

Amortization of long-term liabilities

 

 

162

 

 

 

7

 

 

 

—

 

 

 

169

 

Share-based compensation expense

 

 

13,991

 

 

 

723

 

 

 

—

 

 

 

14,714

 

Depreciation and amortization

 

 

28,084

 

 

 

7,542

 

 

 

—

 

 

 

35,626

 

Loss (gain) on disposal of discontinued operation

 

 

2,042

 

 

 

(94

)

 

 

—

 

 

 

1,948

 

Gain on sale of rental fleet

 

 

(8,035

)

 

 

(1,647

)

 

 

—

 

 

 

(9,682

)

Loss on disposal of property, plant and equipment

 

 

237

 

 

 

10

 

 

 

—

 

 

 

247

 

Deferred income taxes

 

 

11,918

 

 

 

(440

)

 

 

(466

)

 

 

11,012

 

Tax shortfall on equity award transactions

 

 

(837

)

 

 

—

 

 

 

—

 

 

 

(837

)

Foreign currency transaction loss

 

 

—

 

 

 

1

 

 

 

—

 

 

 

1

 

Changes in certain assets and liabilities, net of effect of

   businesses acquired:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Receivables

 

 

(2,306

)

 

 

(3,603

)

 

 

1,948

 

 

 

(3,961

)

Inventories

 

 

(358

)

 

 

(35

)

 

 

—

 

 

 

(393

)

Deposits and prepaid expenses

 

 

572

 

 

 

81

 

 

 

—

 

 

 

653

 

Other assets and intangibles

 

 

(364

)

 

 

374

 

 

 

—

 

 

 

10

 

Accounts payable

 

 

(212

)

 

 

549

 

 

 

—

 

 

 

337

 

Accrued liabilities

 

 

(2,321

)

 

 

1,157

 

 

 

—

 

 

 

(1,164

)

Intercompany

 

 

(21,506

)

 

 

22,440

 

 

 

(934

)

 

 

—

 

Net cash provided by operating activities

 

 

73,847

 

 

 

41,945

 

 

 

319

 

 

 

116,111

 

Cash Flows from Investing Activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Proceeds from sale of discontinued operation

 

 

—

 

 

 

677

 

 

 

—

 

 

 

677

 

Additions to rental fleet, excluding acquisitions

 

 

(15,623

)

 

 

(13,203

)

 

 

—

 

 

 

(28,826

)

Proceeds from sale of rental fleet

 

 

27,437

 

 

 

8,514

 

 

 

—

 

 

 

35,951

 

Additions to property, plant and equipment

 

 

(12,887

)

 

 

(2,905

)

 

 

—

 

 

 

(15,792

)

Proceeds from sale of property, plant and equipment

 

 

1,900

 

 

 

70

 

 

 

—

 

 

 

1,970

 

Net cash provided by (used in) investing activities

 

 

827

 

 

 

(6,847

)

 

 

—

 

 

 

(6,020

)

Cash Flows from Financing Activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net repayments under lines of credit

 

 

(88,604

)

 

 

(34,472

)

 

 

—

 

 

 

(123,076

)

Principal payments on notes payable

 

 

(310

)

 

 

—

 

 

 

—

 

 

 

(310

)

Principal payments on capital lease obligations

 

 

(408

)

 

 

—

 

 

 

—

 

 

 

(408

)

Issuance of common stock

 

 

13,818

 

 

 

—

 

 

 

—

 

 

 

13,818

 

Purchase of treasury stock

 

 

(369

)

 

 

—

 

 

 

—

 

 

 

(369

)

Intercompany

 

 

—

 

 

 

(279

)

 

 

279

 

 

 

—

 

Net cash used in financing activities

 

 

(75,873

)

 

 

(34,751

)

 

 

279

 

 

 

(110,345

)

Effect of exchange rate changes on cash

 

 

—

 

 

 

171

 

 

 

(598

)

 

 

(427

)

Net (decrease) increase in cash

 

 

(1,199

)

 

 

518

 

 

 

—

 

 

 

(681

)

Cash and cash equivalents at beginning of year

 

 

1,009

 

 

 

928

 

 

 

—

 

 

 

1,937

 

Cash and cash equivalents at end of year

 

$

(190

)

 

$

1,446

 

 

$

—

 

 

$

1,256

 

 

90

MOBILE MINI, INC.

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

(20) Subsequent Events

In 2016, through February 2nd, we purchased $2.0 million of our outstanding stock under the current stock purchase program authorized by the Board.  Additionally, On January 20, 2016, the Board authorized and declared a cash dividend to all our common stockholders of $0.206 per share of common stock, payable on March 23, 2016 to stockholders of record as of the close of business March 9, 2016.  Each future quarterly dividend payment is subject to review and approval by the Board.

 

 

 

91

 

ITEM 9.

CHANGES IN AND DISAGREEMENTS WITH ACCOU NTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE .  

None.

 

 

ITEM 9A.

CONTROLS AND PROCEDURES .

Controls and Procedures

As of the end of the period covered by this Annual Report on Form 10-K, we carried out an evaluation, under the supervision and with the participation of our management, including our Chief Executive Officer and our Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act. Based on that evaluation, our Chief Executive Officer and our Chief Financial Officer concluded that, as of the end of the period covered by this Annual Report on Form 10-K, the Company’s disclosure controls and procedures, were effective such that the information relating to the Company required to be disclosed in our SEC reports (i) is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and (ii) is accumulated and communicated to the Company’s management, including our Chief Executive Officer and our Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

Report of Management on Internal Control Over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting for the Company. Internal control over financial reporting is a process to provide reasonable assurance regarding the reliability of our financial reporting for external purposes in accordance with accounting principles generally accepted in the United States of America. Internal control over financial reporting includes maintaining records that in reasonable detail accurately and fairly reflect our transactions; providing reasonable assurance that transactions are recorded as necessary for preparation of our financial statements; providing reasonable assurance that receipts and expenditures of Company assets are made in accordance with management authorization; and providing reasonable assurance that unauthorized acquisition, use, or disposition of Company assets that could have a material effect on our financial statements would be prevented or detected on a timely basis. Because of its inherent limitations, internal control over financial reporting is not intended to provide absolute assurance that a misstatement of our financial statements would be prevented or detected.

Management conducted an evaluation of the effectiveness of the Company’s internal control over financial reporting based on the framework in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on this evaluation, management concluded that the Company’s internal control over financial reporting was effective as of December 31, 2015.

Our internal control over financial reporting as of December 31, 2015 has been audited by KPMG LLP, an independent registered public accounting firm, as stated in their report which is included herein.

Changes in Internal Control Over Financial Reporting

Under the supervision and with the participation of our management, including our Principal Executive Officer and Principal Financial Officer, we conducted an evaluation of any changes in our internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) that occurred during our most recently completed fiscal quarter. Based on that evaluation, our Principal Executive Officer and Principal Financial Officer concluded that there has not been any change in our internal control over financial reporting during that quarter that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

 

 

ITEM 9 B.

OTHER INFORMATION .

None.

 

 

92

 

PART  III

ITEM 10.

DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE .

The information required to be disclosed by this item is incorporated herein by reference to our definitive proxy statement for the 2016 Annual Meeting of Stockholders (the “2016 Proxy Statement”), which we expect to file with the SEC within 120 days after the end of our fiscal year ended December 31, 2015.

 

 

ITEM 11.

EXECUTIVE COMPENSATION .

The information required to be disclosed by this item is incorporated herein by reference to the 2016 Proxy Statement, which we expect to file with the SEC within 120 days after the end of our fiscal year ended December 31, 2015.

 

 

ITEM 12.

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS.

Equity Compensation Plan Information

A description of our equity compensation plans approved by our shareholders is included in Note 11 to the accompanying consolidated financial statements.

 

Plan Category

 

Common   Shares

to be Issued Upon

Exercise of

Outstanding

Options, Warrants

and Rights

(a)

 

 

Weighted Average

Exercise Price of

Outstanding

Options, Warrants

and Rights

(b)

 

 

Common Shares

Remaining

Available for Future

Issuance Under Equity

Compensation Plans

(Excluding Shares

Reflected in

Column (a)

(c)

 

 

 

(In thousands)

 

 

 

 

 

 

(In thousands)

 

Equity compensation plans approved by

   Mobile Mini Stockholders (1)

 

 

870

 

 

$

37.88

 

 

 

2,550

 

Equity compensation plans not approved by

   Mobile Mini Stockholders (2)

 

 

2,000

 

 

 

31.45

 

 

 

—

 

Totals

 

 

2,870

 

 

$

33.40

 

 

 

2,550

 

 

(1)

Of these shares, options to purchase approximately 4,000 shares were outstanding under our Amended and Restated 1999 Stock Option Plan and options to purchase 0.9 million shares were outstanding under our Amended and Restated Equity Incentive Plan.

(2)

Reflects shares subject to an outstanding stock option agreement awarded as a non-plan based inducement grant in connection with the hiring of Mr. Olsson as the Company’s President and CEO. This grant was made pursuant to NASDAQ rule 5635(c)(4).

On December 31, 2015, the closing price of Mobile Mini’s common stock as reported by The NASDAQ Stock Market was $31.13.

All other information required to be disclosed by this item is incorporated herein by reference to the 2016 Proxy Statement, which we expect to file with the SEC within 120 days after the end of our fiscal year ended December 31, 2015.

 

 

ITEM 13.

CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE .

The information required to be disclosed by this item is incorporated herein by reference to the 2016 Proxy Statement, which we expect to file with the SEC within 120 days after the end of our fiscal year ended December 31, 2015.

 

 

ITEM 14.

PRINCIPAL ACCOUNTING FEES AND SERVICES .

The information required to be disclosed by this item is incorporated herein by reference to the 2016 Proxy Statement, which we expect to file with the SEC within 120 days after the end of our fiscal year ended December 31, 2015.

 

93

 

 

PART IV

ITEM 15.

EXHIBITS AND FINANCIAL STATEMENT SCHEDULES .

(a) Financial Statements:

 

(1)

The financial statements required to be included in this Annual Report on Form 10-K are included in Item 8 of this Annual Report on Form 10-K.

 

(2)

All schedules have been omitted because they are not applicable or because the information is included elsewhere in this Annual Report on Form 10-K.

 

Exhibit

Number

 

Description

 

 

 

2.1

 

Agreement and Plan of Merger, dated as of February 22, 2008, among Mobile Mini, Inc., Cactus Merger Sub, Inc., MSG WC Holdings Corp., and Welsh, Carson, Anderson & Stowe X, L.P. (Incorporated by reference to Exhibit 2.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on February 28, 2008).

 

 

 

2.2+

 

Stock Purchase Agreement dated as of November 13, 2014 by and among Mobile Mini, Inc., each Seller listed on Annex A thereto, Gulf Tanks Holdings, Inc. and Odyssey Investment Partners, LLC. (Incorporated by reference to Exhibit 2.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on December 11, 2014).

 

 

 

3.1

 

Amended and Restated Certificate of Incorporation of Mobile Mini, Inc. (Incorporated by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 1997 filed with the SEC on March 27, 1998).

 

 

 

3.2

 

Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Mobile Mini, Inc., dated July 20, 2000. (Incorporated by reference to Exhibit 3.1A to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2000 filed with the SEC on August 14, 2000).

 

 

 

3.3

 

Form of Certificate of Designation, Preferences and Rights of Series C Junior Participating Preferred Stock of Mobile Mini, Inc. (Incorporated by reference to Exhibit A to Exhibit 1 to the Registrant’s Registration Statement on Form 8-A filed with the SEC on December 13, 1999).

 

 

 

3.4

 

Certificate of Amendment of the Amended and Restated Certificate of Incorporation of Mobile Mini, Inc., dated June 26, 2008. (Incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on July 1, 2008).

 

 

 

3.5

 

Certificate of Designation of Mobile Mini, Inc. Series A Convertible Redeemable Participating Preferred Stock, dated June 26, 2008. (Incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on July 1, 2008).

 

 

 

3.6

 

Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Mobile Mini, Inc., dated September 14, 2015 (Incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on September 15, 2015).

 

 

 

3.7

 

Third Amended and Restated Bylaws of Mobile Mini, Inc., effective as of September 14, 2015. (Incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on September 15, 2015).

 

 

 

4.1

 

Form of Common Stock Certificate. (Incorporated by reference to Exhibit 4.1 of the Registrant’s Annual Report to Form 10-K for the fiscal year ended December 31, 2003 filed with the SEC on March 15, 2004).

 

 

 

4.2

 

Rights Agreement, dated as of December 9, 1999, between Mobile Mini, Inc. and Norwest Bank Minnesota, NA, as rights agent. (Incorporated by reference to Exhibit 1 to the Registrant’s Registration Statement on Form 8-A filed with the SEC on December 13, 1999).

 

 

 

4.3

 

Indenture, dated as of November 23, 2010, among Mobile Mini, Inc., the Guarantor parties thereto, Law Debenture Trust Company of New York, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, registrar and transfer agent. (Incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on November 29, 2010).

 

 

 

10.1†

 

Mobile Mini, Inc. Amended and Restated 1999 Stock Option Plan, as amended through March 25, 2003. (Incorporated by reference to Appendix B to the Registrant’s Definitive Proxy Statement for its 2003 Annual Meeting of Stockholders, filed with the SEC on April 11, 2003).

94

 

Exhibit

Number

 

Description

 

 

 

10.2†

 

Form of Stock Option Grant Agreement. (Incorporated by reference to Exhibit 10.2.1 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2004 filed with the SEC on March 16, 2005).

 

 

 

10.3†

 

Mobile Mini, Inc. Amended and Restated Equity Incentive Plan, effective March 20, 2015. (Incorporated by reference to Appendix B of the Registrant’s Definitive Proxy Statement for its 2015 Annual Meeting of Stockholders filed with the SEC on March 30, 2015).

 

 

 

10.4†

 

Employment Agreement dated as of October 15, 2008 by and between Mobile Mini, Inc. and Mark E. Funk. (Incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on October 17, 2008).

 

 

 

10.5†

 

2009 Amendment to Amended and Restated Employment Agreement effective as of January 1, 2009 by and between Mobile Mini, Inc. and Mark E. Funk. (Incorporated by reference to Exhibit 10.11 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2009 filed with the SEC on March 1, 2010).

 

 

 

10.6†

 

2012 Amendment to Employment Agreement effective December 21, 2012 by and between Mobile Mini, Inc. and Mark E. Funk. (Incorporated by reference to Exhibit 10.10 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012 filed with the SEC on March 1, 2013).

 

 

 

10.7†

 

Amendment No. 3 to Employment Agreement, dated April 20, 2015, by and between Mobile Mini, Inc. and Mark Funk. (Incorporated by reference to Exhibit 10.2 to the Registrant’s Current Report on Form 8-K filed with the SEC on April 21, 2015).

 

 

 

10.8†

 

Employment Agreement dated as of December 22, 2009, by and between Mobile Mini, Inc. and Christopher J. Miner. (Incorporated by reference to Exhibit 99.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on December 24, 2009).

 

 

 

10.9†

 

Amendment No. 1 to Employment Agreement, effective December 21, 2012, by and between Mobile Mini, Inc. and Christopher J. Miner (Incorporated by reference to Exhibit 10.14 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012 filed with the SEC on March 1, 2013).

 

 

 

10.10†

 

Amendment No. 2 to Employment Agreement, dated April 20, 2015 by and between Mobile Mini, Inc. and Chris Miner. (Incorporated by reference to Exhibit 10.3 to the Registrant’s Current Report on Form 8-K filed with the SEC on April 21, 2015).

 

 

 

10.11†

 

Form of Indemnification Agreement between Mobile Mini, Inc. and its Directors and Executive Officers (Incorporated by reference to Exhibit 10.20 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2004 filed with the SEC on August 9, 2004).

 

 

 

10.12

 

ABL Credit Agreement, dated February 22, 2012, among Mobile Mini, Deutsche Bank AG New York Branch and other lenders party thereto. (Incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on February 28, 2012).

 

 

 

10.13++

 

Schedules to the ABL Credit Agreement, dated February 22, 2012, among Mobile Mini, Deutsche Bank AG New York Branch and other Lenders party thereto. (Incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2012 filed with the SEC on May 10, 2012).

 

 

 

10.14†

 

Amended and Restated Executive Employment Agreement, effective as of January 14, 2016, by and between Mobile Mini, Inc. and Erik Olsson. (Incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on January 14, 2016).

 

 

 

10.15†

 

Form of Stock Option Agreement between Mobile Mini, Inc. and Erik Olsson. (Incorporated by reference to Exhibit 99.2 to the Registrant’s Registration Statement on Form S-8 filed with the SEC on May 10, 2013).

 

 

 

10.16†

 

Employment Agreement dated September 3, 2013, by and between Mobile Mini, Inc. and Ruth Hunter. (Incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2014, filed with the SEC on April 30, 2014).

 

 

 

10.17†

 

Second Amended and Restated Employment Agreement between Mobile Mini, Inc. and Kelly Williams, dated June 4, 2014. (Incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on June 10, 2014).

95

 

Exhibit

Number

 

Description

 

 

 

10.18†

 

Amendment No. 1 to Second Amended and Restated Employment Agreement, dated April 20, 2015 by and between Mobile Mini, Inc. and Kelly Williams. (Incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on April 21, 2015)

 

 

 

10.19

 

Incremental Credit Agreement dated as of December 10, 2014, to the ABL Credit Agreement, dated as of February 22, 2012, among Mobile Mini, Inc., the other borrowers and guarantors party thereto, the lenders from time to time party thereto and Deutsche Bank AG New York Branch, as administrative agent. (Incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed with the SEC on December 11, 2014).

 

 

 

10.20*†

 

Employment Agreement dated August 16, 2013 by and between Mobile Mini, Inc. and Lynn Courville.  

 

 

 

10.21*†

 

Amendment No. 1 to Employment Agreement, dated April 20, 2015 by and between Mobile Mini, Inc. and Lynn Courville.  

 

 

 

10.22*

 

Amended and Restated ABL Credit Agreement, dated December 14, 2015, among Mobile Mini, Inc., Deutsche Bank AG New York Branch, and the other lenders party thereto.

 

 

 

10.23*++

 

Schedules to the Amended and Restated ABL Credit Agreement, dated December 14, 2015, between Mobile Mini, Inc., Deutsche Bank AG New York Branch and the other lenders party thereto.

 

 

 

10.24

 

Asset Purchase Agreement, dated as of April 16, 2015, between New Acton Mobile Industries LLC and Mobile Mini, Inc. (Incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2015 filed with the SEC on July 23, 2015).

 

 

 

21*

 

Subsidiaries of Mobile Mini, Inc.

 

 

 

23.1*

 

Consent of Independent Registered Public Accounting Firm.

 

 

 

23.2*

 

Consent of Independent Valuation Firm.

 

 

 

24*

 

Power of Attorney (included on signature page)

 

 

 

31.1*

 

Certification of Chief Executive Officer pursuant to Item 601(b)(31) of Regulation S-K.

 

 

 

31.2*

 

Certification of Chief Financial Officer pursuant to Item 601(b)(31) of Regulation S-K.

 

 

 

32.1**

 

Certification of Chief Executive Officer and Chief Financial Officer pursuant to Item 601(b)(32) of Regulation S-K.

 

 

 

101.INS*

 

XBRL Instance Document.

 

 

 

101.SCH*

 

XBRL Taxonomy Extension Schema Document.

 

 

 

101.CAL*

 

XBRL Taxonomy Extension Calculation Linkbase Document.

 

 

 

101.DEF*

 

XBRL Taxonomy Extension Definition Linkbase Document.

 

 

 

101.LAB*

 

XBRL Taxonomy Extension Labels Linkbase Document.

 

 

 

101.PRE*

 

XBRL Taxonomy Extension Presentation Linkbase Document.

 

*

Filed herewith.

**

Furnished herewith.

+

The schedules and exhibits in this exhibit have been omitted pursuant to Item 601(b)(2) of Regulation S-K.  Mobile Mini agrees to furnish supplementally a copy of such schedules and exhibits, or any section thereof, to the SEC upon request

++

Certain confidential information contained in this exhibit was omitted by means of redacting a portion of the text and replacing it with an asterisk. This exhibit has been filed separately with the Secretary of the SEC without the redaction pursuant to Confidential Treatment Request under Rule 406 of the Securities Act.

†

Management contract or compensatory arrangement

 

 

96

 

SIGNAT URES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Annual Report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

 

MOBILE MINI, INC.

 

 

 

Date:  February 5, 2016

By:

/s/ Erik Olsson

 

 

Erik Olsson

 

 

President

 

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Mark Funk his true and lawful attorneys-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this Annual Report, and to file the same, with all exhibits thereto, and other documents in connection therewith with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, and fully and to all intents and purposes as he might or could do in person hereby ratifying and confirming all that said attorney-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Exchange Act of 1934, this Annual Report has been signed by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

Date:  February 5, 2016

By:

/s/ Erik Olsson

 

 

Erik Olsson

President, Chief Executive Officer and Director

(Principal Executive Officer)

 

 

 

Date:  February 5, 2016

By:

/s/ Mark E. Funk

 

 

Mark E. Funk

Executive Vice President and Chief Financial Officer

(Principal Financial Officer)

 

 

 

Date:  February 5, 2016

By:

/s/ Audra L. Taylor

 

 

Audra L. Taylor

Vice President and Chief Accounting Officer

(Principal Accounting Officer)

 

 

 

Date:  February 5, 2016

By:

/s/ Michael L. Watts

 

 

Michael L. Watts

Chairman of the Board and Director

 

 

 

Date:  February 5, 2016

By:

/s/ Sara R. Dial

 

 

Sara R. Dial, Director

 

 

 

Date:  February 5, 2016

By:

/s/ Jeffrey S. Goble

 

 

Jeffrey S. Goble, Director

 

 

 

Date:  February 5, 2016

By:

/s/ James J. Martell

 

 

James J. Martell, Director

 

 

 

Date:  February 5, 2016

By:

/s/ Stephen A McConnell

 

 

Stephen A McConnell, Director

 

 

 

Date:  February 5, 2016

By:

/s/ Frederick G. McNamee, III

 

 

Frederick G. McNamee, III, Director

 

 

 

Date:  February 5, 2016

By:

/s/ Kimberly J. McWaters

 

 

Kimberly J. McWaters, Director

 

 

 

Date:  February 5, 2016

By:

/s/ Lawrence Trachtenberg

 

 

Lawrence Trachtenberg, Director

 

 

97

 

INDEX TO EXHIBITS FILED HEREWITH

 

Exhibit

Number

Description

 

 

10.20

Employment Agreement, dated August 16, 2013 by and between Mobile Mini, Inc. and Lynn Courville.

 

 

10.21

Amendment No. 1 to Employment Agreement, dated April 20, 2015 by and between Mobile Mini, Inc. and Lynn Courville.

 

 

10.22

Amended and Restated ABL Credit Agreement, dated December 14, 2015, among Mobile Mini, Inc., Deutsche Bank AG New York Branch, and the other lenders party thereto

 

 

10.23

Schedules to the Amended and Restated ABL Credit Agreement, dated December 14, 2015, between Mobile Mini, Inc., Deutsche Bank AG New York Branch and the other lenders party thereto.

 

 

21

Subsidiaries of Mobile Mini, Inc.

 

 

23.1

Consent of Independent Registered Public Accounting Firm.

 

 

23.2

Consent of Independent Valuation Firm.

 

 

24

Power of Attorney (included on signature page)

 

 

31.1

Certification of Chief Executive Officer pursuant to Item 601(b)(31) of Regulation S-K.

 

 

31.2

Certification of Chief Financial Officer pursuant to Item 601(b)(31) of Regulation S-K.

 

 

32.1

Certification of Chief Executive Officer and Chief Financial Officer pursuant to Item 601(b)(32) of Regulation S-K.

 

 

101.INC

XBRL Instance Document.

 

 

101.SCH

XBRL Taxonomy Extension Schema Document.

 

 

101.CAL

XBRL Taxonomy Extension Calculation Linkbase Document.

 

 

101.DEF

XBRL Taxonomy Extension Definition Linkbase Document.

 

 

101.LAB

XBRL Taxonomy Extension Labels Linkbase Document.

 

 

101.PRE

XBRL Taxonomy Extension Presentation Linkbase Document.

 

 

98

Exhibit 10.20

EMPLOYMENT AGREEMENT

THIS AGREEMENT (this “ Agreement ”) is made and entered into as of the 16 th day of August, 2013, by and between MOBILE MINI, INC., a Delaware corporation (the “ Company ”), and Lynn Courville (the “ Employee ”). The Company and the Employee are hereinafter collectively referred to as the “ Parties ”.

RECITALS

WHEREAS, the Company and the Employee desire to enter into this Agreement to memorialize the terms and conditions pursuant to which the Company has engaged the Employee to serve in certain capacities as an employee of the Company;

NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, the Parties hereby represent, covenant and agree as follows:

AGREEMENT

1. Employment .  The Company hereby agrees to continue to employ the Employee and the Employee hereby agrees to be employed by the Company upon the terms and conditions herein set forth.

2. Term .  This Agreement shall be effective for a term commencing on the date hereof and, subject to termination under Section 5, expiring on December 31, 2014 (the “ Employment Period ”).  Notwithstanding the previous sentence, this Agreement, the Employment Period and the employment of the Employee hereunder shall be automatically extended for successive one year periods upon the terms and conditions set forth herein, with the first such automatic extension occurring on December 31, 2014, and on each December 31st thereafter, unless either party to this Agreement gives the other party written notice (in accordance with Section 14) within the ninety (90) day period prior to December 31, 2014 (or the relevant December 31st thereafter, as applicable) of such party’s intention that the Employment Period shall expire at the close of business on the last day of the then current Employment Period, whereupon, unless earlier terminated in accordance with the provisions of this Agreement, the Employment Period shall expire and this Agreement shall cease to have any further force or effect in respect of any period thereafter.  For purposes of this Agreement, any reference to the “term” of this Agreement shall include the original term and any extension thereof.

3. Duties of the Employee .

(a) The Employee shall serve as Senior Vice President, Human Relations of the Company and the Employee agrees to perform such duties and responsibilities customarily associated with the position, including without limitation the duties and responsibilities as may be assigned from time to time by the Chief Executive Officer.

(b) During the Employment Period, the Employee shall devote her normal working time and attention to the business and affairs of the Company, and, subject to the terms of this Section 3(b) with respect to service on the board of directors of other entities, will not render services to any other business without the prior written approval of the President of the Company.  During her employment hereunder, the Employee shall not, directly or indirectly, engage or participate in any business that is competitive in any manner with the business of the Company.  Subject to obtaining the prior express consent or approval of the President of the Company, the Employee may serve as a member of the board of directors of other entities (other than the board of directors of a business that is competitive with the business of the Company), provided that such service shall not interfere with the Employee’s performance of her duties hereunder.  The Employee shall request the consent or approval of the Company’s President of her intention to serve on the board of directors (or similar governing body) of any company or other entity prior to commencing such service.

4. Compensation .

(a) Base Salary and Bonus .  During the Employment Period, the Company agrees to pay the Employee a 2013 base salary at the rate of $225,000 per annum or such larger amount as the Board may from time to time determine (hereinafter referred to as the “ Base Salary ”), pro rated to August 12, 2013.  Employee’s Base Salary shall be reviewed annually. Such Base Salary shall be payable in accordance with the Company’s customary practices applicable to its senior executives.  In addition to the Base Salary, Employee shall be eligible for an incentive bonus subject to the terms and conditions of the Company’s incentive bonus plan as in effect from time to time for senior management and as the Compensation Committee in its discretion may determine (the “ Bonus ”).

(b) Participation in Equity-Based Plans .  The Employee shall be entitled to participate in all equity-based employee benefit plans maintained from time to time during the term of this Agreement (including, without limitation, any such plans as may hereafter established by the Company) for the purpose of providing compensation and/or benefits to employees of the Company including, but not limited to, the Company’s 2006 Equity Incentive Plan (or any successor plan or plans) and other bonus or incentive compensation plans..

(c) Employee Benefits .  The Employee shall be entitled to participate in (including coverage for the Employee’s eligible dependents under the Company’s medical, dental and similar welfare benefit plans as applicable) all employee benefit plans, practices and programs maintained by the Company and made available to employees generally including, without limitation, all retirement, profit sharing, savings, 401(k), medical, hospitalization, disability, dental, life or travel accident insurance benefit plans, as well as any plans, practices and programs maintained generally for senior management including, without limitation, any deferred compensation, supplemental medical or life insurance plans.  The Employee’s participation in such plans, practices and programs shall be on the same basis and terms as are applicable to senior executives of the Company generally.

(d) Other Benefits .  The Company shall pay or reimburse the Employee for reasonable and necessary expenses incurred by the Employee in connection with her duties on behalf of the Company in accordance with the general policies of the Company.

(e) Vacation and Sick Leave .  The Employee shall be entitled to annual vacation in the greater of four weeks or in accordance with the policies as periodically established by the Board for other senior executives of the Company.  The Employee is also entitled to sick leave (without loss of pay) in accordance with the Company’s policies as in effect from time to time.

5. Termination .  In addition to the expiration of the term of this Agreement pursuant to Section 2, the Employee’s employment hereunder may be terminated under the following circumstances:

(a) Disability .  The Company may terminate the Employee’s employment upon 30 days written notice after having established the Employee’s Disability; provided that the Company exercises reasonable efforts to accommodate such disability in accordance with the Americans with Disabilities Act.  For purposes of this Agreement, “ Disability ” means a physical or mental infirmity which impairs the Employee’s ability to perform substantially her duties for a period of ninety (90) consecutive days.  A determination of Disability shall be made by a physician satisfactory to both the Employee and the Company, which physician’s determination as to Disability shall be made within ten (10) days of the request therefor and shall be binding on all parties; provided, however, that if the Employee and the Company do  not agree on a physician, the Employee and the Company shall each select a physician and these two together shall select a third physician, which third physician’s determination as to Disability shall be binding on all parties.  The Employee shall be entitled to the compensation and benefits provided for under this Agreement for any period during the term of this Agreement and prior to termination in accordance herewith relating to Employee’s Disability.  Notwithstanding anything contained in this Agreement to the contrary, until the Termination Date specified in a Notice of Termination (as each term is hereinafter defined) relating to the Employee’s Disability, the Employee shall be entitled to return to her position with the Company as set forth in this Agreement in which event no Disability of the Employee will be deemed to have occurred.

(b) Cause .  The Company may terminate the Employee’s employment by written notice for “ Cause .”  The Company shall be deemed to have terminated the Employee’s employment for “Cause” in the event that the Employee’s employment is terminated for any of the following reasons: (i) the commission of an act of fraud or intentional misrepresentation or an act of embezzlement, misappropriation or conversion of assets or opportunities of the Company; (ii) material dishonesty or willful misconduct in the performance of duties; (iii) willful violation of any law, rule or regulation in connection with the performance of duties (other than traffic violations or similar offenses); provided, that no act or failure to act shall be considered willful unless done or omitted to be done in bad faith and without reasonable belief that the action or omission was in the best interests of the Company; or (iv) any material breach by the Employee of any provision of this Agreement (after notice from the Company and 30 days to cure such breach and such breach is not cured).  Notwithstanding anything contained in this Agreement to the contrary, no failure to perform by the Employee after the Notice of Termination is given by the Company shall constitute Cause for purposes of this Agreement.

(c) Good Reason .  The Employee may terminate her employment for “Good Reason”, provided that she gives the Company notice of such Good Reason within a reasonable period (but, except as provided below, in no event more than 90 days) after she has knowledge of the events giving rise to the Good Reason.  For purposes of this Agreement, “ Good Reason ” shall mean, without the Employee’s consent:

(i)   the assignment to Employee of material duties that are materially inconsistent with Employee’s title and responsibilities as contemplated by Section 3(a) of this Agreement;

(ii)  a reduction in Employee’s Base Salary (provided, that an “across the board” reduction in base salary and/or bonus opportunities affecting all of the senior executive employees of Company (excluding the CEO for this purpose) on a substantially similar basis shall not constitute “Good Reason”);

(iii) any material breach by the Company of any provision of this Agreement;

(iv) any purported termination of the Employee’s employment for Cause by the Company which does not comply with the terms of Section 5 of this Agreement; or

(v)  the failure of the Company to obtain an agreement, satisfactory to the Employee, from any successor or assign of the Company to assume and agree to perform this Agreement, as contemplated in Section 10 hereof.

The Employee’s right to terminate her employment pursuant this Section 5(c) shall not be affected by her incapacity due to physical or mental illness if such incapacity occurs after the event or condition giving rise to the Employee’s right to terminate her employment pursuant to this Section 5(c).

Notwithstanding anything to the contrary stated above in this Section 5(c) or elsewhere in this Agreement, the Employee will only be treated as having Good Reason to terminate her employment pursuant to clauses (i) - (v) if the Employee has given Company notice and a period of at least thirty (30) days during which it can remedy any of such conditions and, during such period, the Company fails to remedy such condition.

(d) Voluntary Termination .  The Employee may voluntarily terminate her employment hereunder at any time upon ninety (90) day prior notice to the Company.

(e) Termination by Company Without Cause .  The Company may terminate the Employee’s employment hereunder for any reason by a written notice.

(f) Change in Control; Accelerated Vesting of Equity-Based Awards .  In certain circumstances, termination may occur following a Change in Control (as contemplated in Section 6 hereof).  For purposes of this Agreement, a “ Change in Control ” shall mean any of the following events:

(i)   an acquisition (other than directly from the Company) of any voting securities of the Company (the “ Voting Securities ”) by any “ Person ” (as the term person is used for purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”)), immediately after which such Person has “ Beneficial Ownership ” (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of thirty-five percent (35%) or more of the then outstanding Shares of the combined voting power of the Company’s then outstanding Voting Securities; provided, however , in determining whether a Change in Control has occurred, Shares or Voting Securities which are acquired in a “Non-Control Acquisition” (as hereinafter defined) shall not constitute an acquisition which would cause a Change in Control.  A “ Non-Control Acquisition ” shall mean an acquisition by (A) an employee benefit plan (or a trust forming a party thereof) maintained by (1) the Company or (2) any corporation or other Person of which all of its voting power or its voting equity securities or equity interest is owned, directly or indirectly, by the Company prior to such acquisition (for purposes of this definition, a “ Subsidiary ”, (B) the Company or its Subsidiaries, or (C) any Person in connection with a “Non-Control Transaction” (as hereinafter defined).

(ii)  the individuals who, as of the date of this Agreement are members of the Board (the “ Incumbent Board ”), cease for any reason to constitute at least two-thirds of the members of the Board of Directors of the Company; provided, however , that if the election, or nomination for election by the Company’s common stockholders, of any new director was approved by a vote of at least two-thirds of the Incumbent Board, such new director shall, for purposes of this Agreement, be considered as a member of the Incumbent Board; provided, further, however , that no individual shall be considered a member of the Incumbent Board if such individual initially assumed officer as a result of either an actual or threatened “ Election Contest ” (as described in Rule 14a-11 promulgated under the Exchange Act) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board (a “ Proxy Contest ”) including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest; or

(iii) the consummation of:

(A) a merger, consolidation or reorganization involving the Company, unless such merger, consolidation or reorganization is a “Non-Control Transaction.”  A “ Non-Control Transaction ” shall mean a merger consolidation or reorganization of the Company where (1) the stockholders of the Company, immediately before such merger, consolidation or reorganization, own directly or indirectly immediately following such  merger, consolidation or reorganization, at least fifty-one percent (51%) of the combined voting power of the outstanding voting securities of the corporation resulting from such merger or consolidation or reorganization (the “ Surviving Corporation ”) in substantially the same proportion as their ownership of the Voting Securities immediately before such merger, consolidation or reorganization, (2) the individuals who were members of the Incumbent Board immediately prior to the execution of the agreement providing for such merger, consolidation or reorganization constitute at least two-thirds of the members of the board of directors of the Surviving Corporation, or a corporation beneficially directly or indirectly owning a majority of the Voting Securities of the Surviving Corporation, and (3) no Person other than (i) the Company, (ii)

any Subsidiary, or (iii) any employee benefit plan (or any trust forming a part thereof) that, immediately prior to such merger, consolidation or reorganization, was maintained by the Company, or any Subsidiary;

(B) a complete liquidation or dissolution of the Company; or

(C) the sale or disposition of all or substantially all of the assets of the Company to any Person (other than a transfer to a Subsidiary).

Notwithstanding the foregoing, a Change in Control shall not be deemed to occur (i) solely because any Person (the “ Subject Person ”) acquired Beneficial Ownership of more than the permitted amount of the then outstanding Shares or Voting Securities as a result of the acquisition of Shares or Voting Securities by the Company which, by reducing the number of Shares or Voting Securities then outstanding, increases the proportional number of shares Beneficially Owned by the Subject Persons, provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of Shares or Voting Securities by the Company, and after such share acquisition by the Company, the Subject Person becomes the Beneficial Owner of any additional Shares or Voting Securities which increases the percentage of the then outstanding Shares or Voting Securities Beneficially Owned by the Subject Person, then a Change in Control shall occur.

Upon a Change in Control, and without regard to whether or not the Employee’s employment hereunder is terminated in connection therewith, all restrictions on any outstanding equity-based awards (including, without limitation, restricted stock and performance stock awards) then held by the Employee shall lapse and all performance targets and goals applicable to such awards in respect of any past or future period shall be deemed to have been met by the Company and the Employee, as applicable, for each period relevant to such award and all such equity-based awards shall become and be deemed to be fully (100%) vested immediately prior to such Change in Control, and all stock options and stock appreciation rights granted to the Employee shall become fully (100%) vested and shall become immediately exercisable.  In the event of any conflict between this subsection and any agreement between the Employee and the Company relating to any outstanding award (whether now existing or hereafter entered into), the provisions of this subsection shall prevail

(g) Notice of Termination . Any purported termination by the Company or by the Employee shall be communicated by written Notice of Termination to the other.  For purposes of this Agreement, a “ Notice of Termination ” shall mean a notice which indicates the specific termination provision in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Employee’s employment under the provision so indicated.  For purposes of this Agreement, no such purported termination of employment shall be effective without such Notice of Termination.

(h) Termination Date, Etc .  " Termination Date " shall mean in the case of the Employee’s death, her date of death, or in all other cases, the date specified in the Notice of Termination subject to the following:

(i)   if the Employee's employment is terminated by the Company for Cause or due to Disability, or by the Company without Cause, the date specified in the Notice of Termination shall be at least thirty (30) days from the date the Notice of Termination is given to the Employee, provided that in the case of Disability the Employee shall not have returned to the full-time performance of her duties during such period of at least thirty (30) days; and

(ii)  if the Employee's employment is terminated for Good Reason, the date specified in the Notice of Termination shall not be more than thirty (30) days from the date the Notice of Termination is given to the Company.

6. Compensation Upon Termination . Upon termination of the Employee's employment during the term of this Agreement (including any extensions thereof), the Employee shall be entitled to the following benefits:

(a) Cause, Death or Disability; Voluntary Termination By Employee other than Good Reason .  If the Employee's employment is terminated by the Company for Cause or Disability or by the Employee (other than for Good Reason), or by reason of the Employee’s death, the Company shall pay the Employee (or her estate, as applicable) all amounts earned or accrued hereunder through the Termination Date but not paid as of the Termination Date, including (i) Base Salary, (ii) reimbursement for any and all monies advanced or expenses incurred in connection with the Employee’s employment for reasonable and necessary expenses incurred by the Employee on behalf of the Company for the period ending on the Termination Date, (iii) unused vacation days and paid holidays as of the termination date, (iv) any bonuses and incentive compensation which at the time of termination is earned but unpaid under the terms and provisions of the applicable plan, and (v) any previously earned compensation which the Employee has deferred until separation from service (but not any other date) (including any interest earned or credited thereon) (collectively, “ Accrued Compensation ”).  In addition, in connection with the termination of the Employee’s employment hereunder by the Company for Disability or by reason of the Employee’s death, the Company shall pay the Employee (or her estate, as applicable), on the 60th day (except as otherwise may be required under Section 24(b) of this Agreement if the Employee is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) following the date of Disability or death, as the case may be, an amount (which shall be in lieu of any target bonus or other bonus plan amount that might otherwise for any reason be or be deemed to be payable directly or indirectly in connection with the fiscal year in which such termination occurred, an amount

equal to the product of (I) the average of the cash bonus amounts (if any) paid by the Company to the Employee in relation to the two fiscal years immediately preceding the year in which such termination occurs, multiplied by (II) a fraction, the numerator is the number of days in the year that were elapsed as of the date of the termination of employment and the denominator is 365; provided that if such thirty (30) day period begins in one calendar year and ends in another, the Employee and/or her beneficiary shall not have the right to designate the taxable year of payment.  In connection with the termination of the Employee’s employment hereunder by the Company for Disability or by reason of the Employee’s death, all restrictions on any outstanding equity-based awards (including, without limitation, restricted stock and performance stock awards) then held by the Employee shall lapse and all performance targets and goals applicable to such awards in respect of any past or future period shall be deemed to have been met by the Company and the Employee, as applicable, for each period relevant to such award and all such equity-based awards shall become and be deemed to be fully (100%) vested immediately prior to such termination of employment, and all stock options and stock appreciation rights granted to the Employee shall become fully (100%) vested and shall become immediately exercisable and the Company shall permit the Employee (or her estate), to exercise the same at any time during the 90-day period following such termination.  In the event of the Employee’s death, for a period of twelve (12) months from the date of death, the Company shall pay for COBRA benefits (or the equivalent) for Employee’s surviving spouse and eligible dependents covered by the Company’s group health plan at the time of Employee’s death.  In the event the Employee’s employment hereunder is terminated due to Disability, the Company shall pay COBRA benefits (or the equivalent) for the Employee for a period of twelve (12) months from the date of such termination.  The Employee’s entitlement to any other compensation or benefits shall be determined in accordance with the Company’s employee benefit plans and other applicable programs and practices then in effect.

(b) Without Cause; For Good Reason .  If the Employee's employment by the Company is terminated by the Company prior to a Change in Control other than for Cause, death or Disability, or by the Employee for Good Reason, or the Company has notified the Employee pursuant to Section 2 that the Company intends to terminate the Agreement (rather than allow the terms of the Agreement to renew automatically), then the Employee shall be entitled to the benefits provided below (the “ Without Cause Benefits ”):

(i)   the Company shall pay the Employee all Accrued Compensation;

(ii)  the Company shall pay the Employee, as severance pay and in lieu of any further salary for periods subsequent to the Termination Date, in a single payment an amount in cash equal to one (1) times the sum of (A) the Employee’s Base Salary at the highest rate in effect at any time within the ninety (90) day period ending on the date the Notice of Termination is given and (B) the “Payment Amount.”  For purposes of this Agreement, the term “ Payment Amount ” shall mean an amount which is equal to seventy-five percent (75%) of the Employee’s Base Salary in effect during the year in which the Termination Date shall occur;

(iii) except as may otherwise be determined in accordance with Revenue Ruling 2008-13 (on a basis consistent in all material respects among all executive officers whose compensation, or the deductibility thereof by the Company, is affected by Section 162(m) of the Code or any successor provision thereto) by the Compensation Committee at the time of grant of such equity-based award:

(A) All service-based restrictions on outstanding equity-based awards (including, without limitation, restricted stock and performance stock awards) then held by the Employee shall lapse;

(B) All performance targets and goals applicable to such equity-based awards in respect of any past or future period must continue to be satisfied for each period relevant to such award;

(C) Any equity-based award shall be paid at the time and in the form specified in the Mobile Mini, Inc. 2006 Equity Incentive Plan or the relevant plan under which such award is outstanding; and

(D) All stock options (including performance-based stock options) and stock appreciation rights granted to the Employee shall become fully (100%) vested and shall become immediately exercisable and the Company shall permit the Employee (or her estate), to exercise the same at any time during the 90-day period following such termination; and

(iv) for a period of twelve (12) months following such termination, the Company shall at its expense continue on behalf of the Employee and her dependents and beneficiaries the life insurance, disability, medical, dental and hospitalization benefits which were being provided to the Employee and other members of senior management of the Company at the time Notice of Termination was given. Post-termination medical, dental, and hospitalization coverage will run concurrently with the COBRA coverage period. The benefits provided in this Section 6(b)(iv) shall be no less favorable to the Employee, in terms of amounts and deductibles and costs to her, than the coverage provided the Employee under the plans providing such benefits at the time Notice of Termination is given.  The Company’s obligation hereunder with respect to the foregoing benefits shall be limited to the extent that the Employee obtains any such benefits pursuant to a subsequent employer’s benefit plans, in which case the Company may reduce the coverage of any benefits it is required to provide the Employee hereunder as long as the aggregate coverage of the combined benefit plans is no less favorable to the Employee, in terms of amounts and deductibles and costs to her, than the coverage

required to be provided hereunder. This Subsection (iv) shall not be interpreted so as to limit any benefits to which the Employee or her dependents may be entitled under any of the Company’s employee benefit plans, programs or practices following the Employee’s termination of employment, including, without limitation, retiree medical and life insurance benefits.

(c) Following a Change in Control .  If within one year following the occurrence of a Change of Control the Employee's employment by the Company is terminated either by the Company other than for Cause, death or Disability, or by the Employee for any reason, then the Employee shall be entitled to the benefits provided below (the “ CiC Benefits ” and together with Without Cause Benefits, the “ Severance Benefits ”):

(i)   the Company shall pay the Employee all Accrued Compensation;

(ii)  the Company shall pay the Employee as severance pay and in lieu of any further salary for periods subsequent to the Termination Date, in a single payment an amount in cash equal to two (2) times the sum of (A) the Employee’s Base Salary at the highest rate in effect at any time within the ninety (90) day period ending on the date the Notice of Termination is given or the Employee’s Base Salary immediately prior to the Change in Control, if greater, and (B) the Payment Amount; and

(iii) for a period of twenty-four (24) months following such termination, the Company shall at its expense continue on behalf of the Employee and her dependents and beneficiaries the life insurance, disability, medical, dental and hospitalization benefits which were being provided to the Employee at the time Notice of Termination is given (or, if the Employee is terminated following a Change in Control, the benefits provided to the Employee at the time of the Change in Control, if greater).  Post-termination medical, dental, and hospitalization coverage will run concurrently with the COBRA coverage period. The benefits provided in this subsection 6(c)(iii) shall be no less favorable to the Employee, in terms of amounts and deductibles and costs to her, than the coverage provided the Employee under the plans providing such benefits at the time Notice of Termination is given or at the time of the Change in Control if more favorable to the Employee.  The Company’s obligation hereunder with respect to the foregoing benefits shall be limited to the extent that the Employee obtains any such benefits pursuant to a subsequent employer’s benefit plans, in which case the Company may reduce the coverage of any benefits it is required to provide the Employee hereunder as long as the aggregate coverage of the combined benefit plans is no less favorable to the Employee, in terms of amounts and deductibles and costs to her, than the coverage required to be provided hereunder.  This subsection 6(c)(iii) shall not be interpreted so as to limit any benefits to which the Employee or her dependents may be entitled under any of the Company’s employee benefit plans, programs or practices following the Employee’s termination of employment, including, without limitation, retiree medical and life insurance benefits.

(d) Time of Payment; Adjustment for Taxes .  The amounts provided for in Sections 6(a), 6(b)(ii), and 6(c)(ii) shall be paid on the 60th day after the Employee’s Termination Date (except as otherwise may be required under Section 24(b) of this Agreement if the Employee is a “specified employee” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”)).   In the event the Employee’s severance and other benefits provided for in this Section 6 constitute “parachute payments” within the meaning of Section 280G of the Code and, but for this subsection, would be subject to the excise tax imposed by Section 4999 of the Code, then the Employee’s severance and other benefits under this Section 6 will be payable either in full or in such lesser amount as would result, after taking into account the applicable federal, state and local income taxes and the excise tax imposed by Section 4999, in the Employee’s receipt on an after-tax basis of the greatest amount of severance and other benefits. All determinations to be made pursuant to this Section 6(d), including without limitation whether partial payment or payment in full will provide the greatest after-tax benefit to the Employee and the amount of any such partial payment to be made, shall be made by an independent public accounting firm selected by the Company and reasonably acceptable to the Employee and such determinations shall be binding on the Company and the Employee.  If the payments and benefits under Section 6 are required to be reduced, the cash severance shall be reduced first, followed by a reduction in the accelerated vesting of any equity awards, and last by the reduction of any other benefits.

(e) No Duty to Mitigate .  The Employee shall not be required to mitigate the amount of any payment, benefit or other Company obligation provided for in this Agreement by seeking other employment or otherwise and no such payment, benefit or other Company obligation shall be offset or reduced by the amount of any compensation or benefits provided to the Employee in any subsequent employment.

(f) Clawback .  The Company shall have no obligation to make any payment to the Employee pursuant to any provision of this Section 6 if the Employee shall be in default of her obligations under Section 13 hereof (Covenant Not To Compete).

7. Post-Termination Assistance; Non-Disparagement .  The Employee agrees that after her employment with the Company has terminated she will provide to the Company, upon reasonable notice from the Company, such information and assistance in the nature of testifying and the preparation therefore as may reasonably be requested by the Company in connection with any litigation, administrative or agency proceeding, or other legal proceeding in which it or any of its affiliates is or may become a party; provided, however, that the Company agrees to reimburse the Employee for any reasonably, related expenses, including travel expense, and shall pay the Employee a daily per diem comparable to her Base Salary under this Agreement at time of termination

(determined for this purpose on a per diem basis by dividing such Base Salary by 230).  The Parties agree that they will not disparage or make false or defamatory comments about the other party as to all matters.  This is a material term of this Agreement.

8. Unauthorized Disclosure . The Employee shall not make any Unauthorized Disclosure. For purposes of this Agreement, “ Unauthorized Disclosure ” shall mean disclosure by the Employee without the consent of the Board to any person, other than an employee of the Company or a person to whom disclosure is reasonably necessary or appropriate in connection with the performance by the Employee of her duties as an executive of the Company or as may be legally required, of any confidential information obtained by the Employee while in the employ of the Company (including, but not limited to, any confidential information with respect to any of the Company’s customers or methods of distribution) the disclosure of which she knows or has reason to believe will be materially injurious to the Company; provided, however, that such term shall not include the use or disclosure by the Employee, without consent, of any information known generally to the public (other than as a result of disclosure by her in violation of this Section 8) or any information not otherwise considered confidential by a reasonable person engaged in the same business as that conducted by the Company.

9. Indemnification .  The Company remains subject to its standard form of indemnification agreement for officers and directors which was entered into with the Employee to indemnify the Employee against certain liabilities the Employee may incur as an officer or director of the Company.  A copy of that standard form as in effect on the date of this Agreement is identified on Exhibit A to this Agreement, and if for any reason the Company and the Employee have not heretofore executed and delivered such an indemnification agreement, the terms and provisions of the Company’s standard indemnification agreement are hereby incorporated herein by reference.

10. Successors and Assigns .

(a) This Agreement shall be binding upon and shall inure to the benefit of the Company and its successors and the Company shall require any successor to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession or assignment had taken place, but this Agreement will not otherwise be assignable, transferable or delegable by the Company. The term “the Company” as used herein shall include such successors.

(b) Neither this Agreement nor any right or interest hereunder shall be assignable or transferable by the Employee, her beneficiaries or legal representatives, except by will or by the laws of descent and distribution. This Agreement shall inure to the benefit of and be enforceable by the Employee’s legal personal representatives, beneficiaries, designees, executors, administrators, heirs, distributees, devisees and legatees.

11. Fees and Expenses . The Company shall pay all reasonable legal fees and related expenses incurred by the Employee as they become due as a result of the Company and the Employee entering into this Agreement.

12. Assignment of Inventions .

(a) General Assignment .  The Employee agrees to assign and hereby does assign to the Company all right, title and interest in and to any inventions, designs and copyrights made during employment by Company which relate directly to the business of the Company.

(b) Further Assurances .  The Employee shall acknowledge and deliver promptly to the Company without charge to the Company but at its expense such written instruments and do such other acts, as may be necessary in the opinion of the Company to obtain, maintain, extend, reissue and enforce United States and/or foreign letters patent and copyrights relating to the inventions, designs an copyrights and to vest the entire right and title thereto in the Company or its nominee.  The Employee acknowledges and agrees that any copyright developed or conceived of by the Employee during the term of the Employee’s employment which is related to the business of the Company shall be a “work for hire” under the copyright law of the United States and other applicable jurisdictions.

(c) Excepted Inventions .  As a matter of record the Employee has identified on Exhibit B attached hereto all inventions or improvements relevant to the subject matter of her engagement by the Company which have been made or conceived or first reduced to practice by the Employee alone or jointly with others prior to her engagement by the Company, and the Employee covenants that such list is complete.  If there is no such list on Exhibit B, the Employee represents that she has made no such inventions and improvements as of the time of signing this Agreement.

13. Covenant Not to Compete .

(a) The Employee agrees that during the term of this Agreement and for two (2) years subsequent to termination of Employee’s employment with the Company for any reason (the “ Non-Compete Term ”) the Employee shall not:

(i)    Either directly or indirectly, for herself or on behalf of or in conjunction with any other person, persons, company, firm, partnership, corporation, business, group or other entity (each, a “ Person ”), engage in any business or activity, whether as an employee, consultant, partner, principal, agent, representative, stockholder or other individual, corporate, or representative capacity, or render any services or provide any advice or substantial assistance to any business, person or entity, if such business, person or entity, directly or indirectly will in any way compete with the Company (a “ Competing Business ”). Without limiting the generality of the foregoing, for purposes of this Section 13, it is understood that Competing Businesses shall include any business that is in direct competition with the Company; provided, however , that notwithstanding the foregoing, the Employee may make passive investments in up to four percent (4%) of the outstanding publicly traded common stock of an entity which operates a Competing Business.

(ii)  Either directly or indirectly, for herself or on behalf of or in conjunction with any other Person, solicit any Person who is, or who is, at the time of termination of the Employee’s employment, or has been within six (6) months prior to the time of termination of Employee’s employment, an employee of the Company or any of its subsidiaries for the purpose or with the intent of enticing such employee away from the employ of the Company or any of its subsidiaries.

(iii) Either directly or indirectly, for herself or on behalf of or in conjunction with any other Person, solicit any Person who is, or who is, at the time of termination of the Employee’s employment, or has been within six (6) months prior to the time of termination of Employee’s employment, a customer or supplier of the Company or any of its subsidiaries for the purpose or with the intent of (A) inducing or attempting to induce such Person to cease doing business with the Company or (B) in any way interfering with the relationship between such Person and the Company.

(b) Specific Performance; Repayment of Certain Termination Payment Amounts .  The Employee hereby acknowledges that the services to be rendered to the Company hereunder by the Employee are of a unique, special and extraordinary character which would be difficult or impossible for the Company to replace or protect, and by reason thereof, the Employee hereby agrees that in the event she violates any of the provisions of subsection 13(a) hereof, the Company shall, in addition to any other rights and remedies available to it, at law or otherwise, be entitled to an injunction or restraining order to be issued by any court of competent jurisdiction in any state enjoining and restraining the Employee from committing any violation of said subsection 13(a).

The Employee agrees that, if she breaches subsection 13(a) of this Agreement, she shall have forfeited all right to receive any amounts payable to her pursuant to subsection 6(b)(ii) and (iii) or subsection 6(c)(ii) and (iii), as the case may be, and she shall promptly repay to the Company the entire amount theretofore paid to her or to her order by reason of any of said subsections.

(c) The covenants in this Section 13 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties that such restrictions be enforced to the fullest extent that such court deems reasonable, and the Agreement shall thereby be reformed to reflect the same.

(d) All of the covenants in this Section 13 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of the Employee against the Company whether predicated on this Agreement or otherwise shall not constitute a defense to the enforcement by the Company of such covenants. It is specifically agreed that the period following the termination of the Employee’s employment with the Company during which the agreements and covenants of the Employee made in this Section 13 shall be effective, shall be computed by excluding from such computation any time during which the Employee is in violation of any provision of this Section 13.

(e) Notwithstanding any of the foregoing, if any applicable law, judicial ruling or order shall reduce the time period during which the Employee shall be prohibited from engaging in any competitive activity described in Section 13 hereof, the period of time for which the Employee shall be prohibited pursuant to Section 13 hereof shall be the maximum time permitted by law.

14. Notice . For the purposes of this Agreement, notices and all other communications provided for in the Agreement (including the Notice of Termination) shall be in writing and shall be deemed to have been duly given when personally delivered or sent by certified mail, return receipt requested, postage prepaid, addressed to the respective addresses last given by each party to the other, provided that all notices to the Company shall be directed to the attention of the President with a copy to the Lead Director of the Board.  All notices and communications shall be deemed to have been received on the date of delivery thereof or on the third business day after the mailing thereof, except that notice of change of address shall be effective only upon receipt.

15. Non-exclusivity of Rights . Nothing in this Agreement shall prevent or limit the Employee’s continuing or future participation in any benefit, bonus, incentive or other plan or program provided by the Company or any of its subsidiaries and for which the Employee may qualify, nor shall anything herein limit or reduce such rights as the Employee may have under any other agreements with the Company or any of its subsidiaries.  Amounts which are vested benefits or which the Employee is otherwise entitled to receive under any plan or program of the Company or any of its subsidiaries shall be payable in accordance with such plan or program, except as explicitly modified by this Agreement.

16. Settlement of Claims . The Company’s obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against the Employee or others.

17. Survival . The agreements and obligations of the Company and the Employee made in Sections 6, 8, 9, 11, 13, 17 and 18 of this Agreement shall survive the expiration or termination of this Agreement.

18. Federal Income Tax Withholding . The Company may withhold from any compensation and other amounts payable under this Agreement all federal, state, city or other taxes as shall be required pursuant to any law or governmental regulation or ruling.

19. Governing Law . This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Arizona, without giving effect to the conflict of law principles thereof.

20. Severability . The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof.

21. Miscellaneous .  No provisions of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by the Employee and the Company.  No waiver by either party hereto at any time of any breach by the other party hereto or compliance with any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.  Unless otherwise noted, references to “Sections” are to sections of this Agreement.  The captions used in this Agreement are designed for convenient reference only and are not to be used for the purpose of interpreting any provision of this Agreement.

22. Entire Agreement . This Agreement (together with the Exhibits hereto and the Employee’s indemnification agreement with the Company) constitutes the entire agreement between the Parties and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to the subject matter hereof.

23. Counterparts .  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together will constitute one and the same agreement.

24. Section 409A .

(a) To the extent applicable, it is intended that this Agreement comply with the provisions of Section 409A of the Code.  This Agreement will be administered and interpreted in a manner consistent with this intent.  The Company agrees to take all reasonable steps to ensure that Employee shall not be subject to any penalties with respect to any payments received hereunder.  In the event that any guidance is issued by the Internal Revenue Service, or if a judicial decision is rendered, to the effect that arrangements similar to this Agreement do not satisfy the requirements of Section 409A, the Company and Employee agree to take whatever reasonable actions may be necessary at such time in order to ensure that (i) the payments under this Agreement shall be in compliance with Section 409A and (ii) the Employee shall not be subject to any penalty under Section 409A with respect to her receipt of such payments.

(b) Notwithstanding anything contained herein to the contrary, any payments on account of a termination of employment that are subject to Section 409A shall not be made until Employee would be considered to have incurred a "separation from service" from the Company within the meaning of Section 409A.  To the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Agreement during the six-month period immediately following Employee’s separation from service shall, if Employee is a “specified employee” within the meaning of Section 409A at the time of her separation from service, instead be paid on the first business day after the date that is six months following Employee’s separation from service (or Employee’s death, if earlier).

(c) For purposes of this Agreement, each amount to be paid or benefit to be provided to Employee pursuant to this Agreement shall be construed as a separate identified payment for purposes of Section 409A.

(d) With respect to expenses eligible for reimbursement under the terms of the Agreement, (i) the amount of such expenses eligible for reimbursement in any taxable year shall not affect the expenses eligible for reimbursement in another taxable year (ii) any reimbursements of such expenses shall be made no later than the end of the calendar year following the calendar year in which the related expenses were incurred, except, in each case, to the extent that the right to reimbursement does not provide for a "deferral of compensation" within the meaning of Section 409A; provided, however that with respect to any reimbursements for any taxes to which Employee becomes entitled under the terms of this Agreement, the payment of such reimbursements shall be made by the Company no later than the end of the calendar year following the calendar year in which Employee remits the related taxes; and (iii) the right to reimbursement is not subject to liquidation or exchange for any other benefit.

25. Release and Forfeiture of Severance Benefits.   The right of Employee to receive or to retain Severance Benefits shall be in consideration for, and subject to, (1) execution of and delivery to the Company of a release of claims substantially in the form attached as Exhibit C to this Agreement, amended as necessary to comply with applicable law (the “ Release ”) and lapse of the period for revocation, if any, of the Release without the Release having been revoked no later than 60 days after the Termination Date, and (2) Employee’s continued compliance with the covenants hereof.  In the event that Employee breaches any of the Covenants, Company shall have the right to (a) terminate any further provision of Severance Benefits not yet paid or provided, (b) seek reimbursement from Employee for any and all such Severance Benefits previously paid or provided to Employee, (c) recover from Employee all shares of stock of Company the vesting of which, or the option to purchase, was accelerated by reason of the Severance Benefits (or the proceeds therefrom, reduced by any exercise or purchase price paid to acquire such shares), and (d) to immediately cancel all equity awards the vesting of which was accelerated by reason of the Severance Benefits.  No Severance Benefits shall be paid until the 60th day following the Termination Date, subject to Section 24(b) hereof.

[Signature Page follows; remainder of this page is blank.]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

 

Company:

 

 

 

MOBILE MINI, INC.

 

 

By:

/s/ Erik Olsson

 

 

 

Erik Olsson, President and Chief Executive Officer

 

Employee:

 

 

 

/s/ Lynn Courville

 

Lynn Courville

EXHIBIT A

[Form of Indemnification Agreement]

The form of the Company’s indemnification agreement has been filed with the Securities and Exchange Commission as an Exhibit to the Company’s most recent annual report on Form 10-K, and that document is incorporated by this reference.

 

EXHIBIT B

List of Inventions and Improvements

 

EXHIBIT C

[Form of Release]

CONFIDENTIAL SEPARATION AND RELEASE AGREEMENT

This Confidential Separation and Release Agreement (“ Agreement ”) is between Kelly Williams (“ Employee ”) and Mobile Mini, Inc. (the “ Company ”) (hereinafter the “ parties ”), and is entered into as of _______________________. This Agreement will not become effective until the expiration of seven (7) days from Employee’s execution of this Agreement (the “ Effective Date ”).

WHEREAS, Employee has been employed by Company as an Employee Vice President and is a party to that certain Employee Employment Agreement dated _________________, 2013 as amended by and between Company and Employee as then in effect immediately prior to the Effective Date (the “ Employment Agreement ”).

WHEREAS, the Employee’s employment with Company was terminated effective as of _________________, 20__ (the “ Termination Date ”);

WHEREAS, Company and Employee desire to avoid disputes and/or litigation regarding Employee’s termination from employment or any events or circumstances preceding or coincident with the termination from employment; and

WHEREAS, Company and Employee have agreed upon the terms on which Employee is willing, for sufficient and lawful consideration, to compromise any claims known and unknown which Employee may have against Company.

WHEREAS, the parties desire to settle fully and finally, in the manner set forth herein, all differences between them which have arisen, or which may arise, prior to, or at the time of, the execution of this Agreement, including, but in no way limited to, any and all claims and controversies arising out of the employment relationship between Employee and Company, and the termination thereof;

NOW, THEREFORE, in consideration of these recitals and the promises and agreements set forth in this Agreement, Employee’s employment with Company will terminate upon the following terms:

1. General Release : Employee for herself or herself and on behalf of Employee's attorneys, heirs, assigns, successors, executors, and administrators IRREVOCABLY AND UNCONDITIONALLY RELEASES, ACQUITS AND FOREVER DISCHARGES Company and any current or former stockholders, directors, parent, subsidiary, affiliated, and related corporations, firms, associations, partnerships, and entities, and their successors and assigns, from any and all claims and causes of action whatsoever, whether known or unknown or whether connected with Employee's employment by Company or not, which may have arisen, or which may arise, prior to, or at the time of, the execution of this Agreement, including, but not limited to, any claim or cause of action arising out of any contract, express or implied, any covenant of good faith and fair dealing, express or implied, any tort (whether intentional or released in this agreement), or under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Worker Adjustment and Retraining Notification (WARN) Act, the Older Workers Benefit Protection Act, or any other municipal, local, state, or federal law, common or statutory, but excluding any claims with respect to the Company's obligations under the Employment Agreement, any claims relating to vested benefits under any Company employee benefit plan (including without limitation any such plan subject to the Employee Retirement Income Security Act of 1974, as amended) and any claims which Employee cannot release as a matter of applicable law.  Furthermore, neither this Agreement nor the Employment Agreement shall apply to, modify or in any way supersede obligations arising from any of (i) the terms of directors and officers insurance or (ii) any indemnification agreement for the benefit of the Employee as a result of the Employee's position as a director or officer of the Company or one of its affiliates.

2. Covenant Not to Sue : Employee also COVENANTS NOT TO SUE, OR OTHERWISE PARTICIPATE IN ANY ACTION OR CLASS ACTION against Company or any of the released parties based upon any of the claims released in this Agreement.

3. Severance Terms : Upon the expiration of seven (7) days from Employee’s execution of this Agreement and provided that this Agreement has become effective in accordance with its terms, in consideration for the promises, covenants, agreements, and releases set forth herein and in the Employment Agreement, Company agrees to pay Employee the Severance Benefits as defined in and pursuant to the Employment Agreement (the “ Severance Benefits ”).

4. Right to Revoke :  Employee may revoke this Agreement by notice to Company, in writing, received within seven (7) days of the date of its execution by Employee (the “ Revocation Period ”). Employee agrees that Employee will not receive the benefits provided by this Agreement if Employee revokes this Agreement. Employee also acknowledges and agrees that if Company has not received from Employee notice of Employee’s revocation of this Agreement prior to the expiration of the Revocation Period,

Employee will have forever waived Employee’s right to revoke this Agreement, and this Agreement shall thereafter be enforceable and have full force and effect.

5. Acknowledgement : Employee acknowledges and agrees that: (A) except as to any Severance Benefits which remain unpaid as of the date of this Agreement, no additional consideration, including salary, wages, bonuses or Equity Awards as described in the Employment Agreement, is to be paid to her by Company in connection with this Agreement; (B) except as provided by this Agreement, Employee has no contractual right or claim to the Severance Benefits; and, (C) payments pursuant to this Agreement shall terminate immediately if Employee breaches any of the provisions of this Agreement.

6. Non-Admissions : Employee acknowledges that by entering into this Agreement, Company does not admit, and does specifically deny, any violation of any local, state, or federal law.

7. Confidentiality : Employee agrees that Employee shall not directly or indirectly disclose the terms, amount or fact of this Agreement to anyone other than Employee’s immediate family or counsel, bankers or financial advisors, except as such disclosure may be required for accounting or tax reporting purposes or as otherwise may be required by law.

8. Nondisparagement : Each party agrees that it will not make any statements, written or verbal, or cause or encourage others to make any statements, written or verbal, that defame, disparage or in any way criticize the personal or business reputation, practices or conduct of the other including, in the case of Company, its employees, directors and stockholders.

9. Acknowledgement of Restrictions; Confidential Information : Employee acknowledges and agrees that Employee has continuing non-competition, non-solicitation and non-disclosure obligations under the Employment Agreement and the Employee Innovations and Proprietary Rights Assignment Agreement between Employee and Company (the “ Proprietary Rights Agreement ”).  Employee acknowledges and reaffirms Employee’s obligation to continue abide fully and completely with all post-employment provisions of the Employment Agreement and the Proprietary Rights Agreement and agrees that nothing in this Agreement shall operate to excuse or otherwise relieve Employee of such obligations.

11. Severability : If any provision of this Agreement is held to be illegal, invalid, or unenforceable, such provision shall be fully severable and/or construed in remaining part to the full extent allowed by law, with the remaining provisions of this Agreement continuing in full force and effect.

12. Entire Agreement : This Agreement, along with the Employment Agreement and the Proprietary Rights Agreement which are referred to above, constitute the entire agreement between the Employee and Company, and supersede all prior and contemporaneous negotiations and agreements, oral or written. This Agreement cannot be changed or terminated except pursuant to a written agreement executed by the parties.

13. Governing Law : This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, except where preempted by federal law.

14. Statement of Understanding : By executing this Agreement, Employee acknowledges that (a) Employee has had at least twenty-one (21) or forty-five (45) days, as applicable in accordance with the Age Discrimination in Employment Act, as amended, (the “ ADEA ”) to consider the terms of this Agreement [and any attachment necessary or desirable in accordance with the ADEA) and has considered its terms for such a period of time or has knowingly and voluntarily waived Employee’s right to do so by executing this Agreement and returning it to Company; (b) Employee has been advised by Company to consult with an attorney regarding the terms of this Agreement; (c) Employee has consulted with, or has had sufficient opportunity to consult with, an attorney of Employee’s own choosing regarding the terms of this Agreement; (d) any and all questions regarding the terms of this Agreement have been asked and answered to Employee’s complete satisfaction; (e) Employee has read this Agreement and fully understands its terms and their import; (f) except as provided by this Agreement, Employee has no contractual right or claim to the benefits and payments described herein; (g) the consideration provided for herein is good and valuable; and (h) Employee is entering into this Agreement voluntarily, of Employee’s own free will, and without any coercion, undue influence, threat, or intimidation of any kind or type whatsoever.

HAVING READ AND UNDERSTOOD THIS AGREEMENT, CONSULTED COUNSEL OR VOLUNTARILY ELECTED NOT TO CONSULT COUNSEL, AND HAVING HAD SUFFICIENT TIME TO CONSIDER WHETHER TO ENTER INTO THIS AGREEMENT, THE UNDERSIGNED HEREBY EXECUTE THIS AGREEMENT ON THE DATES SET FORTH BELOW.

 

EMPLOYEE

 

MOBILE MINI, INC.

 

 

 

 

 

 

By:

 

Lynn Courville:

 

Name:

 

Date:

 

 

Title:

 

 

 

Date:

 

 

 

Exhibit 10.21

AMENDMENT NO. 1 TO

EMPLOYMENT AGREEMENT

THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT (this “ Amendment ”) is entered into as of this 20th day of April, 2015 (the “ Effective Date ”), by and between MOBILE MINI, INC., a Delaware corporation (the “ Company ’) and Lynn Courville (the “ Employee ”).

RECITALS:

WHEREAS, the Company and Employee entered into that certain Employment Agreement, dated as of August 16, 2013 (the “ Employment Agreement ”); and

WHEREAS, the parties now wish to amend the provision in the Employment Agreement relating to the Employee’s right to severance after the occurrence of a change in control of the Company.

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual agreements and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto hereby agree as follows, effective as of the Effective Date:

1. Section 6(c) of the Employment Agreement is amended and restated to read as follows (revisions are underlined):

“(c) Following a Change in Control .  If within one year following the occurrence of a Change of Control the Employee’s employment by the Company is terminated either by the Company other than for Cause, death or Disability, or by the Employee for Good Reason , then the Employee shall be entitled to the benefits provided below (the “CiC Benefits” and together with Without Cause Benefits, the “Severance Benefits”):”

IN WITNESS WHEREOF , the parties hereto have executed this Amendment as of the Effective Date.

 

MOBILE MINI, INC.

 

 

By:

/s/ Erik Olsson

Title:

/s/ President & CEO

 

 

EMPLOYEE

 

/s/ Lynn Courville

Lynn Courville

 

 

 

Exhibit 10.22

Execution Version

 

AMENDED AND RESTATED ABL CREDIT AGREEMENT

among

MOBILE MINI, INC.,

THE OTHER BORROWERS AND GUARANTORS PARTY HERETO,

THE VARIOUS LENDERS PARTY HERETO

and

DEUTSCHE BANK AG NEW YORK BRANCH,
as ADMINISTRATIVE AGENT

 

Dated as of December 14, 2015

 

DEUTSCHE BANK SECURITIES INC.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
J.P. MORGAN SECURITIES LLC,

BARCLAYS BANK PLC, and

BANK OF THE WEST,
as JOINT LEAD ARRANGERS and JOINT BOOKRUNNERS

 

DEUTSCHE BANK AG NEW YORK BRANCH,
BANK OF AMERICA, N.A.,
JPMORGAN CHASE BANK, N.A.,

BARCLAYS BANK PLC, and

BANK OF THE WEST,
as CO-SYNDICATION AGENTS,

WELLS FARGO BANK, NATIONAL ASSOCIATION, ING CAPITAL LLC, COMPASS BANK, and

MUFG UNION BANK, N.A.,

as SENIOR MANAGING AGENTS

 

And

 

WELLS FARGO BANK, NATIONAL ASSOCIATION, ING CAPITAL LLC, COMPASS BANK,

MUFG UNION BANK, N.A., and BANK OF MONTREAL,

as CO-DOCUMENTATION AGENTS

 

 

 

 

 

 

TABLE OF CONTENTS

 

 

 

 

Page

 

 

 

 

 

SECTION 1.

 

Definitions and Accounting Terms.

 

1

 

 

 

 

 

1.01 

 

Defined Terms

 

1

1.02 

 

Exchange Rates

 

46

 

 

 

 

 

SECTION 2. 

 

Amount and Terms of Credit

 

47

 

 

 

 

 

2.01 

 

The Commitments

 

47

2.02 

 

Minimum Amount of Each Borrowing

 

50

2.03 

 

Notice of Borrowing

 

50

2.04 

 

Disbursement of Funds

 

51

2.05 

 

Notes

 

52

2.06 

 

Conversions

 

53

2.07 

 

Pro Rata Borrowings

 

54

2.08 

 

Interest

 

54

2.09 

 

Interest Periods

 

55

2.10 

 

Increased Costs, Illegality, etc.

 

55

2.11 

 

Compensation

 

57

2.12 

 

Change of Lending Office

 

57

2.13 

 

Replacement of Lenders

 

58

2.14 

 

US Company, UK Company and Canadian Company as Agents for Borrowers

 

58

2.15 

 

Incremental Commitments

 

59

2.16 

 

UK Revolving Loans and Canadian Revolving Loans; Intra-Lender Issues

 

60

2.17 

 

Equivalent Amount

 

62

2.18 

 

[Reserved]

 

63

2.19 

 

Defaulting Lenders

 

63

2.20 

 

Cash Collateral.

 

64

 

 

 

 

 

SECTION 3. 

 

Letters of Credit.

 

65

 

 

 

 

 

3.01 

 

US Letters of Credit

 

65

3.02 

 

UK Letters of Credit

 

66

3.03 

 

Canadian Letters of Credit

 

67

3.04 

 

Maximum US Letter of Credit Outstandings; Final Maturities

 

68

3.05 

 

Maximum UK Letter of Credit Outstandings; Final Maturities

 

68

3.06 

 

Maximum Canadian Letter of Credit Outstandings; Final Maturities

 

68

3.07 

 

US Letter of Credit Requests; Minimum Stated Amount

 

69

3.08 

 

UK Letter of Credit Requests; Minimum Stated Amount

 

69

3.09 

 

Canadian Letter of Credit Requests; Minimum Stated Amount

 

69

3.10 

 

US Letter of Credit Participations

 

70

3.11 

 

UK Letter of Credit Participations

 

71

3.12 

 

Canadian Letter of Credit Participations

 

72

3.13 

 

Agreement to Repay US Letter of Credit Drawings

73

3.14 

 

Agreement to Repay UK Letter of Credit Drawings

 

74

3.15 

 

Agreement to Repay Canadian Letter of Credit Drawings

 

75

3.16 

 

Increased Costs – US Letters of Credit

75

3.17 

 

Increased Costs – UK Letters of Credit

 

76

3.18 

 

Increased Costs – Canadian Letters of Credit

 

76

 

 

 

 

 

SECTION 4. 

 

Commitment Commission; Fees; Reductions of Commitment.

 

76

 

 

 

 

 

4.01 

 

Fees

 

76

4.02 

 

Voluntary Termination of Unutilized Commitments

 

77

4.03 

 

Mandatory Reduction of Commitments

 

78

 

 

 

 

 

-i-

 

SECTION 5.  

 

Prepayments; Payments; Taxes.

78

 

 

 

 

 

5.01  

 

Voluntary Prepayments

 

78

5.02  

 

Mandatory Repayments; Cash Collateralization

 

79

5.03  

 

Method and Place of Payment

 

80

5.04  

 

Net Payments – US Borrowers

 

82

5.05  

 

Tax Gross Up and Indemnities – UK Subsidiaries

 

84

5.06  

 

Net Payments – Canadian Borrowers

 

89

 

 

 

 

 

SECTION 6.  

 

Conditions Precedent to Credit Events on the Effective Date

 

90

 

 

 

 

 

6.01  

 

Effective Date; Notes

 

90

6.02  

 

Officer’s Certificate

 

90

6.03  

 

Opinions of Counsel

 

90

6.04  

 

Company Documents; Proceedings; etc.

 

91

6.05  

 

Consummation of the Transactions; etc.

 

91

6.06  

 

No Material Adverse Effect on US Company

 

91

6.07  

 

US Pledge Agreement

 

91

6.08  

 

UK Second Supplemental Share Charge

 

91

6.09  

 

US Security Agreement

 

92

6.10  

 

UK Debentures and UK Second Supplemental Debentures

 

92

6.11  

 

Canadian Security Agreement and Canadian Share Pledge Agreement

 

92

6.12  

 

Master Reaffirmation Agreement

 

93

6.13  

 

Mortgages

 

93

6.14  

 

Financial Statements; Pro Forma Balance Sheet; Projections; etc. .

 

93

6.15  

 

Solvency Certificate; Insurance Certificates

 

93

6.16  

 

Fees, etc

 

93

6.17  

 

Initial Borrowing Base Certificate; etc

 

94

6.18  

 

No Defaults under Senior Note Indentures

 

94

6.19  

 

Patriot Act

 

94

6.20  

 

Absence of Litigation

 

94

6.21  

 

Margin Regulations

 

94

 

 

 

 

 

SECTION 7.  

 

Conditions Precedent to All Credit Events

 

94

 

 

 

 

 

7.01  

 

No Default; Representations and Warranties

 

94

7.02  

 

Notice of Borrowing; Letter of Credit Request

 

94

 

 

 

 

 

SECTION 8.  

 

Representations, Warranties and Agreements

 

95

 

 

 

 

 

8.01  

 

Organization and Qualification

 

95

8.02  

 

Power and Authority; No Violation

 

95

8.03  

 

Legally Enforceable Agreement

 

95

8.04  

 

Capital Structure

 

95

8.05  

 

Names

 

96

8.06  

 

Business Locations; Agent for Process

 

96

8.07  

 

Title to Properties; Priority of Liens

 

96

8.08  

 

Accounts

 

96

8.09  

 

Equipment

 

96

8.10  

 

Financial Statements; Financial Condition; Undisclosed Liabilities; Projections

 

97

8.11  

 

Full Disclosure

 

97

8.12  

 

Surety Obligations

 

97

8.13  

 

Tax Returns and Payments

 

97

8.14  

 

[Reserved]

 

98

8.15  

 

Intellectual Property, etc

 

98

-ii-

 

8.16  

 

Government Consents

 

98

8.17  

 

Compliance with Laws

 

98

8.18  

 

Restrictions

 

98

8.19  

 

Litigation

 

98

8.20  

 

No Defaults

 

98

8.21  

 

Leases

 

98

8.22  

 

Use of Proceeds; Margin Regulations

 

98

8.23  

 

Compliance with ERISA

 

99

8.24  

 

Trade Relations

 

100

8.25  

 

Security Documents

 

100

8.26  

 

Investment Company Act

 

101

8.27  

 

Representations and Warranties in Other Credit Documents

 

101

8.28  

 

Environmental Matters

 

101

8.29  

 

Employment and Labor Relations

 

101

8.30  

 

Indebtedness

 

102

8.31  

 

Insurance

 

102

8.32  

 

Plans; Non-Compete Agreements; Collective Bargaining Agreements; Existing Indebtedness Agreements

 

102

8.33  

 

Anti-Terrorism Laws

 

102

8.34  

 

UK Pensions

 

102

8.35  

 

Anti-Corruption Laws

 

102

 

 

 

 

 

SECTION 9.  

 

Affirmative Covenants

 

103

 

 

 

 

 

9.01  

 

Information Covenants

 

103

9.02  

 

Books, Records and Inspections; Field Examinations; Appraisals; Records and Reports of Inventory, Machinery and Equipment

 

105

9.03  

 

Maintenance of Property; Insurance

 

106

9.04  

 

Administration of Equipment; Maintenance of Equipment

 

106

9.05  

 

Existence; Franchises

 

107

9.06  

 

Compliance with Statutes, etc.

 

107

9.07  

 

Compliance with Environmental Laws

 

107

9.08  

 

ERISA

 

107

9.09  

 

End of Fiscal Years; Fiscal Quarters

 

108

9.10  

 

Performance of Obligations

 

108

9.11  

 

Payment of Taxes

 

108

9.12  

 

Use of Proceeds

 

108

9.13  

 

Additional Security; Further Assurances; etc.

 

108

9.14  

 

[Reserved]

 

110

9.15  

 

Projections

 

110

9.16  

 

Landlord, Processor and Storage Agreements

 

110

9.17  

 

Deposit and Brokerage Accounts

 

110

9.18  

 

Credit Party Financial Statements

 

110

9.19  

 

Qualified Derivative Obligations

 

110

9.20  

 

Centre of Main Interest

 

111

9.21  

 

Administration of Accounts

 

111

9.22  

 

Post-Closing Matters

 

111

 

 

 

 

 

SECTION 10.  

 

Negative Covenants

 

111

 

 

 

 

 

10.01  

 

[Reserved]

 

111

10.02  

 

Liens

 

111

10.03  

 

Sale of Assets

 

112

10.04  

 

Restricted Payments

 

113

10.05  

 

Indebtedness

 

114

10.06  

 

Contingent Obligations

 

116

10.07  

 

Advances, Investments and Loans

 

116

-iii-

 

10.08  

 

Transactions with Affiliates

 

116

10.09  

 

Registered Pension Plans

 

116

10.10  

 

Additional Negative Pledges

 

116

10.11  

 

No Subsidiaries

 

117

10.12  

 

Operating Leases; Off-Balance Sheet Financing

 

118

10.13  

 

Permitted Acquisitions

 

118

10.14  

 

Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements, etc.

 

119

10.15 

 

Limitation on Certain Restrictions on Subsidiaries

 

119

10.16 

 

Limitation on Issuance of Equity Interests

 

120

10.17 

 

Business; etc

 

120

10.18  

 

No Additional Deposit Accounts; etc

 

120

10.19  

 

Tax Consolidation

 

120

10.20  

 

Fiscal Year End

 

120

10.21  

 

Fixed Charge Coverage Ratio

 

120

10.22  

 

Sanctions

 

121

10.23  

 

Anti-Corruption Laws

 

121

 

 

 

 

 

SECTION 11.  

 

Events of Default

 

121

 

 

 

 

 

11.01  

 

Payment of Obligations

 

121

11.02  

 

Misrepresentations

 

121

11.03  

 

Breach of Specific Covenants

 

121

11.04  

 

Breach of Other Covenants

 

121

11.05  

 

Default Under Other Agreements

 

121

11.06  

 

Failure of Enforceability of Credit Documents; Security

 

121

11.07  

 

Canadian Insolvency and Related Proceedings

 

121

11.08  

 

Insolvency and Related Proceedings

 

122

11.09  

 

Business Disruption; Condemnation

 

122

11.10  

 

ERISA

 

122

11.11  

 

Guarantee

 

123

11.12  

 

Criminal Forfeiture

 

123

11.13  

 

Judgments

 

123

11.14  

 

Change of Control

 

123

 

 

 

 

 

SECTION 12.  

 

The Administrative Agent and the Collateral Agent

 

123

 

 

 

 

 

12.01  

 

Appointment

 

123

12.02  

 

Nature of Duties

 

124

12.03  

 

Lack of Reliance on the Administrative Agent and the Collateral Agent

 

124

12.04  

 

Certain Rights of the Agents

 

124

12.05  

 

Reliance

 

125

12.06  

 

Indemnification

 

125

12.07  

 

The Administrative Agent and the Collateral Agent in their Individual Capacities

 

125

12.08  

 

Holders

 

125

12.09  

 

Resignation and Removal of the Administrative Agent and the Collateral Agent

 

125

12.10  

 

Collateral Matters

 

126

12.11  

 

Delivery of Information

 

127

12.12  

 

Withholding

 

127

12.13  

 

Delegation of Duties

 

127

12.14  

 

Quebec Security

 

128

 

 

 

 

 

SECTION 13.  

 

Miscellaneous

 

128

 

 

 

 

 

13.01  

 

Payment of Expenses, etc.

 

128

13.02  

 

Right of Setoff

 

129

-iv-

 

13.03  

 

Notices

 

129

13.04  

 

Benefit of Agreement; Assignments; Participations

 

130

13.05  

 

No Waiver; Remedies Cumulative

 

131

13.06  

 

Payments Pro Rata

 

132

13.07  

 

Calculations; Computations

 

132

13.08  

 

GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL

 

132

13.09  

 

Counterparts

 

133

13.10  

 

Effectiveness

 

133

13.11  

 

Headings Descriptive

 

133

13.12  

 

Amendment or Waiver; etc.

 

133

13.13  

 

Survival

 

135

13.14  

 

Domicile of Loans

 

135

13.15  

 

Register

 

135

13.16  

 

Confidentiality

 

135

13.17  

 

No Fiduciary Duty

 

136

13.18  

 

Patriot Act

 

136

13.19  

 

Interest Rate Limitation

 

136

13.20  

 

Release of Borrowers

 

137

13.21  

 

Amendment and Restatement

 

137

 

 

 

 

 

SECTION 14.

 

Nature of Borrower Obligations

 

137

 

 

 

 

 

14.01  

 

Nature of Borrower Obligations

 

137

14.02  

 

Independent Obligation

 

138

14.03  

 

Authorization

 

138

14.04  

 

Reliance

 

138

14.05  

 

Contribution; Subrogation

 

138

14.06  

 

Waiver

 

138

 

 

 

 

 

SECTION 15.

 

Guarantee

 

139

 

 

 

 

 

15.01  

 

The Guarantees

 

139

15.02  

 

Obligations Unconditional

 

139

15.03  

 

Reinstatement

 

141

15.04  

 

Subrogation; Subordination

 

141

15.05  

 

Remedies

 

141

15.06  

 

Instrument for Payment of Money

 

142

15.07  

 

Continuing Guarantee

 

142

15.08  

 

General Limitation on Guarantee Obligations

 

142

15.09  

 

Release of Guarantors

 

142

15.10  

 

Right of Contribution

 

143

15.11  

 

Keepwell

 

143

 


-v-

 

 

SCHEDULES

 

 

 

 

 

Schedule 1.01(a)

 

Lenders and Commitments

Schedule 1.01(b)

 

Locations – United States and Canada (US Borrowing Base Parties)

Schedule 1.01(c)

 

Locations – United Kingdom (UK Borrowing Base Parties)

Schedule 1.01(d)

 

Locations – United States and Canada (Canadian Borrowing Base Parties)

Schedule 1.01(e)

 

Eligible Real Property

Schedule 1.01(f)

 

Qualified Derivative Obligations

Schedule 3.01(c)

 

Existing US Letters of Credit

Schedule 3.02(c)

 

Existing UK Letters of Credit

Schedule 3.03(c)

 

Existing Canadian Letters of Credit

Schedule 6.13

 

Effective Date Mortgages

Schedule 8.01

 

Qualifications to do Business

Schedule 8.04

 

Capital Structure

Schedule 8.05

 

Names

Schedule 8.06

 

Business Locations

Schedule 8.12

 

Surety Obligations

Schedule 8.18

 

Restrictions

Schedule 8.19

 

Litigation

Schedule 8.21

 

Leases

Schedule 8.23

 

ERISA Plans

Schedule 8.24

 

Business Relationships

Schedule 8.30

 

Continuing Indebtedness

Schedule 8.31

 

Insurance

Schedule 8.32

 

Plans; Existing Indebtedness Agreements

Schedule 9.22

 

Post-Closing Matters

Schedule 10.02

 

Liens

Schedule 10.05

 

Indebtedness

Schedule 10.07

 

Deposits with Financial Institutions

Schedule 10.08

 

Transactions with Affiliates

Schedule 10.12

 

Operating Leases

Schedule 10.18

 

Deposit Accounts

Schedule 13.03

 

Lender Addresses

 

 

 

EXHIBITS

 

 

 

 

 

Exhibit A-1

 

Notice of Borrowing

Exhibit A-2

 

Notice of Conversion/Continuation

Exhibit B-1

 

Form of US Revolving Note

Exhibit B-2

 

Form of US Swingline Note

Exhibit B-3

 

Form of UK Revolving Note

Exhibit B-4

 

Form of UK Swingline Note

Exhibit B-5

 

Form of Canadian Revolving Note

Exhibit C

 

Form Assignment and Assumption Agreement

Exhibit D

 

Form of Incremental Commitment Agreement

Exhibit E

 

Form of Joinder Agreement

Exhibit F

 

Form of US Letter of Request

Exhibit G

 

Form of UK Letter of Request

Exhibit H

 

Form of Canadian Letter of Credit Request

Exhibit I

 

Form of Section 5.04(b)(ii) Certificate

Exhibit J-1

 

Form of DLA Piper (US) Opinion

Exhibit J-2

 

Form of DLA Piper (UK) Opinion

Exhibit J-3

 

Form of Canadian Opinions

Exhibit J-4

 

Form of Special Delaware Counsel Opinion

Exhibit J-5

 

Form of Real Estate Local Counsel Opinions

Exhibit K

 

Form of Credit Party Secretary’s Certificate

Exhibit L

 

Form of UK Second Supplemental Share Charge

Exhibit M

 

Form of UK Second Supplemental Debenture and UK Second Supplemental Partnership Debenture

-vi-

 

Exhibit N

 

Form of Solvency Certificate

Exhibit O

 

Form of Compliance Certificate

Exhibit P

 

Form of Borrowing Base Certificate

Exhibit Q

 

Form of US Master Reaffirmation Agreement

Exhibit R

 

Form of Canadian Master Reaffirmation Agreement

Exhibit S

 

Form of Accruit LKE Master Exchange Agreement

 

 

 

-vii-

 

AMENDED AND RESTATED ABL CREDIT AGREEMENT, dated as of December 14, 2015, among MOBILE MINI, INC., a  Delaware corporation (the “ US Company ” and, together with each other entity that executes this Agreement as a US Borrower or that becomes a US Borrower pursuant to Section 9.13 , Section 10.11 or Section 10.13 , collectively, the “ US Borrowers ”, and each, a “ US Borrower ”), RAVENSTOCK MSG LIMITED, a limited liability company incorporated in England and Wales (the “ UK Company ”), MOBILE MINI UK LIMITED, a corporation incorporated in England and Wales (“ Mobile Mini UK ” and together with UK Company and each other entity that executes this Agreement as a UK Borrower or that becomes a UK Borrower pursuant to Section 9.13 , Section 10.11 or Section 10.13 , collectively, the “ UK Borrowers ”, and each, a “ UK Borrower ”), MOBILE MINI CANADA, ULC, an unlimited liability corporation incorporated in British Columbia (“ Canadian Company ” and together with each other entity that executes this Agreement as a Canadian Borrower or that becomes a Canadian Borrower pursuant to Section 9.13 , Section 10.11 or Section 10.13 , collectively, the “ Canadian Borrowers ”, and each, a “ Canadian Borrower ” and, together with each US Borrower and each UK Borrower, collectively, the “ Borrowers ”, and each, a “ Borrower ”), the Guarantors party hereto from time to time, the Lenders party hereto from time to time and Deutsche Bank AG New York Branch, as Administrative Agent.  All capitalized terms used herein and defined in Section 1 are used herein as therein defined.

W I T N E S S E T H:

WHEREAS, on February 22, 2012 (the “ Original Effective Date ”), the Borrowers, certain of the Guarantors, the Administrative Agent and certain lenders entered into an ABL Credit Agreement (as amended prior to the date hereof, the “ Existing Credit Agreement ”);

WHEREAS, the Borrowers have requested that the Lenders amend and restate the Existing Credit Agreement in order to, among other things, make available a $1,000,000,000 five year asset-based revolving credit facility;

WHEREAS, the Lenders party hereto have agreed to amend and restate the Existing Credit Agreement on the terms and conditions set forth in this Agreement and to provide or continue the Revolving Loan Commitments in the amounts set forth for each such Lender on Schedule 1.01(a) hereto on the Effective Date; and

WHEREAS, on the Effective Date of this Agreement, (a) all Refinanced Indebtedness together with all interest, fees and other amounts accrued and payable thereon and all fees and other amounts accrued and payable in respect of all “Letters of Credit” (as defined in the Existing Credit Agreement) under the Existing Credit Agreement shall be repaid in full with the proceeds of the initial Borrowing under this Agreement and (b) each “Letter of Credit” (as defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement shall be continued as a Letter of Credit under this Agreement.

NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND AGREEMENTS CONTAINED HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS:

SECTION 1. Definitions and Accounting Terms .

1.01 Defined Terms . As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

“ Account ” shall mean an “account” as such term is defined in Article 9 of the UCC, and any and all supporting obligations in respect thereof.

“ Account Debtor ” shall mean each Person who is obligated on an Account.

“ Acquisition ” shall mean (i) the acquisition by US Company or any of its Subsidiaries of all of the issued and outstanding Equity Interests of a Person, (ii) the acquisition by US Company or any of its Subsidiaries of all or substantially all of the assets of a Person or a line of business or division of a Person or (iii) the merger or consolidation of US Company or any of its Subsidiaries with a Person other than a Person that was a Subsidiary of US Company or such Subsidiary immediately prior to such merger.

“ Additional Security Documents ” shall have the meaning provided in Section 9.13 .

“ Adjustable Applicable Margins ” shall have the meaning provided in the definition of Applicable Margin.

-1-

 

“ Administrative Agent ” shall mean Deutsche Bank AG New York Branch, in its capacity as Administrative Agent for the Lenders hereunder and under the other Credit Documents, and shall include any successor to the Administrative Agent appointed pursuant to Section 12.09 .

“ Affiliate ” shall mean, with respect to any Person, any other Person directly or indirectly controlling (including, but not limited to, all directors and officers of such Person), controlled by, or under direct or indirect common control with, such Person.  A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power (a) to vote 15% or more of the securities having ordinary voting power for the election of directors (or equivalent governing body) of such Person or (b) to direct or cause the direction of the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise; provided , however , that none of the Administrative Agent, any Lender or any of their respective Affiliates shall be considered an Affiliate of US Company or any Subsidiary thereof.

“ Agent Advance ” shall have the meaning provided in Section 2.01(i) .

“ Agent Advance Amount ” shall have the meaning provided in Section 2.01(i) .

“ Agent Advance Period ” shall have the meaning provided in Section 2.01(i) .

“ Agents ” shall mean and include the Administrative Agent, the Collateral Agent, the Co-Syndication Agents, the Senior Managing Agents and the Co-Documentation Agents.

“ Aggregate Borrowing Base ” shall mean as of any date of determination thereof, an amount equal to the lesser of:

(i) the sum of (A) the amount calculated under the definition of US Borrowing Base; plus (B) an amount equal to the lesser of (x) the UK Maximum Amount and (y) the amount calculated under the definition of UK Borrowing Base (excluding from such calculation, subclause (i) thereof) plus (C) an amount equal to the lesser of (x) the Canadian Maximum Amount and (y) the amount calculated under the definition of Canadian Borrowing Base (excluding from such calculation, subclause (i) thereof);and

(ii) the amount permitted to be outstanding under this Agreement by each of the Senior Note Indentures then in effect.

“ Aggregate Exposure ” shall mean, at any time, the sum of (a) the Aggregate UK Exposure, (b) the Aggregate US Exposure and (c) the Aggregate Canadian Exposure.

“ Aggregate Canadian Exposure ” shall mean, at any time, the sum of (a) the aggregate principal amount of all Canadian Revolving Loans then outstanding and (b) the aggregate amount of all Canadian Letter of Credit Outstandings at such time (exclusive of Canadian Letter of Credit Outstandings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Canadian Revolving Loans).

“ Aggregate UK Exposure ” shall mean, at any time, the sum of (a) the aggregate principal amount of all UK Revolving Loans then outstanding, (b) the aggregate amount of all UK Letter of Credit Outstandings at such time (exclusive of UK Letter of Credit Outstandings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of UK Revolving Loans), and (c) except for purposes of calculating the Applicable Commitment Commission Percentage, the aggregate principal amount of all UK Swingline Loans then outstanding (exclusive of UK Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of UK Revolving Loans).

“ Aggregate US Exposure ” shall mean, at any time, the sum of (a) the aggregate principal amount of all US Revolving Loans then outstanding, (b) the aggregate amount of all US Letter of Credit Outstandings at such time (exclusive of US Letter of Credit Outstandings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of US Revolving Loans), and (c) except for purposes of calculating the Applicable Commitment Commission Percentage, the aggregate principal amount of all US Swingline Loans then outstanding (exclusive of US Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of US Revolving Loans).

“ Agreement ” shall mean this Amended and Restated ABL Credit Agreement, as modified, supplemented, amended, restated (including any amendment and restatement hereof), extended and/or renewed from time to time.

“ Anti-Terrorism Laws ” shall have the meaning provided in Section 8.33(a) .

-2-

 

“ Applicable Commitment Commission Percentage ” shall mean 0.25%.

“ Applicable Law ” shall mean all laws, rules and regulations applicable to the Person, conduct, transaction, covenant, Credit Document or other material contract in question, including all applicable common law and equitable principles; all provisions of all applicable state, provincial, federal and foreign constitutions, statutes, rules, regulations and legally enforceable orders of governmental bodies; and legally enforceable orders, judgments and decrees of all courts and arbitrators, in each case, in any jurisdiction.

“ Applicable Margin ” shall mean, for the period from the Effective Date until the first Start Date thereafter, a percentage per annum equal to, in the case of

(a) US Revolving Loans maintained as (i) Base Rate Loans, 0.75%, and (ii) US LIBOR Loans, 1.75%;

(b) US Swingline Loans, 0.75%;  

(c) UK Revolving Loans, 1.75%;

(d) UK Swingline Loans, 1.75%; and

(e) Canadian Revolving Loans maintained as (i) Canadian Prime Rate Loans, 0.75% and (ii) Canadian LIBOR Loans, 1.75%.

From and after the first day of the fiscal quarter in which a certificate is delivered in accordance with the first sentence of the following paragraph (or from and after the date an Initial Post-Closing Availability Certificate is delivered in accordance with the following paragraph) indicating an entitlement to a different margin for any Type of Loan than that described in the immediately preceding sentence (each, a “ Start Date ”) to and including the applicable End Date described below, the Applicable Margins for such Type of Loan (hereinafter, the “ Adjustable Applicable Margins ”) shall be those set forth below opposite the Total Borrowing Availability indicated to have been achieved in any certificate delivered in accordance with the following sentence:

 

Level

 

Daily Average

Total Borrowing

Availability

 

Revolving Loan

B/A Rate/LIBOR/EURIBOR

and UK Swingline Loan

Margin

 

US Revolving Loan and

US Swingline Loan

Base Rate Margin

and Canadian Revolving

Loan Canadian Prime Rate Margin

 

 

 

 

 

 

 

I

 

Greater than $725,000,000

 

1.25%

 

0.25%

 

 

 

 

 

 

 

II

 

Greater than $275,000,000 but less than or equal to $725,000,000

 

1.50%

 

0.50%

 

 

 

 

 

 

 

III

 

Less than or equal to $275,000,000

 

1.75%

 

0.75%

 

The Total Borrowing Availability used in a determination of Adjustable Applicable Margins shall be determined based on the delivery of a certificate of US Company (each, a “ Quarterly Pricing Certificate ”) by an Authorized Officer of US Company to the Administrative Agent (with a copy to be sent by the Administrative Agent to each Lender), within 15 days after the last day of any fiscal quarter of US Company, which certificate shall set forth the calculation of the daily average Total Borrowing Availability for such fiscal quarter ended immediately prior to the relevant Start Date and the Adjustable Applicable Margins which shall be thereafter applicable (until same are changed or cease to apply in accordance with the following sentences).  The Adjustable Applicable Margins so determined shall apply, except as set forth in the succeeding sentence, from the relevant Start Date to the last day of the fiscal quarter immediately preceding the date on which the next Quarterly Pricing Certificate is delivered to the Administrative Agent (the “ End Date ”); provided that if no such subsequent Quarterly Pricing Certificate is delivered on or prior to the date which is 15 days following the last day of the fiscal quarter in which the previous Start Date occurred, a new Start Date shall be deemed to have commenced and the Adjustable Applicable Margins shall automatically adjust to those that correspond to a Total Borrowing Availability at Level III (such Adjustable Applicable Margins as so determined, the “ Highest Adjustable Applicable Margins ”), effective from the first day of such fiscal quarter until the next End Date.  Notwithstanding anything to the contrary contained above in this definition, the Applicable Margin and the Adjustable Applicable Margins shall be the Highest Adjustable Applicable Margins (i) at all times during which there shall exist any Default or Event of Default and (ii) for the period from the

-3-

 

Effective Date through (but not including) the first day of the fiscal quarter in which a Quarterly Pricing Certificate is delivered for the fiscal quarter of US Company ending March 31, 2016 (the “ Initial Post-Closing Availability Certificate ”).

Notwithstanding anything to the contrary contained above in this definition or elsewhere in this Agreement, if it is subsequently determined that the Total Borrowing Availability set forth in any Quarterly Pricing Certificate delivered to the Administrative Agent is inaccurate for any reason and the result thereof is that the Lenders received interest or fees for any period based on an Adjustable Applicable Margin that is less than that which would have been applicable had the Total Borrowing Availability been accurately determined, then, for all purposes of this Agreement, the “Adjustable Applicable Margin” for any day occurring within the applicable period shall retroactively be deemed to be the relevant percentage as based upon the accurately determined Total Borrowing Availability for such period, and any shortfall in the interest or fees theretofore paid by the Borrowers for the relevant periods pursuant to Sections 2.08 and 4.01(b) as a result of the miscalculation of the Total Borrowing Availability shall be deemed to be (and shall be) due and payable under the relevant provisions of Section 2.08 or 4.01(b) , as applicable, within two Business Days of discovery of such inaccuracy (and shall remain due and payable until paid in full, together with all amounts owing under Section 2.08(f) , in accordance with the terms of this Agreement).

“ Appraised Fair Market Value ” shall mean, with respect to any Real Property, the price at which a willing buyer, not an Affiliate of the seller, and a willing seller who does not have to sell, would agree to purchase and sell such Real Property, as determined by an Appraiser in an appraisal in form and substance reasonably satisfactory to Administrative Agent.

“ Appraiser ” shall mean an appraiser employed by Administrative Agent or an independent third party appraiser engaged by Administrative Agent, at US Company’s expense.

“ Approved Credit Support ” shall mean an Account is  (a) supported by an irrevocable letter of credit satisfactory to the Administrative Agent, in its Permitted Discretion (as to form, substance, and issuer or domestic confirming bank), that has been delivered to the Administrative Agent and is directly drawable by the Administrative Agent, or (b) is covered by credit insurance in form, substance, and amount, and by an insurer, satisfactory to the Administrative Agent, in its Permitted Discretion.

“ Arrangers ” shall mean collectively, Deutsche Bank Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC, Barclays Bank PLC and Bank of the West.

“ Asset Sale ” shall have the meaning set forth in Section 10.03 .

“ Assignment and Assumption Agreement ” shall mean an Assignment and Assumption Agreement substantially in the form of Exhibit C.

“ Authorized Officer ” shall mean, with respect to (a) delivering Notices of Borrowing, Notices of Conversion/Continuation and similar notices, any person or persons that has or have been authorized by the board of directors (or equivalent governing body) of the respective Borrower to deliver such notices pursuant to this Agreement and for which an appropriate incumbency certificate in form and substance satisfactory to the Administrative Agent has been delivered to the Administrative Agent, the Swingline Lender or the respective Issuing Lender, (b) delivering financial information and officer’s certificates pursuant to this Agreement, the chief financial officer or the chief accounting officer of the US Company or the respective Borrower, and (c) any other matter in connection with this Agreement or any other Credit Document, any officer (or a person or persons so designated by any two officers) of the US Company or the respective Borrower.

“ B/A Rate ” shall mean, in respect of any Interest Period, the average rate applicable to Canadian Dollar bankers’ acceptances for a period equal to such Interest Period appearing on the “Reuters Screen CDOR Page” (as defined in the International Swaps and Derivatives Association, Inc. 2000 definitions, as modified and amended from time to time), rounded to the nearest 1/100th of 1% (with .005% being rounded up), at approximately 10:00 a.m. (Toronto time), on the related Interest Determination Date, provided that if such rate does not appear on the Reuters Screen CDOR Page on such day the B/A Rate on such day shall be the rate for such period applicable to Canadian Dollar bankers’ acceptances quoted by a bank listed in Schedule I of the Bank Act (Canada), as selected by the Administrative Agent, as of 10:00 a.m. (Toronto time) on such day or, if such day is not a Business Day, then on the immediately preceding Business Day plus 0.10% per annum.  For the avoidance of doubt, if the B/A Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

“ Bank ” shall mean Deutsche Bank AG New York Branch.

“ Banking Product Obligations ” of the Credit Parties means any and all obligations of the Credit Parties, whether absolute or contingent and howsoever and whensoever created, arising, evidenced  or acquired (including all renewals, extensions and

-4-

 

modifications thereof and substitutions therefor) in connection with Banking Products of which the Administrative Agent has received written notice.

“ Banking Products ” means each and any of the following bank services provided to any Credit Party (or an LKE Qualified Intermediary with respect to a LKE Joint Account) by any Banking Products Provider: (a) commercial credit cards, (b) stored value cards and (c) treasury management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, E-payables or comparable services, return items, overdrafts and interstate depository network services).

“ Banking Products Agreement ” means any agreement with respect to Banking Products to which any Credit Party is a party.

“ Banking Products Provider ” means, with respect to any Banking Products Agreement, (x) any provider who was an Agent or Affiliate of an Agent at the time such Banking Products Agreement was entered into (or in the case of a Banking Products Agreement that was entered into prior to the Effective Date, was an Agent or an Affiliate of an Agent on the date hereof), or (y) a provider who was a Lender or an Affiliate of a Lender at the time such Banking Products Agreement was entered into (or in the case of a Banking Products Agreement that was entered into prior to the Effective Date, was a Lender or an Affiliate of a Lender on the date hereof), in each case, that has entered into such Banking Products Agreement with any Credit Party; provided that, a Lender (and any Affiliate thereof) shall not be a Banking Products Provider with respect to any Banking Products Agreement entered into when such Lender was a Defaulting Lender.

“ Banking Products Reserve ” shall mean a reserve established by the Administrative Agent from time to time in respect of the Borrowing Base Parties’ liabilities or potential liabilities as part of their cash management system (including, without limitation, liabilities related to Banking Products) such as, but not limited to, reserves for returned items, customary charges for maintaining Deposit Accounts and similar items.

“ Bankruptcy Code ” shall mean Title 11 of the United States Code entitled “Bankruptcy” as now or hereafter in effect, or any successor thereto.

“ Base Rate ” shall mean, at any time, the highest of (i) the Prime Lending Rate at such time, (ii) ½ of 1% per annum in excess of the overnight Federal Funds Rate at such time and (iii) LIBOR for a LIBOR Loan denominated in Dollars with a one month Interest Period commencing on such day plus 1.00%. For purposes of this definition, LIBOR shall be determined using LIBOR as otherwise determined by the Administrative Agent in accordance with the definition of LIBOR, except that (x) if a given day is a Business Day, such determination shall be made on such day (rather than two Business Days prior to the commencement of an Interest Period) or (y) if a given day is not a Business Day, LIBOR for such day shall be the rate determined by the Administrative Agent pursuant to preceding clause (x) for the most recent Business Day preceding such day. Any change in the Base Rate due to a change in the Prime Lending Rate, the Federal Funds Rate or LIBOR shall be effective as of the opening of business on the day of such change in the Prime Lending Rate, the Federal Funds Rate or LIBOR, respectively

“ Base Rate Loan ” shall mean (a) each US Swingline Loan and (b) each US Revolving Loan designated or deemed designated as such by the relevant Borrower at the time of the incurrence thereof or conversion thereto determined by reference to the Base Rate.

“ Board ” shall mean the Board of Governors of the Federal Reserve System of the United States.

“ Borrower ” and “ Borrowers ” shall have the meaning provided in the first paragraph of this Agreement.

“ Borrowing ” shall mean a UK Borrowing, a US Borrowing or a Canadian Borrowing.

“ Borrowing Base Certificate ” shall have the meaning provided in Section 9.01(i) .

“ Borrowing Base Party ” shall mean each US Borrowing Base Party, each UK Borrowing Base Party and each Canadian Borrowing Base Party.

“ Business Day ” shall mean (a) for all purposes other than as covered by clause (b) below, any day except Saturday, Sunday and any day which shall be in New York, New York, Toronto, Ontario, Brussels, Belgium and/or London, England, a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close and (b) with respect to all notices and determinations in connection with, and payments of principal and interest on, (i) LIBOR Loans, any day

-5-

 

which is a Business Day described in clause (a) above and which is also a day for trading by and between banks in US Dollar and Pounds Sterling deposits in the interbank eurodollar market and (ii) EURIBOR Loans, any TARGET Day.

“ Cabin Fleet Inventory ” shall mean timber accommodation units which are included in UK Borrowers’ lease fleet.

“ Canadian Borrower ” or “ Canadian Borrowers ” shall have the meaning provided in the first paragraph of this Agreement.

“ Canadian Borrowing ” shall mean the borrowing of Canadian Revolving Loans from all the Lenders on a given date having the same Interest Period.

“ Canadian Borrowing Availability ” shall mean, as of any date of determination, the remainder of (a) the lesser of (i) the Canadian Maximum Amount at such time and (ii) the Canadian Borrowing Base at such time minus (b) the Aggregate Canadian Exposure at such time.

“ Canadian Borrowing Base ” shall mean, as of any date of calculation, the amount calculated pursuant to the Borrowing Base Certificate most recently delivered to the Administrative Agent in accordance with Section 9.01(i) (but as modified as provided below in this definition), equal to, without duplication, the sum of

(i) (A) the amount calculated under the definition of US Borrowing Base, provided that in no event shall any asset constituting a portion of the US Borrowing Base concurrently constitute a portion of the Canadian Borrowing Base plus (B) the amount calculated under the definition of UK Borrowing Base, provided that in no event shall any asset constituting a portion of the UK Borrowing Base concurrently constitute a portion of the Canadian Borrowing Base, plus

(ii) eighty-five percent (85%) of Eligible Canadian Accounts, plus

(iii) ninety percent (90%) of Eligible Canadian Rental Fleet Inventory, plus

(iv) [Reserved]

(v) the lesser of (A) (1) $50,000,000 less (2) the amount included in such Borrowing Base Certificate with respect to clause (iv)(B) of the definition of US Borrowing Base and clause (v)(B) of the definition of UK Borrowing Base and (B) the sum of (1) ninety percent (90%) of Eligible Canadian Container Inventory Held for Sale; plus (2)  ninety percent (90%) of Eligible Canadian Work-In-Process Container Inventory; plus (3) sixty-five percent (65%) of Eligible Canadian Raw Materials Inventory; plus   

(vi) the lesser of (A) (1) $50,000,000 less (2) the amount included in such Borrowing Base Certificate with respect to clause (v)(B) of the definition of US Borrowing Base and clause (vi)(B) of the definition of UK Borrowing Base and (B) eighty-five percent (85%) of Eligible Canadian Machinery and Equipment; minus

(vii) the amount of all Reserves then established by the Administrative Agent against the Canadian Borrowing Base.  

The Administrative Agent shall have the right (but no obligation) to review such computations and if, in its Permitted Discretion, such computations have not been calculated in accordance with the terms of this Agreement, the Administrative Agent shall have the right to correct any such errors in such manner as it shall determine in its Permitted Discretion.  The Canadian Borrowing Base (and the Borrowing Base Certificate then most recently delivered) may be adjusted by the Administrative Agent to reflect any new or incremental Reserves required by the Administrative Agent in its Permitted Discretion; provided that no change in the amount of any Reserve shall be effective until the date occurring three Business Days after written notice thereof by the Administrative Agent to the US Company and the Canadian Company following consultation with the US Company.

“ Canadian Borrowing Base Party ” shall mean each Wholly-Owned Subsidiary of US Company that is (a) incorporated, amalgamated, continued or otherwise formed under the laws of Canada or any province thereof and (b) either a Canadian Borrower or a Non-US Obligation Guarantor.

“ Canadian Company ” shall have the meaning provided in the first paragraph of this Agreement.

-6-

 

“ Canadian Corresponding Lender ” means, with respect to any Lender, the Canadian branch or Affiliate of such Lender, if any, set forth on the signature page hereto for such Lender, or the applicable Assignment and Assumption Agreement.

“ Canadian Credit Party ” shall mean each subsidiary of the US Company, other than any US Credit Party.

“ Canadian Dollars ” and the sign “ CA$ ” shall each mean freely transferable lawful money of Canada.

“ Canadian Drawing ” shall have the meaning set forth in Section 3.15(b) .

“ Canadian Funding Capacity ” shall mean, for any Lender, the ability of such Lender or an Affiliate or branch office thereof to fund Canadian Revolving Loans denominated in Canadian Dollars, as set forth in the records of Administrative Agent.

“ Canadian Funding Capacity Lender ” shall mean each Lender other than (i) in the case of each Lender as of the Effective Date, each Lender that shall have confirmed in writing, to the satisfaction of the Administrative Agent, on or prior to the Effective Date, that neither it nor any domestic or foreign branch or Affiliate of such Lender has the ability to fund Canadian Revolving Loans denominated in Canadian Dollars and (ii) in the case of each Lender after the Effective Date, each Lender that shall have confirmed in writing, to the satisfaction of the Administrative Agent, on or prior to the date such Lender becomes a Lender hereunder, that neither it nor any domestic or foreign branch or Affiliate of such Lender has the ability to fund Canadian Revolving Loans denominated in Canadian Dollars, in each case until such time as such Lender shall have confirmed in writing to the Administrative Agent that it or any domestic or foreign branch or Affiliate of such Lender does have the ability to fund Canadian Revolving Loans denominated in Canadian Dollars.

“ Canadian Insolvency Laws ” shall mean any of the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), and the Winding-Up and Restructuring Act (Canada), each as now and hereafter in effect, and any successors to such statutes and any proceeding under applicable corporate law statutes seeking a compromise or arrangement of any debts of the corporation, or a stay of proceedings to enforce any of the claims of the corporation’s creditors against it.

“ Canadian Issuing Lender ” shall mean (i) each of Deutsche Bank AG New York Branch (except as otherwise provided in Section 12.09 ) and any other Lender reasonably acceptable to the Administrative Agent and US Company or Canadian Company which agrees to issue Canadian Letters of Credit hereunder and (ii) with respect to the Existing Canadian Letters of Credit, the Lender designated as the issuer thereof on Schedule 3.03(c) .  Any Canadian Issuing Lender may, in its discretion, arrange for one or more Canadian Letters of Credit to be issued by one or more Affiliates of such Canadian Issuing Lender (and such Affiliate shall be deemed to be a “Canadian Issuing Lender” for all purposes of the Credit Documents).

“ Canadian L/C Supportable Obligations ” shall mean (a) obligations of a Canadian Borrower with respect to workers compensation, surety bonds and other similar statutory obligations and (b) such other obligations of a Canadian Borrower as are reasonably acceptable to the respective Canadian Issuing Lender and otherwise permitted to exist pursuant to the terms of this Agreement (other than obligations in respect of (i) any Indebtedness or other obligations that are subordinated in right of payment to the Canadian Obligations and (ii) any Equity Interests).

“ Canadian Letter of Credit ” shall have the meaning provided in Section 3.03(a) .

“ Canadian Letter of Credit Fee ” shall have the meaning provided in Section 4.01(b) .

“ Canadian Letter of Credit Outstandings ” shall mean, at any time, the sum of (a) the Stated Amount of all outstanding Canadian Letters of Credit at such time and (b) the aggregate amount of all Unpaid Canadian Drawings in respect of all Canadian Letters of Credit at such time.

“ Canadian Letter of Credit Request ” shall have the meaning provided in Section 3.09(a) .

“ Canadian LIBOR Loan ” shall mean each Canadian Revolving Loan denominated in Canadian Dollars bearing interest at a rate determined by reference to the B/A Rate.

“ Canadian Master Reaffirmation Agreement ” shall mean the Canadian Master Reaffirmation Agreement dated as of the Effective Date, among Canadian Company, US Borrower and the Collateral Agent.

-7-

 

“ Canadian Maximum Amount ” shall mean, as of any date of determination, the lesser of (a) the Equivalent Amount of $200,000,000 and (b) the Equivalent Amount of the Total Revolving Loan Commitment minus the Equivalent Amount of the Aggregate UK Exposure minus the Equivalent Amount of the Aggregate US Exposure.

“ Canadian Obligations ” shall mean, with respect to any Canadian Credit Party, all Loans, all obligations under Letters of Credit and all other advances, debts, liabilities, obligations, covenants and duties, together with all interest, fees and other charges thereon, owing, arising, due or payable from such Canadian Credit Party to an Agent, any Lender or any Affiliate of any Lender, or from a Canadian Borrower to any Canadian Issuing Lender, of any kind or nature, present or future, whether or not evidenced by any note, guaranty or other instrument, whether arising under this Agreement or any of the other Credit Documents or cash management services rendered in connection therewith, whether direct or indirect (including those acquired by assignment), absolute or contingent, primary or secondary, due or to become due, now existing or hereafter arising and however acquired, and any Banking Products Obligations or Qualified Derivative Obligations owing to a Banking Products Provider or a Qualified Derivative Counterparty, in each case by a Canadian Credit Party; provided , that the Canadian Obligations of any Guarantor shall not include any Excluded Swap Obligations solely of such Guarantor.

“ Canadian Participant ” shall have the meaning set forth in Section 3.12(a) .

“ Canadian Prime Rate ” shall mean, for any day, the rate of interest per annum equal to the greater of (i) the per annum rate of interest quoted or established as the “prime rate” of DB Canada which it quotes or establishes for such day as its reference rate of interest in order to determine interest rates for commercial loans in Canadian Dollars in Canada to its Canadian borrowers; and (ii) the arithmetic average rate for Canadian Dollar banker’s acceptances having a term of 30 days that appears on Reuters Screen CDOR Page (or such other page as may be selected by DB Canada as a replacement page for such banker’s acceptances if such screen is not available) at approximately 10:00 a.m. (Toronto time) on such day plus 100 basis points per annum, adjusted automatically with each quoted or established change in such rate, all without the necessity of any notice to any Canadian Borrower or any other Person.

“ Canadian Prime Rate Loan ” shall mean each Canadian Revolving Loan designated or deemed designated as such by the relevant Borrower at the time of the incurrence thereof or conversion thereto determined by reference to the Canadian Prime Rate.

“ Canadian Priority Payables ” shall mean, at any time, with respect to any Borrowing Base Party which has employees in Canada or otherwise carries on business in Canada or which leases, sells or otherwise owns goods in Canada or has Accounts with Account Debtors located in Canada:

(i) the amount past due and owing by such Borrowing Base Party, or the accrued amount for which such Borrowing Base Party has an obligation to remit to a Governmental Authority in Canada or in any province, municipality or other political subdivision thereof (“ Canadian Governmental Authority ”) or other Person pursuant to any applicable law, rule or regulation, in respect of (a) pension fund obligations; (b) Canada Pension Plan and Quebec Pension Plan, (c) unemployment insurance; (d) harmonized sales taxes, goods and services taxes, sales taxes, excise taxes, employee income taxes and other taxes payable or to be remitted or withheld; (e) workers’ compensation; (f) wages, (g) vacation pay; and (h) other like charges and demands; in each case, in respect of which any Canadian Governmental Authority or other Person may claim a security interest, lien, trust, right or other claim ranking or capable of ranking in priority to or pari passu with one or more of the Liens granted in the Security Documents;

(ii) the aggregate of any other amounts for which provision for payment is required to be made pursuant to Section 6(3), (4), (5) and (6) of the Companies’ Creditors Arrangement Act (Canada) or Section 60(1.1), (1.2), (1.3), (1.5) and (2) of the Bankruptcy and Insolvency Act (Canada) (as such provisions may be amended or re-enacted from time to time) in order to obtain the court’s sanction or approval of an arrangement, compromise or proposal; and

(iii) the aggregate amount of any other liabilities of such Borrowing Base Party (a) in respect of which a trust has been or may be imposed on any Collateral to provide for payment, (b) which are secured by a security interest, pledge, lien, charge, right or claim on any Collateral or (c) the holder of which enjoys a right; in each case, pursuant to any applicable law, rule or regulation and which trust, security interest, pledge, lien, charge, right or claim ranks or is capable of ranking in priority to or pari passu with one or more of the Liens granted in the Security Documents.

“ Canadian Revolving Loan ” shall have the meaning set forth in Section 2.01(c) .

-8-

 

“ Canadian Revolving Loan Commitment ” shall mean, for each Lender, the amount set forth opposite such Lender’s name in Schedule 1.01(a) directly below the column entitled “Canadian Revolving Loan Commitment,” as same may be (x) reduced from time to time or terminated pursuant to Sections 4.02 , 4.03 and/or 11 , as applicable, (y) increased from time to time pursuant to Section 2.15 , or (z) adjusted from time to time as a result of assignments to or from such Lender pursuant to Section 2.13 or 13.04(b) .

“ Canadian Revolving Note ” shall have the meaning set forth in Section 2.05(a) .

“ Canadian Security Agreement ” shall mean the security agreement dated as of the Original Effective Date, executed by each Canadian Borrower, in favour of the Collateral Agent for the benefit of the Secured Creditors, made with respect to the Canadian Obligations and the UK Obligations, as amended, restated, supplemented or otherwise modified from time to time.

“ Canadian Share Pledge Agreement ” shall mean the security agreement dated as of the Original Effective Date, executed by the US Company with respect to the Equity Interests of the Canadian Company in favour of the Collateral Agent for the benefit of the Secured Creditors, as amended, restated, supplemented or otherwise modified from time to time.

“ Canadian Subsidiary ” shall mean each Subsidiary of US Company that is incorporated, amalgamated, continued or otherwise formed in Canada or any province thereof.

“ Canadian Taxes ” shall have the meaning set forth in Section 5.06(a) .

“ Capital Expenditures ” shall mean expenditures made or liabilities incurred for the acquisition of any fixed assets (including but not limited to containers) or improvements, replacements, substitutions or additions thereto which have a useful life of more than one year, including the total principal portion of Capitalized Lease Obligations and that portion of Investments allocable to property, plant or equipment.  Capital Expenditures shall exclude (i) new and used manufactured or remanufactured portable container Inventory held for sale, (ii) proceeds of a Casualty Loss applied to the repair or replacement of the property affected by the Casualty Loss and (iii) Inventory or Equipment acquired in a Permitted Acquisition.

“ Capitalized Lease Obligation ” shall mean any Indebtedness represented by obligations under a lease that is required to be capitalized for financial reporting purposes in accordance with GAAP.

“ Cash Collateralize ” means to  pledge and deposit with or deliver to the Collateral Agent, for the benefit of one or more of the Issuing Lenders or the Swingline Lender (as applicable) and the Lenders, as collateral for Letter of Credit Outstandings, Obligations in respect of Swingline Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the Administrative Agent and the Issuing Lenders or the Swingline Lender, as applicable, shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative Agent and (b) the Issuing Lenders or the Swingline Lender (as applicable).  “ Cash Collateral ” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

“ Cash Equivalents ” shall mean, as to any Person, (a) securities issued or directly and fully guaranteed or insured by the United States, Canada or the United Kingdom or any agency or instrumentality thereof ( provided that the full faith and credit of such country is pledged in support thereof or it otherwise has an equivalent credit rating) having maturities of not more than one year from the date of acquisition, (b) marketable direct obligations issued by any state of the United States, Canada or the United Kingdom or any political subdivision of such country or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Moody’s, (c) Pounds Sterling, Canadian Dollar or Dollar-denominated time deposits, certificates of deposit and bankers acceptances of any Lender or any commercial bank having, or which is the principal banking subsidiary of a bank holding company having, a long-term unsecured debt rating of at least “A” or the equivalent thereof from S&P or “A2” or the equivalent thereof from Moody’s with maturities of not more than one year from the date of acquisition by such Person, (d) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (a) above entered into with any bank meeting the qualifications specified in clause (c) above, (e) commercial paper denominated in Pounds Sterling, Canadian Dollars or Dollars and not convertible or exchangeable into any other securities issued by any Person incorporated in the United States, Canada or the United Kingdom rated at least A-1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody’s and in each case maturing not more than one year after the date of acquisition by such Person, (f) Pounds Sterling bills of exchange eligible for rediscount at the Bank of England and accepted by any bank meeting the qualifications specified in clause (c) above, (g) investments in money market funds substantially all of whose assets are comprised of securities of the types described in clauses (a) through (f) above and which can be turned into cash on not more than 30 days’ notice, (h) securities with maturities of one year or less from the date of acquisition backed by a standby letter of credit issued by any Lender or any commercial bank satisfying the requirements of clause (c), (i) shares in

-9-

 

money market investment programs or mutual or similar funds with the Administrative Agent or any other Lender with a corporate rating of at least A by S&P or at least A-2 by Moody’s, or (j) any other debt security approved by the Required Lenders, and in each case described in clauses (a) through (i) above, which is not subject to any Lien (other than any Lien arising under the Security Documents).

“ Cash Management Control Agreement ” shall mean a “control agreement” in form and substance reasonably acceptable to the Administrative Agent and containing terms regarding the treatment of all cash and other amounts on deposit in the respective Collection Account, Disbursement Account, Designated Petty Cash Account, Designated Payroll Account or LKE Joint Account governed by such Cash Management Control Agreement consistent with the requirements of Section 5.03 hereto and Section 3.9 of the US Security Agreement (including, without limitation, any such agreement with respect to any LKE Joint Account pursuant to which the applicable Credit Party and the applicable LKE Qualified Intermediary instruct the appropriate financial institution(s) to transfer funds from the applicable LKE Joint Accounts to the Administrative Agent in accordance with Section 5.03 hereto).

“ Casualty Loss ” shall mean (i) the loss, damage, or destruction of any asset owned or used by US Company or any of its Subsidiaries, (ii) the condemnation, confiscation, or other taking, in whole or in part, of any such asset, or (iii) the diminishment of such asset so as to render use for its intended purpose impracticable or unreasonable.

“ CERCLA ” shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as the same has been amended and may hereafter be amended from time to time, 42 USC. § 9601 et seq.

“ Certificate of Title ” shall mean a certificate of title, certificate of ownership or other registration certificate issued or required to be issued for any asset under the certificate of title or similar laws of any jurisdiction.

“ Change in Law ” shall mean the occurrence, after the Effective Date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation, order or treaty, (b) any change in any law, rule, regulation, order or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority.  

“ Change of Control ” shall mean (i)  any “person” (as such term is used in Subsections 13(d) and 14(d) of the Securities and Exchange Act of 1934, as amended) on or after the Effective Date is or becomes a “beneficial owner” (as defined in Rule 13d‑3 under such Act), directly or indirectly, of Equity Interests of US Company representing 35% or more of the combined voting power of US Company’s then-outstanding Equity Interests; or (ii) any Borrower or Guarantor ceases to be a wholly-owned Subsidiary of US Company, except as expressly permitted by the Credit Documents; or (iii) a “Change of Control” (as defined in any of the Senior Note Indentures then in effect or any Permitted Additional Financing Document then in effect) occurs.  

“ Chief Executive Office ” shall mean, with respect to any Person, the location from which such Person manages the main part of its business operations or other affairs.

“ CITA ” shall have the meaning provided in Section 8.23(b) .

“ Claims ” shall have the meaning provided in the definition of Environmental Claims.

“ Code ” shall mean the Internal Revenue Code of 1986, as amended.

“ Co-Documentation Agents ” shall mean Wells Fargo Bank, National Association, ING Capital LLC, Compass Bank, MUFG Union Bank, N.A. and Bank of Montreal, each in its capacity as a documentation agent.

“ Co-Syndication Agents ” shall mean Deutsche Bank AG New York Branch, Bank of America, N.A., JPMorgan Chase Bank, N.A., Barclays Bank PLC and Bank of the West, each in its capacity as a syndication agent.

“ Collateral ” shall mean all property (whether real or personal) with respect to which any Liens have been granted (or purported to be granted) pursuant to any Security Document, including, without limitation, all Pledge Agreement Collateral, all Security Agreement Collateral, all Mortgaged Properties and all cash and Cash Equivalents delivered as collateral pursuant to Section 5.02 or Section 11 .

“ Collateral Agent ” shall mean the Administrative Agent, in its capacity as collateral agent for the Lenders hereunder and under the other Credit Documents, and shall include any successor to the Administrative Agent appointed pursuant to Section 12.09 .

-10-

 

“ Collection Account ” shall mean each account established at a Collection Bank subject to a Cash Management Control Agreement into which funds shall be transferred as provided in Section 5.03(b) .

“ Collection Bank ” shall have the meaning provided in Section 5.03(b) .

“ Collective Bargaining Agreements ” shall mean all collective bargaining agreements applying or relating to any employee of US Company or any of its Subsidiaries.

“ Commitment Commission ” shall have the meaning provided in Section 4.01(a) .

“ Commodity Exchange Act ” means the Commodity Exchange Act (7 U.S.C. § 1 et seq. ), as amended from time to time, and any successor statute.

“ Compliance Period ” shall mean any period (x) (A) for purposes of Section 10.21 hereof, commencing on the first Business Day on which the Total Borrowing Availability is less than the Minimum Availability Amount and (B) for all other purposes hereunder, commencing on the fifth consecutive Business Day on which the Total Borrowing Availability is less than the applicable Minimum Availability Amount and (y) in each case, ending on the first Business Day thereafter on which the Total Borrowing Availability has been equal to or greater than the applicable Minimum Availability Amount for 30 consecutive days.

“ Computation Date ” shall mean the date on which the Equivalent Amount of any currency is determined.

“ Concentration Account ” shall have the meaning provided in Section 5.03(c) .

“ Consolidated ” shall mean the consolidation in accordance with GAAP of the accounts or other items as to which such term applies.

“ Consolidated EBITDA ” shall mean, with respect to the US Company and its Subsidiaries, for a period, the sum (without duplication) of (i) Consolidated Net Income, plus (ii) to the extent Consolidated Net Income has been reduced thereby, (a) all income taxes of  the US Company and its Subsidiaries paid or accrued in accordance with GAAP for such period (other than income taxes attributable to extraordinary, unusual or nonrecurring gains or losses or taxes attributable to sales or dispositions outside the ordinary course of business), (b) Interest Expense and (c) Consolidated Non-cash Charges less any non-cash items increasing Consolidated Net Income for such period, plus (iii) the amount of cost savings, operating expense reductions, other operating improvements and initiatives and synergies projected by the US Company in good faith to be reasonably anticipated to be realizable or for which a plan for realization shall have been established within 12 months of the date thereof (which will be added to Consolidated EBITDA as so projected until fully realized and calculated on a pro forma basis as though such cost savings, operating expense reductions, other operating improvements and initiatives and synergies had been realized on the first day of such period); provided that all steps have been taken for realizing such cost savings and such cost savings are reasonably identifiable and factually supportable (in the good faith determination of and certified by the US Company); provided further that the aggregate amount of addbacks made pursuant to this clause (iii) in any four fiscal quarter period shall not exceed 15% of Consolidated EBITDA (after giving effect to any such addbacks) for such four fiscal quarter period.  For all purposes other than calculating Consolidated Net Cash Flow, Consolidated EBITDA for any such period shall be calculated by giving pro forma effect to any Permitted Acquisition and any Asset Sale specifically permitted pursuant to Section 10.03(j) during such period, as if such Acquisition or Asset Sale, as the case may be, had been consummated on the first day of such period, as long as US Company shall have delivered to Administrative Agent audited financial statements for such period for the Person or assets acquired or if consented to by Administrative Agent, other reasonably acceptable financial statements or other supporting documentation.

“ Consolidated Net Cash Flow ” shall mean for a period, Consolidated EBITDA less , without duplication, the sum of (i) Unfinanced Capital Expenditures during such period plus (ii) income taxes paid in cash during such period plus (iii) Restricted Payments paid in cash during such period (other than (A) Restricted Payments made under Section 10.04(a)(iii) and (B) Restricted Payments paid by a Subsidiary of US Company to a Credit Party).  

“ Consolidated Net Income ” shall mean, for any period, the aggregate net income (or loss) of US Company and its Subsidiaries determined on a consolidated basis for such period in accordance with GAAP; provided that the following items shall be excluded in computing Consolidated Net Income (without duplication): (a) after-tax gains from Asset Sales outside the ordinary course of business or abandonments or reserves relating thereto, (b) after-tax items classified as extraordinary or nonrecurring gains, (c) the net income (but not loss) of any Subsidiary of US Company to the extent that the declaration of dividends or similar distributions by such Subsidiary of that income is restricted by a contract, operation of law or otherwise, (d) the net income of any Person, other than a Subsidiary of US Company, except to the extent of cash dividends or distributions paid to US Company or to a

-11-

 

Wholly-Owned Subsidiary of US Company by such Person, (e) any restoration to income of any contingency reserve, except to the extent that provision for such reserve was made out of Consolidated Net Income accrued at any time following the Effective Date, (f) income or loss attributable to discontinued operations (including, without limitation, operations disposed of during such period whether or not such operations were classified as discontinued), (g) in the case of a successor to a Subsidiary of US Company by consolidation or merger or as a transferee of the assets of a Subsidiary of US Company, any earnings of the successor corporation prior to such consolidation, merger or transfer of assets, (h) fees and expenses incurred in connection with the refinancing or repayment of Indebtedness (including (i) the Transactions and (ii) the Permitted Senior Notes Refinancing and related refinancing transactions in an aggregate amount not to exceed $15,000,000), (i) charges to earnings incurred in connection with the early retirement of the Senior Notes, (j) the amount of extraordinary, nonrecurring or unusual losses or charges (including all fees, expenses or charges incurred in connection with acquisitions, mergers, consolidations, restructurings and dispositions after the Effective Date), (k) any non-cash compensation charge or expense, including any such charge or expense arising from the grants of stock appreciation or similar rights, stock options, restricted stock or other rights or equity incentive programs, (l) any net after-tax effect of income (loss) from the early extinguishment or conversion of (i) Indebtedness, (ii) obligations in respect of swap, hedge or similar agreements or (iii) other derivative instruments, (m) any impairment charge or asset write-off or write-down, including impairment charges or asset write-offs or write-downs related to goodwill, intangible assets, long-lived assets, investments in debt and equity securities or as a result of a change in law or regulation, in each case, pursuant to GAAP, and the amortization of intangibles arising pursuant to GAAP (other than as a result of Asset Sales in the ordinary course of business), (n) any non-cash income (or loss) related to the recording of the fair market value of obligations in respect of swap, hedge or similar agreements entered into in the ordinary course of business and not for speculative purposes and (o) the amount of any earn-out payments, contingent consideration or deferred purchase price of any kind in conjunction with acquisitions.

“ Consolidated Non-cash Charges ” shall mean, with respect to the US Company and its Subsidiaries, for any period, the aggregate depreciation, amortization and other non-cash expenses of the US Company and its Subsidiaries reducing Consolidated Net Income of US Company and its Subsidiaries for such period (other than as a result of Asset Sales in the ordinary course of business), determined on a consolidated basis in accordance with GAAP (excluding any such charges constituting an extraordinary item or loss or any such charge which requires an accrual of or a reserve for cash charges for any future period).

“ Container Fleet Inventory ” shall mean new and used manufactured or remanufactured portable and ISO containers and portable mobile offices held by US Company or another Credit Party for intended lease or rental by US Company or another Credit Party to third parties.

“ Contingent Obligation ” shall mean, as to any Person, any obligation of such Person as a result of such Person being a general partner of any other Person, unless the underlying obligation is expressly made non-recourse as to such general partner, and any obligation of such Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (d) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided , however , that the term Contingent Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business or guarantees by a parent entity of real property leases entered into by a UK Subsidiary in the ordinary course of business.  The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

“ Converting Canadian Dollar Lender ” shall have the meaning set forth in Section 2.16(c) .

“ Converting Euro Lender ” shall have the meaning set forth in Section 2.16(b) .

“ Converting Pounds Sterling Lender ” shall have the meaning set forth in Section 2.16(a) .

“ Credit Account ” shall have the meaning provided in Section 5.03(f) .

“ Credit Documents ” shall mean this Agreement, the Security Documents and, after the execution and delivery thereof pursuant to the terms of this Agreement, each Note, each Incremental Commitment Agreement, each Joinder Agreement, each Mortgage and each other Security Document.

-12-

 

“ Credit Event ” shall mean the making of any Loan or the issuance of any Letter of Credit under this Agreement.

“ Credit Party ” shall mean each of the US Credit Parties, each of the UK Credit Parties and each of the Canadian Credit Parties.

“ DB Canada ” shall mean Deutsche Bank AG Canada Branch, and its permitted successors and assigns.

“ DBNY ” shall mean Deutsche Bank AG New York Branch, and its permitted successors and assigns.

“ Debt Ratio ” shall mean as of any date of determination, the ratio of (i) Funded Debt as of such date to (ii) Consolidated EBITDA in each case for the four fiscal quarters ending on such date.

“ Debtor Relief Laws ” shall mean the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.

“ Default ” shall mean any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default.

“ Defaulting Lender ” means, subject to Section 2.19(b) , any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the applicable Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, any Issuing Lender, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two Business Days of the date when due, (b) has notified the applicable Borrower, the Administrative Agent, the applicable Issuing Lender or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the applicable Borrower, to confirm in writing to the Administrative Agent and such Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and such Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity other than via an Undisclosed Administration; 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 so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.19(b) ) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the applicable Borrower, the Issuing Lenders, the Swingline Lender and each other Lender promptly following such determination.

“ Delaware Trust Security Agreement ” shall mean the Amended and Restated Delaware Trust Security Agreement, dated as of the Effective Date, executed by US Company, each other US Borrower, each US Guarantor, the Collateral Agent, and the Motor Vehicle Agent.

“ Deposit Account ” shall mean a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization.

“ Derivative Obligations ” shall mean every obligation of a Person under any forward contract, futures contract, swap, option or other financing agreement or arrangement (including, without limitation, caps, floors, collars and similar agreements), the value of which is dependent upon interest rates, currency or exchange rates or valuations.

-13-

 

“ Designated Jurisdiction ” shall mean any country or territory to the extent that such country or territory itself is the subject of any Sanction.

“ Designated Payroll Accounts ” shall mean those accounts set forth on Part E of Schedule 10.18 , as well as any new payroll account established pursuant to Section 10.18 , in each case which are maintained near a branch for any Credit Party and in which cash is transferred in accordance with the terms of this Agreement to pay ordinary course payroll expenses of such Credit Party.

“ Designated Petty Cash Accounts ” shall mean those accounts set forth on Part D of Schedule 10.18 , as well as any new petty cash account established pursuant to Section 10.18 , in each case which are maintained near a branch for any Credit Party and in which cash is transferred in accordance with the terms of this Agreement to pay certain ordinary course cash expenses of such Credit Party.

“ Disbursement Account ” shall mean each checking and/or disbursement account set forth on Part C of Schedule 10.18 , maintained for any Credit Party for their respective general corporate purposes, including for the purpose of paying their trade payables and other operating expenses.

“ Dollars ” and the sign “ $ ” shall each mean freely transferable lawful money of the United States.

“ Domestic Subsidiary ” of any Person shall mean any Subsidiary of such Person incorporated or organized in the United States or any State thereof or the District or Columbia.

“ Effective Date ” shall have the meaning provided in Section 13.10 .

“ Eligible Account ” shall mean those Accounts created by a Borrowing Base Party in the ordinary course of its business that arise out of its sale, lease or rental of goods or rendition of services, that comply in all material respects with each of the representations and warranties respecting Eligible Accounts made in the Credit Documents, and that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below.  The Administrative Agent shall have the right to establish or modify Reserves against Eligible Accounts from time to time in its Permitted Discretion on three Business Days’ prior written notice to US Company in respect of the US Borrowing Base or the UK Company in respect of the UK Borrowing Base or the Canadian Company in respect of the Canadian Borrowing Base, in each case after consultation with US Company, UK Company or the Canadian Company, as applicable.  In determining the amount to be included, Eligible Accounts shall be the face amount of such Eligible Accounts and shall be calculated net of unearned revenue, charge-backs, customer deposits, unapplied cash, bonding subrogation rights to the extent not cash collateralized, any and all returns, rebates, discounts (which may, at the Administrative Agent’s option, be calculated on shortest terms), service charges, customer deposits, credits, allowances or excise taxes of any nature at any time issued, owing, claimed by Account Debtors, granted, outstanding or payable in connection with such Accounts at such time.  Without limiting the generality of the foregoing, unless otherwise approved in writing by Administrative Agent, no Account shall be an Eligible Account if:

(i) it arises out of a sale made or services rendered by a Borrowing Base Party to US Company, a Subsidiary of US Company or an Affiliate of US Company or to a Person controlled by an Affiliate of US Company; or

(ii) it is an Account that has payment terms longer than 60 days from the date of invoice; provided , however , that $10,000,000 or the Equivalent Amount thereof may be considered Eligible Accounts with payment terms longer than 60 days but no longer than 90 days from the date of the invoice; or

(iii) it remains unpaid more than 90 days after the original invoice date; or

(iv) it is owed by an Account Debtor and the total unpaid Accounts of such Account Debtor exceed 10% of the net amount of all Eligible Accounts, but only to the extent of such excess; or

(v) any covenant, representation or warranty contained in this Agreement or any Security Document with respect to such Account has been breached; or

(vi) (1) the Account Debtor is also a creditor or supplier of the applicable Borrowing Base Party or any other Subsidiary of US Company, or the Account Debtor has disputed liability with respect to such Account, or the Account Debtor has made any claim with respect to any other Account due from such Account Debtor to the applicable Borrowing Base Party or any other Subsidiary of US Company, or the Account otherwise is or may become subject to right of setoff by the Account Debtor, provided , that any such Account shall be eligible to the extent such amount thereof exceeds such

-14-

 

contract, dispute, claim, setoff or similar right; or (2) it is a portion (and only such portion) of any Account that constitutes late fees or finance charges or (3) it is less than ninety (90) days past the original invoice date and related to invoices that have been partially paid, if the US Company, the UK Company or the Canadian Company, as applicable, has reason to believe that such Account will not be fully paid; or  

(vii) the Account Debtor has commenced a voluntary case under the federal bankruptcy laws, as now constituted or hereafter amended, (or otherwise voluntarily submitted to insolvency, bankruptcy, arrangement, liquidation or equivalent proceedings in any jurisdiction (including any Canadian Insolvency Law)) or made an assignment for the benefit of creditors, or a decree or order for relief has been entered by a court having jurisdiction in the premises in respect of the Account Debtor in an involuntary case under the federal or other similar bankruptcy, receivership, reorganization, arrangement, liquidation or insolvency laws (including Canadian Insolvency Laws), as now constituted or hereafter amended, or any other petition, procedure or other application for relief under the federal or other similar bankruptcy, receivership, reorganization or insolvency laws of any jurisdiction (including Canadian Insolvency Laws), as now constituted or hereafter amended, has been filed against the Account Debtor, declared a moratorium on any indebtedness or is the subject of a voluntary scheme of arrangement or if the Account Debtor has failed, suspended business or payments, ceased to be Solvent, or consented to or suffered a receiver, receiver manager, trustee, administrator, liquidator, compulsory manager, monitor or custodian to be appointed for it or for all or a significant portion of its assets or affairs; or

(viii) (1) with respect to Account Debtors of any US Borrowing Base Party, it arises from a sale made or services rendered to an Account Debtor outside the United States, unless the sale is either (a) to an Account Debtor located in Ontario, British Columbia or Alberta or any other province of Canada in which the PPSA has been adopted in substantially the same form as currently in effect in Ontario or (b) is subject to Approved Credit Support or (2) with respect to Account Debtors of any UK Borrowing Base Party it arises from a sale made or services rendered to an Account Debtor outside the United Kingdom, unless the sale is subject to Approved Credit Support, or (3) with respect to Account Debtors of any US Borrowing Base Party, the Account Debtor is the government of any country or sovereign state other than the United States, or of any state, municipality, or other political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof, unless the sale is subject to Approved Credit Support, or (4) with respect to Account Debtors of any UK Borrowing Base Party or Canadian Borrowing Base Party, the Account Debtor is the government of any country or sovereign state, or of any state, province, municipality, or other political subdivision thereof, or of any department, agency, public corporation, or other instrumentality thereof, unless the sale is subject to Approved Credit Support, or (5) with respect to Account Debtors of any Canadian Borrowing Base Party, it arises from a sale made or services rendered to an Account Debtor that is not located in Ontario, British Columbia or Alberta or any other province or territory of Canada in which the PPSA has been adopted in substantially the same form as currently in effect in Ontario, unless the sale is subject to Approved Credit Support; or

(ix) (1) it arises from a sale to the Account Debtor on a bill-and-hold or, consignment basis or in any other transaction wherein goods are sold pursuant to a guaranteed sale, a sale or return, a sale on approval, or any other terms by reason of which the payment by the Account Debtor may be conditional (other than, for the avoidance of doubt, a rental or lease basis) or (2) it is subject to a reserve established by US Company or any of its Subsidiaries for potential returns or refunds, to the extent of such reserve; or

(x) the Account Debtor is the United States of America, any State or any political subdivision or department, agency or instrumentality thereof, unless the applicable Borrowing Base Party, assigns its right to payment of such Account to the Administrative Agent, in a manner satisfactory to the Administrative Agent, in its Permitted Discretion, so as to comply with the Assignment of Claims Act of 1940 (31 USC. §203 et seq., as amended) or complies with any similar applicable state or local law as the Administrative Agent may require; or

(xi) the Account Debtor is the federal government of Canada or the Provinces of Alberta, Manitoba or New Brunswick or the Territory of Northwest Territories or Nunavut or any other province or territory of Canada which has legislation which restricts the collateral assignment of Crown obligations which are Accounts or, in each case, of any department, agency or instrumentality thereof, unless the applicable Borrowing Base Party complies with the requirements of the Financial Administration Act (Canada), CITA, or any similar applicable provincial or territorial law, so that such Borrowing Base Party may assign its right to payment of such Account to the Collateral Agent, in a manner satisfactory to the Administrative Agent, in its Permitted Discretion; or

(xii) it is not at all times subject to Collateral Agent’s duly perfected, First Priority security interest and to no other Lien that is not a Permitted Lien; or

-15-

 

(xiii) the goods giving rise to such Account have not been delivered to and accepted by the Account Debtor or the services giving rise to such Account have not been performed by the applicable Borrowing Base Party and accepted by the Account Debtor or the Account otherwise does not represent a final sale; or  

(xiv) the Account is evidenced by an instrument of any kind, or has been reduced to judgment; or

(xv) the applicable Borrowing Base Party has made any agreement with the Account Debtor for any deduction therefrom, except for discounts or allowances which are made in the ordinary course of business for prompt payment and which discounts or allowances are reflected in the calculation of the face value of each invoice related to such Account; or

(xvi) more than 50% of the Accounts owing from the Account Debtor are not Eligible Accounts hereunder; or

(xvii) the Account is subject to any progress payment or other similar advance made by or for the benefit of the applicable Account Debtor; or

(xviii) the Account evidences a lease or sale to an Account Debtor that is an individual to the extent that the aggregate of such Accounts exceeds $1,000,000; or

(xix) the Account represents amounts which have not yet been billed to the applicable Account Debtor and the amount of such Account together with the amount of all other Accounts which represent amounts which have not yet been billed to the applicable Account Debtors to the extent such amount exceeds $5,000,000 or the Equivalent Amount thereof; or

(xx) except as provided in clauses (x) and (xi) above, with respect to which either the perfection, enforceability, or validity of the Collateral Agent’s Liens in such Account, or the Collateral Agent’s right or ability to obtain direct payment to the Collateral Agent of the proceeds of such Account, is governed by any national, federal, state, provincial or local statutory requirements other than those of the UCC or, in the case of the UK Borrowing Base Parties, the UK Companies Act of 1985 (as amended), or, in the case of the Canadian Borrowing Base Parties, a PPSA in substantially the same form as currently in effect in Ontario; or

(xxi) in the case of Accounts of any US Borrowing Base Party, is not payable in Dollars or Canadian Dollars or, in the case of Accounts of any UK Borrowing Base Party, is not payable in Dollars, Pounds Sterling or Euros or, in the case of Accounts of any Canadian Borrowing Base Party, is not payable in Dollars or Canadian Dollars ; or

(xxii) with respect to the UK Borrowing Base Parties, Accounts regulated by the UK Consumer Credit Act of 1974 (as amended); or

(xxiii) with respect to the UK Borrowing Base Parties, the Accounts are governed by laws other than that of England and Wales; or

(xxiv) it is a LKE Account.

“ Eligible Cabin Fleet Inventory ” shall mean Eligible Goods Inventory of the UK Borrowing Base Parties, taken as a whole, consisting of Cabin Fleet Inventory, valued at the lower of the UK Borrowing Base Parties’ cost or Net Orderly Liquidation Value.

“ Eligible Canadian Account ” shall mean an Eligible Account of Canadian Company or another Canadian Borrowing Base Party.

“ Eligible Canadian Container Inventory Held For Sale ” shall mean Eligible Container Inventory Held For Sale of Canadian Company or another Canadian Borrowing Base Party.

“ Eligible Canadian Machinery and Equipment ” shall mean Eligible Machinery and Equipment of Canadian Company or another Canadian Borrowing Base Party.

-16-

 

“ Eligible Canadian Raw Materials Inventory ” shall mean Eligible Raw Materials Inventory of Canadian Company or another Canadian Borrowing Base Party.

“ Eligible Canadian Rental Fleet Inventory ” shall mean Eligible Rental Fleet Inventory of Canadian Company or another Canadian Borrowing Base Party.

“ Eligible Canadian Work-In-Process Container Inventory ” shall mean Eligible Work-In-Process Container Inventory of Canadian Company or another Canadian Borrowing Base Party.

“ Eligible Container Fleet Inventory ” shall mean Eligible Goods Inventory of the applicable Borrowing Base Parties, taken as a whole, consisting of Container Fleet Inventory, valued at the lower of the applicable Borrowing Base Parties’ cost or Net Orderly Liquidation Value, except for custom containers that are pre-sold and ISO containers that are pre-sold, which will be valued at the lower of the Borrowing Base Parties’ cost or sales invoice price.

“ Eligible Container Inventory Held For Sale ” shall mean Eligible Goods Inventory of the applicable Borrowing Base Parties, taken as a whole, consisting of (a) new and used manufactured or remanufactured portable and ISO containers and portable mobile offices held by such Borrowing Base Parties for intended sale to third parties, containers temporarily out of service and otherwise unrefurbished ISO units and (b) up to $15,000,000 (or the Equivalent Amount thereof) of containers used by such Borrowing Base Parties in the conduct of their business (and not held for sale or lease), each of which containers in clauses (a) and (b) shall be valued at the net book value thereof.

“ Eligible Goods Inventory ” shall mean all of the Inventory owned by one of the Borrowing Base Parties that comply in all material respects with each of the representations and warranties respecting such Inventory made in the Credit Documents, and that are not excluded as ineligible by one or more of the excluding criteria set forth below, and which the Administrative Agent shall have, in its Permitted Discretion, deemed to be Eligible Goods Inventory.  The Administrative Agent shall have the right to establish or modify Reserves against Eligible Goods Inventory from time to time in its Permitted Discretion on three Business Days’ prior written notice to US Company after consultation with US Company.  The amount of Eligible Goods Inventory shall be determined on a first-in, first-out basis; and Inventory “cost” shall be determined in a manner consistent with the respective Borrowing Base Parties’ current and historical accounting practices unless otherwise specifically provided in this Agreement.  Unless otherwise approved in writing by Administrative Agent, no Inventory shall be deemed Eligible Goods Inventory if:

(i) it is not owned solely by a Borrowing Base Party or a Borrowing Base Party does not have good, valid and marketable title thereto; or

(ii) it is not (A) with respect to a US Borrowing Base Party (x) located at one of the locations in the United States or Canada, in either case, set forth on Schedule 1.01(b) , or from and after the date hereof, another location maintained by US Company or any of its Subsidiaries in the United States or Canada (it being understood that, with respect to Inventory with a cost in excess of $1,000,000 located in any Province of Canada other than the Provinces of British Columbia, Alberta or Ontario, such Inventory must be subject to a valid and perfected First Priority Lien in favor of the Collateral Agent, enforceable on substantially the same basis as the Liens in favor of the Collateral Agent pursuant to the Security Documents over Inventory located in the United States (as reasonably determined by the Administrative Agent) and supported by such Additional Security Documents and opinions of counsel as the Administrative Agent may reasonably request, and with all actions required pursuant to Section 9.13(a) with respect to such Additional Security Documents having been completed), or (y) on lease with a customer in the ordinary course of business and located in the United States or Canada (it being understood that, with respect to Inventory located in Canada, such Inventory must be subject to a valid and perfected First Priority Lien in favor of the Collateral Agent, enforceable on substantially the same basis as the Liens in favor of the Collateral Agent pursuant to the Security Documents over Inventory located in the United States (as reasonably determined by the Administrative Agent) and supported by such Additional Security Documents and opinions of counsel as the Administrative Agent may reasonably request, and with all actions required pursuant to Section 9.13(a) with respect to such Additional Security Documents having been completed), (B) with respect to a UK Borrowing Base Party (x) located at one of the locations in the United Kingdom set forth on Schedule 1.01(c) , or from and after the date hereof, another location maintained by a UK Borrowing Base Party in the United Kingdom, or (y) on lease with a customer in the ordinary course of business and located in the United Kingdom or (C) with respect to a Canadian Borrowing Base Party, located at one of the locations in Canada set forth on Schedule 1.01(d) , or from and after the date hereof, another location maintained by a Canadian Borrowing Base Party in the United States or Canada (it being understood that, with respect to Inventory with a cost in excess of $1,000,000 located in any Province of Canada other than the Provinces of British Columbia, Alberta or Ontario, such Inventory must be subject to a valid and perfected First Priority Lien in favor of the Collateral Agent, enforceable on substantially the same basis as the Liens in favor of the Collateral Agent pursuant to the Security Documents over Inventory located in the Provinces of British Columbia, Alberta or Ontario (as reasonably determined by the

-17-

 

Administrative Agent) and supported by such Additional Security Documents and opinions of counsel as the Administrative Agent may reasonably request, and with all actions required pursuant to Section 9.13(a) with respect to such Additional Security Documents having been completed); or  

(iii) it is not subject to a valid and perfected First Priority Lien in favor of Collateral Agent except, with respect to Inventory stored at sites described in clause (ii) above, for Liens for unpaid rent or normal and customary warehousing charges; provided that this clause (iii) will not apply to either (A) Inventory represented by a Certificate of Title (such Inventory being subject to clause (xi) below) or (B) Inventory with a cost not in excess of $1,000,000 located in any Province of Canada other than the Provinces of British Columbia or Ontario, which such Inventory described in this clause (B) need not be subject to a First Priority Lien; or

(iv) it consists of goods returned or rejected by Borrowing Base Party’s or Affiliate’s customers or goods in transit to third parties; or

(v) it is not first-quality finished goods or work in process, is obsolete, or does not otherwise conform to the representations and warranties contained in the Credit Documents; or

(vi) it is subject to a lease which should be classified as a capital lease under GAAP or contains a purchase option for an amount less than the amount equal to the net book value; or

(vii) it cannot be located at the time of Borrowing Base Party’s physical inventory; or

(viii) it is subject to any third party retention of title or romalpa provision, unless a Reserve has been established by the Administrative Agent in respect of the UK Priority Claims related thereto in an amount equal to the value of such claims; or

(ix) it is Eligible Raw Materials Inventory or Eligible Machinery and Equipment; or

(x) it is damaged or defective and is not repairable; or

(xi) it is Inventory represented (or required to be represented) by a Certificate of Title unless the Credit Parties shall have complied with Article 6 of the US Security Agreement; or

(xii) it has not been appraised by the Appraiser with an appraisal in form and substance satisfactory to Administrative Agent and reasonably satisfactory to the Required Lenders and it is not of an identical kind or type of Inventory that has been appraised.

“ Eligible Inventory ” shall mean Eligible Goods Inventory and Eligible Raw Materials Inventory.

“ Eligible Machinery and Equipment ” shall mean all of the Equipment owned by a Borrowing Base Party in the ordinary course of business and which complies in all material respects with the representations and warranties respecting Eligible Machinery and Equipment made in the Credit Documents and that are not excluded as ineligible by virtue of one or more of the exclusionary criteria set forth below.  The Administrative Agent shall have the right to establish or modify Reserves against Eligible Machinery and Equipment from time to time in its Permitted Discretion on three Business Days’ prior written notice to US Company after consultation with US Company.  Eligible Machinery and Equipment shall be valued at its Net Orderly Liquidation Value.  Without limiting the generality of the foregoing, unless otherwise approved in writing by Administrative Agent, no Equipment shall be deemed Eligible Machinery and Equipment if:

(i) it is not owned solely by a Borrowing Base Party or a Borrowing Base Party does not have good, valid and marketable title thereto; or

(ii) it is not (A) with respect to a US Borrowing Base Party, located at one of the locations in the United States or Canada set forth on Schedule 1.01(b) , or from and after the date hereof, another location maintained by US Company or one of its Subsidiaries in the United States or Canada (it being understood that, with respect to Equipment located in any Province of Canada other than the Provinces of British Columbia, Alberta or Ontario, such Equipment must be subject to a valid and perfected First Priority Lien in favor of the Collateral Agent, enforceable on substantially the same basis as the Liens in favor of the Collateral Agent pursuant to the Security Documents over Equipment located in the United States (as reasonably determined by the Administrative Agent) and supported by such Additional Security Documents and opinions of

-18-

 

counsel as the Administrative Agent may reasonably request, and with all actions required pursuant to Section 9.13(a) with respect to such Additional Security Documents having been completed), (B) with respect to a UK Borrowing Base Party, located at one of the locations in the United Kingdom set forth on Schedule 1.01(c) , or from and after the date hereof, another location maintained by a UK Borrowing Base Party in the United Kingdom or (C) with respect to a Canadian Borrowing Base Party, located at one of the locations in Canada set forth on Schedule 1.01(d) , or from and after the date hereof, another location maintained by a Canadian Borrowing Base Party in the United States or Canada (it being understood that, with respect to Equipment located in the United States or any Province of Canada other than the Provinces of British Columbia, Alberta or Ontario, such Equipment must be subject to a valid and perfected First Priority Lien in favor of the Collateral Agent, enforceable on substantially the same basis as the Liens in favor of the Collateral Agent pursuant to the Security Documents over Equipment located in the Provinces of British Columbia, Alberta or Ontario (as reasonably determined by the Administrative Agent) and supported by such Additional Security Documents and opinions of counsel as the Administrative Agent may reasonably request, and with all actions required pursuant to Section 9.13(a) with respect to such Additional Security Documents having been completed); or  

(iii) it is not subject to a valid and perfected First Priority Lien in favor of Collateral Agent except, with respect to Equipment stored at sites described in clause (ii) above, for Liens for unpaid rent or normal and customary warehousing charges; provided that this clause (iii) will not apply to Equipment represented by a Certificate of Title (such Equipment being subject to clause (v) below); or

(iv) it has not been appraised by the Appraiser with an appraisal in form and substance satisfactory to Administrative Agent and reasonably satisfactory to the Required Lenders and it is not of an identical kind or type of Equipment that has been appraised; or

(v) it is Equipment represented (or required to be represented) by a Certificate of Title or constitutes Serial Numbered Equipment unless the Credit Parties shall have complied with Article 6 of the US Security Agreement; or

(vi) it is Eligible Goods Inventory.

“ Eligible Raw Materials Inventory ” shall mean Inventory of a Borrowing Base Party, purchased from third parties consisting of steel, lumber, plywood, paint, drywall, plumbing materials and fixtures, electrical components, insulation materials, HVAC materials, doors and windows, and fasteners, valued at the applicable Borrowing Base Party’s cost (except, in the case of steel, lumber, plywood, paint, where, for purposes of fiscal year end calculations, the value will be the lower of the applicable Borrowing Base Party’s cost or market), which Administrative Agent, in its Permitted Discretion, deems to be Eligible Raw Materials Inventory.  The amount of Raw Materials Inventory shall be determined on a first-in, first-out basis.  Without limiting the generality of the foregoing, unless otherwise approved in writing by Administrative Agent, no Inventory shall be deemed Eligible Raw Materials Inventory if:

(i) it is not owned solely by a Borrowing Base Party or a Borrowing Base Party does not have good, valid and marketable title thereto; or

(ii) it is not (A) with respect to a US Borrowing Base Party, located at one of the locations in the United States or Canada set forth on Schedule 1.01(b) , or from and after the date hereof, another location maintained by US Company or one of its Subsidiaries in the United States or Canada (it being understood that, with respect to Inventory located in any Province of Canada other than the Provinces of British Columbia, Alberta or Ontario, such Inventory must be subject to a valid and perfected First Priority Lien in favor of the Collateral Agent, enforceable on substantially the same basis as the Liens in favor of the Collateral Agent pursuant to the Security Documents over Inventory located in the United States (as reasonably determined by the Administrative Agent) and supported by such Additional Security Documents and opinions of counsel as the Administrative Agent may reasonably request, and with all actions required pursuant to Section 9.13(a) with respect to such Additional Security Documents having been completed), (B) with respect to a UK Borrowing Base Party, it is not located at one of the locations in the United Kingdom set forth on Schedule 1.01(c) , or from and after the date hereof, another location maintained by a UK Borrowing Base Party in the United Kingdom or (C) with respect to a Canadian Borrowing Base Party, located at one of the locations in Canada set forth on Schedule 1.01(d) , or from and after the date hereof, another location maintained by a Canadian Borrowing Base Party in the United States or Canada (it being understood that, with respect to Inventory located in the United States or any Province of Canada other than the Provinces of British Columbia, Alberta or Ontario, such Inventory must be subject to a valid and perfected First Priority Lien in favor of the Collateral Agent, enforceable on substantially the same basis as the Liens in favor of the Collateral Agent pursuant to the Security Documents over Inventory located in the Provinces of British Columbia or Ontario (as reasonably determined by the Administrative Agent) and supported by such Additional Security Documents and opinions of counsel as the Administrative

-19-

 

Agent may reasonably request, and with all actions required pursuant to Section 9.13(a) with respect to such Additional Security Documents having been completed); or  

(iii) it is not subject to a valid and perfected First Priority Lien in favor of Collateral Agent except, with respect to Inventory stored at sites described in clause (ii) above, for Liens for unpaid rent or normal and customary warehousing charges; or

(iv) it is not first-quality raw materials, is obsolete or slow moving, or does not otherwise conform to the representations and warranties contained in the Credit Documents; or

(v) it is Eligible Goods Inventory or Eligible Machinery and Equipment; or

(vi) it is subject to any third party retention of title or romalpa provision, unless a Reserve has been established by the Administrative Agent in respect of the UK Priority Claims related thereto in an amount equal to the value of such claims.

“ Eligible Real Property ” shall mean all of the Real Property owned by a US Borrowing Base Party in the ordinary course of business and which complies in all material respects with the representations and warranties respecting Real Property made in the Credit Documents and that are not excluded as ineligible by virtue of one or more of the exclusionary criteria set forth below.  The Administrative Agent shall have the right to establish or modify Reserves against Eligible Real Property from time to time in its Permitted Discretion on three Business Days’ prior written notice to US Company after consultation with US Company.  Eligible Real Property shall be valued at its Appraised Fair Market Value.  Without limiting the generality of the foregoing, unless otherwise approved in writing by Administrative Agent, no Real Property shall be deemed Eligible Real Property if:

(i) it is not owned solely by a US Borrowing Base Party or a US Borrowing Base Party does not have good record and valid and marketable title in fee simple thereto; or

(ii) it is not located in the United States; or

(iii) it is not subject to a valid and perfected First Priority Lien, subject only to any Permitted Encumbrances, pursuant to a Mortgage in form and substance satisfactory to the Administrative Agent, in favor of the Administrative Agent or the Collateral Agent on behalf of itself and the Secured Creditors; or

(iv) it has not been appraised by the Appraiser with a FIRREA-compliant appraisal satisfactory to Administrative Agent; or

(v) it is not designated as “Eligible Real Property” on Schedule 1.01(e) , as amended from time to time with the consent of Administrative Agent; or

(vi) it is not covered by a Mortgage Policy with respect to the Lien of the Collateral Agent and casualty and property insurance, in each case reasonably acceptable to the Administrative Agent; or

(vii) environmental due diligence reasonably satisfactory to the Administrative Agent has not been completed with respect to such Real Property; or

(viii) an opinion of counsel for the Credit Party which is the owner of the Real Property has not been delivered to the Administrative Agent, in a form, scope and substance reasonably satisfactory to the Administrative Agent and its counsel, if reasonably requested by the Administrative Agent; or

(ix) a customary certificate in a form reasonably acceptable to the Administrative Agent has not been obtained indicating that the property is not in a flood zone, or if the property is in a flood zone, appropriate insurance reasonably acceptable to the Administrative Agent has not been obtained.

“ Eligible Rental Fleet Inventory ” shall mean (w) Eligible Cabin Fleet Inventory, (x) Eligible Container Fleet Inventory, (y) Eligible Trailer Fleet Inventory and (z) any other rental storage fleet Inventory or rental mobile office Inventory acquired and used in compliance with Section 10.17 , in each case, valued at the lower of cost or Net Orderly Liquidation Value, excluding in each case any Inventory that is not manufactured in accordance with and does not meet all standards imposed by all

-20-

 

requirements of law or by any governmental authority having regulatory authority over such goods or their manufacture, use, sale, or lease .

“ Eligible Trailer Fleet Inventory ” shall mean Eligible Goods Inventory consisting of Trailer Fleet Inventory, excluding any Inventory that is not manufactured in accordance with and does not meet all standards imposed by all requirements of law or by any governmental authority having regulatory authority over such goods or their manufacture, use, sale, or lease.

“ Eligible Transferee ” shall mean and include a commercial bank, an insurance company, a finance company, a financial institution, any fund that invests in loans or any other “accredited investor” (as defined in Regulation D of the Securities Act) other than a natural Person, but in any event excluding US Company and its Subsidiaries and Affiliates.

“ Eligible UK Account ” shall mean an Eligible Account of UK Company or another UK Borrowing Base Party.

“ Eligible UK Container Inventory Held For Sale ” shall mean Eligible Container Inventory Held For Sale of the UK Borrowing Base Parties, taken as a whole.

“ Eligible UK Machinery and Equipment ” shall mean Eligible Machinery and Equipment of the UK Borrowing Base Parties, taken as a whole.

“ Eligible UK Raw Materials Inventory ” shall mean Eligible Raw Materials Inventory of the UK Borrowing Base Parties, taken as a whole.

“ Eligible UK Rental Fleet Inventory ” shall mean Eligible Rental Fleet Inventory of the UK Borrowing Base Parties, taken as a whole.

“ Eligible UK Work-In-Process Container Inventory ” shall mean Eligible Work-In-Process Container Inventory of the UK Borrowing Base Parties, taken as a whole.

“ Eligible US Account ” shall mean an Eligible Account of US Company or another US Borrowing Base Party.

“ Eligible US Container Inventory Held For Sale ” shall mean Eligible Container Inventory Held For Sale of the US Borrowing Base Parties, taken as a whole.

“ Eligible US Machinery and Equipment ” shall mean Eligible Machinery and Equipment of the US Borrowing Base Parties, taken as a whole.

“ Eligible US Raw Materials Inventory ” shall mean Eligible Raw Materials Inventory of the US Borrowing Base Parties, taken as a whole.

“ Eligible US Rental Fleet Inventory ” shall mean Eligible Rental Fleet Inventory of the US Borrowing Base Parties, taken as a whole.

“ Eligible US Work-In-Process Container Inventory ” shall mean Eligible Work-In-Process Container Inventory of the US Borrowing Base Parties, taken as a whole.

“ Eligible Work-In-Process Container Inventory ” shall mean Eligible Goods Inventory, valued at net book value, consisting of: (a) new and used manufactured or remanufactured portable containers, which is in the work-in-process phase of manufacturing; (b) shaped steel component parts; or (c) sub-assemblies.

“ End Date ” shall have the meaning provided in the definition of Applicable Margin.

“ Environmental Claims ” shall mean any and all administrative, regulatory or judicial actions, suits, demands, demand letters, directives, claims, liens, notices of noncompliance or violation, investigations or proceedings relating in any way to any Environmental Law or any permit issued, or any approval given, under any such Environmental Law (hereafter, “ Claims ”), including, without limitation, (a) any and all Claims by Governmental Authorities for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law, and (b) any and all Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief in connection with alleged injury or threat of injury to health, safety or the environment due to the presence of Hazardous Materials.

-21-

 

“ Environmental Law ” shall mean any Federal, state, provincial, foreign or local statute, law, rule, regulation, ordinance, code, enforceable guideline or policy, and rule of common law now or hereafter in effect and in each case as amended, and any binding or enforceable judicial or administrative interpretation thereof, including any judicial or administrative order, agreement, consent decree or judgment, relating to Hazardous Materials, the environment, or employee health and safety, including, without limitation, CERCLA; the Resource Conservation and Recovery Act, 42 USC § 6901 et seq.; the Federal Water Pollution Control Act, 33 USC. § 1251 et seq.; the Toxic Substances Control Act, 15 USC. § 2601 et seq.; the Clean Air Act, 42 USC. § 7401 et seq.; the Safe Drinking Water Act, 42 USC. § 3803 et seq.; the Oil Pollution Act of 1990, 33 USC. § 2701 et seq.; the Emergency Planning and the Community Right-to-Know Act of 1986, 42 USC. § 11001 et seq.; the Hazardous Material Transportation Act, 49 USC. § 1801 et seq.; the Occupational Safety and Health Act, 29 USC. §651 et seq.; and any state, provincial and local or foreign counterparts or equivalents in any jurisdiction, in each case as amended from time to time.

“ EPCRS ” shall have the meaning provided in Section 8.23(a) .

“ Equipment ” shall mean all machinery, apparatus, equipment, motor vehicles and other similar assets (other than Inventory) used in the operations of the US Company or any of its Subsidiaries or owned by the US Company or any of its Subsidiaries or in which the US Company or any of its Subsidiaries has an interest, whether now owned or hereafter acquired by a Borrower or any of its Subsidiaries or Affiliates and wherever located, and all parts, accessories and special tools and all increases and accessions thereto and substitutions and replacements therefore.

“ Equity Interests ” of any Person shall mean any and all shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interest in (however designated) equity of such Person, including any common stock, preferred stock, any limited or general partnership interest and any limited liability company membership interest.

“ Equivalent Amount ” shall mean (i) the equivalent amount in US Dollars of any amount expressed in Pounds Sterling, Euros or Canadian Dollars, as the case may be, as determined by Administrative Agent on the  date of determination on the basis of the Spot Rate for the purchase of US Dollars with Pounds Sterling, Euros or Canadian Dollars, as the case may be, on the relevant Computation Date provided for hereunder; or (ii) the equivalent amount in Pounds Sterling, Euros or Canadian Dollars, as the case may be, of any amount expressed in US Dollars as determined by Administrative Agent on the date of determination on the basis of the Spot Rate for the purchase of Pounds Sterling, Euros or Canadian Dollars, as the case may be, with Dollars on the relevant Computation Date provided for hereunder.

“ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.  Section references to ERISA are to ERISA, as in effect at the date of this Agreement and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.

“ ERISA Affiliate ” shall mean each person (as defined in Section 3(9) of ERISA) which together with any Credit Party would be deemed to be a “single employer” within the meaning of Section 414(b) or (c) of the Code, and for the purpose of Section 302 of ERISA and/or Section 412, 4971, 4977 and/or each “applicable section” under Section 414(t)(2) of the Code, within the meaning of Section 414(b), (c), (m) or (o) of the Code.

“ Euro ” and “ € ” means the single currency of the Participating Member States.

“ EURIBOR ” shall mean, for each Interest Period:

(a) the Euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) displayed on page EURIBOR01 of the Thompson Reuters screen (or any replacement Thompson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thompson Reuters, at 11:00 a.m. (Brussels time) two Business Days before the first day of such Interest Period, with respect to deposits in Euros on the European interbank market amongst leading banks for a period equivalent to such Interest Period; and

(b) if no rate is available as described above with respect to an Interest Period applicable to UK Revolving Loans, the annual rate determined by the Administrative Agent as being equal to the arithmetic mean (rounded up if necessary to the nearest four decimal places) of the rates supplied to the Administrative Agent by four (4) reference banks selected by the Administrative Agent in the European interbank market, at approximately 3:00 p.m. (Brussels time) three Business Days before the first day of such Interest Period as quoted by the respective reference banks to leading banks on the European interbank market for deposits in Euros, for a period equivalent to such Interest Period and starting on the first day of such Interest Period and for an amount comparable to the amount of such EURIBOR Loan.

-22-

 

If the EURIBOR is replaced by a similar or equivalent interest rate, or in the event of a change affecting the entity which publishes the EURIBOR or the terms of its publication, the corresponding modified or replacement interest rate shall automatically apply in accordance with the foregoing paragraphs and any reference herein to “EURIBOR” shall be deemed to be a reference to such rate.

For the avoidance of doubt, if the EURIBOR rate is calculated to be less than zero, EURIBOR shall be deemed to be zero.

“ EURIBOR Loan ” shall mean each UK Revolving Loan denominated in Euros bearing interest at a rate determined by reference to EURIBOR.

“ Euro Denominated Revolving Loan ” shall have the meaning set forth in Section 2.01(b) hereof.

“ Euro Funding Capacity ” shall mean, for any Lender, the ability of such Lender or an Affiliate or branch office thereof to fund UK Revolving Loans denominated in Euros, as set forth in the records of Administrative Agent.

“ Euro Funding Capacity Lender ” shall mean each Lender other than (i) in the case of each Lender as of the Effective Date, each Lender that shall have confirmed in writing, to the satisfaction of the Administrative Agent, on or prior to the Effective Date, that neither it nor any domestic or foreign branch or Affiliate of such Lender has the ability to fund UK Revolving Loans denominated in Euros and (ii) in the case of each Lender after the Effective Date, each Lender that shall have confirmed in writing, to the satisfaction of the Administrative Agent, on or prior to the date such Lender becomes a Lender hereunder, that neither it nor any domestic or foreign branch or Affiliate of such Lender has the ability to fund UK Revolving Loans denominated in Euros, in each case until such time as such Lender shall have confirmed in writing to the Administrative Agent that it or any domestic or foreign branch or Affiliate of such Lender does have the ability to fund UK Revolving Loans denominated in Euros.

“ Event of Default ” shall have the meaning provided in Section 11 .  

“ Excluded Swap Obligation ” means, with respect to any 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 (determined after giving effect to Section 15.11 and any other “keepwell, support or other agreement” for the benefit of such Guarantor and any and all guarantees of such  Guarantor’s Swap Obligations by other Credit Parties) at the time the Guarantee of such Guarantor, or a grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master 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 excluded in accordance with the first sentence of this definition.

“ Executive Order ” shall have the meaning provided in Section 8.33(a) .

“ Existing Credit Agreement ” shall have the meaning provided in the Recitals.

“ Existing Indebtedness ” shall have the meaning provided in Section 8.30 .

“ Existing Indebtedness Agreements ” shall mean all agreements evidencing or relating to Indebtedness of US Company or any of its Subsidiaries which is to remain outstanding after giving effect to the Transactions.

“ Existing Canadian Letter of Credit ” shall have the meaning provided in Section 3.03(c) .

“ Existing UK Letter of Credit ” shall have the meaning provided in Section 3.02(c) .

“ Existing US Letter of Credit ” shall have the meaning provided in Section 3.01(c) .

“ Expenses ” shall mean all present and future reasonable and invoiced expenses incurred by or on behalf of the Administrative Agent, the Collateral Agent or any Issuing Lender in connection with this Agreement, any other Credit Document or otherwise in its capacity as the Administrative Agent under this Agreement or the Collateral Agent under any Security Document or as an Issuing Lender under this Agreement, whether incurred heretofore or hereafter, which expenses shall include, without limitation, the cost of record searches, the reasonable fees and expenses of attorneys and paralegals, all reasonable and invoiced costs and

-23-

 

expenses incurred by the Administrative Agent (and the Collateral Agent) in opening bank accounts, depositing checks, electronically or otherwise receiving and transferring funds, and any other charges imposed on the Administrative Agent (and the Collateral Agent) due to insufficient funds of deposited checks and the standard fee of the Administrative Agent (and the Collateral Agent) relating thereto, collateral examination fees and expenses, reasonable fees and expenses of accountants, appraisers or other consultants, experts or advisors employed or retained by the Administrative Agent and the Collateral Agent, fees and Other Taxes related to the filing of financing statements, costs of preparing and recording any other Credit Documents, all expenses, costs and fees set forth in this Agreement and the other Credit Documents, all other fees and expenses required to be paid pursuant to any other letter agreement and all fees and expenses incurred in connection with releasing Collateral and the amendment or termination of any of the Credit Documents.

“ Facing Fee ” shall have the meaning provided in Section 4.01(c) .

“ Fair Market Value ” shall mean, with respect to any asset (including any Equity Interests of any Person), the price at which a willing buyer, not an Affiliate of the seller, and a willing seller who does not have to sell, would agree to purchase and sell such asset, as determined in good faith by the board of directors or other governing body or, pursuant to a specific delegation of authority by such board of directors or other governing body, a designated senior executive officer, of US Company, or the Subsidiary of US Company selling such asset.

“ FATCA ” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof, any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of the foregoing, and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

“ FDIC ” shall have the meaning specified in Section 10.07(e)

“ Federal Funds Rate ” shall mean, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal Funds transactions with members of the Federal Reserve System arranged by Federal Funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal Funds brokers of recognized standing selected by the Administrative Agent.

“ Fees ” shall mean all amounts payable pursuant to or referred to in Section 4.01 .

“ Final Maturity Date ” shall mean the earlier of (x) December 14, 2020 and (y) the date that is 90 days prior to the final maturity date (as set forth in the Mobile Mini 2020 Indenture) of the Mobile Mini 2020 Senior Notes if the Mobile Mini 2020 Senior Notes remain outstanding on such date.

“ First Priority ” shall mean, with respect to any Lien purported to be created on any Collateral pursuant to any Security Document, that such Lien is prior in right to any other Lien thereon, other than any Permitted Liens applicable to such Collateral which as a matter of law have priority over the respective Liens on such Collateral created pursuant to the relevant Security Document.

“ Fixed Charge Coverage Ratio ” shall mean as of any date of determination, the ratio of (i) Consolidated Net Cash Flow for the four fiscal quarters ending on such date to (ii) Fixed Charges.

“ Fixed Charges ” shall mean as of any date of determination, the sum of Interest Expense for the four fiscal quarters ending on such date plus the principal payments with respect to Funded Debt (other than payments of Revolving Loans) made during the four fiscal quarters ending on such date.  

“ Flood Insurance Laws ” shall mean, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) The Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto, in each case, together with all statutory and regulatory provisions consolidating, amending, replacing, supplementing, implementing or interpreting any of the foregoing.

-24-

 

“ Foreign Account ” shall mean each account of any Credit Party established at a bank, other than in the United States, Canada or the United Kingdom set forth on Part F of Schedule 10.18 .

“ Foreign Pension Plan ” shall mean any plan, fund (including, without limitation, any superannuation fund) or other similar program established or maintained outside the United States by any Credit Party or any of its Subsidiaries primarily for the benefit of employees of any Credit Party or any such Subsidiaries residing outside the United States, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.

“ Foreign Subsidiary ” shall mean any Subsidiary of US Company that is not a Domestic Subsidiary.

“ Fronting Exposure ” means, at any time there is a Defaulting Lender, (a) with respect to each Issuing Lender, such Defaulting Lender’s RL Percentage of the outstanding Letter of Credit Outstandings other than Letter of Credit Outstandings as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s RL Percentage of Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders in accordance with the terms hereof.

“ Funded Debt ” shall mean, without duplication, (i) Indebtedness arising from the lending of money by any Person to US Company or any of its Subsidiaries; (ii) Indebtedness, whether or not in any such case arising from the lending by any Person of money to US Company or any of its Subsidiaries, (1) which is represented by notes payable or drafts accepted that evidence extensions of credit, (2) which constitutes obligations evidenced by bonds, debentures, notes or similar instruments, or (3) upon which interest charges are customarily paid (other than accounts payable) or that was issued or assumed as full or partial payment for Property; (iii) Indebtedness that constitutes a Capitalized Lease Obligation; (iv) reimbursement obligations with respect to letters of credit or guaranties of letters of credit; and (v) Indebtedness of US Company or any of its Subsidiaries under any guaranty of obligations that would constitute Funded Debt under clauses (i) through (iv) hereof, if owed directly by US Company or any of its Subsidiaries.  Funded Debt shall not include trade payables or accrued expenses or Indebtedness (other than Indebtedness under this Agreement) of up to the amount permitted pursuant to Section 10.05(g) incurred to finance insurance premiums.

“ GAAP ” shall mean generally accepted accounting principles in the United States as in effect from time to time.

“ General Intangibles ” shall mean “general intangibles” as such term is defined in Article 9 of the UCC.

“ Governmental Authority ” shall mean the government of the United States, the United Kingdom, Canada, any other nation or any political subdivision thereof, whether state, provincial, territorial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, in each case, in any jurisdiction.

“ Guarantees ” shall mean the guarantees issued pursuant to Section 15 .

“ Guarantor ” shall mean each US Guarantor and each Non-US Obligation Guarantor.

“ Hazardous Materials ” shall mean (a) any petroleum or petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, dielectric fluid containing levels of polychlorinated biphenyls, and radon gas; (b) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “hazardous waste,” “hazardous materials,” “extremely hazardous substances,” “restricted hazardous waste,” “toxic substances,” “toxic pollutants,” “contaminants,” or “pollutants,” or words of similar import, under any applicable Environmental Law; and (c) any other chemical, material or substance, the exposure to, or Release of which is prohibited, limited or regulated by any Governmental Authority.

“ Highest Adjustable Applicable Margins ” shall have the meaning provided in the definition of Applicable Margin.

“ Immaterial Subsidiary ” shall mean, as of any date of determination, any Subsidiary that as of such time has (i) consolidated total assets with a book value of $5,000,000 or less and (ii) consolidated revenues of $5,000,000 or less for the most recently ended period of four consecutive fiscal quarters; provided that all such Subsidiaries in the aggregate may not have (i) consolidated total assets with a book value in excess of $25,000,000 or (ii) consolidated revenues in excess of $25,000,000 for the most recently ended period of four consecutive fiscal quarters; provided , further that notwithstanding anything in this Agreement or any other Credit Document to the contrary, in no event shall any Immaterial Subsidiary be required to become a Guarantor hereunder;

-25-

 

provided , further that notwithstanding the foregoing, any Subsidiary that guarantees the payment of the Senior Notes shall not be an Immaterial Subsidiary.  

“ Incremental Commitment ” shall mean, for any Lender, any Revolving Loan Commitment provided by such Lender after the Effective Date in an Incremental Commitment Agreement delivered pursuant to Section 2.15 ; it being understood, however, that on each date upon which an Incremental Commitment of any Lender becomes effective, such Incremental Commitment of such Lender shall be added to (and thereafter become a part of) the Revolving Loan Commitment of such Lender for all purposes of this Agreement as contemplated by Section 2.15 .

“ Incremental Commitment Agreement ” shall mean each Incremental Commitment Agreement in substantially the form of Exhibit D (appropriately completed, and with such modifications as may be satisfactory to the Administrative Agent) executed and delivered in accordance with Section 2.15 .

“ Incremental Commitment Date ” shall mean each date upon which an Incremental Commitment under an Incremental Commitment Agreement becomes effective as provided in Section 2.15(b) .

“ Incremental Commitment Requirements ” shall mean, with respect to any provision of an Incremental Commitment on a given Incremental Commitment Date, the satisfaction of each of the following conditions on or prior to the effective date of the respective Incremental Commitment Agreement:  (i) no Default or Event of Default then exists or would result therefrom; (ii) all of the representations and warranties contained herein and in the other Credit Documents are true and correct in all material respects at such time (it being understood and agreed that (x) any representations and warranties stated to relate to a specific earlier date shall have been true and correct in all material respects as of such earlier date and (y) any representations and warranties qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects at such time); (iii) the delivery by US Company to the Administrative Agent of an acknowledgement in form and substance reasonably satisfactory to the Administrative Agent and executed by each other Credit Party, acknowledging that such Incremental Commitment and all Revolving Loans subsequently incurred, and Letters of Credit issued, pursuant to such Incremental Commitment shall constitute (and be included in the definitions of) Obligations and be secured on a pari passu basis with the Obligations under the relevant Security Documents; (iv) the delivery by US Company to the Administrative Agent of an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, from counsel to the Credit Parties reasonably satisfactory to the Administrative Agent and dated such date, covering such matters incident to the transactions contemplated thereby as the Administrative Agent may reasonably request; (v) the delivery by each Credit Party to the Administrative Agent of such other officers’ certificates, board of director (or equivalent governing body) resolutions and evidence of good standing (to the extent available under Applicable Law) as the Administrative Agent shall reasonably request; and (vi) the completion by each Credit Party of such other actions as the Administrative Agent may reasonably request in connection with such Incremental Commitment in order to create, continue or maintain the Liens of the Collateral Agent in the Collateral and the perfection thereof (including, without limitation, any mortgage amendments, Mortgage Policies and such other documents reasonably requested by the Administrative Agent to be delivered in connection therewith).

“ Incremental Lender ” shall have the meaning specified in Section 2.15(b) .

“ Indebtedness ” shall mean, as to any Person, without duplication, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services, (b) the maximum amount available to be drawn or paid under all letters of credit, bankers’ acceptances, bank guaranties, surety and appeal bonds and similar obligations issued for the account of such Person and all unpaid drawings and unreimbursed payments in respect of such letters of credit, bankers’ acceptances, bank guaranties, surety and appeal bonds and similar obligations, (c) all indebtedness of the types described in clause (a), (b), (d), (e), (f), (g) or (h) of this definition secured by any Lien on any property owned by such Person, whether or not such indebtedness has been assumed by such Person ( provided that, if the Person has not assumed or otherwise become liable in respect of such indebtedness, such indebtedness shall be deemed to be in an amount equal to the Fair Market Value of the property to which such Lien relates), (d) all Capitalized Lease Obligations of such Person, (e) all obligations of such Person to pay a specified purchase price for goods or services, whether or not delivered or accepted, i.e., take-or-pay and similar obligations, (f) all Contingent Obligations of such Person, (g) all obligations under any Interest Rate Protection Agreement, any Other Hedging Agreement or under any similar type of agreement and (h) all Off-Balance Sheet Liabilities of such Person.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is directly liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.  Notwithstanding the foregoing, Indebtedness shall not include trade payables, accrued expenses and deferred tax and other credits incurred by any Person in accordance with customary practices and in the ordinary course of business of such Person.

“ Indemnified Person ” shall have the meaning provided in Section 13.01 .

-26-

 

“ Indemnified Taxes ” shall have the meaning provided in Section 5.04 .

“ Individual Exposure ” of any Lender shall mean, at any time, the sum of (a) the aggregate principal amount of all Revolving Loans made by such Lender and then outstanding, (b) such Lender’s RL Percentage of the aggregate principal amount of all Swingline Loans then outstanding and (c) such Lender’s RL Percentage of the aggregate amount of all Letter of Credit Outstandings at such time.

“ Initial Post-Closing Availability Certificate ” shall have the meaning provided in the definition of “Applicable Margin.”

“ Interest Determination Date ” shall mean, (i) with respect to any LIBOR Loan that is a Canadian LIBOR Loan, the date of commencement of any Interest Period relating to such Canadian LIBOR Loan, or (ii) with respect to any EURIBOR Loan or any LIBOR Loan that is not a Canadian LIBOR Loan, the second Business Day prior to the commencement of any Interest Period relating to such LIBOR Loan or EURIBOR Loan.

“ Interest Expense ” shall mean for the applicable period the sum (without duplication) of (a) the aggregate of the interest expense of US Company and its Subsidiaries determined on a consolidated basis in accordance with GAAP, including, without limitation, (i) any amortization of debt discount and amortization or write-off of deferred financing costs, (ii) the net costs under obligations in respect of any Interest Rate Protection Agreements incurred in the fiscal quarter beginning after the Effective Date, (iii) all capitalized interest and (iv) the interest portion of any deferred payment obligation, plus (b) the interest component of any Capitalized Lease Obligation paid, accrued and/or scheduled to be paid or accrued by US Company and its Subsidiaries during such period as determined on a consolidated basis in accordance with GAAP, minus (c) interest income for such period, minus (d) in each case, to the extent included in Interest Expense for such period and without duplication, the sum of (i) any debt discounts, one-time financing fees or the amortization thereof, including such fees paid in connection with the Transactions, any amendment, consent or waiver to the Credit Documents, any Indebtedness not otherwise prohibited under this Agreement, or any amendment to or refinancing of such Indebtedness plus (ii) any costs associated with payment premiums, breakage costs, make-whole fees or similar costs or expenses payable in connection with any refinancing, repurchase, repayment or other satisfaction of Indebtedness not otherwise prohibited under this Agreement (including any such costs relating to the Transactions).

“ Interest Period ” shall have the meaning provided in Section 2.09 .

“ Interest Rate Protection Agreement ” shall mean any interest rate swap agreement, interest rate cap agreement, interest collar agreement, interest rate hedging agreement or other similar agreement or arrangement.

“ Inventory ” shall mean “inventory” as such term is defined in Article 9 of the UCC.

“ Investments ” shall mean all expenditures made and all liabilities incurred (including Contingent Obligations) for or in connection with the acquisition of Equity Interests or Indebtedness of a Person, loans, advances, capital contributions or transfers of property to a Person, or acquisition of substantially all the assets of a Person or of a line of business or division of a Person.  In determining the aggregate amount of Investments outstanding at any particular time, (i) a guaranty shall be valued at not less than the principal amount guaranteed and outstanding; (ii) returns of capital (but only by repurchase, redemption, retirement, repayment, liquidating dividend or liquidating distribution) shall be deducted; (iii) earnings, whether as dividends, interest or otherwise, shall not be deducted; and (iv) decreases in the market value shall not be deducted.

“ Issuing Lender ” shall mean each US Issuing Lender, each UK Issuing Lender and each Canadian Issuing Lender.

“ Joinder Agreement ” shall mean a Joinder Agreement substantially in the form of Exhibit E (appropriately completed).

“ Joint Bookrunners ” shall mean collectively, Deutsche Bank Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC, Barclays Bank PLC and Bank of the West.

“ Landlord Personal Property Collateral Access Agreement ” shall mean a Landlord Waiver and Consent Agreement in form and substance satisfactory to the Administrative Agent.

“ Leaseholds ” of any Person shall mean all the right, title and interest of such Person as lessee or licensee in, to and under leases or licenses of land, improvements and/or fixtures.

-27-

 

“ Lender ” shall mean each financial institution listed on Schedule 1.01(a) , as well as any Person that becomes a “Lender” hereunder pursuant to Section 2.13 , 2.15 or 13.04(b) .

“ Letter of Credit ” shall mean each US Letter of Credit, each UK Letter of Credit and each Canadian Letter of Credit.

“ Letter of Credit Borrowing ” shall mean an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Loan.

“ Letter of Credit Commitment ” shall mean, as to any Issuing Lender, its commitment to issue Letters of Credit, and to amend, increase or extend Letters of Credit previously issued by it, in an aggregate Stated Amount (which for any Letter of Credit shall be deemed to be the Stated Amount of such Letter of Credit in effect at such time; provided , however , that with respect to any Letter of Credit that, by its terms or the terms of any document related thereto, provides for one or more automatic increases in the Stated Amount thereof, the Stated Amount of such Letter of Credit shall be deemed to be the amount of the maximum Stated Amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum Stated Amount is in effect at such time), in Dollars or the Equivalent Amount thereof, at any time outstanding not to exceed (a) in the case of any Issuing Lender party hereto as of the Effective Date, the amount set forth opposite such Issuing Lender’s name on Schedule 1.01(a) under the heading “Letter of Credit Commitments”; and (b) in the case of any Lender that becomes an Issuing Lender hereunder thereafter, the amount which shall be set forth in the written agreement by which such Lender shall become an Issuing Lender hereunder and an updated Schedule 1.01(a) , in each case as such commitment may be changed from time to time pursuant to the terms hereof or with the agreement in writing of such Issuing Lender, US Company and the Administrative Agent.    

“ Letter of Credit Exposure ” shall mean, at any time, the aggregate amount of all Letter of Credit Outstandings at such time in respect of Letters of Credit. The Letter of Credit Exposure of any Lender at any time shall be its RL Percentage of the aggregate Letter of Credit Exposure at such time.

“ Letter of Credit Fee ” shall mean each of the US Letter of Credit Fee, the UK Letter of Credit Fee and the Canadian Letter of Credit Fee.

“ Letter of Credit Outstandings ” shall mean, at any time, the sum of the US Letter of Credit Outstandings, the UK Letter of Credit Outstandings and the Canadian Letter of Credit Outstandings.

“ LIBOR ” shall mean with respect to any Interest Period, the rate of interest appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any successor to such service as determined by the Administrative Agent) as the London interbank offered rate administered by ICE Benchmark Administration Limited, or a comparable or successor rate, which rate is approved by the Administrative Agent, for deposits in US Dollars or Pounds Sterling, as applicable, for delivery on the first day of such Interest Period and for a term comparable to such Interest Period, at approximately 11:00 a.m. (London time) on the date which is two Business Days prior to the commencement of such Interest Period; provided that to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided , further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.  

If LIBOR is replaced by a similar or equivalent interest rate, or in the event of a change affecting the entity which publishes the LIBOR or the terms of its publication, the corresponding modified or replacement interest rate shall automatically apply in accordance with the foregoing paragraph and any reference herein to “LIBOR” shall be deemed to be a reference to such rate.

For the avoidance of doubt, if LIBOR shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

“ LIBOR Loan ” shall mean each US LIBOR Loan, each UK LIBOR Loan and each Canadian LIBOR Loan.

“ Lien ” shall mean any mortgage, pledge, hypothecation, charge, assignment, deposit arrangement, encumbrance, lien (statutory or other), preference, priority or other security agreement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing or similar statement or notice filed under the UCC or any other similar recording or notice statute, and any lease having substantially the same effect as any of the foregoing).

-28-

 

“ LKE Account ” shall mean any Account arising from the sale or disposal (including by auction) of Equipment or Inventory of Borrower or any of its Domestic Subsidiaries in the ordinary course of business pursuant to an LKE Master Exchange Agreement.

“ LKE Joint Account ” shall mean any Deposit Account maintained jointly by US Company or any of its Domestic Subsidiaries and the applicable LKE Qualified Intermediary as may be notified by the US Company to the Administrative Agent from time to time, in which the aggregate amount of funds deposited in all such accounts shall not at any time exceed $25,000,000.

“ LKE Master Exchange Agreement ” shall mean (i) a master like-kind exchange agreement substantially in the form of Exhibit S hereto or (ii) any other master like-kind exchange agreement, between US Company or any Domestic Subsidiary thereof and an LKE Qualified Intermediary, in a form reasonably satisfactory to the Administrative Agent, in each case of the foregoing subclauses (i) and (ii), together with all amendments and modifications thereof, and replacements and substitutions therefor, which have been consented to by the Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed.

“ LKE QI Receivables ” shall mean amounts owing to the US Company or any of its Domestic Subsidiaries from an LKE Qualified Intermediary.  

“ LKE Proceeds ” shall mean the proceeds received by an LKE Qualified Intermediary from an LKE Account or from the sale of Equipment or Inventory in cash or otherwise, in each case in accordance with the applicable LKE Master Exchange Agreement.  

“ LKE Qualified Intermediary ” shall mean DBNY, Accruit, LLC (or any of its Affiliates) or such other person as may be consented to by the Administrative Agent, such consent not to be unreasonable withheld, delayed or conditioned.

“ LKE Transaction ” shall mean the sale of Equipment and Inventory and the replacement of such Equipment and Inventory with similar property in a manner that qualifies for deferred recognition of taxable gains for US federal income tax purposes and pursuant to an LKE Master Exchange Agreement.

“ Loan ” shall mean each Revolving Loan and each Swingline Loan.

“ London Business Day ” shall mean a day for trading by and between banks in US Dollar and Pounds Sterling deposits in the London interbank eurodollar market.

“ Mandatory Redeemable Obligation ” shall mean an obligation of US Company or any of its Subsidiaries (or guaranteed by any of them) which must be redeemed or repaid (a) at a fixed or determinable date, whether by operation of sinking fund or otherwise, (b) at the option of any Person other than US Company or such Subsidiary, or (c) upon the occurrence of a condition not solely within the control of US Company or such Subsidiary, such as a redemption required to be made out of future earnings.

“ Mandatory Borrowing ” shall mean each of a Mandatory US Borrowing or a Mandatory UK Borrowing.

“ Mandatory UK Borrowing ” shall have the meaning provided in Section 2.01(g) .

“ Mandatory US Borrowing ” shall have the meaning provided in Section 2.01(f) .

“ Margin Stock ” shall have the meaning provided in Regulation U.

“ Market Capitalization ” shall mean an amount equal to (i) the total number of issued and outstanding shares of common (or common equivalent) Equity Interests of US Company on the date of the declaration of the relevant Restricted Payment multiplied by (ii) the arithmetic mean of the closing prices per share of the common (or common equivalent) Equity Interests for the 30 consecutive trading days immediately preceding the date of declaration of such Restricted Payment.

“ Master Reaffirmation Agreements ” shall mean, collectively, the US Master Reaffirmation Agreement and the Canadian Master Reaffirmation Agreement.

“ Material Adverse Effect ” shall mean (i) a material adverse effect on the business, prospects, operations, results of operations, assets, liabilities or condition (financial or otherwise) of US Company and its Subsidiaries, taken as a whole, (ii) the impairment of the ability of US Company or any other Credit Party to perform its obligations under the Credit Documents to which it

-29-

 

is a party or of Administrative Agent or the Lenders to enforce the Obligations or realize upon the Collateral, or (iii) a material adverse effect on the value of a material portion of the Collateral or the amount which Administrative Agent or the Lenders would receive (after giving consideration to delays in payment and costs of enforcement) in the liquidation of such Collateral.

“ Maximum Incremental Commitment Amount ” shall mean $500,000,000.

“ Maximum Canadian Letter of Credit Amount ” shall have the meaning provided in Section 3.06 .

“ Maximum Rate ” shall have the meaning provided in Section 13.19 .

“ Maximum UK Letter of Credit Amount ” shall have the meaning provided in Section 3.05 .

“ Maximum UK Swingline Amount ” shall mean $20,000,000 or the Equivalent Amount thereof.

“ Maximum US Letter of Credit Amount ” shall have the meaning provided in Section 3.04 .

“ Maximum US Swingline Amount ” shall mean $25,000,000.

“ Minimum Availability Amount ” shall mean, at any time, the greater of (i) $90,000,000 and (ii) ten percent (10%) of the lesser of (A) the Total Revolving Loan Commitment at such time and (B) the Aggregate Borrowing Base at such time.

“ Minimum Borrowing Amount ” shall mean for Revolving Loans, $1,000,000, £1,000,000, €1,000,000 or CA$1,000,000, as applicable, and increments of $100,000, £100,000, €100,000 and CA$100,000 in excess thereof, as applicable; there shall be no Minimum Borrowing Amount with respect to Swingline Loans.

“ Minimum Collateral Amount ” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances or other credit support provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 100% of the Fronting Exposure of the Issuing Lenders with respect to Letters of Credit issued and outstanding at such time and (ii) otherwise, an amount equal to 103% of the aggregate amount of all Letter of Credit Outstandings.

“ Mobile Mini 2020 Indenture ” shall mean the Indenture, dated November 23, 2010 by and among US Company, as issuer, any guarantors party thereto, and the Law Debenture Trust Company of New York, as trustee, relating to the 7 7/8% Senior Notes due 2020, as modified, supplemented, amended or restated (including any amendment and restatement thereof) in accordance with Section 10.14(a) .

“ Mobile Mini 2020 Senior Notes ” shall mean US Company’s senior unsecured notes in the aggregate principal amount of $200,000,000 due 2020 issued pursuant to the Mobile Mini 2020 Indenture, and on terms and conditions satisfactory to the Lenders, as modified, supplemented, amended or restated (including any amendment and restatement thereof) in accordance with Section 10.14(a) .

“ Moody’s ” shall mean Moody’s Investors Service, Inc.

“ Mortgage ” shall mean a mortgage, leasehold mortgage, deed of trust, leasehold deed of trust, deed to secure debt, leasehold deed to secure debt or similar security instrument in form and substance reasonably acceptable to the Administrative Agent.

“ Mortgage Modification ” shall have the meaning provided in Section 6.13 .

“ Mortgage Policy ” shall mean a lender’s title insurance policy (Form 1992).

“ Mortgaged Property ” shall mean any Real Property owned by US Company or any of its Subsidiaries which is encumbered (or required to be encumbered) by a Mortgage pursuant to the terms of this Agreement or any Security Document.

“ Motor Vehicle Agent ” shall mean MSG Asset Trust, a Delaware statutory trust, in its capacity as motor vehicle agent for the Collateral Agent under the Delaware Trust Security Agreement, and shall include any permitted successors thereto.

“ Motor Vehicles ” shall mean Inventory or Equipment that is subject to any motor vehicle registration statute, including, without limitation, any of those statutes described in the Uniform Commercial Code Section 9-311(a)(2), as adopted in any state in which a Credit Party owns any Collateral.

-30-

 

“ Multiemployer Plan ” shall mean any “ multiemployer plan ” as defined in Section 4001(a)(3) of ERISA to which contributions are, or within the immediately preceding six -year period, have been made (or have been required to have been made) by any US Borrower or any of its Subsidiaries or an ERISA Affiliate.

“ NAIC ” shall mean the National Association of Insurance Commissioners.

“ Net Orderly Liquidation Value ” shall mean the Orderly Liquidation Value (net of costs and expenses reasonably estimated to be incurred in connection with such liquidation) of the Eligible Machinery and Equipment or Eligible Rental Fleet Inventory, as applicable, of the applicable Borrowing Base Parties, taken as a whole.

“ Non-Compete Agreements ” shall mean all non-compete agreements entered into by US Company or any of its Subsidiaries which materially restrict the activities of US Company or any of its Subsidiaries.

“ Non-Defaulting Lender ” shall mean and include each Lender, other than a Defaulting Lender.

“ Non-US Guaranteed Obligation ” shall have the meaning provided in Section 15.01(b) .

“ Non-US Obligation Guarantors ” shall mean US Company and each Subsidiary that guarantees the Non-US Guaranteed Obligations including each Subsidiary listed under Schedule 8.04 (other than an Immaterial Subsidiary), and each other Subsidiary that is or becomes a party to this Agreement pursuant to Section 9.13 , Section 10.11 or Section 10.13 .  For the avoidance of doubt, US Company, each other US Borrower and each US Guarantor shall be Non-US Obligation Guarantors.

“ Non-U.S. Lender ” shall have the meaning provided in Section 5.04(b) .

“ Non-Wholly-Owned Subsidiary ” shall mean, as to any Person, each Subsidiary of such Person which is not a Wholly-Owned Subsidiary of such Person.

“ Note ” shall mean each US Revolving Note, US Swingline Note, UK Revolving Note, UK Swingline Note and Canadian Revolving Note.

“ Notice of Borrowing ” shall have the meaning provided in Section 2.03(a) .

“ Notice of Conversion/Continuation ” shall have the meaning provided in Section 2.06(a) .

“ Notice Office ” shall mean (i) for credit notices, the office of the Administrative Agent located at 60 Wall Street, New York, New York 10005, Attention:  Michael Shannon, Telephone No.:  (212) 250-8508, and Telecopier No.: (917) 338-3931 and (ii) for operational notices, the office of the Administrative Agent located at 5022 Gate Parkway, Building 200, Jacksonville, FL 32256, Attention Tihana Mesic, Telephone (904) 271-2873, and Telecopier (904) 779-3080, or (in any case) such other office or person as the Administrative Agent may hereafter designate in writing as such to the other parties hereto.

“ Obligations ” shall mean, collectively, the UK Obligations, the US Obligations and the Canadian Obligations.

“ OFAC ” shall have the meaning provided thereto in Section 8.33(a) .

“ Off-Balance Sheet Liabilities ” of any Person shall mean (a) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (b) any liability of such Person under any sale and leaseback transactions that does not create a liability on the balance sheet of such Person, (c) any obligation under a Synthetic Lease or (d) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such Person.

“ Orderly Liquidation Value ” shall mean the orderly liquidation value of the Borrowing Base Parties’ Eligible Goods Inventory or Eligible Machinery and Equipment that is estimated to be recoverable in an orderly liquidation of such Eligible Goods Inventory or Eligible Machinery and Equipment, as applicable, with such value determined from time to time by reference to the most recent appraisal completed by a qualified independent third-party appraisal company (approved by the Administrative Agent in its Permitted Discretion in consultation with US Company) delivered to the Administrative Agent; provided that, unless an appraisal is required pursuant to Section 10.13 , such value in respect of any Eligible Goods Inventory or Eligible Machinery and Equipment acquired in accordance with Section 10.13 , may be determined by reference to an identical kind or type of such Eligible Goods Inventory or Eligible Machinery and Equipment, as applicable, that has been so appraised.

-31-

 

“ Original Effective Date ” shall have the meaning provided in the Recitals.

“ Other Connection Taxes ” means, with respect to any Recipient, taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such tax, including as a result of a branch or other lending office located in the jurisdiction (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 Credit Document, or sold or assigned an interest in any Loan or Credit Document).

“ Other Hedging Agreements ” shall mean any foreign exchange contracts, currency swap agreements or other similar agreements, or arrangements designed to protect against fluctuations in currency values.

“ Other Taxes ” shall have the meaning provided in Section 13.01 .

“ Participant Register ” shall have the meaning provided in Section 13.04(a) .

“ Participating Member State ” means any member state of the European Community that adopts or has adopted the Euro as its lawful currency in accordance with the legislation of the European Community relating to economic and monetary union.

“ Patriot Act ” shall have the meaning provided in Section 13.18 .

“ Payment Conditions ” means with respect to any Restricted Payment (which such term, for purposes of this definition, shall include any prepayment, repurchase or redemption of any Indebtedness permitted pursuant to the Senior Note Documents), Restricted Foreign Funding, Acquisition or incurrence of Permitted Additional Financing Indebtedness, each of the following conditions shall be satisfied immediately after giving effect to such Restricted Payment, Restricted Foreign Funding, Acquisition or incurrence of any Permitted Additional Financing Indebtedness:

(i) no Default or Event of Default exists or would result therefrom and either (a) (x) the average daily Total Borrowing Availability over the 30 days prior to the making of such Restricted Payment, Restricted Foreign Funding, Acquisition or incurrence of any Permitted Additional Financing Indebtedness calculated on a pro forma basis is greater than the greater of (A) 17.5% of the lesser of (1) the Total Revolving Loan Commitment at such time and (2) the Aggregate Borrowing Base at such time and (B) $150,000,000, and (y) the Total Borrowing Availability calculated on a pro forma basis before and immediately after giving effect to such Restricted Payment, Restricted Foreign Funding, Acquisition or incurrence of any Permitted Additional Financing Indebtedness shall be greater than the greater of (A) 17.5% of the lesser of (1) the Total Revolving Loan Commitment at such time and (2) the Aggregate Borrowing Base at such time and (B) $150,000,000 or (b) (x) the average daily Total Borrowing Availability over the 30 days prior to the making of such Restricted Payment, Restricted Foreign Funding, Acquisition or incurrence of any Permitted Additional Financing Indebtedness calculated on a pro forma basis is greater than the greater of (A) 12.5% of the lesser of (1) the Total Revolving Loan Commitment at such time and (2) the Aggregate Borrowing Base at such time and (B) $110,000,000, (y) the Total Borrowing Availability calculated on a pro forma basis before and immediately after giving effect to such Restricted Payment, Restricted Foreign Funding, Acquisition or incurrence of any Permitted Additional Financing Indebtedness shall be greater than the greater of (A) 12.5% of the lesser of (1) the Total Revolving Loan Commitment at such time and (2) the Aggregate Borrowing Base at such time and (B) $110,000,000, and (z) before and immediately after giving effect to such Restricted Payment, Restricted Foreign Funding, Acquisition or incurrence of any Permitted Additional Financing Indebtedness and any Indebtedness incurred in connection therewith, US Company shall be in compliance with the financial covenant set forth in Section 10.21 (Fixed Charge Coverage Ratio) hereof, calculated on a pro forma basis (whether or not Section 10.21 hereof would then require compliance with such covenant) for the most recently ended fiscal quarter for which the financial statements in Section 9.01(b) have been delivered to the Administrative Agent; and

(ii) not later than one Business Day prior to the making of such Restricted Payment, Restricted Foreign Funding, Acquisition or incurrence of any Permitted Additional Financing Indebtedness, Administrative Agent shall receive (a) a certificate of US Company, with supporting detail acceptable to Administrative Agent certifying that on the date on which such Restricted Payment, Restricted Foreign Funding, Acquisition or incurrence of any Permitted Additional Financing Indebtedness is made, US Company has satisfied the conditions set forth in clause (i) above and (b) financial projections demonstrating that during the six month period following the making of such Restricted Payment, Restricted Foreign Funding, Acquisition or incurrence of any Permitted Additional Financing Indebtedness, Total Borrowing Availability at all times shall not be less than the amount required to satisfy the condition set forth in clause (i) above.

-32-

 

“ Payment Office ” shall mean (i) with respect to payments in US Dollars and Canadian Dollars, the office of the Administrative Agent located at 60 Wall Street, New York, New York 10005 or such other office as the Administrative Agent may hereafter designate in writing as such to the other parties hereto and (ii) with respect to payments in Pounds Sterling or Euros or other currencies other than US Dollars or Canadian Dollars, such account at such bank or office in London or such other place as Administrative Agent shall designate by notice to the Person required to make the relevant payment.

“ PBGC ” shall mean the Pension Benefit Guaranty Corporation established pursuant to Section 4002 of ERISA, or any successor thereto.

“ Permitted Acquisition ” shall mean an Acquisition permitted under Section 10.13 of this Agreement.

“ Permitted Additional Financing ” means additional secured or unsecured Indebtedness; provided that:

(i) no such Indebtedness shall (A) be subject to scheduled amortization in excess of 1% of its original principal balance per year or (B) have a final maturity, in either case prior to the date occurring six (6) months following the Final Maturity Date;

(ii) such Permitted Additional Financing shall not be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, (A) upon the occurrence of an event of default, a sale of assets or a change in control, (B) as and to the extent such repayment, prepayment, redemption, repurchase or defeasance would have been required pursuant to the terms of any Senior Notes outstanding immediately prior to the incurrence of any such Permitted Additional Financing, (C) as and to the extent such repayment, prepayment, redemption, repurchase or defeasance provisions are, individually and in the aggregate, no more restrictive than those contained herein (it being understood and agreed that the repayment, prepayment, redemption, repurchase or defeasance provisions set forth in this Agreement or any Senior Notes as of the Effective Date satisfy such requirement) and such provisions expressly provide that, until such time as the Revolving Loan Commitments have been terminated, all Obligations have been paid in full and no Letters of Credit are outstanding, any such repayment, prepayment, redemption, repurchase or defeasance shall not be required to be made to the extent not permitted by this Agreement or (D) upon the incurrence and with the proceeds of other Permitted Additional Financing) prior to the maturity of such Permitted Additional Financing; and

(iii) such Permitted Additional Financing shall not constitute an obligation (including pursuant to a guarantee) of any Person unless such Person is also a Credit Party.

“ Permitted Additional Financing Document ” shall mean any one or more loan agreements or indentures, dated the date any Permitted Additional Financing is incurred, by and among US Company, as issuer, any guarantors party thereto, and the lenders, agents and/or trustee party thereto, relating to the Permitted Additional Financing, as modified, supplemented, amended or restated (including any amendment and restatement thereof) in accordance with Section 10.14(a) .

“ Permitted Additional Financing Indebtedness ” shall mean the loans or notes evidencing any Permitted Additional Financing, as modified, supplemented, amended or restated (including any amendment and restatement thereof) in accordance with Section 10.14(a) .

“ Permitted Capped Debt ” shall mean Permitted Additional Financing Indebtedness in an aggregate principal amount not to exceed $300,000,000 or the Equivalent Amount thereof in the aggregate outstanding at any one time, so long as, as of the date of the incurrence thereof, the Payment Conditions shall have been satisfied.

“ Permitted Discretion ” shall mean the commercially reasonable judgment of the Administrative Agent exercised in good faith in accordance with customary business practices for comparable asset-based lending transactions, as to any factor which the Administrative Agent reasonably determines:  (a) will or reasonably could be expected to adversely affect in any material respect the value of any Eligible Accounts, Eligible Inventory, Eligible Machinery and Equipment and Eligible Real Property, the enforceability or priority of the Collateral Agent’s Liens thereon or the amount which any Secured Creditor would be likely to receive (after giving consideration to delays in payment and costs of enforcement) in the liquidation of such Eligible Accounts, Eligible Inventory, Eligible Machinery and Equipment or Eligible Real Property or (b) is evidence that any collateral report or financial information delivered to the Administrative Agent by any Person on behalf of US Company is incomplete, inaccurate or misleading in any material respect.  In exercising such judgment, the Administrative Agent may consider, without duplication, such factors already included in or tested by

-33-

 

the definition of Eligible Accounts, Eligible Inventory, Eligible Machinery and Equipment or Eligible Real Property, as well as any of the following:  (i) changes after the Effective Date in any material respect in demand for, pricing of, or product mix of Equipment or Inventory; (ii) changes after the Effective Date in any material respect in any concentration of risk with respect to Accounts; and (iii) any other factors arising after the Effective Date that change in any material respect the credit risk of lending to the Borrowers on the security of the Eligible Accounts, Eligible Inventory, Eligible Machinery and Equipment or Eligible Real Property.

“ Permitted Encumbrance ” shall mean, with respect to any Mortgaged Property, such exceptions to title as are set forth in the Mortgage Policy delivered with respect thereto, all of which exceptions must be acceptable to the Administrative Agent in its Permitted Discretion.

“ Permitted Liens ” shall have the meaning provided in Section 10.02 .

“ Permitted Ratio Debt ” shall mean Permitted Additional Financing Indebtedness, so long as, as of the date of the incurrence thereof, the Credit Parties shall be in compliance with a Debt Ratio of 6.00:1.00 calculated on a pro forma basis before and immediately after giving effect to the incurrence of such Indebtedness.

“ Permitted Senior Notes Refinancing ” means, in respect of any one or more series of Senior Notes being extended, renewed or refinanced, any Indebtedness that extends, renews or refinances such Senior Notes (or any Permitted Senior Notes Refinancing in respect thereof); provided that:

(i) (A) the maturity of such Permitted Senior Notes Refinancing shall not be earlier, and the weighted average life to maturity of such Permitted Senior Notes Refinancing shall not be shorter, than the maturity date or the remaining weighted average life to maturity of such Senior Notes being extended, renewed or refinanced and (B) the maturity date of such Permitted Senior Notes Refinancing shall not be prior to the date occurring ninety (90) days following the Final Maturity Date;

(ii) such Permitted Senior Notes Refinancing shall not be required to be repaid, prepaid, redeemed, repurchased or defeased, whether on one or more fixed dates, upon the occurrence of one or more events or at the option of any holder thereof (except, in each case, upon the occurrence of an event of default, a sale of assets or a change in control or as and to the extent such repayment, prepayment, redemption, repurchase or defeasance would have been required pursuant to the terms of any Senior Notes outstanding immediately prior to the incurrence of any such Permitted Senior Notes Refinancing) prior to the maturity of such Senior Notes being extended, renewed or refinanced;

(iii) such Permitted Senior Notes Refinancing shall not constitute an obligation (including pursuant to a guarantee) of any Subsidiary that shall not have been (or, in the case of after-acquired Subsidiaries, shall not have been required to become) an obligor in respect of any Senior Notes outstanding immediately prior to the incurrence of any such Permitted Senior Notes Refinancing, and shall not constitute an obligation of any holding company of US Company if such Person shall not have been an obligor in respect of any Senior Notes outstanding immediately prior to the incurrence of any such Permitted Senior Notes Refinancing, and, in each case, shall constitute an obligation of such Subsidiary or of any holding company of US Company only to the extent of their obligations in respect of any Senior Notes outstanding immediately prior to the incurrence of any such Permitted Senior Notes Refinancing;

(iv) such Permitted Senior Notes Refinancing shall not be secured by any Lien on any asset;

(v) the covenants and events of default set forth in such Permitted Senior Notes Refinancing shall be, individually and in the aggregate, no more restrictive than those contained herein (it being understood and agreed that the covenants and events of default set forth in the Senior Notes as of the Effective Date satisfy such requirement); and

(vi) such Permitted Senior Notes Refinancing shall not include any financial covenants.

“ Permitted Senior Notes Refinancing Indenture ” shall mean any one or more indentures, dated the date any Permitted Senior Notes Refinancing is incurred, by and among US Company, as issuer, any guarantors party thereto, and the trustee party thereto, relating to the Permitted Senior Notes Refinancing incurred thereunder in accordance with Section 10.05(f) hereof, as modified, supplemented, amended or restated (including any amendment and restatement thereof) in accordance with Section 10.14(a) .

-34-

 

“ Person ” shall mean any individual, partnership, joint venture, firm, corporation, association, limited liability company, trust or other enterprise or any Governmental Authority.

“ Plan ” shall mean any pension plan as defined in Section 3(2) of ERISA subject to Title IV of ERISA, other than a Multiemployer Plan, which is maintained or contributed to by (or to which there is an obligation to contribute of) US Company or a Subsidiary of US Company or an ERISA Affiliate thereof, and each such plan maintained during the five-year period immediately preceding the date hereof.

“ Pledge Agreements ” shall mean each of the US Pledge Agreement, the Canadian Share Pledge Agreement and the UK Share Charges.

“ Pounds Sterling ” or “ £ ” – lawful money of the United Kingdom.

“ Pounds Sterling Denominated Revolving Loan ” shall have the meaning set forth in Section 2.01(b) hereof.

“ Pounds Sterling Funding Capacity ” shall mean, for any Lender, the ability of such Lender or an Affiliate or branch office thereof to fund UK Revolving Loans denominated in Pounds Sterling, as set forth in the records of Administrative Agent.

“ Pounds Sterling Funding Capacity Lender ” shall mean each Lender other than (i) in the case of each Lender as of the Effective Date, each Lender that shall have confirmed in writing, to the satisfaction of the Administrative Agent, on or prior to the Effective Date, that neither it nor any domestic or foreign branch or Affiliate of such Lender has the ability to fund UK Revolving Loans denominated in Pounds Sterling and (ii) in the case of each Lender after the Effective Date, each Lender that shall have confirmed in writing, to the satisfaction of the Administrative Agent, on or prior to the date such Lender becomes a Lender hereunder, that neither it nor any domestic or foreign branch or Affiliate of such Lender has the ability to fund UK Revolving Loans denominated in Pounds Sterling, in each case until such time as such Lender shall have confirmed in writing to the Administrative Agent that it or any domestic or foreign branch or Affiliate of such Lender does have the ability to fund UK Revolving Loans denominated in Pounds Sterling.

“ PPSA ” shall mean the Personal Property Security Act (Ontario) and other personal property security legislation of the applicable Canadian province or provinces in respect of the Credit Parties or the Collateral (including the Civil Code of Quebec and the regulation respecting the registration of personal and movable real rights promulgated thereunder) as all such legislation now exists or may from time to time hereafter be amended, modified, recodified, supplemented or replaced, together with all rules, regulations and interpretations thereunder or related thereto.

“ Preferred Equity ”, as applied to the Equity Interests of any Person, means Equity Interests of such Person (other than common Equity Interests of such Person) of any class or classes (however designed) that ranks prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to shares of Equity Interests of any other class of such Person, and shall include any Qualified Preferred Stock of US Company.

“ Prime Lending Rate ” shall mean the rate which the Administrative Agent announces from time to time as its prime lending rate, the Prime Lending Rate to change when and as such prime lending rate changes.  The Prime Lending Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer by the Administrative Agent, which may make commercial loans or other loans at rates of interest at, above or below the Prime Lending Rate.

“ Projections ” shall mean the projections that are contained in the Confidential Information Memorandum dated November 2015 and that were prepared by or on behalf of US Company in connection with this Agreement and delivered to the Administrative Agent and the Lenders prior to the Effective Date.

“ Property ” shall mean any interest in any kind of property, asset or undertaking, whether real, personal or mixed, or tangible or intangible.

“ Qualified Derivative Agreement ” means any agreement with respect to Qualified Derivative Obligations to which any Credit Party is a party.

“ Qualified Derivative Counterparty ” means, with respect to any Qualified Derivative Agreement, (x) any counterparty who was an Agent or Affiliate of an Agent at the time such Qualified Derivative Agreement was entered into, or (y) counterparty who was a Lender or an Affiliate of a Lender at the time such Qualified Derivative Agreement was entered into, in each case, that has entered into such Qualified Derivative Agreement with any Credit Party; provided that, a Lender (and any Affiliate

-35-

 

thereof) shall not be a Qualified Derivative Counterparty with respect to any Qualified Derivative Agreement entered into when such Lender was a Defaulting Lender.

“ Qualified Derivative Obligations ” of the Credit Parties shall mean any and all obligations of the Credit Parties, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with (i) Derivative Obligations of which the Administrative Agent has received the notice required pursuant to Section 9.19 or (ii) which is set forth on Schedule 1.01(f) .

“ Qualified ECP Guarantor ” shall mean, at any time, each Credit Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time under §1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

“ Qualified Preferred Stock ” shall mean any Preferred Equity of US Company, so long as the terms of any such Preferred Equity (a) do not contain any mandatory put, redemption, repayment, sinking fund or other similar provision prior to June 14, 2021, (b) do not require the cash payment of dividends or distributions that would otherwise be prohibited by the terms of this Agreement or any other agreement or contract of US Company or any of its Subsidiaries, (c) do not contain any covenants (other than periodic reporting requirements), (d) do not grant the holders thereof any voting rights except for (i) voting rights required to be granted to such holders under Applicable Law and (ii) limited customary voting rights on fundamental matters such as mergers, consolidations, sales of all or substantially all of the assets of US Company, or liquidations involving US Company, and (e) are otherwise reasonably satisfactory to the Administrative Agent.

“ Qualified Swap Termination Value ” means any Swap Termination Value in respect of which (and only to the extent of the amount which) the US Company has notified the Administrative Agent on any Borrowing Base Certificate delivered in accordance with the terms hereof, and meeting the requirements of Section 9.01(i) , that the Borrower intends such Swap Termination Value to constitute a Qualified Swap Termination Value for purposes of Section 5.03(d) and which amount (and only to the extent of the amount which) is reasonably acceptable to the Administrative Agent; provided that no Qualified Swap Termination Value may be established or increased at any time that a Default or Event of Default exists, or if a Reserve in such amount would cause a prepayment obligation under Section 5.02(a) .

“ Quarterly Payment Date ” shall mean the last Business Day of each March, June, September and December, it being understood that the first Quarterly Payment Date shall be the last Business Day of December 2015.

“ Quarterly Pricing Certificate ” shall have the meaning provided in the definition of Applicable Margin.

“ Real Property ” of any Person shall mean all the right, title and interest of such Person in and to land, improvements and fixtures, including Leaseholds.

“ Recipient ” shall mean (a) the Administrative Agent, (b) any Lender and (c) any Issuing Lender, as applicable.

“ Refinanced Indebtedness ” shall mean all Revolving Loans and Swingline Loans (each as defined in the Existing Credit Agreement) outstanding as of the Effective Date under the Existing Credit Agreement.

“ Refinancing ” shall mean (a) the payment in full of the Refinanced Indebtedness together with all accrued interest, fees and other amounts payable thereon and all accrued fees and other amounts payable in respect of all “Letters of Credit” (as defined in the Existing Credit Agreement) under the Existing Credit Agreement and (b) the continuance of all “Letters of Credit” (as defined in the Existing Credit Agreement) outstanding under the Existing Credit Agreement as Letters of Credit under this Agreement, as described in Section 6.05 .

“ Refinancing Notes ” shall mean the notes evidencing any Permitted Senior Notes Refinancing incurred in accordance with Section 10.05(f) hereof, as modified, supplemented, amended or restated (including any amendment and restatement thereof) in accordance with Section 10.14(a) .

“ Register ” shall have the meaning provided in Section 13.15 .

“ Regulation ” shall have the meaning provided in Section 9.20 .

“ Regulation D ” shall mean Regulation D of the Board as from time to time in effect and any successor to all or a portion thereof establishing reserve requirements.

-36-

 

“ Regulation T ” shall mean Regulation T of the Board as from time to time in effect and any successor to all or a portion thereof.

“ Regulation U ” shall mean Regulation U of the Board as from time to time in effect and any successor to all or a portion thereof.

“ Regulation X ” shall mean Regulation X of the Board as from time to time in effect and any successor to all or a portion thereof.

“ Release ” shall mean actively or passively disposing, discharging, injecting, spilling, pumping, leaking, leaching, dumping, emitting, escaping, emptying, pouring, seeping, migrating or the like, into or upon any land or water or air, or otherwise entering into the environment.

“ Rent Reserve ” shall mean a reserve established by the Administrative Agent in respect of rent payments (not to exceed three months’ rent) made by a Borrowing Base Party for each location at which Eligible Inventory or Eligible Machinery and Equipment of a Borrowing Base Party is located that is not subject to a Landlord Personal Property Collateral Access Agreement (as reported to the Administrative Agent by US Company or UK Company from time to time as requested by the Administrative Agent), as adjusted from time to time by the Administrative Agent in its Permitted Discretion.

“ Replaced Lender ” shall have the meaning provided in Section 2.13(a) .

“ Replacement Lender ” shall have the meaning provided in Section 2.13(a) .

“ Reportable Event ” shall mean an event described in Section 4043(c) of ERISA or the regulations issued thereunder with respect to a Plan , other than those events as to which the 30-day notice period is waived.

“ Required Lenders ” shall mean, at any time, Non-Defaulting Lenders the sum of whose outstanding Revolving Loan Commitments at such time (or, after the termination thereof, outstanding Revolving Loans and RL Percentages of (x) outstanding Swingline Loans at such time and (y) Letter of Credit Outstandings at such time) represents at least a majority of the sum of the Total Revolving Loan Commitment in effect at such time less the Revolving Loan Commitments of all Defaulting Lenders at such time (or, after the termination thereof, the sum of then total outstanding Revolving Loans of Non-Defaulting Lenders and the aggregate RL Percentages of all Non-Defaulting Lenders of the total outstanding Swingline Loans and Letter of Credit Outstandings at such time).

“ Reserves ” shall mean reserves, if any, established by the Administrative Agent from time to time hereunder in its Permitted Discretion against the Borrowing Base, including without limitation, (i) Rent Reserves, (ii) Banking Products Reserves, (iii) Unpaid Supplier Reserves, (iv) potential dilution related to Accounts, (v) damaged or defective Equipment, (vi) obsolescence of any Eligible Inventory or Eligible Machinery and Equipment, (vii) sums that the Borrowing Base Parties are or will be required to pay (such as taxes (including, without limitation, sales taxes and payroll taxes), assessments and insurance premiums) and have not yet paid, (viii) Canadian Priority Payables, (ix) amounts owing by any Borrowing Base Party to any Person to the extent secured by a Lien on, or trust over, any Collateral, (x) in the case of any UK Borrowing Base Party, reserves to reflect the prior ranking nature or dilutive effect of UK Priority Claims, (xi) reserves in respect of the aggregate amount of any and all Swap Termination Values constituting Qualified Swap Termination Values for purposes of Section 5.03(d) , and (xii) such other events, conditions or contingencies as to which the Administrative Agent, in its Permitted Discretion, determines reserves should be established from time to time hereunder.

“ Restricted Foreign Funding ” shall have the meaning set forth in Section 10.05(e)(v) .

“ Restricted Payment ” shall have the meaning set forth in Section 10.04 .

“ Returns ” shall have the meaning provided in Section 8.13 .

“ Revolving Loan ” shall mean a US Revolving Loan, a UK Revolving Loan or a Canadian Revolving Loan.

“ Revolving Loan Commitment ” shall mean, for each Lender, the amount set forth opposite such Lender’s name in Schedule 1.01(a) directly below the column entitled “Revolving Loan Commitment,” as same may be (x) reduced from time to time or terminated pursuant to Sections 4.02 , 4.03 and/or 11 , as applicable, (y) increased from time to time pursuant to Section 2.15 , or (z) adjusted from time to time as a result of assignments to or from such Lender pursuant to Section 2.13 or 13.04(b) .

“ Revolving Note ” shall mean a US Revolving Note, a UK Revolving Note or a Canadian Revolving Note.

-37-

 

“ RL Percentage ” of any Lender at any time shall mean a fraction (expressed as a percentage) the numerator of which is the Revolving Loan Commitment of such Lender at such time and the denominator of which is the Total Revolving Loan Commitment at such time, provided that if the RL Percentage of any Lender is to be determined after the Total Revolving Loan Commitment has been terminated, then the RL Percentages of such Lender shall be determined immediately prior (and without giving effect) to such termination.

“ S&P ” shall mean Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc., and any successor thereto.

“ SEC ” shall have the meaning provided in Section 9.01(g) .

“ Sanction ” shall mean any sanction administered or enforced by a United States Governmental Authority (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.

“ Section 5.04(b)(ii) Certificate ” shall have the meaning provided in Section 5.04(b)(ii) .

“ Secured Creditors ” means the Agents, Lenders, Issuing Lenders, Banking Products Providers and Qualified Derivative Counterparties and shall include, without limitation, all former Agents, Lenders, Issuing Lenders, Banking Products Providers and Qualified Derivative Counterparties to the extent that any Obligations owing to such Persons were incurred while such Persons were Agents, Lenders, Issuing Lenders, Banking Products Providers or Qualified Derivative Counterparties and such Obligations have not been paid or satisfied in full.

“ Securities Act ” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“ Security Agreements ” shall mean the US Security Agreement, the US Pledge Agreement, the UK Security Agreements, the Canadian Security Agreement, the Canadian Share Pledge Agreement and each other agreement pursuant to which a Credit Party grants a Lien to secure all or part of the Obligations.

“ Security Agreement Collateral ” shall mean all “Collateral” as defined in the Security Agreements.

“ Security Document ” shall mean and include the US Security Agreement, the US Pledge Agreement, the UK Security Agreements, the Canadian Security Agreement, the Canadian Share Pledge Agreement, the Master Reaffirmation Agreements, the Delaware Trust Security Agreement, each Mortgage, after the execution and delivery thereof, each Additional Security Document and any other related document, agreement or grant pursuant to which US Company or any of its Subsidiaries grants, perfects or continues a Lien in favor of the Collateral Agent for the benefit of the Secured Creditors.

“ Senior Managing Agents ” shall mean Wells Fargo Bank, National Association, ING Capital LLC, Compass Bank and MUFG Union Bank, N.A., each in its capacity as a senior managing agent.

“ Senior Note Documents ” shall mean collectively, (a) the Mobile Mini 2020 Indenture, the Mobile Mini 2020 Senior Notes and all other agreements, instruments, and documents delivered by US Company or any of its Subsidiaries in connection therewith; and (b) if and to the extent any Permitted Senior Notes Refinancing thereof is incurred in accordance with Section 10.05(f)(ii) hereof after the Effective Date, the Permitted Senior Notes Refinancing Indenture, the Refinancing Notes and all other agreements, instruments, and documents delivered by US Company or any of its Subsidiaries in connection therewith.

“ Senior Note Indentures ” shall mean, collectively, the Mobile Mini 2020 Indenture and the Permitted Senior Notes Refinancing Indenture.

“ Senior Notes ” shall mean, collectively, the Mobile Mini 2020 Senior Notes and the Refinancing Notes.

“ Serial Numbered Equipment ” shall mean, collectively, the following types of Equipment located at any time, and from time to time, in Canada: (i) motor vehicles within the meaning of the PPSA of Ontario; (ii) Equipment which is serial number goods within the meaning of the PPSA of Alberta; (iii) Equipment which is serial numbered goods within the meaning of the PPSA of British Columbia, Manitoba, New Brunswick, Newfoundland, Nova Scotia and Prince Edward Island and Saskatchewan; and (iv) Equipment which is road vehicles or other movable property for which a descriptive file may be opened at the Quebec provincial registry office within the meaning of the PPSA in Quebec.

-38-

 

“ Settlement Date ” shall have the meaning provided in Section 2.04(e)(i) .

“ Solvent ” and “ Solvency ” shall mean, with respect to any Person on a particular date, the condition that, on such date, (a) the fair value of the property of such Person is greater than the total amount of debts and liabilities, including contingent liabilities, of such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts and liabilities as they become absolute and matured, (c) such Person will have the ability to pay its debts and liabilities (including its probable liability in respect of contingent and unliquidated liabilities and its unmatured liabilities) as they become absolute and matured, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small amount of capital, and (e) in the case of any person incorporated in England and Wales only , a Person that is not “unable to pay its debts”.  In this context, “unable to pay its debts” means that there are no grounds on which such Person would be deemed unable to pay its debts (as defined in Section 123(1) of the Insolvency Act 1986 of England Wales (as amended by the Enterprise Act 2002 of England and Wales) on the basis that the words “proved to the satisfaction of the court” are deemed omitted from sections 123(1)(e) and 123(2) of that Act) or on which a court would be satisfied that the value of such Person’s assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities (as such term would be construed for the purposes of Section 123(2) of the Insolvency Act 1986 of England and Wales (as amended by the Enterprise Act 2002 of England and Wales)).  The amount of contingent liabilities (such as litigation, guaranties and pension plan liabilities) at any time shall be computed as the amount that, in light of all the facts and circumstances existing at the time, represents the amount that can be reasonably be expected to become an actual or matured liability.

“ Specified Credit Party ” means any Credit Party that is not an “eligible contract participant” under the Commodity Exchange Act (determined prior to giving effect to Section 15.11 ).

“ Spot Rate ” shall mean with respect to any currency, the rate quoted by Administrative Agent as the spot rate for the purchase by Administrative Agent of such currency with another currency through its foreign exchange office at approximately 11:00 a.m. (New York time) on the date of determination thereof.

“ Start Date ” shall have the meaning provided in the definition of Applicable Margin.

“ Stated Amount ” of each Letter of Credit shall mean, at any time, the maximum amount available to be drawn thereunder (in each case determined without regard to whether any conditions to drawing could then be met).

“ Subsidiary ” shall mean, as to any Person, (a) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person and/or one or more Subsidiaries of such Person or (b) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Subsidiaries of such Person has more than a 50% equity interest at the time.  Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of US Company.

“ Supermajority Lenders ” shall mean those Non-Defaulting Lenders which would constitute the Required Lenders under, and as defined in, this Agreement, if the reference to “a majority” contained in the definition of Required Lenders were changed to “66%.”

“ Swap Obligations ” 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.

“ Swap Termination Value ” means, in respect of any one or more Qualified Derivative Obligations, after taking into account the effect of any legally enforceable netting agreement relating to such Qualified Derivative Obligations, (a) for any date on or after the date on which such Qualified Derivative Obligations 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 Qualified Derivative Obligations, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Qualified Derivative Obligations (which may include the Administrative Agent, the Bank, a Lender or any Affiliate of any of the foregoing).

“ Swingline Expiry Date ” shall mean that date which is five Business Days prior to the Final Maturity Date.

“ Swingline Lender ” shall mean the Administrative Agent, in its capacity as Swingline Lender hereunder.

-39-

 

“ Swingline Loan ” shall mean a US Swingline Loan or a UK Swingline Loan.

“ Swingline Loan Exposure ” shall mean, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time. The Swingline Loan Exposure of any Lender at any time shall be its RL Percentage of the aggregate Swingline Loan Exposure at such time.

“ Swingline Note ” shall mean a US Swingline Note or a UK Swingline Note.

“ Synthetic Lease ” shall mean a lease transaction under which the parties intend that (a) the lease will be treated as an “operating lease” by the lessee and (b) the lessee will be entitled to various tax and other benefits ordinarily available to owners (as opposed to lessees) of like property.

“ TARGET2 ” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilises a single shared platform and which was launched on 19 November 2007.

“ TARGET Day ” means any day on which TARGET2 is open for the settlement of payments in Euros.

“ Taxes ” shall have the meaning provided in Section 5.04(a) .  

“ Total Borrowing Availability ” shall mean, as of any date of determination, the remainder of (i) the lesser of (x) the Total Revolving Loan Commitment at such time and (y) the Aggregate Borrowing Base at such time minus (ii) the Aggregate Exposure at such time.

“ Total Revolving Loan Commitment ” shall mean, at any time, the sum of the Revolving Loan Commitments of each of the Lenders at such time.

“ Total Unutilized Revolving Loan Commitment ” shall mean, at any time, an amount equal to the remainder of (a) the Total Revolving Loan Commitment in effect at such time less (b) the sum of (i) the aggregate principal amount of all Revolving Loans and Swingline Loans outstanding at such time plus (ii) the aggregate amount of all Letter of Credit Outstandings at such time.

“ Trailer Fleet Inventory ” shall mean new and used manufactured or remanufactured Trailers held by a Borrower or a Credit Party for intended lease or rental to third parties.

“ Trailers ” shall mean over-the-road tractor trailers and trailers intended for use as storage facilities not constituting portable and ISO containers owned by US Company or any of its Subsidiaries.

“ Transactions ” shall mean, collectively, (a) the consummation of the Refinancing, (b) the execution, delivery and performance by each Credit Party of the Credit Documents to which it is a party, the incurrence of Loans on the Effective Date and the use of proceeds thereof, and (c) the payment of all fees and expenses in connection with the foregoing.

“ Type ” shall mean the type of Loan determined with regard to the interest option applicable thereto, i.e. , whether a Base Rate Loan, a Canadian Prime Rate Loan, a LIBOR Loan or a EURIBOR Loan.

“ UCC ” shall mean the Uniform Commercial Code as from time to time in effect in the relevant jurisdiction.

“ UK Borrower ” and “ UK Borrowers ” shall have the meaning provided in the first paragraph of this Agreement.

“ UK Borrowing ” shall mean the borrowing of UK Revolving Loans from all the Lenders, or from the Swingline Lender in the case of UK Swingline Loans, on a given date having the same Interest Period.

“ UK Borrowing Availability ” shall mean, as of any date of determination, the remainder of (a) the lesser of (i) the UK Maximum Amount at such time and (ii) the UK Borrowing Base at such time minus (b) the Aggregate UK Exposure at such time.

-40-

 

“ UK Borrowing Base ” shall mean, as of any date of calculation, the amount calculated pursuant to the Borrowing Base Certificate most recently delivered to the Administrative Agent in accordance with Section 9.01(i) (but as modified as provided below in this definition), equal to, without duplication, the sum of

(i) (A) the amount calculated under the definition of US Borrowing Base, provided that in no event shall any asset constituting a portion of the US Borrowing Base concurrently constitute a portion of the UK Borrowing Base plus (B) the amount calculated under the definition of Canadian Borrowing Base, provided that in no event shall any asset constituting a portion of the Canadian Borrowing Base concurrently constitute a portion of the UK Borrowing Base, plus

(ii) eighty-five percent (85%) of Eligible UK Accounts, plus

(iii) ninety percent (90%) of Eligible UK Rental Fleet Inventory, plus

(iv) [Reserved]

(v) the lesser of (A) (1) $50,000,000 less (2) the amount included in such Borrowing Base Certificate with respect to clause (iv)(B) of the definition of US Borrowing Base and clause (v)(B) of the definition of Canadian Borrowing Base and (B) the sum of (1) ninety percent (90%) of Eligible UK Container Inventory Held for Sale; plus (2)  ninety percent (90%) of Eligible UK Work-in-Process Container Inventory; plus (3) sixty-five percent (65%) of Eligible UK Raw Materials Inventory; plus   

(vi) the lesser of (A) (1) $50,000,000 less (2) the amount included in such Borrowing Base Certificate with respect to clause (v)(B) of the definition of US Borrowing Base and clause (vi)(B) of the definition of Canadian Borrowing Base and (B) eighty-five percent (85%) of Eligible UK Machinery and Equipment; minus

(vii) the amount of all Reserves then established by the Administrative Agent against the UK Borrowing Base.  

The Administrative Agent shall have the right (but no obligation) to review such computations and if, in its Permitted Discretion, such computations have not been calculated in accordance with the terms of this Agreement, the Administrative Agent shall have the right to correct any such errors in such manner as it shall determine in its Permitted Discretion.  The UK Borrowing Base (and the Borrowing Base Certificate then most recently delivered) may be adjusted by the Administrative Agent to reflect any new or incremental Reserves required by the Administrative Agent in its Permitted Discretion; provided that no change in the amount of any Reserve shall be effective until the date occurring three Business Days after written notice thereof by the Administrative Agent to the US Company and the UK Company following consultation with the US Company.

“ UK Borrowing Base Party ” shall mean each Wholly-Owned Subsidiary of US Company that is (a) incorporated under the laws of England and Wales and (b) either a UK Borrower or a Non-US Obligation Guarantor.

“ UK Company ” shall have the meaning provided in the first paragraph of this Agreement.

“ UK Credit Party ” shall mean each subsidiary of the US Company, other than any US Credit Party.

“ UK Debentures ” shall mean the UK First Ranking Debenture, the UK Supplemental Debenture, the UK Second Supplemental Debenture, the UK First Ranking Partnership Debenture, the UK Supplemental Partnership Debenture and the UK Second Supplemental Partnership Debenture.

“ UK Drawing ” shall have the meaning set forth in Section 3.14(b) .

“ UK First Ranking Debenture ” means the first ranking debenture dated the Original Effective Date between, amongst others, the UK Company, each UK Subsidiary (other than UK-LP) and the Collateral Agent, as amended, restated, supplemented or otherwise modified from time to time.

“ UK First Ranking Partnership Debenture ” means the first ranking partnership debenture dated the Original Effective Date between, amongst others, UK-LP (acting through its general partner Mobile Storage Group, Inc.), the limited partners of UK-LP and the Collateral Agent, as amended, restated, supplemented or otherwise modified from time to time.

-41-

 

“ UK First Ranking Share Charge ” means the first ranking share charge dated the Original Effective Date between the US Company and the Collateral Agent, as amended, restated, supplemented or otherwise modified from time to time.

“ UK Intercreditor Deed ” means the intercreditor deed, dated as of the Original Effective Date, and entered into by and among the Administrative Agent, the UK Company, LIKO Luxembourg International S.a.r.l, Mobile Storage (UK) Limited, among others, as amended, restated, supplemented or otherwise modified from time to time.

“ UK Issuing Lender ” shall mean (i) each of Deutsche Bank AG New York Branch (except as otherwise provided in Section 12.09 ) and any other Lender reasonably acceptable to the Administrative Agent and US Company or UK Company which agrees to issue UK Letters of Credit hereunder and (ii) with respect to the Existing UK Letters of Credit, the Lender designated as the issuer thereof on Schedule 3.02(c) .  Any UK Issuing Lender may, in its discretion, arrange for one or more UK Letters of Credit to be issued by one or more Affiliates of such UK Issuing Lender (and such Affiliate shall be deemed to be a “UK Issuing Lender” for all purposes of the Credit Documents).

“ UK L/C Supportable Obligations ” shall mean (a) obligations of a UK Borrower with respect to workers compensation, surety bonds and other similar statutory obligations and (b) such other obligations of a UK Borrower as are reasonably acceptable to the respective UK Issuing Lender and otherwise permitted to exist pursuant to the terms of this Agreement (other than obligations in respect of (i) any Indebtedness or other obligations that are subordinated in right of payment to the UK Obligations and (ii) any Equity Interests).

“ UK Letter of Credit ” shall have the meaning provided in Section 3.02(a) .

“ UK Letter of Credit Fee ” shall have the meaning provided in Section 4.01(b) .

“ UK Letter of Credit Outstandings ” shall mean, at any time, the sum of (a) the Stated Amount of all outstanding UK Letters of Credit at such time and (b) the aggregate amount of all Unpaid UK Drawings in respect of all UK Letters of Credit at such time.

“ UK Letter of Credit Request ” shall have the meaning provided in Section 3.08(a) .

“ UK LIBOR Loan ” shall mean each UK Revolving Loan denominated in Pounds Sterling bearing interest at a rate determined by reference to LIBOR.

“ UK-LP ” shall mean Mobile Storage UK Finance LP, a limited partnership formed under the laws of England and Wales.

“ UK Maximum Amount ” shall mean, as of any date of determination, the lesser of (a) Equivalent Amount of $200,000,000 and (b) the Equivalent Amount of the Total Revolving Loan Commitment minus the Equivalent Amount of the Aggregate US Exposure minus the Equivalent Amount of the Aggregate Canadian Exposure.

“ UK Obligations ” shall mean, with respect to any UK Credit Party, all Loans, all obligations under Letters of Credit and all other advances, debts, liabilities, obligations, covenants and duties, together with all interest, fees and other charges thereon, owing, arising, due or payable from such UK Credit Party to an Agent, any Lender or any Affiliate of any Lender, or from a UK Borrower to any UK Issuing Lender, of any kind or nature, present or future, whether or not evidenced by any note, guaranty or other instrument, whether arising under this Agreement or any of the other Credit Documents or cash management services rendered in connection therewith, whether direct or indirect (including those acquired by assignment), absolute or contingent, primary or secondary, due or to become due, now existing or hereafter arising and however acquired, and any Banking Products Obligations or Qualified Derivative Obligations owing to a Banking Products Provider or a Qualified Derivative Counterparty, in each case by a UK Credit Party; provided , that the UK Obligations of any Guarantor shall not include any Excluded Swap Obligations solely of such Guarantor.

“ UK Participant ” shall have the meaning set forth in Section 3.11(a) .

“ UK Priority Claims ” means with respect to any UK Borrowing Base Party only, (a) sums which are due by way of contributions to occupational pension schemes, including contributions in respect of contracted-out rights; (b) unpaid remuneration of employees in respect of the 4-month period prior to insolvency (up to a maximum of £800 per employee), together with any amount owed in respect of accrued holiday; (c) an amount equal to the aggregate of (i) 50% of the first £10,000 in value of assets comprising the UK Borrowing Base of any UK Borrowing Base Party and (ii) 20% of the value of assets comprising the UK Borrowing Base of

-42-

 

any UK Borrowing Base Party above £10,000, subject to a cap for this sub-clause (c) of £600,000 for each UK Borrowing Base Party, (d) the expenses of any administration or winding-up and (e) an amount equal to the value of suppliers’ valid and subsisting retention of title claims (and including, without limitation, any third party retention of title provision extending to disposal proceeds)) with respect to Eligible Inventory, or, in the case of sub-clauses (b) and (c), such other amount as is the maximum permitted preference under applicable law.

“ UK Revolving Loan ” shall have the meaning set forth in Section 2.01(b) .

“ UK Revolving Loan Commitment ” shall mean, for each Lender, the amount set forth opposite such Lender’s name in Schedule 1.01(a) directly below the column entitled “UK Revolving Loan Commitment,” as same may be (x) reduced from time to time or terminated pursuant to Sections 4.02 , 4.03 and/or 11 , as applicable, (y) increased from time to time pursuant to Section 2.15 , or (z) adjusted from time to time as a result of assignments to or from such Lender pursuant to Section 2.13 or 13.04(b) .

“ UK Revolving Note ” shall have the meaning set forth in Section 2.05(a) .

“ UK Second Supplemental Debenture ” shall mean the second supplemental debenture dated on or about the Effective Date, executed by the UK Company and each UK Subsidiary (other than UK-LP) with respect to the UK Obligations and the Canadian Obligations in favor of the Collateral Agent for the benefit of the Secured Creditors.

“ UK Second Supplemental Partnership Debenture ” shall mean the second supplemental partnership debenture dated on or about the Effective Date, executed by UK-LP (acting through its general partner Mobile Storage Group, Inc.), and the limited partners of UK-LP with respect to the US Obligations, the UK Obligations and the Canadian Obligations in favor of the Collateral Agent for the benefit of the Secured Creditors.

“ UK Second Supplemental Share Charge ” shall have the meaning set forth in Section 6.08 .

“ UK Security Agreements ” shall mean the UK Debentures and the UK Share Charges.

“ UK Share Charges ” shall mean the UK First Ranking Share Charge, the UK Supplemental Share Charge and the UK Second Supplemental Share Charge.

“ UK Supplemental Debenture ” means the supplemental debenture dated 10 December 2014 between, amongst others, the UK Company, each UK Subsidiary (other than UK-LP) and the Collateral Agent.

“ UK Supplemental Partnership Debenture ” means the supplemental partnership debenture dated 10 December 2014 between, amongst others, UK-LP (acting through its general partner Mobile Storage Group, Inc.), the limited partners of UK-LP and the Collateral Agent.

“ UK Supplemental Share Charge ” means the supplemental share charge dated 10 December 2014 between the US Company and the Collateral Agent.

“ UK Swingline Loans ” shall have the meaning set forth in Section 2.01(e) .

“ UK Swingline Note ” shall have the meaning set forth in Section 2.05(a) .

“ UK Subsidiary ” shall mean each Subsidiary of US Company that is incorporated in England and Wales.

“ Undisclosed Administration ” means in relation to a Lender or a Person that directly or indirectly controls such Lender, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or Person, as the case may be, is subject to home jurisdiction supervision if applicable law requires that such appointment is not to be publicly disclosed.

“ Unfinanced Capital Expenditures ” shall mean, for any period, Capital Expenditures made in cash during such fiscal period, except to the extent financed with the proceeds of Capital Lease Obligations or other Indebtedness (other than Loans incurred hereunder), equity issuances, casualty proceeds, condemnation proceeds or other proceeds that would not be included in Consolidated EBITDA, less cash received from the sale of any fixed assets (including, without limitation, assets of the type that may constitute Eligible Rental Fleet Inventory hereunder) during such period.

-43-

 

“ Unfunded Current Liability ” shall mean the amount, if any, by which the value of the accumulated plan benefits under any Plan determined on a plan termination basis in accordance with actuarial assumptions at such time consistent with those prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds the Fair Market Value of all plan assets allocable to such liabilities under Title IV of ERISA (excluding any accrued but unpaid contributions).

“ United States ” and “ US ” shall each mean the United States of America.

“ Unpaid Supplier Reserve ” means, at any time, with respect to any Borrowing Base Party which carries on business in Canada or which leases or sells goods in Canada or which has Accounts with Account Debtors located in Canada or otherwise has any assets in Canada, the amount equal to the percentage applicable to Eligible Inventory in the calculation of the US Borrowing Base multiplied by the aggregate value of the Eligible Inventory which the Administrative Agent, in good faith, considers is or may be subject to a right of a supplier to repossess goods pursuant to Section 81.1 of the Bankruptcy and Insolvency Act (Canada) or any other laws of Canada or any other applicable jurisdiction granting revendication or similar rights to unpaid suppliers, in each case, where such supplier’s right ranks or is capable of ranking in priority to or pari passu with one or more of the Liens granted in the Security Documents.

“ Unpaid Drawing ” shall mean an Unpaid Canadian Drawing, an Unpaid UK Drawing or an Unpaid US Drawing.

“ Unpaid Canadian Drawing ” shall have the meaning provided in Section 3.15(a) .

“ Unpaid UK Drawing ” shall have the meaning provided in Section 3.14(a) .

“ Unpaid US Drawing ” shall have the meaning provided in Section 3.13(a) .

“ Unutilized Revolving Loan Commitment ” shall mean, with respect to any Lender at any time, such Lender’s Revolving Loan Commitment at such time less the sum of (a) the aggregate outstanding principal amount of all Revolving Loans made by such Lender at such time and (b) such Lender’s RL Percentage of the Letter of Credit Outstandings at such time.

“ US Borrower ” and “ US Borrowers ” shall have the meaning provided in the first paragraph of this Agreement.

“ US Borrowing ” shall mean the borrowing of one Type of US Revolving Loan from all the Lenders, or from the Swingline Lender in the case of US Swingline Loans, on a given date (or resulting from a conversion or conversions on such date) having in the case of US LIBOR Loans the same Interest Period; provided that Base Rate Loans incurred pursuant to Section 2.10(b) shall be considered part of the related US Borrowing of US LIBOR Loans.

“ US Borrowing Availability ” shall mean, as of any date of determination, the remainder of (i) the lesser of (x) the US Maximum Amount at such time and (y) the US Borrowing Base at such time minus (ii) the Aggregate US Exposure at such time.

“ US Borrowing Base ” shall mean, as of any date of calculation, the amount calculated pursuant to the Borrowing Base Certificate most recently delivered to the Administrative Agent in accordance with Section 9.01(i) (but as modified as provided below in this definition), equal to, without duplication, an amount equal to the sum of:

(i) eighty-five percent (85%) of Eligible US Accounts, plus

(ii) ninety percent (90%) of Eligible US Rental Fleet Inventory, plus

(iii) [Reserved]

(iv) the lesser of (A) (1) $50,000,000 less (2) the amount included in such Borrowing Base Certificate with respect to clause (v)(B) of the definition of UK Borrowing Base and clause (v)(B) of the definition of Canadian Borrowing Base and (B) the sum of (1) ninety percent (90%) of Eligible US Container Inventory Held for Sale; plus (2)  ninety percent (90%) of Eligible US Work-in-Process Container Inventory; plus (3) sixty-five percent (65%) of Eligible US Raw Materials Inventory; plus

(v) the lesser of (A) (1) $50,000,000 less (2) the amount included in such Borrowing Base Certificate with respect to clause (vi)(B) of the definition of UK Borrowing Base and clause (vi)(B) of the definition of Canadian Borrowing Base and (B) the sum of (1) eighty-five percent (85%) of Eligible US Machinery and Equipment; plus (2) sixty percent (60%) of Eligible Real Property; minus

-44-

 

(vi) the amount of all Reserves then established by the Administrative Agent against the US Borrowing Base.    

The Administrative Agent shall have the right (but no obligation) to review such computations and if, in its Permitted Discretion, such computations have not been calculated in accordance with the terms of this Agreement, the Administrative Agent shall have the right to correct any such errors in such manner as it shall determine in its Permitted Discretion.  The US Borrowing Base (and the Borrowing Base Certificate then most recently delivered) may be adjusted by the Administrative Agent to reflect any new or incremental Reserves required by the Administrative Agent in its Permitted Discretion; provided that no change in the amount of any Reserve shall be effective until the date occurring three Business Days after written notice thereof by the Administrative Agent to the US Company after consultation with US Company.

“ US Borrowing Base Party ” shall mean US Company and each Wholly-Owned Domestic Subsidiary of US Company that is a US Borrower and/or a US Guarantor.

“ US Company ” shall have the meaning provided in the first paragraph of this Agreement.

“ US Credit Party ” shall mean each of the US Borrowers and each of the US Guarantors.

“ US Drawing ” shall have the meaning set forth in Section 3.13(b) .

“ US Guaranteed Obligations ” shall have the meaning set forth in Section 15.01(a) .

“ US Guarantors ” shall mean US Company and each Domestic Subsidiary of US Company and each other Person who now or hereafter guarantees payment or performance of the whole or any part of the US Obligations, including each Domestic Subsidiary listed on Schedule 8.04 (other than any Immaterial Subsidiary) and, subject to Section 9.13(e) , each other Domestic Subsidiary that is or becomes a party to this Agreement pursuant to Section 9.13 , Section 10.11 or Section 10.13 .

“ US Issuing Lender ” shall mean (i) each of Deutsche Bank AG New York Branch, Bank of America, N.A. and JPMorgan Chase Bank, N.A. (except as otherwise provided in Section 12.09 ) and any other Lender reasonably acceptable to the Administrative Agent and US Company which agrees to issue US Letters of Credit hereunder and (ii) with respect to the Existing Letters of Credit, the Lender designated as the issuer thereof on Schedule 3.01(c) .  Any US Issuing Lender may, in its discretion, arrange for one or more US Letters of Credit to be issued by one or more Affiliates of such US Issuing Lender (and such Affiliate shall be deemed to be a “US Issuing Lender” for all purposes of the Credit Documents).

“ US L/C Supportable Obligations ” shall mean (a) obligations of a US Borrower with respect to workers compensation, surety bonds and other similar statutory obligations and (b) such other obligations of a US Borrower as are reasonably acceptable to the respective US Issuing Lender and otherwise permitted to exist pursuant to the terms of this Agreement (other than obligations in respect of (i) any Indebtedness or other obligations that are subordinated in right of payment to the US Obligations and (ii) any Equity Interests).

“ US Letter of Credit ” shall have the meaning provided in Section 3.01(a) .

“ US Letter of Credit Fee ” shall have the meaning provided in Section 4.01(b) .

“ US Letter of Credit Outstandings ” shall mean, at any time, the sum of (a) the Stated Amount of all outstanding US Letters of Credit at such time and (b) the aggregate amount of all Unpaid US Drawings in respect of all US Letters of Credit at such time.

“ US Letter of Credit Request ” shall have the meaning provided in Section 3.07(a) .

“ US LIBOR Loan ” shall mean each US Revolving Loan designated as such by the relevant Borrower at the time of the incurrence thereof or conversion thereto bearing interest at a rate determined by reference to LIBOR.

“ US Master Reaffirmation Agreement ” means that certain US Master Reaffirmation Agreement dated as of the Effective Date, among US Company, each other US Credit Party and the Collateral Agent.

-45-

 

“ US Maximum Amount ” shall mean, as of any date of determination, the Equivalent Amount of the Total Revolving Loan Commitment minus the Equivalent Amount of the Aggregate UK Exposure minus the Equivalent Amount of the Aggregate Canadian Exposure.

“ US Obligations ” shall mean, with respect to any US Credit Party, all Loans, all obligations arising under Letters of Credit and all other advances, debts, liabilities, obligations, covenants and duties, together with all interest, fees and other charges thereon, owing, arising, due or payable from such US Credit Party to an Agent, any Lender or any Affiliate of any Lender, or from a US Borrower to any US Issuing Lender, of any kind or nature, present or future, whether or not evidenced by any note, guaranty or other instrument, whether arising under this Agreement or any of the other Credit Documents or cash management services rendered in connection therewith, whether direct or indirect (including those acquired by assignment), absolute or contingent, primary or secondary, due or to become due, now existing or hereafter arising and however acquired, and any Banking Products Obligations and any Qualified Derivative Obligations owing to a Banking Products Provider or a Qualified Derivative Counterparty, in each case by a US Credit Party; provided , that the US Obligations of any Guarantor shall not include any Excluded Swap Obligations solely of such Guarantor.

“ US Participant ” shall have the meaning set forth in Section 3.10(a) .

“ US Pledge Agreement ” shall mean the pledge agreement dated as of the Original Effective Date, executed by US Company and each other US Credit Party with respect to the Obligations in favor of the Collateral Agent for the benefit of the Secured Creditors, as amended, restated, supplemented or otherwise modified from time to time.

“ US Pledge Agreement Collateral ” shall mean all “Collateral” as defined in the US Pledge Agreement.

“ US Revolving Loans ” shall have the meaning set forth in Section 2.01(a) .

“ US Revolving Note ” shall have the meaning set forth in Section 2.05(a) .

“ US Security Agreement ” shall mean the security agreement dated as of the Original Effective Date, executed by US Company and each other US Credit Party with respect to the Obligations in favor of the Collateral Agent for the benefit of the Secured Creditors, as amended, restated, supplemented or otherwise modified from time to time.

“ US Swingline Loans ” shall have the meaning set forth in Section 2.01(d) .

“ US Swingline Note ” shall have the meaning set forth in Section 2.05(a) .

“ VFCP ” shall have the meaning provided in Section 8.23(a) .

“ Voting Stock ” shall mean Equity Interests of any class or classes of a corporation, limited partnership or limited liability company or any other entity the holders of which are ordinarily, in the absence of contingencies, entitled to vote with respect to the election of corporate directors (or Persons performing similar functions).

“ Wholly-Owned Domestic Subsidiary ” shall mean, as to any Person, any Domestic Subsidiary of such Person that is a Wholly-Owned Subsidiary.

“ Wholly-Owned Subsidiary ” shall mean, as to any Person, (a) any corporation 100% of whose capital stock is at the time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such Person and (b) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such time (other than, in the case of a Foreign Subsidiary of US Company with respect to the preceding clauses (a) and (b), directors’ qualifying shares and/or other nominal amounts of shares required to be held by Persons other than US Company and its Subsidiaries under Applicable Law).

1.02 Exchange Rates . Except as otherwise expressly provided herein, including, without limitation, by Section 2.17 and the definition of “Equivalent Amount”, for purposes of any determination under any other provision of this Agreement requiring the use of a current exchange rate, all amounts incurred, outstanding or proposed to be incurred or outstanding in currencies other than Dollars shall be translated into Dollars at the Spot Rate then in effect on the date of such determination; provided, however, that (a) for purposes of determining compliance with Section 10 with respect to the amount of any Permitted Lien, Indebtedness, Investment, Asset Sale, Disposition or Restricted Payment in a currency other than Dollars, no Default or Event of Default shall be deemed to have occurred solely as a result of changes in rates of exchange occurring after the time such Lien, Indebtedness or

-46-

 

Investment is incurred or Asset Sale, Disposition or Restricted Payment is made, (b) for purposes of determining compliance with any Dollar-denominated restriction on the incurrence of Indebtedness, if such Indebtedness is incurred to refinance then existing Indebtedness that is denominated in a foreign currency, 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 does not exceed the principal amount of such Indebtedness being refinanced and (c) for the avoidance of doubt, the foregoing provisions of this Section 1.02 shall otherwise apply to Article X, including with respect to determining whether any Lien, Indebtedness or Investment may be incurred or Asset Sale, Disposition or Restricted Payment may be made at any time under such Article; provided further, however, that the foregoing proviso shall apply only for purposes of determining compliance with restrictions expressed in specific Dollar amounts and shall not apply for purposes of determining compliance with any Debt Ratio restriction (including, without limitation, the Debt Ratio restriction contained in the definition of “Permitted Ratio Debt” and Section 10.05(f)) or other restriction that is not expressed as a specific Dollar amount.  

SECTION 2. Amount and Terms of Credit .

2.01 The Commitments .

(a) US Revolving Loans .  Subject to and upon the terms and conditions set forth herein, each Lender severally agrees to make, at any time and from time to time on or after the Effective Date and prior to the Final Maturity Date, a revolving loan or revolving loans (each, a “ US Revolving Loan ” and, collectively, the “ US Revolving Loans ”) to the US Borrowers (on a joint and several basis), which US Revolving Loans: (i) shall be denominated in Dollars, (ii) shall, at the option of the respective Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or LIBOR Loans; provided that, except as otherwise specifically provided in Section 2.10(b) , all US Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iv) shall not be made (and shall not be required to be made) by any Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause the Individual Exposure of such Lender to exceed the amount of its Revolving Loan Commitment at such time and (v) shall not be made (and shall not be required to be made) by any Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause (A) the Aggregate Exposure to exceed the Total Revolving Loan Commitment, as then in effect, (B) the Aggregate US Exposure to exceed the US Maximum Amount, as then in effect, (C) the Aggregate Exposure to exceed the Aggregate Borrowing Base at such time (based on the most recently delivered Borrowing Base Certificate) or (D) the Aggregate US Exposure to exceed the US Borrowing Base at such time (based on the most recently delivered Borrowing Base Certificate).

(b) UK Revolving Loans .  Subject to and upon the terms and conditions set forth herein, each Lender severally agrees to make, at any time and from time to time on or after the Effective Date and prior to the Final Maturity Date, a revolving loan or revolving loans (each, a “ UK Revolving Loan ” and, collectively, the “ UK Revolving Loans ”) to the UK Borrowers (on a joint and several basis), which UK Revolving Loans: (i) shall, at the option of the applicable UK Borrower, be denominated in either Pounds Sterling (such Revolving Loans, “ Pounds Sterling Denominated Revolving Loans ”) or Euros (such Revolving Loans, “ Euro Denominated Revolving Loans ”), (ii) shall be incurred and maintained as solely in the case of UK Revolving Loans denominated in Pounds Sterling, LIBOR Loans, and in the case of UK Revolving Loans denominated in Euros, EURIBOR Loans; provided that all UK Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iv) shall not be made (and shall not be required to be made) by any Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause the Individual Exposure of such Lender to exceed the amount of its Revolving Loan Commitment at such time and (v) shall not be made (and shall not be required to be made) by any Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause (A) the Aggregate Exposure to exceed the Total Revolving Loan Commitment, as then in effect, (B) the Aggregate UK Exposure to exceed the UK Maximum Amount or the UK Revolving Loan Commitments, as then in effect, (C) the Aggregate Exposure to exceed the Aggregate Borrowing Base at such time (based on the most recently delivered Borrowing Base Certificate) or (D) the Aggregate UK Exposure to exceed the UK Borrowing Base at such time (based on the most recently delivered Borrowing Base Certificate). Upon receipt by the Administrative Agent of any Notice of Borrowing pursuant to which the UK Company or any other UK Borrower proposes to borrow in Pounds Sterling or Euros, the Administrative Agent shall provide notice of the same to each Lender.

(c) Canadian Revolving Loans.   Subject to and upon the terms and conditions set forth herein, each Lender severally agrees to make, at any time and from time to time on or after the Effective Date and prior to the Final Maturity Date, a revolving loan or revolving loans (each a “ Canadian Revolving Loan ” and, collectively, the “ Canadian Revolving Loans ”) to the Canadian Borrowers (on a joint and several basis), which Canadian Revolving Loans: (i) shall be denominated in Canadian Dollars,

-47-

 

(ii) shall, at the option of the applicable Canadian Borrower, be incurred and maintained as, and/or converted into, Canadian Prime Rate Loans or Canadian LIBOR Loans; provided that all Canadian Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iv) shall not be made (and shall not be required to be made) by any Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause the Individual Exposure of such Lender to exceed the amount of its Revolving Loan Commitment at such time and (v) shall not be made (and shall not be required to be made) by any Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause (A) the Aggregate Exposure to exceed the Total Revolving Loan Commitment, as then in effect, (B) the Aggregate Canadian Exposure to exceed the Canadian Maximum Amount or the Canadian Revolving Loan Commitments, as then in effect, (C) the Aggregate Exposure to exceed the Aggregate Borrowing Base at such time (based on the most recently delivered Borrowing Base Certificate) or (D) the Aggregate Canadian Exposure to exceed the Canadian Borrowing Base at such time (based on the most recently delivered Borrowing Base Certificate) .  

(d) US Swingline Loans .  Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees to make, at any time and from time to time on or after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each, a “ US Swingline Loan ” and, collectively, the “ US Swingline Loans ”) to the US Borrowers (on a joint and several basis), which US Swingline Loans: (i) shall be denominated in Dollars, (ii) shall be incurred and maintained as Base Rate Loans; (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iv) shall not be made (and shall not be required to be made) by the Swingline Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause (A) the Aggregate Exposure to exceed the Total Revolving Loan Commitment, as then in effect, (B) the Aggregate US Exposure to exceed the US Maximum Amount, as then in effect, (C) the Aggregate Exposure to exceed the Aggregate Borrowing Base at such time (based on the most recently delivered Borrowing Base Certificate) or (D) the Aggregate US Exposure to exceed the US Borrowing Base at such time (based on the most recently delivered Borrowing Base Certificate), and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum US Swingline Amount.  Notwithstanding anything to the contrary contained in this Section 2.01(d) , (i) the Swingline Lender shall not make any US Swingline Loan after it has received written notice from any Borrower, any other Credit Party or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice (A) of rescission of all such notices from the party or parties originally delivering such notice or notices or (B) of the waiver of such Default or Event of Default by the Required Lenders or such other Lenders solely to the extent required under the terms of this Agreement, and (ii) no Swingline Lender shall be obligated to make US Swingline Loans to the extent such advance would cause such Lender’s then outstanding Loans to exceed its Revolving Loan Commitment.

(e) UK Swingline Loans .  Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees to make, at any time and from time to time on or after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each, a “ UK Swingline Loan ” and, collectively, the “ UK Swingline Loans ”) to the UK Borrowers (on a joint and several basis), which UK Swingline Loans (i) shall be denominated in Pounds Sterling or Euros, at the option of the applicable Borrower, (ii) shall be incurred and maintained as in the case of UK Revolving Loans denominated in Pounds Sterling, LIBOR Loans, and in the case of UK Revolving Loans denominated in Euros, EURIBOR Loans, with an Interest Period of one week; (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iv) shall not be made (and shall not be required to be made) by the Swingline Lender in any instance where the incurrence thereof (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) would cause (A) the Aggregate Exposure to exceed the Total Revolving Loan Commitment, as then in effect, (B) the Aggregate UK Exposure to exceed the UK Maximum Amount or the UK Revolving Loan Commitments, as then in effect, (C) the Aggregate Exposure to exceed the Aggregate Borrowing Base at such time (based on the most recently delivered Borrowing Base Certificate), or (D) the Aggregate UK Exposure to exceed the UK Borrowing Base at such time (based on the most recently delivered Borrowing Base Certificate), and (v) shall not exceed in aggregate principal amount at any time outstanding the Maximum UK Swingline Amount.  Notwithstanding anything to the contrary contained in this Section 2.01(e) , (i) the Swingline Lender shall not make any UK Swingline Loan after it has received written notice from any Borrower, any other Credit Party or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as the Swingline Lender shall have received written notice (A) of rescission of all such notices from the party or parties originally delivering such notice or notices or (B) of the waiver of such Default or Event of Default by the Required Lenders or such other Lenders solely to the extent required under the terms of this Agreement, and (ii) no Swingline Lender shall be obligated to make UK Swingline Loans to the extent such advance would cause such Lender’s then outstanding Loans to exceed its Revolving Loan Commitment.

(f) Mandatory US Borrowings .  On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders that the Swingline Lender’s outstanding US Swingline Loans shall be funded with one or more Borrowings of US Revolving Loans ( provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or

-48-

 

an Event of Default under Section 11.08 or upon the exercise of any of the remedies provided in the last paragraph of Section 11 ), in which case one or more Borrowings of US Revolving Loans constituting Base Rate Loans (each such Borrowing, a “ Mandatory US Borrowing ”) shall be made on the immediately succeeding Business Day by all Lenders pro rata based on each such Lender’s RL Percentage (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 11 ) and the proceeds thereof shall be applied directly by the Swingline Lender to repay the Swingline Lender for such outstanding US Swingline Loans.  Each Lender hereby irrevocably agrees to make US Revolving Loans upon one Business Day’s notice pursuant to each Mandatory US Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) the amount of the Mandatory US Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory US Borrowing, (v) the amount of the US Borrowing Base or the US Maximum Amount at such time, and (vi) the amount of the Aggregate Borrowing Base or the Total Revolving Loan Commitment at such time.  In the event that any Mandatory US Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to any Borrower), then each Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory US Borrowing would otherwise have occurred, but adjusted for any payments received from any Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding US Swingline Loans as shall be necessary to cause the Lenders to share in such US Swingline Loans ratably based upon their respective RL Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 11 ), provided that (x) all interest payable on the US Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swingline Lender interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory US Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the interest rate otherwise applicable to US Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter .  

(g) Mandatory UK Borrowings .  On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders that the Swingline Lender’s outstanding UK Swingline Loans shall be funded with one or more Borrowings of UK Revolving Loans ( provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 11.08 or upon the exercise of any of the remedies provided in the last paragraph of Section 11), in which case one or more Borrowings of UK Revolving Loans constituting LIBOR Loans or, in the case of UK Swingline Loans in Euros, EURIBOR Loans with an Interest Period of one week (each such Borrowing, a “ Mandatory UK Borrowing ”) shall be made on the immediately succeeding Business Day by all Lenders pro rata based on each such Lender’s RL Percentage (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 11 ) and the proceeds thereof shall be applied directly by the Swingline Lender to repay the Swingline Lender for such outstanding UK Swingline Loans.  Each Lender hereby irrevocably agrees to make UK Revolving Loans upon one Business Day’s notice pursuant to each Mandatory UK Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) the amount of the Mandatory UK Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any conditions specified in Section 7 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory UK Borrowing, (v) the amount of the UK Borrowing Base or the UK Maximum Amount or the amount of UK Revolving Loan Commitments at such time, and (vi) the amount of the Aggregate Borrowing Base or the Total Revolving Loan Commitment at such time.  In the event that any Mandatory UK Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the occurrence of any of the circumstances listed in Section 11.08 with respect to any UK Borrower), then each Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory UK Borrowing would otherwise have occurred, but adjusted for any payments received from any Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding UK Swingline Loans as shall be necessary to cause the Lenders to share in such UK Swingline Loans ratably based upon their respective RL Percentages (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 11 ), provided that (x) all interest payable on the UK Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swingline Lender interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory UK Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the rate for one-week LIBOR or EURIBOR (as applicable) Interest Period with respect to such UK Swingline Loan.

(h) Notwithstanding anything to the contrary in Section 2.01(a) , Section 2.01(b) or elsewhere in this Agreement, the Administrative Agent shall have the right, following reasonable consultation with US Company, to establish Reserves in such amounts, and with respect to such matters, as the Administrative Agent in its Permitted Discretion shall deem necessary or

-49-

 

appropriate, against the US Borrowing Base, the UK Borrowing Base and the Canadian Borrowing Base (which reserves shall reduce the then existing US Borrowing Base, UK Borrowing Base and Canadian Borrowing Base in an amount equal to such reserves).  

(i) (i) In the event that the Borrowers are unable to comply with the US Borrowing Base limitations set forth in Section 2.01(a) , or (ii) the Borrowers are unable to comply with the conditions precedent to the making of Revolving Loans set forth in Section 7 , in either case, the Lenders, subject to the immediately succeeding proviso, hereby authorize the Administrative Agent, for the account of the Lenders, to make US Revolving Loans to the US Borrowers (on a joint and several basis), solely in the event that the Administrative Agent in its Permitted Discretion deems necessary or desirable (A) to preserve or protect the Collateral, or any portion thereof, (B) to enhance the likelihood of repayment of the Obligations, or (C) to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement or any other Credit Document, including, without limitation, Expenses and Fees, which Revolving Loans may only be made as Base Rate Loans (an “ Agent Advance ”), for a period commencing on the date the Administrative Agent first receives a Notice of Borrowing requesting an Agent Advance until the earliest of (x) the twentieth Business Day after such date, (y) the date the respective Borrowers are again able to comply with the US Borrowing Base limitations and the conditions precedent to the making of US Revolving Loans, or obtains an amendment or waiver with respect thereto and (z) the date the Required Lenders instruct the Administrative Agent to cease making Agent Advances (the “ Agent Advance Period ”); provided that the Administrative Agent shall not make any Agent Advance to the extent that at the time of the making of such Agent Advance, the amount of such Agent Advance (I) when added to the aggregate outstanding amount of all other Agent Advances made to the US Borrowers at such time, would exceed 5.0% of the US Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) (the “ Agent Advance Amount ”) or (II) when added to the Aggregate US Exposure as then in effect (immediately prior to the incurrence of such Agent Advance), would exceed the US Maximum Amount at such time.  Agent Advances may be made by the Administrative Agent in its sole discretion and the Borrowers shall have no right whatsoever to require that any Agent Advances be made.  Agent Advances will be subject to periodic settlement with the Lenders pursuant to Section 2.04(e) .

2.02 Minimum Amount of Each Borrowing . The aggregate principal amount of each Borrowing of Loans shall not be less than the Minimum Borrowing Amount applicable thereto.  More than one Borrowing may occur on the same date, but at no time shall there be outstanding more than ten Borrowings of US LIBOR Loans (or such greater number of Borrowings of US LIBOR Loans as may be agreed to from time to time by the Administrative Agent), more than five Borrowings of UK Revolving Loans (or such greater number of Borrowings of UK Revolving Loans as may be agreed to from time to time by the Administrative Agent) or more than five Borrowings of Canadian LIBOR Loans (or such greater number of Borrowings of Canadian LIBOR Loans as may be agreed to from time to time by the Administrative Agent).

2.03 Notice of Borrowing . (a) Whenever a Borrower desires to incur (i) LIBOR Loans or EURIBOR Loans hereunder (excluding UK Swingline Loans and UK Revolving Loans made pursuant to a Mandatory UK Borrowing), such Borrower shall give the Administrative Agent at the Notice Office at least three Business Days’ prior notice of each LIBOR Loan or EURIBOR Loan to be incurred hereunder (provided that any such notice shall be deemed to have been given on a certain day only if given before 2:00 P.M. (New York City time) on such day, or, in the case of any UK Revolving Loans, 10:00 A.M. (New York City time) on such day, or, in the case of any Canadian Revolving Loans, 10:00 A.M. (Toronto time) on such day), (ii) Base Rate Loans hereunder (including Agent Advances, but excluding US Swingline Loans and US Revolving Loans made pursuant to a Mandatory US Borrowing), such Borrower shall give the Administrative Agent at the Notice Office notice no later than 11:00 A.M. (New York City time) on the date of each Base Rate Loan to be incurred hereunder and (iii) Canadian Prime Rate Loans hereunder, such Borrower shall give the Administrative Agent at the Notice Office at least one Business Day’s prior notice of each Canadian Prime Rate Loan to be incurred hereunder (provided that any such notice shall be deemed to have been given on a certain day only if given before  10:00 A.M. (Toronto time) on such day).  Each such notice (each, a “Notice of Borrowing”), except as otherwise expressly provided in Section 2.10, shall be irrevocable and shall be in writing, or by telephone promptly confirmed in writing, in the form of Exhibit A-1, appropriately completed to specify: (A) the aggregate principal amount of the Revolving Loans to be incurred pursuant to such Borrowing, (B) the date of such Borrowing (which shall be a Business Day), (C) whether the Revolving Loans made pursuant to such Borrowing constitute US Revolving Loans, UK Revolving Loans or Canadian Revolving Loans, (D) whether the Revolving Loans made pursuant to such Borrowing constitute Agent Advances (it being understood that the Administrative Agent shall be under no obligation to make such Agent Advance), (E) in the case of US Revolving Loans, whether the Revolving Loans being incurred pursuant to such Borrowing are to be initially maintained as Base Rate Loans or, to the extent permitted hereunder, LIBOR Loans and, if US LIBOR Loans, the initial Interest Period to be applicable thereto, (F) in the case of UK Revolving Loans whether EURIBOR Loans or UK LIBOR Loans, the initial Interest Period to be applicable thereto and whether denominated in Pounds Sterling or Euros, (G) in the case of Canadian Revolving Loans, whether the respective Borrowing shall consist of Canadian Prime Rate Loans or, to the extent permitted hereunder, Canadian LIBOR Loans and, if Canadian LIBOR Loans, the initial Interest Period to be applicable thereto and (H) the US Borrowing Base, the UK Borrowing Base and the Canadian Borrowing Base at such time (based on the Borrowing Base Certificate last delivered).  Except as provided in Section 2.04(e), the Administrative Agent shall promptly give each Lender notice of such proposed Borrowing, of such Lender’s proportionate share thereof and of the other matters required by the immediately preceding sentence to be specified in the Notice of Borrowing.

-50-

 

(b) (i) Whenever a US Borrower desires to incur US Swingline Loans hereunder, such Borrower shall give the Swingline Lender no later than 2:00 P.M. (New York City time) on the date that a US Swingline Loan is to be incurred, written notice or telephonic notice promptly confirmed in writing of each US Swingline Loan to be incurred hereunder.  Each such notice shall be irrevocable and specify in each case (A) the date of Borrowing (which shall be a Business Day), and (B) the aggregate principal amount of the US Swingline Loans to be incurred pursuant to such Borrowing .  

(ii) Whenever a UK Borrower desires to incur UK Swingline Loans hereunder, such Borrower shall give the Swingline Lender one Business Days’ prior notice of each UK Swingline Loan to be incurred hereunder; provided that (in each case) any such notice shall be deemed to have been given on a certain day only if given before 10:00 A.M. (New York City time) on such day or such later time as shall be acceptable to the Administrative Agent (which such notice shall be written notice or telephonic notice promptly confirmed in writing).  Each such notice shall be irrevocable and specify in each case (A) the date of Borrowing (which shall be a Business Day), and (B) the aggregate principal amount of the UK Swingline Loans to be incurred pursuant to such Borrowing.

(iii) Mandatory Borrowings shall be made upon the notice specified in Sections 2.01(f) or 2.01(g) , as applicable, with the respective Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the making of the Mandatory Borrowings as set forth in Section 2.01(f) or 2.01(g) , as applicable.

(c) Without in any way limiting the obligation of any Borrower to confirm in writing any telephonic notice of any Borrowing or prepayment of Loans, the Administrative Agent or the Swingline Lender, as the case may be, may act without liability upon the basis of telephonic notice of such Borrowing or prepayment, as the case may be, believed by the Administrative Agent or the Swingline Lender, as the case may be, in good faith to be from an Authorized Officer of such Borrower, prior to receipt of written confirmation.  In each such case, such Borrower hereby waives the right to dispute the Administrative Agent’s or the Swingline Lender’s record of the terms of such telephonic notice of such Borrowing or prepayment of Loans, as the case may be, absent manifest error.

2.04 Disbursement of Funds . (a) Disbursement of US Revolving Loans.  No later than 2:00 P.M. (New York City time) on the date specified in each Notice of Borrowing with respect to any US Revolving Loans (or (x) in the case of US Swingline Loans, no later than 4:00 P.M. (New York City time) on the date specified pursuant to Section 2.03(b)(i) or (y) in the case of Mandatory US Borrowings, no later than 1:00 P.M. (New York City time) on the date specified in Section 2.01(f)), each Lender will make available its pro rata portion (determined in accordance with Section 2.07) of each such Borrowing requested to be made on such date.  All such amounts will be made available in Dollars and in immediately available funds at the Payment Office, and the Administrative Agent will make available to the relevant US Borrower at the Payment Office the aggregate of the amounts so made available by the Lenders (or in the case of US Swingline Loans, the Swingline Lender will make available the full amount thereof).  

(b) Disbursement of UK Revolving Loans .  No later than 2:00 P.M. (London time) on the date specified in each Notice of Borrowing with respect to any UK Revolving Loans (or (x) in the case of UK Swingline Loans, no later than 2:00 P.M. (London time) on the date specified pursuant to Section 2.03(b)(ii) or (y) in the case of Mandatory UK Borrowings, no later than 1:00 P.M. (London time) on the date specified in Section 2.01(g) ), each Lender will make available its pro rata portion (determined in accordance with Section 2.07 ) of each such Borrowing requested to be made on such date.  Subject to Section 2.16 , all such amounts will be made available in either Pounds Sterling or Euro (as requested by the applicable UK Borrower) and in immediately available funds at the Payment Office, and the Administrative Agent will make available to the relevant UK Borrower at the Payment Office the aggregate of the amounts so made available by the Lenders (or in the case of UK Swingline Loans, the Swingline Lender will make available the full amount thereof).  

(c) Disbursement of Canadian Revolving Loans .  No later than 2:00 P.M. (Toronto time) on the date specified in each Notice of Borrowing with respect to any Canadian Revolving Loans, each Lender will make available its pro rata portion (determined in accordance with Section 2.07 ) of each such Borrowing requested to be made on such date.  Subject to Section 2.16 , all such amounts will be made available in Canadian Dollars and in immediately available funds at the Payment Office, and the Administrative Agent will make available to the relevant Canadian Borrower at the Payment Office the aggregate of the amounts so made available by the Lenders.

(d) Unless the Administrative Agent shall have been notified by any Lender prior to the date of Borrowing that such Lender does not intend to make available to the Administrative Agent such Lender’s portion of any Borrowing to be made on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date of Borrowing and the Administrative Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the relevant Borrower a corresponding amount.  If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand

-51-

 

from such Lender.  If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the relevant Borrower, and the relevant Borrower shall immediately pay such corresponding amount to the Administrative Agent.  The Administrative Agent also shall be entitled to recover on demand from such Lender or the relevant Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to the relevant Borrower until the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i) if recovered from such Lender, in the case of US Revolving Loans, the overnight Federal Funds Rate for the first three days and at the interest rate otherwise applicable to such Loans for each day thereafter and, the case of all other Loans, the interest rate applicable to such Loans and (ii) if recovered from the relevant Borrower or Borrowers, the rate of interest applicable to the respective Borrowing, as determined pursuant to Section 2.08 .  Nothing in this Section 2.04 shall be deemed to relieve any Lender from its obligation to make Loans hereunder or to prejudice any rights which any Borrower may have against any Lender as a result of any failure by such Lender to make Loans hereunder.  

(e) Unless the Required Lenders have instructed the Administrative Agent to the contrary, the Administrative Agent on behalf of the Lenders may, but shall not be obligated to, make US Revolving Loans to the Borrower that are maintained as Base Rate Loans under Section 2.01(a) without prior notice of the proposed Borrowing to the Lenders as follows:

(i) The amount of each Lender’s RL Percentage of US Revolving Loans shall be computed weekly (or more frequently in the Administrative Agent’s sole discretion) and shall be adjusted upward or downward on the basis of the amount of outstanding US Revolving Loans as of 5:00 P.M. (New York City time) on the last Business Day of each week, or such other period specified by the Administrative Agent (each such date, a “ Settlement Date ”).  The Lenders shall transfer to the Administrative Agent, or the Administrative Agent shall transfer to the Lenders, such amounts as are necessary so that (after giving effect to all such transfers) the amount of US Revolving Loans made by each Lender shall be equal to such Lender’s RL Percentage of the aggregate amount of US Revolving Loans outstanding as of such Settlement Date.  If a notice from the Administrative Agent of any such necessary transfer is received by a Lender on or prior to 12:00 Noon (New York City time) on any Business Day, then such Lender shall make transfers described above in immediately available funds no later than 3:00 P.M. (New York City time) on the day such notice was received; and if such notice is received by a Lender after 12:00 Noon (New York City time) on any Business Day, such Lender shall make such transfers no later than 1:00 P.M. (New York City time) on the next succeeding Business Day.  The obligation of each of the Lenders to transfer such funds shall be irrevocable and unconditional and without recourse to, and without representation or warranty by, the Administrative Agent.  Each of the Administrative Agent and each Lender agrees and the Lenders agree to mark their respective books and records on each Settlement Date to show at all times the dollar amount of their respective RL Percentage of the outstanding US Revolving Loans on such date.

(ii) To the extent that the settlement described in preceding clause (i) shall not yet have occurred with respect to any particular Settlement Date, upon any repayment of US Revolving Loans by any Borrower prior to such settlement, the Administrative Agent may apply such amounts repaid directly to the amounts that would otherwise be made available by the Administrative Agent pursuant to this Section 2.04(e) .

(iii) Because the Administrative Agent on behalf of the Lenders may be advancing and/or may be repaid US Revolving Loans prior to the time when the Lenders will actually advance and/or be repaid US Revolving Loans, interest with respect to Revolving Loans shall be allocated by the Administrative Agent to each Lender and the Administrative Agent in accordance with the amount of US Revolving Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such US Revolving Loans are so advanced to but excluding the date such US Revolving Loans are either repaid by the Borrower in accordance with the terms of this Agreement or actually settled by the Administrative Agent or the applicable Lender as described in this Section 2.04(e) .

2.05 Notes . (a) Each Borrower’s obligation to pay the principal of, and interest on, the Loans made by each Lender shall be evidenced in the Register maintained by the Administrative Agent pursuant to Section 13.15 and shall, if requested by such Lender, also be evidenced (i) in the case of US Revolving Loans, by a promissory note duly executed and delivered by each US Borrower substantially in the form of Exhibit B-1, with blanks appropriately completed in conformity herewith (each, a “US Revolving Note” and, collectively, the “US Revolving Notes”), (ii) in the case of US Swingline Loans, by a promissory note duly executed and delivered by each US Borrower substantially in the form of Exhibit B-2, with blanks appropriately completed in conformity herewith (each, a “US Swingline Note” and, collectively, the “US Swingline Notes”), (iii) in the case of UK Revolving Loans, by a promissory note duly executed and delivered by each UK Borrower substantially in the form of Exhibit B-3, with blanks appropriately completed in conformity herewith (each, a “UK Revolving Note” and, collectively, the “UK Revolving Notes”), (iv) in the case of UK Swingline Loans, by a promissory note duly executed and delivered by each UK Borrower substantially in the form of Exhibit B-4, with blanks appropriately completed in conformity herewith (each, a “UK Swingline Note” and collectively, the “UK Swingline Notes”) and (v) in the case of Canadian Revolving Loans, by a promissory note duly executed and delivered by each

-52-

 

Canadian Borrower substantially in the form of Exhibit B-5, with blanks appropriately completed in conformity herewith (each, a “Canadian Revolving Note” and, collectively, the “Canadian Revolving Notes”).  

(b) Each Lender will note on its internal records the amount of each Loan made by it and each payment in respect thereof and prior to any transfer of any of its Notes will endorse on the reverse side thereof the outstanding principal amount of Loans evidenced thereby.  Failure to make any such notation or any error in such notation shall not affect any Borrower’s obligations in respect of such Loans.

(c) Notwithstanding anything to the contrary contained above in this Section 2.05 or elsewhere in this Agreement, Notes shall only be delivered to Lenders which at any time specifically request the delivery of such Notes.  No failure of any Lender to request, obtain, maintain or produce a Note evidencing its Loans to any Borrower shall affect, or in any manner impair, the obligations of any Borrower to pay the Loans (and all related Obligations) incurred by such Borrower which would otherwise be evidenced thereby in accordance with the requirements of this Agreement, and shall not in any way affect the security or guaranties therefor provided pursuant to any Credit Document.  Any Lender which does not have a Note evidencing its outstanding Loans shall in no event be required to make the notations otherwise described in preceding clause (b).  At any time when any Lender requests the delivery of a Note to evidence any of its Loans, the respective Borrower shall promptly execute and deliver to the respective Lender the requested Note in the appropriate amount or amounts to evidence such Loans.

2.06 Conversions . (a) Each US Borrower shall have the option to convert, on any Business Day, all or a portion equal to at least the Minimum Borrowing Amount of the outstanding principal amount of US Revolving Loans made pursuant to one or more Borrowings of one or more Types of US Revolving Loans into a Borrowing of another Type of US Revolving Loan; provided that, (i) except as otherwise provided in Section 2.10(b), US LIBOR Loans may be converted into Base Rate Loans only on the last day of an Interest Period applicable to the US Revolving Loans being converted and no such partial conversion of LIBOR Loans shall reduce the outstanding principal amount of such US LIBOR Loans made pursuant to a single Borrowing to less than the Minimum Borrowing Amount applicable thereto, (ii) unless the Required Lenders otherwise agree, Base Rate Loans may only be converted into US LIBOR Loans if no Default or Event of Default is in existence on the date of the conversion, (iii) no conversion pursuant to this Section 2.06(a) shall result in a greater number of Borrowings of US LIBOR Loans than is permitted under Section 2.02 and (iv) for the avoidance of doubt, in no event shall any US Revolving Loan be converted into any UK Revolving Loan or Canadian Revolving Loan and in no event shall any UK Revolving Loan be converted into any US Revolving Loan or Canadian Revolving Loan and in no event shall any Canadian Revolving Loan be converted into any UK Revolving Loan or US Revolving Loan.  Each such conversion shall be effected by the respective US Borrower by giving the Administrative Agent at the Notice Office prior to 11:00 A.M. (New York City time) at least (A) in the case of conversions of Base Rate Loans into US LIBOR Loans, three Business Days’ prior notice and (B) in the case of conversions of US LIBOR Loans into Base Rate Loans, one Business Day’s prior notice (each, a “Notice of Conversion/Continuation”), in each case in the form of Exhibit A-2, appropriately completed to specify the Revolving Loans to be so converted, the Borrowing or Borrowings pursuant to which such Revolving Loans were incurred and, if to be converted into US LIBOR Loans, the Interest Period to be initially applicable thereto.  The Administrative Agent shall give each Lender prompt notice of any such proposed conversion affecting any of its Revolving Loans.

(b) Each Canadian Borrower shall have the option to convert, on any Business Day, all or a portion equal to at least the Minimum Borrowing Amount of the outstanding principal amount of Canadian Revolving Loans made pursuant to one or more Borrowings of one or more Types of Canadian  Revolving Loans into a Borrowing of another Type of Canadian Revolving Loan; provided that, (i) except as otherwise provided in Section 2.10(b) , Canadian LIBOR Loans may be converted into Canadian Prime Rate Loans only on the last day of an Interest Period applicable to the Canadian LIBOR Loans being converted and no such partial conversion of Canadian LIBOR Loans shall reduce the outstanding principal amount of such Canadian LIBOR Loans made pursuant to a single Borrowing to less than the Minimum Borrowing Amount applicable thereto, (ii) unless the Required Lenders otherwise agree, Canadian Prime Rate Loans may only be converted into Canadian LIBOR Loans if no Default or Event of Default is in existence on the date of the conversion and (iii) no conversion pursuant to this Section 2.06(b) shall result in a greater number of Borrowings of Canadian LIBOR Loans than is permitted under Section 2.02 .  Each such conversion pursuant to this Section 2.06(b) shall be effected by the relevant Canadian Borrower by giving the Administrative Agent at the applicable Notice Office prior to 11:00 am (Toronto Time) at least (A) in the case of conversions of Canadian Prime Rate Loans into Canadian LIBOR Loans, three Business Days’ prior notice and (B) in the case of conversions of Canadian LIBOR Loans into Canadian Prime Rate Loans, one Business Day’s prior notice, in each case in the form of Exhibit A-2 , appropriately completed to specify the Canadian Revolving Loans to be so converted, the Borrowing or Borrowings pursuant to which such Canadian Revolving Loans were incurred and, if to be converted into Canadian LIBOR Loans, the Interest Period to be initially applicable thereto. The Administrative Agent shall give each Lender prompt notice of any such proposed conversion affecting any of its Canadian Revolving Loans. Upon any such conversion, the proceeds thereof will be applied directly on the day of such conversion to prepay the outstanding principal amount of the Canadian Revolving Loans being converted.

-53-

 

2.07 Pro Rata Borrowings . All Borrowings of Revolving Loans under this Agreement shall be incurred from the Lenders pro rata on the basis of their Revolving Loan Commitments, provided that all Mandatory Borrowings shall be incurred from the Lenders pro rata on the basis of their RL Percentages.  It is understood that no Lender shall be responsible for any default by any other Lender of its obligation to make Loans hereunder and that each Lender shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure of any other Lender to make its Loans hereunder.  

2.08 Interest . (a) Each US Borrower jointly and severally agrees to pay interest in respect of the unpaid principal amount of each Base Rate Loan from the date of Borrowing thereof until the earlier of (i) such Loan being paid by the US Borrower and (ii) the conversion of such Base Rate Loan to a LIBOR Loan pursuant to Section 2.06 or 2.09, as applicable, at a rate per annum which shall be equal to the sum of the relevant Applicable Margin plus the Base Rate, each as in effect from time to time.

(b) Each US Borrower jointly and severally agrees to pay interest in respect of the unpaid principal amount of each US LIBOR Loan from the date of Borrowing thereof until the earlier of (i) such Loan being paid by the US Borrower and (ii) the conversion of such LIBOR Loan to a Base Rate Loan pursuant to Section 2.06 , 2.09 or 2.10 , as applicable, at a rate per annum which shall, during each Interest Period applicable thereto, be equal to the sum of the relevant Applicable Margin as in effect from time to time during such Interest Period plus LIBOR for such Interest Period.

(c) Each UK Borrower jointly and severally agrees to pay interest in respect of the unpaid principal amount of each UK Revolving Loan from the date of Borrowing thereof until such Loan being paid by the UK Borrower, at a rate per annum which shall, during each Interest Period applicable thereto, be equal to the sum of the relevant Applicable Margin as in effect from time to time during such Interest Period plus LIBOR and/or EURIBOR as applicable for such Interest Period.

(d) Each Canadian Borrower jointly and severally agrees to pay interest in respect of the unpaid principal amount of each Canadian Prime Rate Loan made to such Borrower hereunder from the date of the Borrowing thereof until the earlier of (i) such Loan being paid by the Canadian Borrower and (ii) the conversion of such Canadian Prime Rate Loan to a Canadian LIBOR Loan pursuant to Section 2.06(b) , at a rate per annum which shall be equal to the sum of the relevant Applicable Margin plus the Canadian Prime Rate as in effect from time to time.

(e) Each Canadian Borrower jointly and severally agrees to pay interest in respect of the unpaid principal amount of each Canadian LIBOR Loan made to such Borrower hereunder from the date of the Borrowing thereof until the earlier of (i) such Loan being paid by the Canadian Borrower and (ii) the conversion of such Canadian LIBOR Loan to a Canadian Prime Rate Loan pursuant to Section 2.06 , 2.09 or 2.10 , as applicable, at a rate per annum which shall, during each Interest Period applicable thereto, be equal to the sum of the relevant Applicable Margin as in effect from time to time during such Interest Period plus the B/A Rate for such Interest Period.

(f) (i) Overdue principal and, to the extent permitted by law, overdue interest in respect of each Loan shall, in each case, bear interest at a rate per annum equal to the greater of (x) the rate which is 2% in excess of the rate then borne by such Loans (or in the case of overdue interest, 2% in excess of the rate then borne by the Loans on which such interest accrued) and (y) in the case of any US Revolving Loans, US Swingline Loans and Agent Advances (and overdue interest accrued on the foregoing), the rate which is 2% in excess of the rate otherwise applicable to Base Rate Loans from time to time and (ii) all other overdue amounts payable hereunder and under any other Credit Document shall bear interest at a rate per annum equal to the rate which is 2% in excess of the rate applicable to Base Rate Loans from time to time.  Interest that accrues under this Section 2.08(f) shall be payable on demand.

(g) Accrued (and theretofore unpaid) interest shall be payable (i) in respect of each Base Rate Loan and Canadian Prime Rate Loan, (A) quarterly in arrears on each Quarterly Payment Date, (B) on the date of any repayment or prepayment in full of all outstanding Base Rate Loans or Canadian Prime Rate Loans, as applicable, and (C) at maturity (whether by acceleration or otherwise) and, after such maturity, on demand, and (ii) in respect of each LIBOR Loan and EURIBOR Loan, (A) on the last day of each Interest Period applicable thereto and, in the case of an Interest Period in excess of three months, on each date occurring at three month intervals after the first day of such Interest Period, and (B) on the date of any repayment or prepayment (on the amount repaid or prepaid), at maturity (whether by acceleration or otherwise) and, after such maturity, on demand.

(h) Upon each Interest Determination Date, the Administrative Agent shall determine LIBOR, EURIBOR and B/A Rate for each Interest Period applicable to the respective LIBOR Loans and EURIBOR Loans and shall promptly notify US Company and the Lenders thereof.  Each such determination shall, absent manifest error, be final and conclusive and binding on all parties hereto.

-54-

 

2.09 Interest Periods . At the time any Borrower gives any Notice of Borrowing or Notice of Conversion/Continuation in respect of the making of, or, in the case of any US Revolving Loan or Canadian Revolving Loan, conversion into, any LIBOR Loan or EURIBOR Loan (in the case of the initial Interest Period applicable thereto) or prior to 11:00 A.M. (New York City time) on the third Business Day prior to the expiration of an Interest Period applicable to such LIBOR Loan or EURIBOR Loan (in the case of any subsequent Interest Period), such Borrower shall have the right to elect the interest period (each, an “Interest Period”) applicable to such LIBOR Loan or EURIBOR Loan, which Interest Period shall, at the option of the Borrower (but otherwise subject to the provisions of clause (B) of the proviso in Section 2.01(a)(ii)), be a one (or less than one month if permitted by the Administrative Agent), two, three or six or, to the extent approved by each Lender, twelve month period; provided that (in each case) :  

(a) all LIBOR Loans or EURIBOR Loans comprising a Borrowing shall at all times have the same Interest Period;

(b) the initial Interest Period for any LIBOR Loan or EURIBOR Loan shall commence on the date of Borrowing of such LIBOR Loan or EURIBOR Loan (including, in the case of any LIBOR Loan, the date of any conversion thereto from a Base Rate Loan) and each Interest Period occurring thereafter in respect of such LIBOR Loan or EURIBOR shall commence on the day on which the next preceding Interest Period applicable thereto expires;

(c) if any Interest Period for a LIBOR Loan begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar month;

(d) if any Interest Period for a LIBOR Loan or EURIBOR Loan would otherwise expire on a day which is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided , however , that if any Interest Period for a LIBOR Loan or EURIBOR Loan would otherwise expire on a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day;

(e) unless the Required Lenders otherwise agree, no Interest Period may be selected at any time when a Default or an Event of Default is then in existence; and

(f) no Interest Period in respect of any Borrowing shall be selected which extends beyond the Final Maturity Date.

If by 11:00 A.M. (New York City time) on the third Business Day prior to the expiration of any Interest Period applicable to a Borrowing of LIBOR Loans or EURIBOR Loans, any Borrower has failed to elect, or is not permitted to elect, a new Interest Period to be applicable to such LIBOR Loans or EURIBOR Loans as provided above, such Borrower, (i) in the case of any US Revolving Loan, shall be deemed to have elected to convert such LIBOR Loans into Base Rate Loans effective as of the expiration date of such current Interest Period, (ii) in the case of any UK Revolving Loan, shall be deemed to have elected to continue such LIBOR Loans or EURIBOR Loans as LIBOR Loans or EURIBOR Loans with an Interest Period of one-month, effective as of the expiration date of such current Interest Period and (iii) in the case of any Canadian Revolving Loan, shall be deemed to have elected to convert such LIBOR Loans into Canadian Prime Rate Loans effective as of the expiration date of such current Interest Period.

2.10 Increased Costs, Illegality, etc . (a) In the event that any Lender shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto but, with respect to clauses (i) and (iv) below, may be made only by the Administrative Agent):

(i) on any Interest Determination Date that, by reason of any changes arising after the date of this Agreement affecting the interbank eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate as to Loans constituting LIBOR Loans or EURIBOR Loans on the basis provided for in the definition of LIBOR or EURIBOR, as applicable; or

(ii) at any time, that such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder or a reduction in the rate of return on a Lender’s (or its Affiliate’s) overall capital, in each case, with respect to any LIBOR Loan or EURIBOR Loan because of (A) any change since the Effective Date in any Applicable Law or governmental rule, regulation, order, guideline or request (whether or not having the force of law) or in the interpretation or administration thereof and including the introduction of any new law or governmental rule, regulation, order, guideline or request, such as to, without limitation, (1) impose, modify or deem applicable any reserve (whether for liquidity, capital adequacy or

-55-

 

otherwise), special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserves required under Regulation D to the extent included in the computation of LIBOR or EURIBOR ); (2) subject any Recipient to any Taxes (other than (x) Indemnified Taxes or (y) Other Connection Taxes that are imposed on or measured by net income or that are franchise Taxes or branches profits Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or (3) impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any Letter of Credit or participation therein and/or (B) other circumstances arising since the Effective Date affecting such Lender, the interbank eurodollar market or the position of such Lender in such market; or  

(iii) at any time, that the making or continuance of any LIBOR Loan or EURIBOR  Loan has been made (A) unlawful by any law or governmental rule, regulation or order, (B) impossible by compliance by any Lender in good faith with any governmental request (whether or not having force of law) or (C) impracticable as a result of a contingency occurring after the Effective Date which materially and adversely affects the interbank eurodollar market; or

(iv) that for any reason a market for bankers’ acceptances does not exist at any time as determined in good faith by the Administrative Agent;

then, and in any such event, such Lender (or the Administrative Agent, in the case of clause (i) or (iv) above) shall promptly give notice (by telephone promptly confirmed in writing) to US Company and, except in the case of clause (i) or (iv) above, to the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders).  Thereafter (w) in the case of clause (i) above, US Revolving Loans constituting US LIBOR Loans shall no longer be available until such time as the Administrative Agent notifies US Company and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing or Notice of Conversion/Continuation given by any Borrower with respect to US LIBOR Loans which have not yet been incurred (including by way of conversion) shall be deemed rescinded by such Borrower, (x) in the case of clause (ii) above, and subject to the exclusion of the UK Borrowers and Canadian Borrowers as Guarantors of the US Obligations contained in this Agreement and other Credit Documents, the US Borrowers, the UK Borrowers and the Canadian Borrowers, jointly and severally, agree to pay to such Lender, as applicable, upon such Lender’s written request therefor, such additional amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as shall be required to compensate such Lender for such increased costs or reductions in amounts received or receivable hereunder (a written notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for the calculation thereof, submitted to US Company by such Lender shall, absent manifest error, be final and conclusive and binding on all the parties hereto), (y) in the case of clause (iii) above, the respective Borrower or Borrowers shall take one of the actions specified in Section 2.10(b) as promptly as possible and, in any event, within the time period required by law and (z) in the case of clause (iv) above, Canadian LIBOR Loans (exclusive of Canadian LIBOR Loans which have theretofore been funded) shall no longer be available until such time as the Administrative Agent notifies the Canadian Borrowers and the Lenders that the circumstances giving rise to such notice by the Administrative Agent no longer exist, and any Notice of Borrowing given by any Canadian Borrower with respect to such Canadian LIBOR Loans which have not been incurred shall be deemed rescinded by such Canadian Borrower.    

(b) (i) In the case of US Revolving Loans, at any time that any US Revolving Loan constituting a US LIBOR Loan is affected by the circumstances described in Section 2.10(a)(ii) , the affected Borrower may, and in the case of a US LIBOR Loan affected by the circumstances described in Section 2.10(a)(iii) , the affected Borrower shall, either (1) if the affected US LIBOR Loan is then being made initially or pursuant to a conversion, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 2.10(a)(ii) or (iii) or (2) if the affected US LIBOR Loan is then outstanding, upon at least three Business Days’ written notice to the Administrative Agent, require the affected Lender to convert such US Revolving Loan constituting a US LIBOR Loan into a Base Rate Loan; provided that, if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 2.10(b) ; (ii) in the case of UK Revolving Loans, at any time that any of the UK Revolving Loans is affected by the circumstances described in Section 2.10(a)(iii) then the relevant Borrower shall repay the applicable Lender’s participation in that UK Revolving Loan on the last day of the Interest Period for such UK Revolving Loan or, if earlier, the date specified by the Lender in the notice delivered to the Administrative Agent (being no earlier than the last day of any applicable grace period permitted by law); and (iii) in the case of Canadian Revolving Loans, at any time that any Canadian Revolving Loan constituting a Canadian LIBOR Loan is affected by the circumstances described in Section 2.10(a)(ii) , the affected Borrower may, and in the case of a Canadian LIBOR Loan affected by the circumstances described in Section 2.10(a)(iii) , the affected Borrower shall, either (1) if the affected Canadian LIBOR Loan is then being made initially or pursuant to a conversion, cancel such Borrowing by giving the Administrative Agent telephonic notice (confirmed in writing) on the same date that such Borrower was notified by the affected Lender or the Administrative Agent pursuant to Section 2.10(a)(ii) or (iii) or (2) if the affected Canadian LIBOR Loan is then outstanding, upon at least three Business Days’ written notice to the Administrative Agent, require the affected Lender to convert such

-56-

 

Canadian Revolving Loan constituting a Canadian LIBOR Loan into a Canadian Prime Rate Loan; provided that, if more than one Lender is affected at any time, then all affected Lenders must be treated the same pursuant to this Section 2.10(b) .  Further, at any time that any of the UK Revolving Loans is affected by the circumstances described in Section 2.10(a)(i) then the applicable LIBOR or EURIBOR, as applicable, shall be calculated in respect of each Lender as the percentage rate of interest per annum reflecting such Lender’s cost of funding its participation in the UK Revolving Loans from whatever source it may reasonably select.  

(c) If any Lender determines that a Change in Law concerning capital adequacy or liquidity will have the effect of increasing the amount of capital or liquidity required or expected to be maintained by such Lender or any corporation controlling such Lender based on the existence of such Lender’s Revolving Loan Commitment hereunder or its obligations hereunder, then the US Borrowers, the UK Borrowers and the Canadian Borrowers, jointly and severally, agree to pay to such Lender, as applicable, upon its written demand therefor, such additional amounts as shall be required to compensate such Lender or such other corporation for the increased cost to such Lender or such other corporation or the reduction in the rate of return to such Lender or such other corporation as a result of such increase of capital or liquidity.  In determining such additional amounts, each Lender will act reasonably and in good faith and will use averaging and attribution methods which are reasonable; provided that such Lender’s determination of compensation owing under this Section 2.10(c) shall, absent manifest error, be final and conclusive and binding on all the parties hereto.  Each Lender, upon determining that any additional amounts will be payable pursuant to this Section 2.10(c) , will give prompt written notice thereof to US Company, which notice shall show in reasonable detail the basis for calculation of such additional amounts.

(d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that (x) the affected Borrower or Borrowers shall not be required to compensate a Lender pursuant to this Section 2.10 for any increased costs or reductions incurred more than 180 days prior to the date on which such Lender notifies the Borrowers of the change in law or other circumstance described in Section 2.10(a)(ii) or 2.10(c) giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor and (y) if such change in law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof (to the extent that such period of retroactive effect is not already included in such 180-day period).

(e) Notwithstanding anything in this Agreement to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (y) all 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 the United States, Canadian, United Kingdom or foreign regulatory authorities, in each case pursuant to Basel III, in each case shall be deemed to be a change after the Effective Date in a requirement of law or government rule, regulation or order, regardless of the date enacted, adopted, issued or implemented (including for purposes of this Section 2.10 and Sections 3.16 , 3.17 and 3.18 ).

2.11 Compensation . Each US Borrower, jointly and severally, and each UK Borrower, jointly and severally, and each Canadian Borrower, jointly and severally, agrees to compensate the Administrative Agent and each Lender, upon its written request (which request shall set forth in reasonable detail the basis for requesting such compensation), for all losses, expenses and liabilities (including, without limitation, any loss, expense or liability incurred by reason of the liquidation or reemployment of deposits or other funds required by such Lender to fund its LIBOR Loans or EURIBOR Loans and including any termination or withdrawal costs incurred by the Administrative Agent in connection with the conversions contemplated by Section 2.16 hereof, but excluding loss of anticipated profits) which such Lender may sustain:  (a) if for any reason (other than a default by such Lender or the Administrative Agent) a Borrowing of, or conversion from or into, LIBOR Loans or EURIBOR Loans does not occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation (whether or not withdrawn by the respective Borrower or Borrowers or deemed withdrawn pursuant to Section 2.10(a)); (b) if any prepayment or repayment (including any prepayment or repayment made pursuant to Section 5.01, Section 5.02 or as a result of an acceleration of the Loans pursuant to Section 11) or conversion of any of its LIBOR Loans or EURIBOR Loans occurs on a date which is not the last day of an Interest Period with respect thereto; (c) if any prepayment of any of its LIBOR Loans or EURIBOR Loans is not made on any date specified in a notice of prepayment given by any Borrower; or (d) as a consequence of (i) any other default by any Borrower to repay LIBOR Loans or EURIBOR Loans when required by the terms of this Agreement or any Note held by such Lender or (ii) any election made pursuant to Section 2.10(b).

2.12 Change of Lending Office . Each Lender agrees that on the occurrence of any event giving rise to the operation of Section 2.10(a)(ii) or (iii), Section 2.10(c), Section 3.16, Section 3.17, Section 3.18, Section 5.04, Section 5.05 or Section 5.06 with respect to such Lender, it will, if requested by US Company, UK Company or Canadian Company, use reasonable efforts (subject to overall policy considerations of such Lender) to designate another lending office for any Loans or Letters of Credit affected by such event if, in the judgment of such Lender, such designation would eliminate or reduce amounts payable pursuant to Section 2.10(a)(ii) or (iii), Section 2.10(c), Section 3.06, Section 5.04, Section 5.05 or Section 5.06, as the case may be, in the future; provided

-57-

 

that such designation is made on such terms that such Lender and its lending office suffer no economic, legal, regulatory or other disadvantage, with the object of avoiding the consequence of the event giving rise to the operation of such Section.  Nothing in this Section 2.12 shall affect or postpone any of the obligations of any Borrower or the right of any Lender provided in Sections 2.10, 3.16, 3.17, 3.18, 5.04, 5.05 or 5.06. The applicable Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation.  

2.13 Replacement of Lenders . (a)  If any Lender becomes a Defaulting Lender, (b) upon the occurrence of any event giving rise to the operation of Section 2.10(a)(ii) or (iii), Section 2.10(c), Section 3.16, Section 3.17, Section 3.18, Section 5.04, Section 5.05 or Section 5.06 with respect to any Lender which results in such Lender charging to any Borrower increased costs in excess of those being generally charged by the other Lenders or (c) in the case of a refusal by a Lender to consent to a proposed change, waiver, discharge or termination with respect to this Agreement which has been approved by the Required Lenders as (and to the extent) provided in Section 13.12(b), the US Company, the UK Company or the Canadian Company, as applicable, shall have the right, in accordance with Section 13.04(b), if no Default or Event of Default then exists or would exist after giving effect to such replacement, to replace such Lender (the “Replaced Lender”) with one or more other Eligible Transferees, none of whom shall constitute a Defaulting Lender at the time of such replacement (collectively, the “Replacement Lender”) and each of which shall be reasonably acceptable to the Administrative Agent; provided that:

(i) at the time of any replacement pursuant to this Section 2.13 , the Replacement Lender shall enter into one or more Assignment and Assumption Agreements pursuant to Section 13.04(b) (and with all fees payable pursuant to said Section 13.04(b) to be paid by the Borrowers) pursuant to which the Replacement Lender shall acquire all of the Revolving Loan Commitment and outstanding Revolving Loans of, and all participations in Letters of Credit by, the Replaced Lender and, in connection therewith, shall pay to (i) the Replaced Lender in respect thereof an amount equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding Revolving Loans of the respective Replaced Lender, (B) an amount equal to all Unpaid US Drawings and Unpaid UK Drawings of such Replaced Lender, together with all then unpaid interest with respect thereto at such time and (C) an amount equal to all accrued, but theretofore unpaid, Fees owing to the Replaced Lender pursuant to Section 4.01 , (ii) each US Issuing Lender,UK Issuing Lender and Canadian Issuing Lender an amount equal to such Replaced Lender’s RL Percentage of any Unpaid US Drawing, Unpaid UK Drawing or Unpaid Canadian Drawing relating to Letters of Credit issued by such US Issuing Lender, UK Issuing Lender or Canadian Issuing Lender (which at such time remains an Unpaid US Drawing, Unpaid UK Drawing or Unpaid Canadian Drawing, as applicable) to the extent such amount was not theretofore funded by such Replaced Lender and (iii) the Swingline Lender an amount equal to such Replaced Lender’s RL Percentage of any Mandatory Borrowing to the extent such amount was not theretofore funded by such Replaced Lender to the Swingline Lender; and

(ii) all obligations of the Borrowers then owing to the Replaced Lender (other than those specifically described in clause (i) above in respect of which the assignment purchase price has been, or is concurrently being, paid, but including all amounts, if any, owing under Section 2.11 ) shall be paid in full to such Replaced Lender concurrently with such replacement.

Upon receipt by the Replaced Lender of all amounts required to be paid to it pursuant to this Section 2.13 , the Administrative Agent shall be entitled (but not obligated) and authorized to execute an Assignment and Assumption Agreement on behalf of such Replaced Lender, and any such Assignment and Assumption Agreement so executed by the Administrative Agent and the Replacement Lender shall be effective for purposes of this Section 2.13 and Section 13.04 .  Upon the execution of the respective Assignment and Assumption Agreement, the payment of amounts referred to in clauses (i) and (ii) above, recordation of the assignment on the Register by the Administrative Agent pursuant to Section 13.15 and, if so requested by the Replacement Lender, delivery to the Replacement Lender of the appropriate Note or Notes executed by the relevant Borrowers, (x) the Replacement Lender shall become a Lender hereunder and the Replaced Lender shall cease to constitute a Lender hereunder, except with respect to indemnification provisions under this Agreement (including, without limitation, Sections 2.10 , 2.11 , 3.16 , 3.17 , 3.18 , 5.04 , 5.05 , 12.06 , 13.01 and 13.06 ), which shall survive as to such Replaced Lender and (y) the RL Percentages of the Lenders shall be automatically adjusted at such time to give effect to such replacement.

2.14 US Company, UK Company and Canadian Company as Agents for Borrowers . Each Borrower hereby irrevocably appoints each of the US Company, the UK Company and the Canadian Company as its agent and attorney-in-fact for all purposes under this Agreement and each other Credit Document, which appointment shall remain in full force and effect unless and until the Administrative Agent shall have received prior written notice signed by the respective appointing Borrower that such appointment has been revoked.  Each Borrower hereby irrevocably appoints and authorizes each of the US Company, the UK Company and the Canadian Company (i) to provide the Administrative Agent with all notices with respect to Loans and Letters of Credit obtained for the benefit of any Borrower and all other notices and instructions under this Agreement or any other Credit Document and (ii) to take such action as the US Company, the UK Company or the Canadian Company deems appropriate on its behalf to obtain Loans and Letters of Credit and to exercise such other powers as are reasonably incidental thereto to carry out the

-58-

 

purposes of this Agreement and the other Credit Documents.  It is understood that the handling of the Credit Account and the Collateral of the Borrowers in a combined fashion, as more fully set forth (and subject to the limitations set forth (including Section 9.13(e))) herein, is done solely as an accommodation to the Borrowers in order to utilize the collective borrowing powers of the Borrowers in the most efficient and economical manner and at their request, and that the Lenders shall not incur liability to any Borrower as a result hereof.  Each Borrower expects to derive benefit, directly or indirectly, from the handling of the Credit Account and the Collateral in a combined fashion as set forth (and subject to the limitations set forth) herein since the successful operation of each Borrower is dependent on the continued successful performance of the consolidated group.  To induce the Lenders to do so, and in consideration thereof, each Borrower hereby jointly and severally agrees to indemnify each Lender and hold each Lender harmless against any and all liability, expense, loss or claim of damage or injury, made against any Lender by any Borrower or by any third party whosoever, arising from or incurred by reason of (a) the handling of the Credit Account and Collateral of the Borrowers as herein provided, (b) the Lenders’ relying on any instructions of US Company, the UK Company or the Canadian Company, or (c) any other action taken by the Lenders hereunder or under the other Credit Documents, except that the Borrowers will have no liability to any Lender, Administrative Agent or the Collateral Agent with respect to any liability that has been determined by a court of competent jurisdiction in a final and non-appealable decision to have resulted solely from the gross negligence or willful misconduct of such Lender, the Administrative Agent or the Collateral Agent, as the case may be.  

2.15 Incremental Commitments . (a) The Borrowers shall have the right, in coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time after the Effective Date, and prior to the Final Maturity Date, that one or more Lenders (and/or one or more other Persons which are Eligible Transferees and which will become Lenders as provided below) provide Incremental Commitments and, subject to the applicable terms and conditions contained in this Agreement, make Revolving Loans pursuant thereto, it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Commitment as a result of any such request by the Borrowers, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 2.15, such Lender shall not be obligated to fund any Revolving Loans in excess of its Revolving Loan Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.15, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Commitment without the consent of any other Lender, (iii) each Eligible Transferee who will become a Lender shall be required to be reasonably satisfactory to the Administrative Agent, (iv) each provision of Incremental Commitments on a given date pursuant to this Section 2.15 shall be in a minimum aggregate amount (for all Lenders (including any Eligible Transferee who will become a Lender)) of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof, (v) the aggregate amount of all Incremental Commitments provided pursuant to this Section 2.15, shall not exceed the Maximum Incremental Commitment Amount and (vi) all Revolving Loans (and all interest, fees and other amounts payable thereon), made pursuant to an Incremental Commitment shall be entitled to the benefits of the guarantees and security provided under the Credit Documents to the other Obligations on a pari passu basis.

(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15 , US Company, each US Borrower, UK Company, each UK Borrower, Canadian Company, each Canadian Borrower, the Administrative Agent and each such Lender or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “ Incremental Lender ”) shall execute and deliver to the Administrative Agent an Incremental Commitment Agreement, with the effectiveness of such Incremental Lender’s Incremental Commitment to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon up-front or arrangement fees owing to the Administrative Agent (or any affiliate thereof)), (x) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.15 shall have been satisfied, and (z) all other conditions precedent that may be set forth in such Incremental Commitment Agreement shall have been satisfied.  The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitment Agreement, and at such time, (i) the Total Revolving Loan Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments, (ii) Schedule 1.01(a) shall be deemed modified to reflect the revised Revolving Loan Commitments of the affected Lenders and (iii) to the extent requested by any Incremental Lender, Revolving Notes will be issued, at the expense of the Borrowers, to such Incremental Lender in conformity with the requirements of Section 2.05 .

(c) At the time of any provision of Incremental Commitments pursuant to this Section 2.15 , the Borrowers shall, in coordination with the Administrative Agent, repay outstanding Revolving Loans of certain of the Lenders, and incur additional Revolving Loans from certain other Lenders (including the Incremental Lenders) (even though as a result thereof such new Loans (to the extent required to be maintained as LIBOR Loans or EURIBOR Loans) may have a shorter Interest Period than the then outstanding Borrowings of such Revolving Loans), in each case to the extent necessary so that all of the Lenders participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Loan Commitments (after giving effect to any increase in the Total Revolving Loan Commitment pursuant to this Section 2.15 ) and with the Borrowers being jointly and severally obligated to pay to the respective Lenders any costs of the type referred to in Section 2.11 and such amounts, as reasonably

-59-

 

determined by the respective Lenders, to compensate them for funding the various Revolving Loans during an existing Interest Period (rather than at the beginning of the respective Interest Period, based upon rates then applicable thereto) in connection with any such repayment and/or incurrence.  All determinations by any Lender pursuant to the preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.  

(d) The terms and provisions of the Revolving Loans made pursuant to the Incremental Commitments shall be identical to the Revolving Loans made pursuant to the existing Revolving Loan Commitment; provided that the yield applicable to the Revolving Loans made pursuant to the Incremental Commitments (after giving effect to all upfront or similar fees or original issue discount payable with respect to such Revolving Loans) shall not be greater than the applicable yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Revolving Loans made pursuant to the existing Revolving Loan Commitment (including any upfront fees or original issue discount payable to the initial Lenders hereunder) unless the Applicable Margin with respect to the Revolving Loans made pursuant to the existing Revolving Loan Commitment is increased so as to cause the then applicable yield under this Agreement on the Revolving Loans made pursuant to the existing Revolving Loan Commitment to equal the yield then applicable to the Revolving Loans made pursuant to the Incremental Commitment (after giving effect to all upfront or similar fees or original issue discount payable with respect to such Revolving Loans).

(e) In the event the Borrowers from time to time obtain any Incremental Commitments under this Section 2.15 , all availability levels hereunder denominated in Dollars, Canadian Dollars, Euros or Pounds Sterling hereunder (including, without limitation, in the definitions of “Applicable Margin”, “Minimum Availability Amount” and “Payment Conditions” and in Section 10.04(a)) shall be increased in proportion to the ratio of such Incremental Commitments to the Total Revolving Loan Commitment as in effect immediately prior to the Borrowers obtaining such Incremental Commitments and, for the avoidance of doubt, all such levels denominated in percentages shall be calculated based on the Total Revolving Loan Commitment after giving effect to such Incremental Commitments.

2.16 UK Revolving Loans and Canadian Revolving Loans; Intra-Lender Issues . (a) Pounds Sterling Fundings and Conversions.  Notwithstanding anything to the contrary contained herein, all Pounds Sterling Denominated Revolving Loans shall be made available by the Lenders to the UK Borrowers in Pounds Sterling (it being understood and agreed that each Lender at its option may make any Pounds Sterling Denominated Revolving Loan under this Agreement by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrowers to repay any such Loan in accordance with the terms of this Agreement).  In furtherance of the foregoing, each Lender that is not a Pounds Sterling Funding Capacity Lender (a “Converting Pounds Sterling Lender”) shall honor its pro rata funding obligations with respect to any Pounds Sterling Denominated Revolving Loans by, initially, transferring funds denominated in Dollars to the Administrative Agent, which such funds shall be converted into Pounds Sterling in accordance with the settlement procedure set forth in Section 2.16(d) below, and, thereafter, made available to the UK Borrowers along with all funds denominated in Pounds Sterling otherwise advanced by each Pounds Sterling Funding Capacity Lender.  Notwithstanding that a Converting Pounds Sterling Lender may have honored its funding obligations with respect to any Pounds Sterling Denominated Revolving Loans by delivering funds denominated in Dollars to the Administrative Agent for purposes of conversion in accordance with Section 2.16(d), all Pounds Sterling Denominated Revolving Loans shall remain denominated in Pounds Sterling and all payments by any UK Borrower or any other Loan Party with respect to any Pounds Sterling Denominated Revolving Loans shall be made to the Administrative Agent for the account of the Lender or Lenders entitled thereto in Pounds Sterling, subject to further conversion into U.S. Dollars in accordance with the settlement procedure set forth in Section 2.16(d)(3).

(b) Euro Fundings and Conversions .  Notwithstanding anything to the contrary contained herein, all Euro Denominated Revolving Loans shall be made available by the Lenders to the UK Borrowers in Euro (it being understood and agreed that each Lender at its option may make any Euro Denominated Revolving Loan under this Agreement by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrowers to repay any such Loan in accordance with the terms of this Agreement).  In furtherance of the foregoing, each Lender that is not a Euro Funding Capacity Lender (a “ Converting Euro Lender ”) shall honor its pro rata funding obligations with respect to any Euro Denominated Revolving Loans by, initially, transferring funds denominated in Dollars to the Administrative Agent, which such funds shall be converted into Euros in accordance with the settlement procedure set forth in Section 2.16(e) below, and, thereafter, made available to the UK Borrowers along with all funds denominated in Euro otherwise advanced by each Euro Funding Capacity Lender.  Notwithstanding that a Converting Euro Lender may have honored its funding obligations with respect to any Euro Denominated Revolving Loans by delivering funds denominated in Dollars to the Administrative Agent for purposes of conversion in accordance with Section 2.16(e) , all Euro Denominated Revolving Loans shall remain denominated in Euro and all payments by any UK Borrower or any other Loan Party with respect to any Euro Denominated Revolving Loans shall be made to the Administrative Agent for the account of the Lender or Lenders entitled thereto in Euros, subject to further conversion into U.S. Dollars in accordance with the settlement procedure set forth in Section 2.16(e)(3) .

-60-

 

(c) Canadian Dollar Fundings and Conversions .  Notwithstanding anything to the contrary contained herein, all Canadian Revolving Loans shall be made available by the Lenders to the Canadian Borrowers in Canadian Dollars (it being understood and agreed that each Lender at its option may make any Canadian Revolving Loan under this Agreement by causing any domestic or foreign branch or Affiliate of such Lender, including without limitation such Lender’s Canadian Corresponding Lender, to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrowers to repay any such Loan in accord ance with the terms of this Agreement).  In furtherance of the foregoing, each Lender that is not a Canadian Funding Capacity Lender (a “ Converting Canadian Dollar Lender ”) shall honor its pro rata funding obligations with respect to any Canadian Dollar Denominated Revolving Loans by, initially, transferring funds denominated in Dollars to the Administrative Agent, which such funds shall be converted into Canadian Dollars in accordance with the settlement procedure set forth in Section 2.16(f) below, and, thereafter, made available to the Canadian Borrowers along with all funds denominated in Canadian Dollars otherwise advanced by each Canadian Dollar Funding Capacity Lender.  Notwithstanding that a Converting Canadian Dollar Lender may have honored its funding obligations with respect to any Canadian Dollar Denominated Revolving Loans by delivering funds denominated in Dollars to the Administrative Agent for purposes of conversion in accordance with Section 2.16(f) , all Canadian Dollar Denominated Revolving Loans shall remain denominated in Canadian Dollars and all payments by any Canadian Borrower or any other Loan Party with respect to any Canadian Dollar Denominated Revolving Loans shall be made to the Administrative Agent for the account of the Lender or Lenders entitled thereto in Canadian Dollars, subject to further conversion into U.S. Dollars in accordance with the settlement procedure set forth in Section 2.16(f)(3) .  

(d) Conversion Procedures for Pounds Sterling Denominated Loan Conversions. In order to facilitate the making of Pounds Sterling Denominated Loans made by Converting Pounds Sterling Lenders, conversion and settlement among the Administrative Agent and the Converting Pounds Sterling Lenders shall take place in accordance with the following:

(i) Following receipt of a Notice of Borrowing from a UK Borrower, the Administrative Agent shall, on or prior to 4:00 P.M. (New York City time) on the Interest Determination Date applicable to such Borrowing, notify each Converting Pounds Sterling Lender a calculation of the amount of US Dollars that such Converting Pounds Sterling Lender shall be required to provide to the Administrative Agent within the time periods set forth in Section 2.04(b) in order that the Administrative Agent may make available to the relevant UK Borrower at the Payment Office the pro rata amount of such Borrowing of a Pounds Sterling Denominated Revolving Loan required to be made by such Converting Pounds Sterling Lender; provided that (A) such calculation shall be effected by the Administrative Agent on the date of the Borrowing set forth in such Borrowing Notice and (B) such calculation shall be made with reference to the Spot Rate on the Interest Determination Date applicable to such Borrowing.

(ii) If any Converting Pounds Sterling Lender fails to pay to the Administrative Agent the full amount required to be paid by such Converting Pounds Sterling Lender in accordance with the foregoing clause (i), such Converting Pounds Sterling Lender shall have failed to make available its portion of such Borrowing and shall (unless such failure is cured) constitute a Defaulting Lender hereunder.

(iii) Following receipt from a UK Borrower of any payment or prepayment with respect to any Pounds Sterling Denominated Loans (all of which are required to be paid by the UK Borrower in Pounds Sterling), the Administrative Agent shall convert any such payment into Dollars prior to making a distribution to such Converting Pounds Sterling Lender; provided that (A) the calculation with respect to such conversion shall be effected by the Administrative Agent on the date of the payment from the UK Borrower and (B) such calculation shall be made with reference to the Spot Rate on such date.

(e) Conversion Procedures for Euro Denominated Revolving Loan Conversions . In order to facilitate the making of Euro Denominated Loans made by Converting Euro Lenders, conversion and settlement among the Administrative Agent and the Converting Euro Lenders shall take place in accordance with the following:

(i) Following receipt of a Notice of Borrowing from a UK Borrower, the Administrative Agent shall, on or prior to 4:00 P.M. (New York City time) on the Interest Determination Date applicable to such Borrowing, notify each Converting Euro Lender a calculation of the amount of US Dollars that such Converting Euro Lender shall be required to provide to the Administrative Agent within the time periods set forth in Section 2.04(b) in order that the Administrative Agent may make available to the relevant UK Borrower at the Payment Office the pro rata amount of such Borrowing of a Euro Denominated Revolving Loan required to be made by such Converting Euro Lender; provided that (A) such calculation shall be effected by the Administrative Agent on the date of the Borrowing set forth in such Borrowing Notice and (B) such calculation shall be made with reference to the Spot Rate on the Interest Determination Date applicable to such Borrowing.

(ii) If any Converting Euro Lender fails to pay to the Administrative Agent the full amount required to be paid by such Converting Euro Lender in accordance with the foregoing clause (i), such Converting Euro Lender shall have failed

-61-

 

to make available its portion of such Borrowing and shall (unless such failure is cured) constitute a Defaulting Lender hereunder.  

(iii) Following receipt from a UK Borrower of any payment or prepayment with respect to any Euro Denominated Loans (all of which are required to be paid by the UK Borrower in Euro), the Administrative Agent shall convert any such payment into Dollars prior to making a distribution to such Converting Euro Lender; provided that (A) the calculation with respect to such conversion shall be effected by the Administrative Agent on the date of the payment from the UK Borrower and (B) such calculation shall be made with reference to the Spot Rate on such date.

(f) Conversion Procedures for Canadian Revolving Loan Conversions . In order to facilitate the making of Canadian Dollar Denominated Loans made by Converting Canadian Dollar Lenders, conversion and settlement among the Administrative Agent and the Converting Canadian Dollar Lenders shall take place in accordance with the following:

(i) Following receipt of a Notice of Borrowing from a Canadian Borrower, the Administrative Agent shall, on or prior to 4:00 P.M. (New York City time) on the Business Day immediately prior to such Borrowing, notify each Converting Canadian Dollar Lender a calculation of the amount of US Dollars that such Converting Canadian Dollar Lender shall be required to provide to the Administrative Agent within the time periods set forth in Section 2.04(b) in order that the Administrative Agent may make available to the relevant Canadian Borrower at the Payment Office the pro rata amount of such Borrowing of a Canadian Dollar Denominated Revolving Loan required to be made by such Converting Canadian Dollar Lender; provided that (A) such calculation shall be effected by the Administrative Agent on the date of the Borrowing set forth in such Borrowing Notice and (B) such calculation shall be made with reference to the Spot Rate on the Business Day immediately prior to such Borrowing.

(ii) If any Converting Canadian Dollar Lender fails to pay to the Administrative Agent the full amount required to be paid by such Converting Canadian Dollar Lender in accordance with the foregoing clause (i), such Converting Canadian Dollar Lender shall have failed to make available its portion of such Borrowing and shall (unless such failure is cured) constitute a Defaulting Lender hereunder.

(iii) Following receipt from a Canadian Borrower of any payment or prepayment with respect to any Canadian Dollar Denominated Loans (all of which are required to be paid by the Canadian Borrowers in Canadian Dollars), the Administrative Agent shall convert any such payment into Dollars prior to making a distribution to such Converting Canadian Dollar Lender; provided that (A) the calculation with respect to such conversion shall be effected by the Administrative Agent on the date of the payment from the Canadian Borrowers and (B) such calculation shall be made with reference to the Spot Rate on such date.

(g) Indemnification . Each Converting Pounds Sterling Lender, Converting Euro Lender and Converting Canadian Dollar Lender agrees to indemnify the Administrative Agent (to the extent not reimbursed by any Credit Party and without limiting the obligations of UK Company and UK Borrowers hereunder or under any other Credit 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 the Administrative Agent in any way relating to or arising out of any Pounds Sterling Denominated Revolving Loans, Euro Denominated Revolving Loans or Canadian Dollar Denominated Revolving Loans, provided that no Converting Pounds Sterling Lender, Converting Euro Lender or Converting Canadian Dollar Lender shall be liable for any of the foregoing to the extent it arises from the gross negligence or willful misconduct of the Administrative Agent.  Without limiting the foregoing, each Converting Pounds Sterling Lender agrees to reimburse the Administrative Agent promptly upon demand for such Converting Pounds Sterling Lender’s ratable share of any costs or expenses payable by the Borrowers to the Administrative Agent in respect of the Pounds Sterling Denominated Revolving Loans to the extent that the Administrative Agent is not promptly reimbursed for such costs and expenses by the Borrowers.  Without limiting the foregoing, each Converting Euro Lender agrees to reimburse the Administrative Agent promptly upon demand for such Converting Euro Lender’s ratable share of any costs or expenses payable by the Borrowers to the Administrative Agent in respect of the Euro Denominated Revolving Loans to the extent that the Administrative Agent is not promptly reimbursed for such costs and expenses by the Borrowers.  Without limiting the foregoing, each Converting Canadian Dollar Lender agrees to reimburse the Administrative Agent promptly upon demand for such Converting Canadian Dollar Lender’s ratable share of any costs or expenses payable by the Borrowers to the Administrative Agent in respect of the Canadian Dollar Denominated Revolving Loans to the extent that the Administrative Agent is not promptly reimbursed for such costs and expenses by the Borrowers.  The agreement contained in this Section 2.16(g) shall survive payment in full of all Loans.

2.17 Equivalent Amount . For purposes of this Agreement, the Equivalent Amount of each Loan not denominated in Dollars shall be calculated on the date when any such Loan is made, such Letter of Credit is issued, and at such other times as designated by the Administrative Agent.  Such Equivalent Amount shall remain in effect until the same is recalculated by the

-62-

 

Administrative Agent as provided above and notice of such recalculation is delivered to the US Company, it being understood that until such notice of such recalculation is delivered, the Dollar Equivalent shall be that Dollar Equivalent as last reported to US Company by the Administrative Agent.  The Administrative Agent shall promptly notify US Company and the Lenders of each such determination of the Equivalent Amount of each such Loan .  

2.18 [Reserved] .

2.19 Defaulting Lenders . (a) Adjustments .  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, the following provisions shall apply until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by Applicable Law:

(i) Waivers and Amendments .  Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 13.12 and in the definition of “Required Lender”.

(ii) Defaulting Lender Waterfall .  Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article V or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 13.02 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Lender or Swingline Lender hereunder; third , to Cash Collateralize the Issuing Lenders’ Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.20 ; fourth , as the US Company may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth , if so determined by the Administrative Agent and the US Company, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize the Issuing Lenders’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.20 ; sixth , to the payment of any amounts owing to the Lenders, the Issuing Lenders or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, any Issuing Lender or the Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh , so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth , to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or Letter of Credit Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 7.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Letter of Credit Outstandings owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or Letter of Credit Outstandings owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letter of Credit Outstandings and Swingline Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effect to Section 2.19(a)(iv) .  Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.19(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(iii) Certain Fees .

(A) No Defaulting Lender shall be entitled to receive any fee payable under Section 4.01(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

(B) Each Defaulting Lender shall be entitled to receive US Letter of Credit Fees, UK Letter of Credit Fees and Canadian Letter of Credit Fees for any period during which that Lender is a Defaulting Lender only to the extent allocable to its Applicable Percentage of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section 2.20 .

(C) With respect to any fee payable under Section 4.01(a) or any US Letter of Credit Fee, UK Letter of Credit Fee or Canadian Letter of Credit Fee not required to be paid to any Defaulting Lender pursuant to clause

-63-

 

(A) or (B) above, the applicable Borrowers shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letter of Credit Outstandings or Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the applicable Issuing Lender or Swingline Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Lender’s or Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.  

(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure .  All or any part of such Defaulting Lender’s participation in Letter of Credit Outstandings and Swingline Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective RL Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that after giving effect to such reallocation (A) the Individual Exposure of each Non-Defaulting Lender does not exceed such Non-Defaulting Lender’s Revolving Loan Commitment, (B) the RL Percentage of the Aggregate Canadian Exposure of each Non-Defaulting Lender does not exceed its Canadian Revolving Loan Commitment, (C) the RL Percentage of the Aggregate UK Exposure of each Non-Defaulting Lender does not exceed its UK Revolving Loan Commitment or (D) the RL Percentage of the Aggregate US Exposure of each Non-Defaulting Lender does not exceed its US Revolving Loan Commitment.  No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(v) Cash Collateral, Repayment of Swingline Loans .  If the reallocation described in clause (a)(iv) above cannot, or can only partially, be effected, the applicable Borrowers shall, without prejudice to any right or remedy available to it hereunder or under Applicable Law, (x) first, prepay Swingline Loans in an amount equal to the Swingline Lender’s Fronting Exposure and (y) second, Cash Collateralize the Issuing Lenders’ Fronting Exposure in accordance with the procedures set forth in Section 2.20 .

(b) Defaulting Lender Cure .  If the US Company, the Administrative Agent, Swingline Lender and each Issuing Lender agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Loans and funded and unfunded participations in Letters of Credit and Swingline Loans to be held on a pro rata basis by the Lenders in accordance with their RL Percentages (without giving effect to Section 2.19(a)(iv) ), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided , further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

(c) Fronting Exposure .  No Issuing Lender shall be required to issue a Letter of Credit under this Agreement at any time if any Lender is at that time a Defaulting Lender, unless either (i) the applicable Issuing Lender(s) have entered into arrangements  reasonably satisfactory to each of such Issuing Lender(s) and the US Company  with the Borrowers or such Defaulting Lender to eliminate such Issuing Lender(s) actual or potential Fronting Exposure or (ii) Cash Collateral has been delivered in accordance with Section 2.20 to eliminate such Issuing Lender(s) actual or potential Fronting Exposure (each of the foregoing subsections (i) and (ii) after giving effect to Section 2.19(a)(iv) ) with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other Letter of Credit Outstandings as to which such Issuing Lender(s) has actual or potential Fronting Exposure, as it may elect in its sole discretion.  Additionally, the Swingline Lender shall not be under any obligation to make any Swingline Loan if it shall determine (which determination shall be conclusive and binding absent manifest error) that it has, or by such credit extension may have, Fronting Exposure which has not been Cash Collateralized in accordance with Section 2.20 .

2.20 Cash Collateral.

(a) Certain Credit Support Events .  If (i) the Issuing Lender has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in a Letter of Credit Borrowing, (ii) as of the date that is five (5) Business Days prior to the Final Maturity Date, any Letter of Credit Outstanding for any reason remains outstanding, (iii) the Borrowers shall be required to provide Cash Collateral pursuant to Article XI , (iv) there shall exist a Defaulting Lender or (v) the Borrowers shall be required to provide Cash Collateral pursuant to Section 4.02(b) , 5.01(b) or 13.12(b) , as applicable, the applicable Borrowers shall immediately (in the case of clause (iii) above) or within one Business Day (in the case of clauses (i) , (ii) and (iv) above), following

-64-

 

any request by the Administrative Agent or an Issuing Lender made in accordance with Section 13.03 , or on the date the US Company delivers the required notice to the Administrative Agent under Section 4.02(b) , 5.01(b) or 13.12(b) , as applicable (in the case of clause (v) above), provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv) above, after giving effect to Section 2.19 (a)(iv) and any Cash Collateral provided by the Defaulting Lender).  If at any time the Administrative Agent determines, which determination shall be dispositive absent manifest error, that any funds held as Cash Collateral are subject to any right or claim of any Person other than the Administrative Agent or an Issuing Lender or that the total amount of such funds is less than the Minimum Collateral Amount, the applicable Borrowers will, forthwith upon demand by the Administrative Agent made in accordance with Section 13.03 , pay to the Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate amount over (y) the total amount of funds, if any, then held as Cash Collateral that the Administrative Agent determines to be free and clear of any such right and claim.  Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable Laws, to reimburse the applicable Issuing Lender.  

(b) Grant of Security Interest .  Subject to Section 9.13(e) , each Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Collateral Agent, for the benefit of the Administrative Agent, the Collateral Agent, each Issuing Lender and the Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.20(c) .  If at any time the Administrative Agent determines, which determination shall be dispositive absent manifest error, that Cash Collateral is subject to any right or claim of any Person other than the Collateral Agent, the Administrative Agent, the Lenders or the Issuing Lenders as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the applicable Borrowers will, promptly upon demand by the Administrative Agent made in accordance with Section 13.03 , pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.  All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in a cash collateral account to be established by, and under the sole dominion and control of, the Collateral Agent.  The applicable Borrowers shall pay on demand therefor from time to time all reasonable and documented account opening, activity and other reasonable and documented administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.

(c) Application .  Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Agreement in respect of Letters of Credit or Swingline Loans shall be held and applied to the satisfaction of the specific Letter of Credit Outstandings, Swingline Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.

(d) Release .  Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee)) or (ii) the determination by the Administrative Agent, which determination shall be dispositive absent manifest error, that there exists excess Cash Collateral; provided , however, (x) any such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, and (y) the Person providing Cash Collateral and the Issuing Lenders may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.

SECTION 3. Letters of Credit .

3.01 US Letters of Credit . (a) Subject to and upon the terms and conditions set forth herein, any US Borrower may request that a US Issuing Lender issue, at any time and from time to time on and after the Effective Date and prior to the 30th day prior to the Final Maturity Date, for the joint and several account of the US Borrowers and for the benefit of (x) any holder (or any trustee, agent or other similar representative for any such holders) of US L/C Supportable Obligations, an irrevocable standby letter of credit, in a form customarily used by such US Issuing Lender or in such other form as is reasonably acceptable to such US Issuing Lender, and (y) sellers of goods to the US Company or any of its Subsidiaries, an irrevocable trade letter of credit, in a form customarily used by such US Issuing Lender or in such other form as has been approved by such US Issuing Lender (each such letter of credit, a “ US Letter of Credit ”) (although without limiting the joint and several nature of the US Borrowers’ obligations in respect of the US Letters of Credit, any particular US Letter of Credit may name only one or more US Borrowers as the account party therein).  All US Letters of Credit shall be issued on a sight basis only.

(b) Subject to and upon the terms and conditions set forth herein, each US Issuing Lender agrees that it will, at any time and from time to time on and after the Effective Date and prior to the 30th day prior to the Final Maturity Date, following its receipt of the respective US Letter of Credit Request, issue for the joint and several account of the US Borrowers, one or more US

-65-

 

Letters of Credit as are permitted to remain outstanding hereunder without giving rise to a Default or an Event of Default; provided that no US Issuing Lender shall be under any obligation to issue any US Letter of Credit of the types described above if at the time of such issuance:  

(i) any order, judgment or decree of any Governmental Authority or arbitrator shall purport by its terms to enjoin or restrain such US Issuing Lender from issuing such US Letter of Credit or any requirement of law applicable to such US Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such US Issuing Lender shall prohibit, or request that such US Issuing Lender refrain from, the issuance of letters of credit generally or such US Letter of Credit in particular or shall impose upon such Issuing Lender with respect to such US Letter of Credit any restriction or reserve or capital requirement (for which such US Issuing Lender is not otherwise compensated hereunder) not in effect with respect to such US Issuing Lender on the date hereof, or any unreimbursed loss, cost or expense which was not applicable or in effect with respect to such US Issuing Lender as of the date hereof and which such US Issuing Lender reasonably and in good faith deems material to it;

(ii) such US Issuing Lender shall have received from such US Borrower, any other Credit Party or the Required Lenders prior to the issuance of such US Letter of Credit, notice of the type described in the second sentence of Section 3.07(b) ; or

(iii) the Letter of Credit Outstandings with respect to Letters of Credit issued by such Issuing Lender would exceed such Issuing Lender’s Letter of Credit Commitment.

(c) Schedule 3.01(c) contains a description of letters of credit that were issued by a Lender for the account of US Company prior to the Effective Date and which remain outstanding on the Effective Date (and setting forth, with respect to each such letter of credit, (i) the name of the issuing lender, (ii) the letter of credit number, (iii) the name of the account party, (iv) the stated amount (which shall be in Dollars), (v) the name of the beneficiary, (vi) the expiry date and (vii) whether such letter of credit constitutes a standby letter of credit or a trade letter of credit).  The US Company and each Lender hereby acknowledges and agrees that each such letter of credit, including any extension or renewal thereof in accordance with the terms thereof and hereof (each, as amended from time to time in accordance with the terms thereof and hereof, an “ Existing US Letter of Credit ”) shall constitute a “US Letter of Credit” for all purposes of this Agreement and, notwithstanding anything to the contrary stated in any such Existing US Letter of Credit (including, without limitation, the account party named therein), shall be deemed issued on the Effective Date for the account of the US Company.

3.02 UK Letters of Credit . (a) Subject to and upon the terms and conditions set forth herein, any UK Borrower may request that a UK Issuing Lender issue, at any time and from time to time on and after the Effective Date and prior to the 30th day prior to the Final Maturity Date, for the joint and several account of the UK Borrowers and for the benefit of (x) any person (or any trustee, agent or other similar representative for any such person) to whom a UK L/C Supportable Obligation is owed, an irrevocable standby letter of credit, in a form customarily used by such UK Issuing Lender or in such other form as is reasonably acceptable to such UK Issuing Lender, and (y) sellers of goods to the UK Company or any of its Subsidiaries, an irrevocable trade letter of credit, in a form customarily used by such UK Issuing Lender or in such other form as has been approved by such UK Issuing Lender (each such letter of credit, a “ UK Letter of Credit ”) (although without limiting the joint and several nature of the UK Borrowers’ obligations in respect of the UK Letters of Credit, any particular UK Letter of Credit may name only one or more UK Borrowers as the account party therein).  All UK Letters of Credit shall be issued on a sight basis only.

(b) Subject to and upon the terms and conditions set forth herein, each UK Issuing Lender agrees that it will, at any time and from time to time on and after the Effective Date and prior to the 30th day prior to the Final Maturity Date, following its receipt of the respective UK Letter of Credit Request, issue for the joint and several account of the UK Borrowers, one or more UK Letters of Credit as are permitted to remain outstanding hereunder without giving rise to a Default or an Event of Default; provided that no UK Issuing Lender shall be under any obligation to issue any UK Letter of Credit of the types described above if at the time of such issuance:

(i) any order, judgment or decree of any Governmental Authority or arbitrator shall purport by its terms to enjoin or restrain such UK Issuing Lender from issuing such UK Letter of Credit or any requirement of law applicable to such UK Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such UK Issuing Lender shall prohibit, or request that such UK Issuing Lender refrain from, the issuance of letters of credit generally or such UK Letter of Credit in particular or shall impose upon such UK Issuing Lender with respect to such UK Letter of Credit any restriction or reserve or capital requirement (for which such UK Issuing Lender is not otherwise compensated hereunder) not in effect with respect to such UK Issuing Lender on the date hereof, or any unreimbursed loss, cost or expense which was not applicable or in effect with respect to such UK Issuing Lender as of the date hereof and which such UK Issuing Lender reasonably and in good faith deems material to it;  

-66-

 

(ii) such UK Issuing Lender shall have received from such UK Borrower, any other Credit Party or the Required Lenders prior to the issuance of such UK Letter of Credit, notice of the type described in the second sentence of Section 3.08(b) ; or  

(iii) the Letter of Credit Outstandings with respect to Letters of Credit issued by such Issuing Lender would exceed such Issuing Lender’s Letter of Credit Commitment.

(c) Schedule 3.02(c) contains a description of letters of credit that were issued by a Lender for the account of any UK Borrower prior to the Effective Date and which remain outstanding on the Effective Date (and setting forth, with respect to each such letter of credit, (i) the name of the issuing lender, (ii) the letter of credit number, (iii) the name of the account party, (iv) the stated amount (which shall be in Pounds Sterling or Euros), (v) the name of the beneficiary, (vi) the expiry date and (vii) whether such letter of credit constitutes a standby letter of credit or a trade letter of credit).  Each UK Borrower and each Lender hereby acknowledges and agrees that each such letter of credit, including any extension or renewal thereof in accordance with the terms thereof and hereof (each, as amended from time to time in accordance with the terms thereof and hereof, an “ Existing UK Letter of Credit ”) shall constitute a “UK Letter of Credit” for all purposes of this Agreement and, notwithstanding anything to the contrary stated in any such Existing UK Letter of Credit (including, without limitation, the account party named therein), shall be deemed issued on the Effective Date for the account of the applicable UK Borrower.

3.03 Canadian Letters of Credit . (a) Subject to and upon the terms and conditions set forth herein, any Canadian Borrower may request that a Canadian Issuing Lender issue, at any time and from time to time on and after the Effective Date and prior to the 30th day prior to the Final Maturity Date, for the joint and several account of the Canadian Borrowers and for the benefit of (x) any holder (or any trustee, agent or other similar representative for any such holders) of Canadian L/C Supportable Obligations, an irrevocable standby letter of credit, in a form customarily used by such Canadian Issuing Lender or in such other form as is reasonably acceptable to such Canadian Issuing Lender, and (y) sellers of goods to the Canadian Company or any of its Subsidiaries, an irrevocable trade letter of credit, in a form customarily used by such Canadian Issuing Lender or in such other form as has been approved by such Canadian Issuing Lender (each such letter of credit, a “ Canadian Letter of Credit ”) (although without limiting the joint and several nature of the Canadian Borrowers’ obligations in respect of the Canadian Letters of Credit, any particular Canadian Letter of Credit may name only one or more Canadian Borrowers as the account party therein).  All Canadian Letters of Credit shall be issued on a sight basis only.

(b) Subject to and upon the terms and conditions set forth herein, each Canadian Issuing Lender agrees that it will, at any time and from time to time on and after the Effective Date and prior to the 30th day prior to the Final Maturity Date, following its receipt of the respective Canadian Letter of Credit Request, issue for the joint and several account of the Canadian Borrowers, one or more Canadian Letters of Credit as are permitted to remain outstanding hereunder without giving rise to a Default or an Event of Default; provided that no Canadian Issuing Lender shall be under any obligation to issue any Canadian Letter of Credit of the types described above if at the time of such issuance:

(i) any order, judgment or decree of any Governmental Authority or arbitrator shall purport by its terms to enjoin or restrain such Canadian Issuing Lender from issuing such Canadian Letter of Credit or any requirement of law applicable to such Canadian Issuing Lender or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Canadian Issuing Lender shall prohibit, or request that such Canadian Issuing Lender refrain from, the issuance of letters of credit generally or such Canadian Letter of Credit in particular or shall impose upon such Canadian Issuing Lender with respect to such Canadian Letter of Credit any restriction or reserve or capital requirement (for which such Canadian Issuing Lender is not otherwise compensated hereunder) not in effect with respect to such Canadian Issuing Lender on the date hereof, or any unreimbursed loss, cost or expense which was not applicable or in effect with respect to such Canadian Issuing Lender as of the date hereof and which such Canadian Issuing Lender reasonably and in good faith deems material to it;  

(ii) such Canadian Issuing Lender shall have received from such Canadian Borrower, any other Credit Party or the Required Lenders prior to the issuance of such Canadian Letter of Credit, notice of the type described in the second sentence of Section 3.09(b) ; or

(iii) the Letter of Credit Outstandings with respect to Letters of Credit issued by such Issuing Lender would exceed such Issuing Lender’s Letter of Credit Commitment.

(c) Schedule 3.03(c) contains a description of letters of credit that were issued by a Lender for the account of any Canadian Borrower prior to the Effective Date and which remain outstanding on the Effective Date (and setting forth, with respect to each such letter of credit, (i) the name of the issuing lender, (ii) the letter of credit number, (iii) the name of the account party, (iv) the stated amount (which shall be in Canadian Dollars), (v) the name of the beneficiary, (vi) the expiry date and (vii) whether such

-67-

 

letter of credit constitutes a standby letter of credit or a trade letter of credit).  Each Canadian Borrower and each Lender hereby acknowledges and agrees that each such letter of credit, including any extension or renewal thereof in accordance with the terms thereof and hereof (each, as amended from time to time in accordance with the terms thereof and hereof, an “ Existing Canadian Letter of Credit ”) shall constitute a “Canadian Letter of Credit” for all purposes of this Agreement and, notwithstanding anything to the contrary stated in any such Existing Canadian Letter of Credit (including, without limitation, the account party named therein), shall be deemed issued on the Effective Date for the account of the applicable Canadian Borrower.  

3.04 Maximum US Letter of Credit Outstandings; Final Maturities . Notwithstanding anything to the contrary contained in this Agreement, (a) no US Letter of Credit shall be issued (or required to be issued) if the Stated Amount of such US Letter of Credit, when added to the US Letter of Credit Outstandings (exclusive of Unpaid US Drawings which are repaid on the date of, and prior to the issuance of, the respective US Letter of Credit) at such time would exceed $50,000,000 (the “ Maximum US Letter of Credit Amount ”), (b) no US Letter of Credit shall be issued (or required to be issued) at any time when the Aggregate US Exposure exceeds (or would after giving effect to such issuance exceed) either (i) the US Maximum Amount at such time or (ii) the US Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), or when the Aggregate Exposure exceeds (or would after giving effect to such issuance exceed) either (x) the Total Revolving Loan Commitment or (y) the Aggregate Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), (c) each US Letter of Credit shall be denominated in Dollars, (d) each standby US Letter of Credit shall by its terms terminate on or before the earlier of (i) the date which occurs 12 months after the date of the issuance thereof (although any such standby US Letter of Credit shall be extendible for successive periods of up to 12 months, but, in each case, not beyond the 5th Business Day prior to the Final Maturity Date) and (ii) 5 Business Days prior to the Final Maturity Date and (e) each trade US Letter of Credit shall by its terms terminate on or before the earlier of (i) the date which occurs 180 days after the date of issuance thereof and (ii) 5 Business Days prior to the Final Maturity Date.

3.05 Maximum UK Letter of Credit Outstandings; Final Maturities . Notwithstanding anything to the contrary contained in this Agreement, (a) no UK Letter of Credit shall be issued (or required to be issued) if the Stated Amount of such UK Letter of Credit, when added to the UK Letter of Credit Outstandings (exclusive of Unpaid UK Drawings which are repaid on the date of, and prior to the issuance of, the respective UK Letter of Credit) at such time would exceed $20,000,000 or the Equivalent Amount thereof (the “ Maximum UK Letter of Credit Amount ”), (b) no UK Letter of Credit shall be issued (or required to be issued) at any time when the Aggregate UK Exposure exceeds (or would after giving effect to such issuance exceed) either (i) the UK Maximum Amount at such time or (ii) the UK Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), or when the Aggregate Exposure exceeds (or would after giving effect to such issuance exceed) either (x) the Total Revolving Loan Commitment or (y) the Aggregate Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), (c) each UK Letter of Credit shall be denominated in Pounds Sterling or Euros, (d) each standby UK Letter of Credit shall by its terms terminate on or before the earlier of (i) the date which occurs 12 months after the date of the issuance thereof (although any such standby UK Letter of Credit shall be extendible for successive periods of up to 12 months, but, in each case, not beyond the 5th Business Day prior to the Final Maturity Date) and (ii) 5 Business Days prior to the Final Maturity Date and (e) each trade UK Letter of Credit shall by its terms terminate on or before the earlier of (i) the date which occurs 180 days after the date of issuance thereof and (ii) 5 Business Days prior to the Final Maturity Date.

3.06 Maximum Canadian Letter of Credit Outstandings; Final Maturities . Notwithstanding anything to the contrary contained in this Agreement, (a) no Canadian Letter of Credit shall be issued (or required to be issued) if the Stated Amount of such Canadian Letter of Credit, when added to the Canadian Letter of Credit Outstandings (exclusive of Unpaid Canadian Drawings which are repaid on the date of, and prior to the issuance of, the respective Canadian Letter of Credit) at such time would exceed $20,000,000 or the Equivalent Amount thereof (the “ Maximum Canadian Letter of Credit Amount ”), (b) no Canadian Letter of Credit shall be issued (or required to be issued) at any time when the Aggregate Canadian Exposure exceeds (or would after giving effect to such issuance exceed) either (i) the Canadian Maximum Amount at such time or (ii) the Canadian Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), or when the Aggregate Exposure exceeds (or would after giving effect to such issuance exceed) either (x) the Total Revolving Loan Commitment or (y) the Aggregate Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), (c) each Canadian Letter of Credit shall be denominated in Canadian Dollars, (d) each standby Canadian Letter of Credit shall by its terms terminate on or before the earlier of (i) the date which occurs 12 months after the date of the issuance thereof (although any such standby Canadian Letter of Credit shall be extendible for successive periods of up to 12 months, but, in each case, not beyond the 5th Business Day prior to the Final Maturity Date) and (ii) 5 Business Days prior to the Final Maturity Date and (e) each trade Canadian Letter of Credit shall by its terms terminate on or before the earlier of (i) the date which occurs 180 days after the date of issuance thereof and (ii) 5 Business Days prior to the Final Maturity Date.

-68-

 

3.07 US Letter of Credit Requests; Minimum Stated Amount . (a) Whenever any US Borrower desires that a US Letter of Credit be issued for its account, such US Borrower shall give the Administrative Agent and the respective US Issuing Lender at least five Business Days’ (or such shorter period as is acceptable to such US Issuing Lender) written notice thereof (including by way of facsimile).  Each notice shall be in the form of Exhibit F, appropriately completed (each, a “US Letter of Credit Request”).  

(b) The making of each US Letter of Credit Request shall be deemed to be a representation and warranty by the respective US Borrower to the Lenders that such US Letter of Credit may be issued in accordance with, and will not violate the requirements of, Section 3.04 .  Unless the respective US Issuing Lender has received notice from any US Borrower, any other US Credit Party or the Required Lenders before it issues a US Letter of Credit that one or more of the conditions specified in Section 6 or 7 are not then satisfied, or that the issuance of such US Letter of Credit would violate Section 3.04 , then such US Issuing Lender shall, subject to the terms and conditions of this Agreement, issue the requested US Letter of Credit for the account of the respective US Borrower in accordance with such US Issuing Lender’s usual and customary practices.  Upon the issuance of or modification or amendment to any standby US Letter of Credit, each US Issuing Lender shall promptly notify the respective US Borrower and the Administrative Agent, in writing of such issuance, modification or amendment and such notice shall be accompanied by a copy of such US Letter of Credit or the respective modification or amendment thereto, as the case may be.  Promptly after receipt of such notice the Administrative Agent shall notify the US Participants, in writing, of such issuance, modification or amendment.  On the first Business Day of each week, each US Issuing Lender shall furnish the Administrative Agent with a written (including via facsimile) report of the daily aggregate outstandings of US Letters of Credit issued by such US Issuing Lender for the immediately preceding week.  

(c) The initial Stated Amount of each US Letter of Credit shall not be less than $25,000 or such lesser amount as is acceptable to the respective US Issuing Lender.

3.08 UK Letter of Credit Requests; Minimum Stated Amount . (a) Whenever any UK Borrower desires that a UK Letter of Credit be issued for its account, such UK Borrower shall give the Administrative Agent and the respective UK Issuing Lender at least five Business Days’ (or such shorter period as is acceptable to such UK Issuing Lender) written notice thereof (including by way of facsimile).  Each notice shall be in the form of Exhibit G, appropriately completed (each, a “ UK Letter of Credit Request ”).

(b) The making of each UK Letter of Credit Request shall be deemed to be a representation and warranty by the respective UK Borrower to the Lenders that such UK Letter of Credit may be issued in accordance with, and will not violate the requirements of, Section 3.05 .  Unless the respective UK Issuing Lender has received notice from any UK Borrower, any other UK Credit Party or the Required Lenders before it issues a UK Letter of Credit that one or more of the conditions specified in Section 6 or 7 are not then satisfied, or that the issuance of such UK Letter of Credit would violate Section 3.05 , then such UK Issuing Lender shall, subject to the terms and conditions of this Agreement, issue the requested UK Letter of Credit for the account of the respective UK Borrower in accordance with such UK Issuing Lender’s usual and customary practices.  Upon the issuance of or modification or amendment to any standby UK Letter of Credit, each UK Issuing Lender shall promptly notify the respective UK Borrower and the Administrative Agent, in writing of such issuance, modification or amendment and such notice shall be accompanied by a copy of such UK Letter of Credit or the respective modification or amendment thereto, as the case may be.  Promptly after receipt of such notice the Administrative Agent shall notify the UK Participants, in writing, of such issuance, modification or amendment.  On the first Business Day of each week, each UK Issuing Lender shall furnish the Administrative Agent with a written (including via facsimile) report of the daily aggregate outstandings of UK Letters of Credit issued by such UK Issuing Lender for the immediately preceding week.  

(c) The initial Stated Amount of each UK Letter of Credit shall not be less than £25,000 or €25,000, as applicable, or such lesser amount as is acceptable to the respective UK Issuing Lender.

3.09 Canadian Letter of Credit Requests; Minimum Stated Amount . (a) Whenever any Canadian Borrower desires that a Canadian Letter of Credit be issued for its account, such Canadian Borrower shall give the Administrative Agent and the respective Canadian Issuing Lender at least five Business Days’ (or such shorter period as is acceptable to such Canadian Issuing Lender) written notice thereof (including by way of facsimile).  Each notice shall be in the form of Exhibit H, appropriately completed (each, a “ Canadian Letter of Credit Request ”).

(b) The making of each Canadian Letter of Credit Request shall be deemed to be a representation and warranty by the respective Canadian Borrower to the Lenders that such Canadian Letter of Credit may be issued in accordance with, and will not violate the requirements of, Section 3.06 .  Unless the respective Canadian Issuing Lender has received notice from any Canadian Borrower, any other Canadian Credit Party or the Required Lenders before it issues a Canadian Letter of Credit that one or more of the conditions specified in Section 6 or 7 are not then satisfied, or that the issuance of such Canadian Letter of Credit would violate Section 3.06 , then such Canadian Issuing Lender shall, subject to the terms and conditions of this Agreement, issue the requested

-69-

 

Canadian Letter of Credit for the account of the respective Canadian Borrower in accordance with such Canadian Issuing Lender’s usual and customary practices.  Upon the issuance of or modification or amendment to any standby Canadian Letter of Credit, each Canadian Issuing Lender shall promptly notify the respective Canadian Borrower and the Administrative Agent, in writing of such issuance, modification or amendment and such notice shall be accompanied by a copy of such Canadian Letter of Credit or the respective modification or amendment thereto, as the case may be.  Promptly after receipt of such notice the Administrative Agent shall notify the Canadian Participants, in writing, of such issuance, modification or amendment.  On the first Business Day of each week, each Canadian Issuing Lender shall furnish the Administrative Agent with a written (including via facsimile) report of the daily aggregate outstandings of Canadian Letters of Credit issued by such Canadian Issuing Lender for the immediately preceding week.    

(c) The initial Stated Amount of each Canadian Letter of Credit shall not be less than CA$25,000 or such lesser amount as is acceptable to the respective Canadian Issuing Lender.

3.10 US Letter of Credit Participations . (a) Immediately upon the issuance by a US Issuing Lender of any US Letter of Credit, such US Issuing Lender shall be deemed to have sold and transferred to each Lender, and each such Lender (in its capacity under this Section 3.10 , a “ US Participant ”) shall be deemed irrevocably and unconditionally to have purchased and received from such US Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such US Participant’s RL Percentage, in such US Letter of Credit, each drawing or payment made thereunder and the obligations of the US Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto.  Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13 , 2.15 or 13.04(b) , it is hereby agreed that, with respect to all outstanding US Letters of Credit and Unpaid US Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.10 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.

(b) In determining whether to pay under any US Letter of Credit, no US Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such US Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such US Letter of Credit.  Any action taken or omitted to be taken by a US Issuing Lender under or in connection with any US Letter of Credit issued by it shall not create for such US Issuing Lender any resulting liability to any US Borrower, any other US Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such US Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).

(c) In the event that a US Issuing Lender makes any payment under any US Letter of Credit issued by it and the US Borrowers shall not have reimbursed such amount in full to such US Issuing Lender pursuant to Section 3.13(a) , such US Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each US Participant of such failure, and each US Participant shall promptly and unconditionally pay to such US Issuing Lender the amount of such US Participant’s RL Percentage of such unreimbursed payment in Dollars in immediately available funds.  If the Administrative Agent so notifies, prior to 12:00 Noon (New York City time) on any Business Day, any US Participant required to fund a payment under a US Letter of Credit, such US Participant shall make available to the respective US Issuing Lender in Dollars such US Participant’s Percentage of the amount of such payment on such Business Day in immediately available funds.  If and to the extent such US Participant shall not have so made its RL Percentage of the amount of such payment available to the respective US Issuing Lender, such US Participant agrees to pay to such US Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such US Issuing Lender at the overnight Federal Funds Rate for the first three days and at the interest rate applicable to Loans that are maintained as Base Rate Loans for each day thereafter.  The failure of any US Participant to make available to a US Issuing Lender its RL Percentage of any payment under any US Letter of Credit issued by such US Issuing Lender shall not relieve any other US Participant of its obligation hereunder to make available to such US Issuing Lender its RL Percentage of any payment under any US Letter of Credit on the date required, as specified above, but no US Participant shall be responsible for the failure of any other US Participant to make available to such US Issuing Lender such other US Participant’s RL Percentage of any such payment.  

(d) Whenever a US Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the US Participants pursuant to clause (c) above, such US Issuing Lender shall pay to each such US Participant which has paid its RL Percentage thereof, in Dollars and in same day funds, an amount equal to such US Participant’s share (based upon the proportionate aggregate amount originally funded by such US Participant to the aggregate amount funded by all US Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.

(e) Upon the request of any US Participant, each US Issuing Lender shall furnish to such US Participant copies of any standby US Letter of Credit issued by it and such other documentation as may reasonably be requested by such US Participant.

-70-

 

(f) The obligations of the US Participants to make payments to each US Issuing Lender with respect to US Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:  

(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;

(ii) the existence of any claim, setoff, defense or other right which US Company or any of its Subsidiaries may have at any time against a beneficiary named in a US Letter of Credit, any transferee of any US Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any US Participant, or any other Person, whether in connection with this Agreement, any US Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between US Company or any Subsidiary of US Company and the beneficiary named in any such US Letter of Credit);

(iii) any draft, certificate or any other document presented under any US 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;

(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or

(v) the occurrence of any Default or Event of Default.

3.11 UK Letter of Credit Participations . (a) Immediately upon the issuance by a UK Issuing Lender of any UK Letter of Credit, such UK Issuing Lender shall be deemed to have sold and transferred to each Lender, and each such Lender (in its capacity under this Section 3.11 , a “ UK Participant ”) shall be deemed irrevocably and unconditionally to have purchased and received from such UK Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such UK Participant’s RL Percentage, in such UK Letter of Credit, each drawing or payment made thereunder and the obligations of the UK Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto.  Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13 , 2.15 or 13.04(b) , it is hereby agreed that, with respect to all outstanding UK Letters of Credit and Unpaid UK Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.11 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.

(b) In determining whether to pay under any UK Letter of Credit, no UK Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such UK Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such UK Letter of Credit.  Any action taken or omitted to be taken by a UK Issuing Lender under or in connection with any UK Letter of Credit issued by it shall not create for such UK Issuing Lender any resulting liability to any UK Borrower, any other UK Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such UK Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).

(c) In the event that a UK Issuing Lender makes any payment under any UK Letter of Credit issued by it and the UK Borrowers shall not have reimbursed such amount in full to such UK Issuing Lender pursuant to Section 3.14(a) , such UK Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each UK Participant of such failure, and each UK Participant shall promptly and unconditionally pay to such UK Issuing Lender the amount of such UK Participant’s RL Percentage of such unreimbursed payment in Pounds Sterling or Euros, as applicable, in immediately available funds.  The Administrative Agent shall also promptly provide each Converting Euro Lender and Converting Pounds Sterling Lender a calculation of the amount of US Dollars that such Converting Pounds Sterling Lender or Converting Euro Lender, as applicable, shall be required to provide to the Administrative Agent consistent with Section 2.16 . If the Administrative Agent so notifies, prior to 12:00 Noon (London time) on any Business Day, any UK Participant required to fund a payment under a UK Letter of Credit, such UK Participant shall make available to the respective UK Issuing Lender in Pounds Sterling or Euros, as applicable, such UK Participant’s Percentage of the amount of such payment on such Business Day in immediately available funds.  If and to the extent such UK Participant shall not have so made its RL Percentage of the amount of such payment available to the respective UK Issuing Lender, such UK Participant agrees to pay to such UK Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such UK Issuing Lender interest at the rate applicable to Loans that are maintained as UK LIBOR Loans or EURIBOR Loans, as applicable with an Interest Period of one-week for each day thereafter.  The failure of any UK Participant to make available to a UK Issuing Lender its RL Percentage of any payment under any UK Letter of Credit issued by such UK Issuing Lender shall not relieve any other UK Participant of its obligation hereunder to make available to such UK Issuing Lender its RL Percentage of any payment under any UK Letter of Credit on the date required, as specified above, but

-71-

 

no UK Participant shall be responsible for the failure of any other UK Participant to make available to such UK Issuing Lender such other UK Participant’s RL Percentage of any such payment .    

(d) Whenever a UK Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the UK Participants pursuant to clause (c) above, such UK Issuing Lender shall pay to each such UK Participant which has paid its RL Percentage thereof, in Pounds Sterling or Euros, as applicable and in same day funds, an amount equal to such UK Participant’s share (based upon the proportionate aggregate amount originally funded by such UK Participant to the aggregate amount funded by all UK Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.

(e) Upon the request of any UK Participant, each UK Issuing Lender shall furnish to such UK Participant copies of any standby UK Letter of Credit issued by it and such other documentation as may reasonably be requested by such UK Participant.

(f) The obligations of the UK Participants to make payments to each UK Issuing Lender with respect to UK Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:

(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;

(ii) the existence of any claim, setoff, defense or other right which US Company or any of its Subsidiaries may have at any time against a beneficiary named in a UK Letter of Credit, any transferee of any UK Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any UK Participant, or any other Person, whether in connection with this Agreement, any UK Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between US Company or any Subsidiary of US Company and the beneficiary named in any such UK Letter of Credit);

(iii) any draft, certificate or any other document presented under any UK 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;

(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or

(v) the occurrence of any Default or Event of Default.

3.12 Canadian Letter of Credit Participations . (a) Immediately upon the issuance by a Canadian Issuing Lender of any Canadian Letter of Credit, such Canadian Issuing Lender shall be deemed to have sold and transferred to each Lender, and each such Lender (in its capacity under this Section 3.12 , a “ Canadian Participant ”) shall be deemed irrevocably and unconditionally to have purchased and received from such Canadian Issuing Lender, without recourse or warranty, an undivided interest and participation, to the extent of such Canadian Participant’s RL Percentage, in such Canadian Letter of Credit, each drawing or payment made thereunder and the obligations of the Canadian Borrowers under this Agreement with respect thereto, and any security therefor or guaranty pertaining thereto.  Upon any change in the Revolving Loan Commitments or RL Percentages of the Lenders pursuant to Section 2.13 , 2.15 or 13.04(b) , it is hereby agreed that, with respect to all outstanding Canadian Letters of Credit and Unpaid Canadian Drawings relating thereto, there shall be an automatic adjustment to the participations pursuant to this Section 3.12 to reflect the new RL Percentages of the assignor and assignee Lender, as the case may be.

(b) In determining whether to pay under any Canadian Letter of Credit, no Canadian Issuing Lender shall have any obligation relative to the other Lenders other than to confirm that any documents required to be delivered under such Canadian Letter of Credit appear to have been delivered and that they appear to substantially comply on their face with the requirements of such Canadian Letter of Credit.  Any action taken or omitted to be taken by a Canadian Issuing Lender under or in connection with any Canadian Letter of Credit issued by it shall not create for such Canadian Issuing Lender any resulting liability to any Canadian Borrower, any other Canadian Credit Party, any Lender or any other Person unless such action is taken or omitted to be taken with gross negligence or willful misconduct on the part of such Canadian Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).

(c) In the event that a Canadian Issuing Lender makes any payment under any Canadian Letter of Credit issued by it and the Canadian Borrowers shall not have reimbursed such amount in full to such Canadian Issuing Lender pursuant to Section

-72-

 

3.15(a) , such Canadian Issuing Lender shall promptly notify the Administrative Agent, which shall promptly notify each Canadian Participant of such failure, and each Canadian Participant shall promptly and unconditionally pay to such Canadian Issuing Lender the amount of such Canadian Participant’s RL Percentage of such unreimbursed payment in Canadian Dollars in immediately available funds.  The Administrative Agent shall also promptly provide each Converting Canadian Dollar Lender a calculation of the amount of US Dollars that such Converting Canadian Dollar Lender shall be required to provide to the Administrative Agent consistent with Section 2.16 .   If the Administrative Agent so notifies, prior to 12:00 Noon (Toronto time) on any Business Day, any Canadian Participant required to fund a payment under a Canadian Letter of Credit, such Canadian Participant shall make available to the respective Canadian Issuing Lender in Canadian Dollars such Canadian Participant’s Percentage of the amount of such payment on such Business Day in immediately available funds.  If and to the extent such Canadian Participant shall not have so made its RL Percentage of the amount of such payment available to the respective Canadian Issuing Lender, such Canadian Participant agrees to pay to such Canadian Issuing Lender, forthwith on demand such amount, together with interest thereon, for each day from such date until the date such amount is paid to such Canadian Issuing Lender interest at the rate applicable to Canadian Prime Rate Loans.  The failure of any Canadian Participant to make available to a Canadian Issuing Lender its RL Percentage of any payment under any Canadian Letter of Credit issued by such Canadian Issuing Lender shall not relieve any other Canadian Participant of its obligation hereunder to make available to such Canadian Issuing Lender its RL Percentage of any payment under any Canadian Letter of Credit on the date required, as specified above, but no Canadian Participant shall be responsible for the failure of any other Canadian Participant to make available to such Canadian Issuing Lender such other Canadian Participant’s RL Percentage of any such payment .    

(d) Whenever a Canadian Issuing Lender receives a payment of a reimbursement obligation as to which it has received any payments from the Canadian Participants pursuant to clause (c) above, such Canadian Issuing Lender shall pay to each such Canadian Participant which has paid its RL Percentage thereof, in Canadian Dollars and in same day funds, an amount equal to such Canadian Participant’s share (based upon the proportionate aggregate amount originally funded by such Canadian Participant to the aggregate amount funded by all Canadian Participants) of the principal amount of such reimbursement obligation and interest thereon accruing after the purchase of the respective participations.

(e) Upon the request of any Canadian Participant, each Canadian Issuing Lender shall furnish to such Canadian Participant copies of any standby Canadian Letter of Credit issued by it and such other documentation as may reasonably be requested by such Canadian Participant.

(f) The obligations of the Canadian Participants to make payments to each Canadian Issuing Lender with respect to Canadian Letters of Credit shall be irrevocable and not subject to any qualification or exception whatsoever and shall be made in accordance with the terms and conditions of this Agreement under all circumstances, including, without limitation, any of the following circumstances:

(i) any lack of validity or enforceability of this Agreement or any of the other Credit Documents;

(ii) the existence of any claim, setoff, defense or other right which US Company or any of its Subsidiaries may have at any time against a beneficiary named in a Canadian Letter of Credit, any transferee of any Canadian Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, any Canadian Participant, or any other Person, whether in connection with this Agreement, any Canadian Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transaction between US Company or any Subsidiary of US Company and the beneficiary named in any such Canadian Letter of Credit);

(iii) any draft, certificate or any other document presented under any Canadian 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;

(iv) the surrender or impairment of any security for the performance or observance of any of the terms of any of the Credit Documents; or

(v) the occurrence of any Default or Event of Default.

3.13 Agreement to Repay US Letter of Credit Drawings . (a) Each US Borrower hereby jointly and severally agrees to reimburse each US Issuing Lender, by making payment to the Administrative Agent in Dollars in immediately available funds at the Payment Office, for any payment or disbursement made by such US Issuing Lender under any US Letter of Credit issued by it (each such amount, so paid until reimbursed by the respective US Borrower, an “Unpaid US Drawing”), not later than one Business Day following receipt by the respective US Borrower of notice of such payment or disbursement (provided that no such notice shall be required to be given if a Default or an Event of Default under Section 11.08 shall have occurred and be continuing, in which case the Unpaid US Drawing shall be due and payable immediately without presentment, demand, protest or notice of any kind

-73-

 

(all of which are hereby waived by the US Borrowers)), with interest on the amount so paid or disbursed by such US Issuing Lender, to the extent not reimbursed prior to 12:00 Noon (New York City time) on the date of such payment or disbursement (or to the extent such Unpaid US Drawing is repaid with a US Borrowing of US Revolving Loans constituting Base Rate Loans pursuant to (and to the extent permitted by) clause (ii) of the proviso below), from and including the date paid or disbursed to but excluding the date such US Issuing Lender was reimbursed by the respective US Borrower therefor at a rate per annum equal to the Base Rate as in effect from time to time plus the Applicable Margin as in effect from time to time for Loans that are maintained as Base Rate Loans; provided, however, to the extent such amounts are not reimbursed prior to 12:00 Noon (New York City time) on the third Business Day following the receipt by the respective US Borrower of notice of such payment or disbursement or following the occurrence of a Default or an Event of Default under Section 11.08, interest shall thereafter accrue on the amounts so paid or disbursed by such US Issuing Lender (and until reimbursed by the US Borrowers) at a rate per annum equal to the Base Rate as in effect from time to time plus the Applicable Margin for Loans that are maintained as Base Rate Loans as in effect from time to time plus 2%, with such interest to be payable on demand.  Each US Issuing Lender shall give the respective US Borrower prompt written notice of each US Drawing under any US Letter of Credit issued by it; provided that the failure to give any such notice shall in no way affect, impair or diminish the US Borrowers’ obligations hereunder.  

(b) The joint and several obligations of the US Borrowers under this Section 3.13 to reimburse each US Issuing Lender with respect to drafts, demands and other presentations for payment under US Letters of Credit issued by it (each, a “ US Drawing ”) (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which US Company, any US Borrower or any Subsidiary of any US Borrower may have or have had against any Lender (including in its capacity as a US Issuing Lender or as a US Participant), including, without limitation, any defense based upon the failure of any drawing under a US Letter of Credit to conform to the terms of the US Letter of Credit or any nonapplication or misapplication by the beneficiary of the proceeds of such US Drawing; provided , however , that no US Borrower shall be obligated to reimburse any US Issuing Lender for any wrongful payment made by such US Issuing Lender under a US Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such US Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).

3.14 Agreement to Repay UK Letter of Credit Drawings . (a) Each UK Borrower hereby jointly and severally agrees to reimburse each UK Issuing Lender, by making payment to the Administrative Agent in Pounds Sterling or Euros, as applicable in immediately available funds at the Payment Office, for any payment or disbursement made by such UK Issuing Lender under any UK Letter of Credit issued by it (each such amount, so paid until reimbursed by the respective UK Borrower, an “ Unpaid UK Drawing ”), not later than one Business Day following receipt by the respective UK Borrower of notice of such payment or disbursement ( provided that no such notice shall be required to be given if a Default or an Event of Default under Section 11.08 shall have occurred and be continuing, in which case the Unpaid UK Drawing shall be due and payable immediately without presentment, demand, protest or notice of any kind (all of which are hereby waived by the UK Borrowers)), with interest on the amount so paid or disbursed by such UK Issuing Lender, to the extent not reimbursed prior to 12:00 Noon (London time) on the date of such payment or disbursement (or to the extent such Unpaid UK Drawing is repaid with a UK Borrowing of UK Revolving Loans pursuant to (and to the extent permitted by) clause (ii) of the proviso below), from and including the date paid or disbursed to but excluding the date such UK Issuing Lender was reimbursed by the respective UK Borrower therefor at a rate per annum equal to LIBOR or EURIBOR, as applicable, for Loans with a one-week Interest Period as in effect from time to time plus the Applicable Margin as in effect from time to time for UK Revolving Loans; provided , however , to the extent such amounts are not reimbursed prior to 12:00 Noon (London time) on the third Business Day following the receipt by the respective UK Borrower of notice of such payment or disbursement or following the occurrence of a Default or an Event of Default under Section 11.08 , interest shall thereafter accrue on the amounts so paid or disbursed by such UK Issuing Lender (and until reimbursed by the UK Borrowers) at a rate per annum equal to LIBOR or EURIBOR, as applicable, for Loans with a one-week Interest Period as in effect from time to time plus the Applicable Margin for Loans that are maintained as UK Revolving Loans as in effect from time to time plus 2%, with such interest to be payable on demand.  Each UK Issuing Lender shall give the respective UK Borrower prompt written notice of each UK Drawing under any UK Letter of Credit issued by it; provided that the failure to give any such notice shall in no way affect, impair or diminish the UK Borrowers’ obligations hereunder.

(b) The joint and several obligations of the UK Borrowers under this Section 3.14 to reimburse each UK Issuing Lender with respect to drafts, demands and other presentations for payment under UK Letters of Credit issued by it (each, a “ UK Drawing ”) (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which US Company, any UK Borrower or any Subsidiary of US Company may have or have had against any Lender (including in its capacity as a UK Issuing Lender or as a UK Participant), including, without limitation, any defense based upon the failure of any drawing under a UK Letter of Credit to conform to the terms of the UK Letter of Credit or any nonapplication or misapplication by the beneficiary of the proceeds of such UK Drawing; provided , however , that no UK Borrower shall be obligated to reimburse any UK Issuing Lender for any wrongful payment made by such UK Issuing Lender under a UK Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross

-74-

 

negligence on the part of such UK Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision) .  

3.15 Agreement to Repay Canadian Letter of Credit Drawings . (a) Each Canadian Borrower hereby jointly and severally agrees to reimburse each Canadian Issuing Lender, by making payment to the Administrative Agent in Canadian Dollars in immediately available funds at the Payment Office, for any payment or disbursement made by such Canadian Issuing Lender under any Canadian Letter of Credit issued by it (each such amount, so paid until reimbursed by the respective Canadian Borrower, an “ Unpaid Canadian Drawing ”), not later than one Business Day following receipt by the respective Canadian Borrower of notice of such payment or disbursement ( provided that no such notice shall be required to be given if a Default or an Event of Default under Section 11.08 shall have occurred and be continuing, in which case the Unpaid Canadian Drawing shall be due and payable immediately without presentment, demand, protest or notice of any kind (all of which are hereby waived by the Canadian Borrowers)), with interest on the amount so paid or disbursed by such Canadian Issuing Lender, to the extent not reimbursed prior to 12:00 Noon (Toronto time) on the date of such payment or disbursement (or to the extent such Unpaid Canadian Drawing is repaid with a Canadian Borrowing of Canadian Revolving Loans pursuant to (and to the extent permitted by) clause (ii) of the proviso below), from and including the date paid or disbursed to but excluding the date such Canadian Issuing Lender was reimbursed by the respective Canadian Borrower therefor at a rate per annum equal to the Canadian Prime Rate plus the Applicable Margin as in effect from time to time; provided , however , to the extent such amounts are not reimbursed prior to 12:00 Noon (Toronto time) on the third Business Day following the receipt by the respective Canadian Borrower of notice of such payment or disbursement or following the occurrence of a Default or an Event of Default under Section 11.08 , interest shall thereafter accrue on the amounts so paid or disbursed by such Canadian Issuing Lender (and until reimbursed by the Canadian Borrowers) at a rate per annum equal to the Canadian Prime Rate plus the Applicable Margin for Loans that are maintained as Canadian Prime Rate Loans as in effect from time to time plus 2%, with such interest to be payable on demand.  Each Canadian Issuing Lender shall give the respective Canadian Borrower prompt written notice of each Canadian Drawing under any Canadian Letter of Credit issued by it; provided that the failure to give any such notice shall in no way affect, impair or diminish the Canadian Borrowers’ obligations hereunder.

(b) The joint and several obligations of the Canadian Borrowers under this Section 3.15 to reimburse each Canadian Issuing Lender with respect to drafts, demands and other presentations for payment under Canadian Letters of Credit issued by it (each, a “ Canadian Drawing ”) (including, in each case, interest thereon) shall be absolute and unconditional under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment which US Company, any Canadian Borrower or any Subsidiary of US Company may have or have had against any Lender (including in its capacity as a Canadian Issuing Lender or as a Canadian Participant), including, without limitation, any defense based upon the failure of any drawing under a Canadian Letter of Credit to conform to the terms of the Canadian Letter of Credit or any nonapplication or misapplication by the beneficiary of the proceeds of such Canadian Drawing; provided , however , that no Canadian Borrower shall be obligated to reimburse any Canadian Issuing Lender for any wrongful payment made by such Canadian Issuing Lender under a Canadian Letter of Credit issued by it as a result of acts or omissions constituting willful misconduct or gross negligence on the part of such Canadian Issuing Lender (as determined by a court of competent jurisdiction in a final and non-appealable decision).

3.16 Increased Costs – US Letters of Credit . If at any time after the Effective Date, the introduction of or any change in any Applicable Law, rule, regulation, order, guideline or request or in the interpretation or administration thereof by the NAIC or any Governmental Authority charged with the interpretation or administration thereof, or compliance by any US Issuing Lender or any US Participant with any request or directive by the NAIC or by any such Governmental Authority (whether or not having the force of law), shall either (a) impose, modify or make applicable any reserve, deposit, liquidity, capital adequacy or similar requirement against letters of credit issued by any US Issuing Lender or participated in by any US Participant, or (b) impose on any US Issuing Lender or any US Participant any other conditions relating, directly or indirectly, to this Agreement or any US Letter of Credit; and the result of any of the foregoing is to increase the cost to any US Issuing Lender or any US Participant of issuing, maintaining or participating in any US Letter of Credit, or reduce the amount of any sum received or receivable by any US Issuing Lender or any US Participant hereunder or reduce the rate of return on its capital with respect to US Letters of Credit (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such US Issuing Lender or such US Participant pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein), then, upon the delivery of the certificate referred to below to the US Company by any US Issuing Lender or any US Participant (a copy of which certificate shall be sent by such US Issuing Lender or such US Participant to the Administrative Agent), the US Borrowers jointly and severally agree to pay to such US Issuing Lender or such US Participant such additional amount or amounts as will compensate such US Issuing Lender or such US Participant for such increased cost or reduction in the amount receivable or reduction on the rate of return on its capital.  Any US Issuing Lender or any US Participant, upon determining that any additional amounts will be payable to it pursuant to this Section 3.16 , will give prompt written notice thereof to the US Company, which notice shall include a certificate submitted to the US Company by such US Issuing Lender or such US Participant (a copy of which certificate shall be sent by such US Issuing Lender or such US Participant to the Administrative Agent), setting forth in reasonable detail the basis for the calculation of such additional amount or amounts necessary to compensate

-75-

 

such US Issuing Lender or such US Participant.  The certificate required to be delivered pursuant to this Section 3.16 shall, absent manifest error, be final and conclusive and binding on the US Borrowers .  

3.17 Increased Costs – UK Letters of Credit . If at any time after the Effective Date, the introduction of or any change in any Applicable Law, rule, regulation, order, guideline or request or in the interpretation or administration thereof by the NAIC or any Governmental Authority charged with the interpretation or administration thereof, or compliance by any UK Issuing Lender or any UK Participant with any request or directive by the NAIC or by any such Governmental Authority (whether or not having the force of law), shall either (a) impose, modify or make applicable any reserve, deposit, capital adequacy, liquidity or similar requirement against letters of credit issued by any UK Issuing Lender or participated in by any UK Participant, or (b) impose on any UK Issuing Lender or any UK Participant any other conditions relating, directly or indirectly, to this Agreement or any UK Letter of Credit; and the result of any of the foregoing is to increase the cost to any UK Issuing Lender or any UK Participant of issuing, maintaining or participating in any UK Letter of Credit, or reduce the amount of any sum received or receivable by any UK Issuing Lender or any UK Participant hereunder or reduce the rate of return on its capital with respect to UK Letters of Credit (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such UK Issuing Lender or such UK Participant pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein), then, upon the delivery of the certificate referred to below to the US Company or UK Company by any UK Issuing Lender or any UK Participant (a copy of which certificate shall be sent by such UK Issuing Lender or such UK Participant to the Administrative Agent), the UK Borrowers jointly and severally agree to pay to such UK Issuing Lender or such UK Participant such additional amount or amounts as will compensate such UK Issuing Lender or such UK Participant for such increased cost or reduction in the amount receivable or reduction on the rate of return on its capital.  Any UK Issuing Lender or any UK Participant, upon determining that any additional amounts will be payable to it pursuant to this Section 3.17 , will give prompt written notice thereof to the US Company, which notice shall include a certificate submitted to the US Company by such UK Issuing Lender or such UK Participant (a copy of which certificate shall be sent by such UK Issuing Lender or such UK Participant to the Administrative Agent), setting forth in reasonable detail the basis for the calculation of such additional amount or amounts necessary to compensate such UK Issuing Lender or such UK Participant.  The certificate required to be delivered pursuant to this Section 3.17 shall, absent manifest error, be final and conclusive and binding on the UK Borrowers.

3.18 Increased Costs – Canadian Letters of Credit . If at any time after the Effective Date, the introduction of or any change in any Applicable Law, rule, regulation, order, guideline or request or in the interpretation or administration thereof by the NAIC or any Governmental Authority charged with the interpretation or administration thereof, or compliance by any Canadian Issuing Lender or any Canadian Participant with any request or directive by the NAIC or by any such Governmental Authority (whether or not having the force of law), shall either (a) impose, modify or make applicable any reserve, deposit, capital adequacy, liquidity or similar requirement against letters of credit issued by any Canadian Issuing Lender or participated in by any Canadian Participant, or (b) impose on any Canadian Issuing Lender or any Canadian Participant any other conditions relating, directly or indirectly, to this Agreement or any Canadian Letter of Credit; and the result of any of the foregoing is to increase the cost to any Canadian Issuing Lender or any Canadian Participant of issuing, maintaining or participating in any Canadian Letter of Credit, or reduce the amount of any sum received or receivable by any Canadian Issuing Lender or any Canadian Participant hereunder or reduce the rate of return on its capital with respect to Canadian Letters of Credit (except for changes in the rate of tax on, or determined by reference to, the net income or net profits of such Canadian Issuing Lender or such Canadian Participant pursuant to the laws of the jurisdiction in which it is organized or in which its principal office or applicable lending office is located or any subdivision thereof or therein), then, upon the delivery of the certificate referred to below to the US Company or Canadian Company by any Canadian Issuing Lender or any Canadian Participant (a copy of which certificate shall be sent by such Canadian Issuing Lender or such Canadian Participant to the Administrative Agent), the Canadian Borrowers jointly and severally agree to pay to such Canadian Issuing Lender or such Canadian Participant such additional amount or amounts as will compensate such Canadian Issuing Lender or such Canadian Participant for such increased cost or reduction in the amount receivable or reduction on the rate of return on its capital.  Any Canadian Issuing Lender or any Canadian Participant, upon determining that any additional amounts will be payable to it pursuant to this Section 3.18 , will give prompt written notice thereof to the US Company, which notice shall include a certificate submitted to the US Company by such Canadian Issuing Lender or such Canadian Participant (a copy of which certificate shall be sent by such Canadian Issuing Lender or such Canadian Participant to the Administrative Agent), setting forth in reasonable detail the basis for the calculation of such additional amount or amounts necessary to compensate such Canadian Issuing Lender or such Canadian Participant.  The certificate required to be delivered pursuant to this Section 3.18 shall, absent manifest error, be final and conclusive and binding on the Canadian Borrowers.

SECTION 4. Commitment Commission; Fees; Reductions of Commitment .

4.01 Fees . (a) The US Borrowers jointly and severally agree to pay to the Administrative Agent for distribution to each Non-Defaulting Lender a commitment commission (the “Commitment Commission”) for the period from and including the Effective Date to and including the Final Maturity Date (or such earlier date on which the Total Revolving Loan Commitment has been terminated) computed at a rate per annum equal to the Applicable Commitment Commission Percentage of the Unutilized

-76-

 

Revolving Loan Commitment of such Non-Defaulting Lender as in effect from time to time.  Accrued Commitment Commission shall be due and payable quarterly in arrears on each Quarterly Payment Date and on the date upon which the Total Revolving Loan Commitment is terminated.  

(b) The US Borrowers jointly and severally agree to pay to the Administrative Agent for distribution to each Lender (based on each such Lender’s respective RL Percentage) a fee in respect of each US Letter of Credit (the “ US Letter of Credit Fee ”) for the period from and including the date of issuance of such US Letter of Credit to and including the date of termination or expiration of such US Letter of Credit, computed at a rate per annum equal to the Applicable Margin as in effect from time to time during such period with respect to US Revolving Loans that are maintained as LIBOR Loans on the daily Stated Amount of each such US Letter of Credit.  The Borrowers jointly and severally agree to pay to the Administrative Agent for distribution to each Lender (based on each such Lender’s respective RL Percentage) a fee in respect of each UK Letter of Credit (the “ UK Letter of Credit Fee ”) for the period from and including the date of issuance of such UK Letter of Credit to and including the date of termination or expiration of such UK Letter of Credit, computed at a rate per annum equal to the Applicable Margin as in effect from time to time during such period with respect to LIBOR Loans or EURIBOR Loans on the daily Stated Amount of each such UK Letter of Credit.  The UK Letter of Credit Fee shall be payable in Pounds Sterling or Euros, as applicable, or at the request of the Administrative Agent, Dollars, with the applicable exchange rate calculated in a manner acceptable to the Administrative Agent.  The Borrowers jointly and severally agree to pay to the Administrative Agent for distribution to each Lender (based on each such Lender’s respective RL Percentage) a fee in respect of each Canadian Letter of Credit (the “ Canadian Letter of Credit Fee ”) for the period from and including the date of issuance of such Canadian Letter of Credit to and including the date of termination or expiration of such Canadian Letter of Credit, computed at a rate per annum equal to the Applicable Margin as in effect from time to time during such period with respect to Canadian LIBOR Loans on the daily Stated Amount of each such Canadian Letter of Credit.  The Canadian Letter of Credit Fee shall be payable in Canadian Dollars or at the request of the Administrative Agent, Dollars, with the applicable exchange rate calculated in a manner acceptable to the Administrative Agent.  Accrued Letter of Credit Fees shall be due and payable quarterly in arrears on the first day of each fiscal quarter hereafter and on the first day on or after the termination of the Total Revolving Loan Commitment upon which no Letters of Credit remain outstanding.

(c) The US Borrowers jointly and severally agree to pay to each US Issuing Lender, for its own account, a facing fee in respect of each US Letter of Credit issued by such Issuing Lender and the Borrowers jointly and severally agree to pay to each UK Issuing Lender and each Canadian Issuing Lender, for its own account, a facing fee in respect of each UK Letter of Credit and each Canadian Letter of Credit, as applicable, issued by such Issuing Lender (in each case, the “ Facing Fee ”) for the period from and including the date of issuance of such Letter of Credit to and including the date of termination or expiration of such Letter of Credit, equal to the greater of (i) $500.00 or the Equivalent Amount thereof and (ii) 0.125% per annum on the daily Stated Amount of such Letter of Credit.  Accrued Facing Fees shall be due and payable monthly in arrears on the first day of each month hereafter and upon the first day on or after the termination of the Total Revolving Loan Commitment, upon which no Letters of Credit remain outstanding.

(d) The US Borrowers jointly and severally agree to pay to each US Issuing Lender, for its own account, upon each payment under, issuance of, or amendment to, any US Letter of Credit issued by it, such amount as shall at the time of such event be the administrative charge and the reasonable expenses which such US Issuing Lender is generally imposing in connection with such occurrence with respect to letters of credit.  The Borrowers jointly and severally agree to pay to each UK Issuing Lender and each Canadian Issuing Lender, for its own account, upon each payment under, issuance of, or amendment to, any UK Letter of Credit issued by it and any Canadian Letter of Credit issued by it, such amount as shall at the time of such event be the administrative charge and the reasonable expenses which such UK Issuing Lender or Canadian Issuing Lender, as applicable, is generally imposing in connection with such occurrence with respect to letters of credit.

(e) The US Borrowers jointly and severally agree to pay to the Administrative Agent such fees as may have been, or are hereafter, agreed to in writing from time to time by US Company or any of its Domestic Subsidiaries and the Administrative Agent.  The Borrowers jointly and severally agree to pay to the Administrative Agent such fees as may have been, or are hereafter, agreed to in writing from time to time by UK Company, Canadian Company or any of the Foreign Subsidiaries and the Administrative Agent.

4.02 Voluntary Termination of Unutilized Commitments . (a) Upon at least three Business Days’ prior written notice to the Administrative Agent at the Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), the US Company shall have the right, at any time or from time to time, without premium or penalty to terminate the Total Unutilized Revolving Loan Commitment in whole, or reduce it in part, pursuant to this Section 4.02(a) , in an integral multiple of $1,000,000 in the case of partial reductions to the Total Unutilized Revolving Loan Commitment; provided that each such reduction shall apply proportionately to permanently reduce the Revolving Loan Commitment of each Lender.

-77-

 

(b) In the event of certain refusals by a Lender to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement which have been approved by the Required Lenders as (and to the extent) provided in Section 13.12(b) , the US Company shall have the right, subject to obtaining the consents required by Section 13.12(b) , upon five Business Days’ prior written notice to the Administrative Agent at the Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), to terminate the entire Revolving Loan Commitment of such Lender, so long as all Loans, together with accrued and unpaid interest, Fees and all other amounts, owing to such Lender (including all amounts, if any, owing pursuant to Section 2.11 ) are repaid concurrently with the effectiveness of such termination (at which time Schedule 1.01(a) shall be deemed modified to reflect such changed amounts) and such Lender’s RL Percentage of all outstanding Letters of Credit is Cash Collateralized in accordance with Section 2.20 , and at such time such Lender shall no longer constitute a “Lender” for purposes of this Agreement, except with respect to indemnifications under this Agreement (including, without limitation, Sections 2.10 , 2.11 , 3.16 , 3.17 , 3.18 , 5.04 , 5.05 , 12.06 , 13.01 and 13.06 ), which shall survive as to such repaid Lender.  

(c) If the Borrowers at any time permanently reduce the Total Revolving Loan Commitment hereunder, all availability levels denominated in Dollars, Canadian Dollars, Euros or Pounds Sterling hereunder (including, without limitation, in the definitions of “Applicable Margin”, “Minimum Availability Amount” and “Payment Conditions” and in Section 10.04(a) )  shall be decreased in proportion to the ratio of the amount of such reduction in the Total Revolving Loan Commitment to the Total Revolving Loan Commitment immediately prior to such reduction and, for the avoidance of doubt, all such levels denominated in percentages shall be calculated based on the Total Revolving Loan Commitment after giving effect to such reduction.

4.03 Mandatory Reduction of Commitments . (a) The Total Revolving Loan Commitment (and the Revolving Loan Commitment of each Lender) shall terminate in its entirety on December 14, 2015, unless the Effective Date has occurred on or prior to such date.

(b) In addition to any other mandatory commitment reductions pursuant to this Section 4.03 , the Total Revolving Loan Commitment (and the Revolving Loan Commitment of each Lender) shall terminate in its entirety on the Final Maturity Date.

SECTION 5. Prepayments; Payments; Taxes .

5.01 Voluntary Prepayments . (a) Each Borrower shall have the right to prepay the Loans, without premium or penalty, in whole or in part at any time and from time to time on the following terms and conditions:  (i) such Borrower shall give the Administrative Agent prior to 11:00 A.M. (New York City time) at the Notice Office (A) at least one Business Day’s prior written notice (or telephonic notice promptly confirmed in writing) of its intent to prepay Base Rate Loans or Canadian Prime Rate Loans (or same day notice in the case of a prepayment of Swingline Loans) and (B) at least three Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) of its intent to prepay LIBOR Loans or EURIBOR Loans, which notice (in each case) shall specify whether Revolving Loans or Swingline Loans shall be prepaid, the amount of such prepayment and the Types of Loans to be prepaid and, in the case of LIBOR Loans or EURIBOR Loans, the specific Borrowing or Borrowings pursuant to which such LIBOR Loans or EURIBOR Loans were made, and which notice the Administrative Agent shall, promptly transmit to each of the Lenders; (ii) (x) each partial prepayment of Revolving Loans pursuant to this Section 5.01(a) shall be in an aggregate principal amount of at least $500,000, £500,000, €500,000 or CA$500,000, as applicable (or such lesser amount as is acceptable to the Administrative Agent) and (y) each partial prepayment of Swingline Loans pursuant to this Section 5.01(a) shall be in an aggregate principal amount of at least $100,000, £100,000 or €100,000, as applicable (or such lesser amount as is acceptable to the Administrative Agent in any given case); provided that (A) if any partial prepayment of US LIBOR Loans made pursuant to any Borrowing shall reduce the outstanding principal amount of US LIBOR Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto, then such Borrowing may not be continued as a Borrowing of US LIBOR Loans (and same shall automatically be converted into a Borrowing of Base Rate Loans) and any election of an Interest Period with respect thereto given by such Borrower shall have no force or effect, (B) if any partial prepayment of UK Revolving Loans made pursuant to any Borrowing shall reduce the outstanding principal amount of UK Revolving Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto, then such Borrowing shall automatically be converted into a Borrowing of UK Revolving Loans with an Interest Period of one week, and (C) if any partial prepayment of Canadian LIBOR Loans made pursuant to any Borrowing shall reduce the outstanding principal amount of Canadian LIBOR Loans made pursuant to such Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto, then such Borrowing may not be continued as a Borrowing of Canadian LIBOR Loans (and same shall automatically be converted into a Borrowing of Canadian Prime Rate Loans) and any election of an Interest Period with respect thereto given by such Borrower shall have no force or effect; (iii) each prepayment pursuant to this Section 5.01(a) in respect of any Loans made pursuant to a Borrowing shall be applied pro rata among such Loans; and (iv) the respective Borrower shall pay all compensation due with respect to such prepayment specified in Section 2.11 concurrently with such prepayment.  

-78-

 

(b) In the event of certain refusals by a Lender to consent to certain proposed changes, waivers, discharges or terminations with respect to this Agreement which have been approved by the Required Lenders as (and to the extent) provided in Section 13.12(b) , the Borrowers may, upon five Business Days’ prior written notice to the Administrative Agent at the Notice Office (which notice the Administrative Agent shall promptly transmit to each of the Lenders), repay all Loans of such Lender, together with accrued and unpaid interest, Fees and all other amounts then owing to such Lender (including all amounts, if any, owing pursuant to Section 2.11 ) in accordance with, and subject to the requirements of Section 13.12(b) , so long as (i) in the case of the repayment of Revolving Loans of any Lender pursuant to this clause (b), (A) the Revolving Loan Commitment of such Lender is terminated concurrently with such repayment pursuant to Section 4.02(b) (at which time Schedule 1.01(a) shall be deemed modified to reflect the changed Revolving Loan Commitments) and (B) such Lender’s RL Percentage of all outstanding Letters of Credit is Cash Collateralized in accordance with Section 2.20 and (ii) the consents, if any, required by Section 13.12(b) in connection with the repayment pursuant to this clause (b) shall have been obtained.  

5.02 Mandatory Repayments; Cash Collateralization . (a) (i)  On any day on which the Aggregate US Exposure exceeds (A) the US Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) (other than during an Agent Advance Period) and/or (B) the US Maximum Amount at such time, then in each case, the US Borrowers jointly and severally shall repay on such day the principal of US Swingline Loans and, after all US Swingline Loans have been repaid in full or if no US Swingline Loans are outstanding, US Revolving Loans in an amount equal to such excess.  If, after giving effect to the repayment of all outstanding US Swingline Loans and US Revolving Loans, the aggregate amount of the US Letter of Credit Outstandings exceeds (A) the US Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) and/or (B) the US Maximum Amount at the time, then in each case, the US Borrowers jointly and severally shall pay to the Administrative Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess, such cash and/or Cash Equivalents to be held as security for all US Obligations of the US Borrowers to each applicable US Issuing Lender and the Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Collateral Agent.  Any such prepayment under this Section 5.02(a)(i) shall be applied to reduce the outstanding principal balance of the US Revolving Loans, but shall not permanently reduce the Revolving Loan Commitments;

(ii) On any day on which the aggregate amount of the US Letter of Credit Outstandings exceeds the Maximum US Letter of Credit Amount, the US Borrowers jointly and severally shall pay to the Administrative Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess, such cash and/or Cash Equivalents to be held as security for all US Obligations of the US Borrowers to each applicable US Issuing Lender and the Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Collateral Agent;

(iii) On any day (including on any date on which Equivalent Amounts are determined pursuant to Section 2.17 )  on which the Aggregate UK Exposure exceeds (A) the UK Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) (other than during an Agent Advance Period) and/or (B) the UK Maximum Amount at such time, then in each case, the UK Borrowers, jointly and severally, shall repay on such day the principal of UK Swingline Loans and, after all UK Swingline Loans have been repaid in full or if no UK Swingline Loans are outstanding, UK Revolving Loans in an amount equal to such excess.  If, after giving effect to the repayment of all outstanding UK Swingline Loans and UK Revolving Loans, the aggregate amount of the UK Letter of Credit Outstandings exceeds (A) the UK Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) and/or (B) the UK Maximum Amount at the time, then in each case, the UK Borrowers, jointly and severally, shall pay to the Administrative Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess, such cash and/or Cash Equivalents to be held as security for all UK Obligations of the UK Borrowers to each applicable UK Issuing Lender and the Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Collateral Agent.  Any such prepayment under this Section 5.02(a)(iii) shall be applied to reduce the outstanding principal balance of the UK Revolving Loans, but shall not permanently reduce the Revolving Loan Commitments;

(iv) On any day (including on any date on which Equivalent Amounts are determined pursuant to Section 2.17 ) on which the aggregate amount of the UK Letter of Credit Outstandings exceeds the Maximum UK Letter of Credit Amount, the UK Borrowers jointly and severally shall pay to the Administrative Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess, such cash and/or Cash Equivalents to be held as security for all UK Obligations of the UK Borrowers to each applicable UK Issuing Lender and the Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Collateral Agent;

(v) On any day (including on any date on which Equivalent Amounts are determined pursuant to Section 2.17 ) on which the Aggregate Canadian Exposure exceeds (A) the Canadian Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) and/or (B) the Canadian Maximum Amount at such time, then in each case, the Canadian Borrowers, jointly and severally, shall repay on such day the principal of outstanding Canadian Revolving Loans in an amount equal to such excess.  If, after giving effect to the repayment of all outstanding Canadian Revolving Loans to the extent required by the immediately preceding sentence, the aggregate amount of all outstanding Canadian Letter of Credit Outstandings exceeds (A) the Canadian Borrowing Base

-79-

 

at such time (based on the Borrowing Base Certificate last delivered) and/or (B) the Canadian Maximum Amount at the time, then in each case, the Canadian Borrowers, jointly and severally, shall pay to the Administrative Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess, such cash and/or Cash Equivalents to be held as security for all Canadian Obligations of the Canadian Borrowers to each applicable Canadian Issuing Lender and the Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Collateral Agent.  Any such prepayment under this Section 5.02(a)(iv) shall be applied to reduce the outstanding principal balance of the Canadian Revolving Loans, but shall not permanently reduce the Revolving Loan Commitments; and  

(vi) On any day (including on any date on which Equivalent Amounts are determined pursuant to Section 2.17 ) on which the aggregate amount of the Canadian Letter of Credit Outstandings exceeds the Maximum Canadian Letter of Credit Amount, the Canadian Borrowers jointly and severally shall pay to the Administrative Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess, such cash and/or Cash Equivalents to be held as security for all Canadian Obligations of the Canadian Borrowers to each applicable Canadian Issuing Lender and the Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Collateral Agent.

(b) [Reserved].

(c) [Reserved].

(d) With respect to each repayment of Loans required by this Section 5.02 , the Borrowers may designate the Types of Loans which are to be repaid and, in the case of LIBOR Loans or EURIBOR Loans, the specific Borrowing or Borrowings pursuant to which such LIBOR Loans or EURIBOR Loans were made; provided that: (i) repayments of LIBOR Loans or EURIBOR Loans pursuant to this Section 5.02 made on a day other than the last day of an Interest Period applicable thereto shall be subject to Section 2.11 ; (ii) if any repayment of LIBOR Loans or EURIBOR Loans made pursuant to a single US Borrowing shall reduce the outstanding LIBOR Loans or EURIBOR Loans made pursuant to such US Borrowing to an amount less than the Minimum Borrowing Amount applicable thereto, such US Borrowing shall be automatically converted into a Borrowing of Base Rate Loans; and (iii) each repayment of any Loans made pursuant to a Borrowing shall be applied pro rata among the Lenders holding such Loans.  In the absence of a designation by a Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the above, make such designation in its sole discretion.

(e) In addition to any other mandatory repayments pursuant to this Section 5.02 , (i) all then outstanding Swingline Loans shall be repaid in full on the Swingline Expiry Date and (ii) all then outstanding Revolving Loans shall be repaid in full on the Final Maturity Date.

(f) In addition to any other mandatory repayments pursuant to this Section 5.02 , each Swingline Loan will be repaid (for the avoidance of doubt, such repayment may be made with proceeds from Revolving Loans) no later than the seventh day following the incurrence thereof; provided that, if the seventh day is not a Business Day, such repayment shall be made on the next succeeding Business Day.

5.03 Method and Place of Payment . (a) Except as otherwise specifically provided herein, all payments under this Agreement and under any Note shall be made to the Administrative Agent for the account of the Lender or Lenders entitled thereto not later than 12:00 Noon (New York City time) on the date when due and shall be made, with respect to US Obligations, in US Dollars, with respect to UK Obligations, in Pounds Sterling or Euros, as applicable, and with respect to Canadian Obligations, in Canadian Dollars, in immediately available funds at the Payment Office.  Whenever any payment to be made hereunder or under any Note shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day and, with respect to payments of principal, interest shall be payable at the applicable rate during such extension.

(b) Each US Credit Party shall, along with the Collateral Agent and certain financial institutions selected by US Company and approved by the Administrative Agent (the “ Collection Banks ”), enter into on or prior to the Effective Date (as such date may be extended from time to time by the Administrative Agent in its sole discretion) and thereafter maintain separate Cash Management Control Agreements.  Each US Credit Party shall instruct all Account Debtors of such US Credit Party, as the case may be, to remit all payments to the applicable “P.O. Boxes”, “Lockbox Addresses” or a sub-account of the Collection Account of the applicable Collection Bank with respect to all Accounts of such Account Debtor, which remittances shall be collected by the applicable Collection Bank and deposited in the applicable Collection Account.  All amounts received by any US Credit Party and any Collection Bank in respect of any Account, in addition to all other cash received from any other source, shall upon receipt be deposited into a Collection Account or directly into the Concentration Account.  

-80-

 

(c) All amounts held in all of the Collection Accounts, Disbursement Accounts, Designated Petty Cash Accounts, Designated Payroll Accounts and LKE Joint Accounts with respect to each US Credit Party shall be wired by the close of business on each Business Day into one or more concentration accounts with the Collateral Agent and/or one or more other institutions reasonably acceptable to the Administrative Agent (each, a “ Concentration Account ”) unless such amounts are otherwise required or permitted to be applied pursuant to Section 5.02 ; provided , however , (x) so long as no Default and no Event of Default then exists, a balance of up to $10,000,000 in the aggregate may be maintained in all Disbursement Accounts, Designated Petty Cash Accounts and Designated Payroll Accounts and (y) so long as no Default and no Event of Default and no Compliance Period then exists, each LKE Qualified Intermediary may retain during any applicable LKE Period in any applicable LKE Joint Account any applicable LKE Proceeds.  Except as, and to the extent, provided in the proviso to the immediately preceding sentence, all of the Collection Accounts, Disbursement Accounts, Designated Petty Cash Accounts and Designated Payroll Accounts shall be “zero” balance accounts.  So long as no Event of Default or Compliance Period then exists, the US Credit Parties shall be permitted to transfer cash from the Concentration Accounts to the Disbursement Accounts, the Designated Petty Cash Accounts and the Designated Payroll Accounts to be used for working capital and general corporate purposes, all subject to the requirements of this Section 5.03(c) and pursuant to procedures and arrangements to be determined by the Administrative Agent.  So long as no Default or Event of Default or Compliance Period then exists, the US Credit Parties and the applicable LKE Qualified Intermediary(ies) shall be permitted to transfer cash from the LKE Joint Accounts to be used to acquire assets in accordance with a LKE Transaction, subject to the requirements of this Section 5.03(c) and pursuant to procedures and arrangements to be determined by the Administrative Agent.  If an Event of Default or Compliance Period exists, all collected amounts held in the Concentration Accounts shall be applied as provided in Section 5.03(d) .  

(d) During the continuance of (i) a Compliance Period or an Event of Default, all collected amounts held in the Concentration Accounts and (ii) an Event of Default, all amounts or proceeds of Collateral otherwise directed to be applied in accordance with this Section 5.03(d) by the terms of any Security Document, shall, in each case, be distributed and applied on a daily basis in the following order (in each case, to the extent the Administrative Agent has actual knowledge of the amounts owing or outstanding as described below):  

(i) first , to the payment (on a ratable basis) of any outstanding Expenses actually due and payable to the Administrative Agent and/or the Collateral Agent under any of the Credit Documents and to repay or prepay outstanding Loans advanced by the Administrative Agent on behalf of the Lenders pursuant to Sections 2.01(i) and 2.04(d) ;

 

(ii) second , to the extent all amounts referred to in preceding clause (i) have been paid in full, to pay (on a ratable basis) all outstanding Expenses actually due and payable to each Issuing Lender under any of the Credit Documents and to repay all outstanding Unpaid US Drawings, Unpaid UK Drawings and Unpaid Canadian Drawings and all interest thereon;

 

(iii) third , to the extent all amounts referred to in preceding clauses (i) and (ii) have been paid in full, to pay (on a ratable basis) all accrued and unpaid interest actually due and payable on the Loans and all accrued and unpaid Fees actually due and payable to the Administrative Agent, the Issuing Lenders and the Lenders under any of the Credit Documents;

 

(iv) fourth , to the extent all amounts referred to in preceding clauses (i) through (iii), inclusive, have been paid in full, to repay the outstanding principal of Revolving Loans (whether or not then due and payable) and the Qualified Swap Termination Value under Qualified Derivative Obligations (provided that the aggregate amount of Qualified Swap Termination Values paid pursuant to this clause (iv) shall not exceed the amount of the Reserves established for Qualified Swap Termination Values under clause (xi) of the definition of “Reserves”), ratably among (A) the Lenders holding such Revolving Loans and (B) the Qualified Derivative Counterparties holding any such Qualified Derivative Obligations, in proportion to the respective amounts described in this clause (iv) held by them; and

 

(v) fifth , to the extent all amounts referred to in preceding clauses (i) through (iv), inclusive, have been paid in full, to pay (on a ratable basis) all other outstanding Obligations then due and payable to the Administrative Agent, the Collateral Agent, the Lenders and the other Secured Creditors, under any of the Credit Documents or otherwise (including, without limitation, the Swap Termination Value of any Qualified Derivative Obligations (to the extent not paid pursuant to clause (iv) above) and any Banking Products Obligations);

 

provided that, notwithstanding the foregoing, any such money, amounts and proceeds received, recovered or applied by the Administrative Agent or the Collateral Agent from any US Credit Party or otherwise pursuant to the US Security Agreement, the US Pledge Agreement, the UK Share Charges or the Canadian Share Charge or any other Security Document securing all of the Obligations shall, within each of the foregoing sub-clauses (i) through (v), first be applied to the US Obligations of the Administrative

-81-

 

Agent, the Collateral Agent, the Issuing Lenders and the Lenders entitled to such payment within such sub-clause, and, thereafter, ratably, to the UK Obligations and Canadian Obligations of such Secured Creditors; and provided further that all such moneys, amounts and proceeds received, recovered or applied by the Collateral Agent or the Administrative Agent from any UK Credit Party or Canadian Credit Party or otherwise pursuant to the UK Debentures, the Canadian Security Agreement or any other Security Document securing only the UK Obligations and the Canadian Obligations shall be applied in accordance with the above sub-clauses (i) through (v), but solely to the extent such foregoing Obligations constitute UK Obligations or Canadian Obligations.

 

(e) Each UK Subsidiary and each Canadian Subsidiary shall have entered into a cash management system in form and substance satisfactory to the Administrative Agent, including as required under clauses 4.1 and 10 of the UK Debentures and Section 3.11 of the Canadian Security Agreement.

(f) Without limiting the provisions set forth in Section 13.15 , the Administrative Agent shall maintain accounts on its books in the name of each Borrower (collectively, the “ Credit Account ”) in which each Borrower will be charged with all loans and advances made by the Lenders to the respective Borrower for the respective Borrower’s account, including the Loans, the Letter of Credit Outstandings, and the Fees, Expenses and any other Obligations relating thereto.  Each Borrower will be credited, in accordance with this Section 5.03 , with all amounts received by the Lenders from such Borrower or from others for its account, including, as set forth above, all amounts received by the Administrative Agent and applied to the Obligations.  In no event shall prior recourse to any Accounts or other Collateral be a prerequisite to the Administrative Agent’s right to demand payment of any Obligation upon its maturity.  Further, the Administrative Agent shall have no obligation whatsoever to perform in any respect any of the Borrowers’ or Guarantors’ contracts or obligations relating to the Accounts.

5.04 Net Payments – US Borrowers . (a) To the extent permitted under Applicable Law, all payments made by or on behalf of the US Borrowers and US Guarantors hereunder and under any Credit Document will be made without setoff, counterclaim or other defense.  All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments, including any interest, additions to tax or penalties applicable thereto (“ Taxes ”) (but excluding, except as provided in clause (ii) below, (i) any tax imposed on or measured by the net income , branch profits taxes , and franchise taxes, in each case, of a  Lender that holds US Obligations (1) imposed in lieu of income taxes pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or applicable lending office of such Lender is located or any subdivision thereof or therein or (2) that are Other Connection Taxes, (ii) in the case of a Non-U.S. Lender that holds US Obligations (other than an assignee pursuant to a request by a Borrower under Section 2.13 ), any withholding tax that is imposed on amounts payable to such Non-U.S. Lender at the time such Non-U.S. Lender becomes a party hereto or changes its lending office (except to the extent that (1) such Lender’s assignor (if any) would have been entitled, at the time of assignment, or (2) such Lender would have been entitled, at the time it changed its lending office, in each case, to receive additional amounts from the US Borrowers and US Guarantors with respect to such withholding tax pursuant to this Section 5.04(a) but for such assignment or change in lending office ), (iii) is attributable to such Lender’s failure to comply with Section 5.04(b) , and (iv) any US Federal withholding taxes imposed under FATCA) (all such non-excluded Taxes, levies, imposts, duties, fees, assessments or other charges or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same) being referred to collectively as “ Indemnified Taxes ”).  If any Indemnified Taxes are so levied or imposed, the US Borrowers and US Guarantors jointly and severally agree to pay the full amount of such Indemnified Taxes, and such additional amounts as may be necessary so that every payment of all amounts due under this Agreement or under any Credit Document, after withholding or deduction for or on account of any Indemnified Taxes (including such withholdings or deductions applicable to additional sums payable under this Section), will not be less than the amount provided for herein or in such Credit Document.    The US Borrowers will furnish to the Administrative Agent within 45 days after the date the payment of any Indemnified Taxes is due pursuant to Applicable Law certified copies of tax receipts evidencing such payment by such US Borrowers.  The US Borrowers and US Guarantors jointly and severally agree to indemnify and hold harmless the Administrative Agent and each Lender that holds US Obligations, and reimburse the Administrative Agent or such Lender, as applicable, within 10 days upon its written request, for the amount of any Indemnified Taxes so levied or imposed and paid by the Administrative Agent or such Lender, as applicable, 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. For purposes of this Section 5.04, the term “Lender” includes any Issuing Lender.

(b) Status of Lenders .

(i) Each Lender that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) for US Federal income tax purposes, which holds US Obligations, agrees to deliver to US Company and the Administrative Agent on or prior to the Effective Date, to the extent reasonably requested by either US Company or the Administrative Agent, two accurate and complete signed copies of Internal Revenue Services Form W-9 (or successor forms), or other

-82-

 

documentation reasonably satisfactory to US Company and the Administrative Agent, certifying to such Lender’s exemption from US Federal back-up withholding.  

(ii) Each Lender that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) for US Federal income tax purposes (each, a “ Non-U.S. Lender ”), which holds US Obligations, agrees to deliver to US Company and the Administrative Agent on or prior to the Effective Date or, in the case of a Non-U.S. Lender, which holds US Obligations, and that is an assignee or transferee of an interest under this Agreement pursuant to Section 2.13 or 13.04(b) (unless the respective Lender was already a Lender hereunder immediately prior to such assignment or transfer), on the date of such assignment or transfer to such Lender, in each case, only if such Lender is legally entitled to do so, whichever of the following is applicable:

 

(A)

two accurate and complete signed copies of Internal Revenue Service Form W-8ECI or Form W-8BEN or W-8BEN-E (with respect to an exemption under an income tax treaty) (or successor forms) certifying to such Lender’s entitlement as of such date to an exemption from United States withholding tax with respect to payments to be made under this Agreement and under any Credit Document;

 

(B)

if such Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form W-8ECI or Form W-8BEN or W-8BEN-E (or any successor forms) pursuant to clause (A) above, (x) a certificate substantially in the form of Exhibit I (any such certificate, a “ Section 5.04(b)(ii) Certificate ”) and (y) two accurate and complete signed copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (with respect to the portfolio interest exemption) (or successor form) certifying to such Lender’s entitlement as of such date to an exemption from United States withholding tax with respect to payments of interest to be made under this Agreement and under any Credit Document; or

 

(C)

Internal Revenue Service Form W-8IMY (together with any applicable forms listed in (i) and (ii) of this Section) certifying to such Lender’s entitlement as of such date to an exemption from United States withholding tax with respect to payments to be made under this Agreement and under any Credit Document.  

(iii) If a payment made to a Lender under this Agreement 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 US Company and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by US Company or the Administrative Agent Internal Revenue Service Form W-8BEN-E or such other 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 US Company or the Administrative Agent as may be necessary for US Company and the Administrative 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 (iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(iv) Any Lender that holds US Obligations, which is entitled to an exemption from or reduction of withholding Tax or back-up withholding with respect to payments made under any Credit Document, shall deliver to US Company and the Administrative Agent, at the time or times reasonably requested by US Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by US Company or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding, as the case may be. In addition, each Lender that holds US Obligations agrees that from time to time after the Effective Date, when a lapse in time or change in circumstances renders the previous certification obsolete or inaccurate in any material respect, such Lender will deliver (only if such Lender is legally entitled to do so) to US Company and the Administrative Agent two new accurate and complete signed copies of the applicable Forms or other Certificates described above as may be required in order to confirm or establish the entitlement of such Lender to a continued exemption from or reduction in United States withholding Tax or back-up withholding with respect to payments under this Agreement and any Credit Document, or such Lender shall immediately notify US Company and the Administrative Agent of its inability to deliver any such Form or Certificate, in which case such Lender shall not be required to deliver any such Form or Certificate pursuant to this Section 5.04(b) .  

(v) For purposes of determining withholding Taxes imposed under FATCA, including any FATCA-related compliance of any Person with this Section 5.04 , from and after the Effective Date, the Borrowers and the Administrative Agent agree to treat (and the Lenders hereby authorize the Borrowers and the Administrative Agent to treat) this Agreement

-83-

 

and any Loans and extensions of credit hereunder as not qualifying as “grandfathered obligations” within the meaning of United States Treasury Regulation Section 1.1471-2(b)(2)(i) and 1.1471-2T(b)(2).  

5.05 Tax Gross Up and Indemnities – UK Subsidiaries .

(a) Definitions.

In this Section:

“ Borrower DTTP Filing ” means an HM Revenue & Customs’ Form DTTP2 duly completed and filed by the relevant Borrower, which:

(i) where it relates to a Treaty Lender that is a Lender set forth on Part II of Schedule 1.01(a) hereof as of the Effective Date (each an “ Original Treaty Lender ”), contains the scheme reference number and jurisdiction of tax residence stated opposite that Original Treaty Lender’s name in Part II of Schedule 1.01(a) , and

(A) where the Borrower is a Borrower as of the Effective Date (each an “ Original Borrower ”), is filed with HM Revenue & Customs within 30 days of the date of this Agreement; or

(B) where the Borrower is a Borrower that becomes a Borrower under this Agreement after the date hereof (each an “ Additional Borrower ”), is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower; or

(ii) where it relates to a Treaty Lender that becomes a Lender after the date of this Agreement (each an “ Additional Treaty Lender ”), contains the scheme reference number and jurisdiction of tax residence stated in respect of that Lender in the relevant Assignment and Assumption Agreement, and

(A) where the Borrower is a Borrower as at the effective date of the relevant Assignment and Assumption Agreement (the “ Assignment Date ”), is filed with HM Revenue & Customs within 30 days of that Assignment Date; or

(B) where the Borrower is not a Borrower as at the relevant Assignment Date, is filed with HM Revenue & Customs within 30 days of the date on which that Borrower becomes an Additional Borrower.

“ CTA ” means the Corporation Tax Act 2009.

“ ITA ” means the United Kingdom Income Tax Act 2007.

“ Party ” means a party to this Agreement.

“ Protected Party ” means a Lender, Issuing Lender or Agent which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Credit Document.

“ Qualifying Lender ” means:

(i) a Lender (other than a Lender within sub-paragraph (ii) below) which is beneficially entitled to interest payable to that Lender in respect of an advance under a Credit Document and is:

 

(A)

a Lender:

 

(1)

which is a bank (as defined for the purpose of section 879 of the ITA) making an advance under a Credit Document; or

 

(2)

in respect of an advance made under a Credit Document by a person that was a bank (as defined for the purpose of section 879 of the ITA) at the time that that advance was made,

-84-

 

and which is within the charge to United Kingdom corporation tax as respects any payments of interest made in respect of that advance or (in the case of (i) above) which is a bank (as so designated) that would be within the charge to United Kingdom corporation tax as regards any payment of interest made in respect of that advance apart from section 18A of the CTA; or

 

(B)

a Lender which is:

 

(1)

a company resident in the United Kingdom for United Kingdom tax purposes;

 

(2)

a partnership each member of which is:

 

(a)

a company so resident in the United Kingdom; or

 

(b)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of part 17 of the CTA;

 

(3)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company; or

 

(C)

a Treaty Lender; or

(ii) a Lender which is a building society (as defined for the purpose of section 880 of the ITA) making an advance under a Credit Document.

“ Tax ” means any present or future taxes, levies, imposts, duties, withholdings, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or therein with respect to such payments, including any interest, additions or tax or penalties applicable thereto.

“ Tax Confirmation ” means a confirmation by a Lender that the person beneficially entitled to interest payable to that Lender in respect of an advance to a UK Borrower under a Credit Document is either:

(i) a company resident in the United Kingdom for United Kingdom tax purposes;

(ii) a partnership each member of which is:

 

(A)

a company so resident in the United Kingdom; or

 

(B)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the CTA) the whole of any share of interest payable in respect of that advance that falls to it by reason of part 17 of the CTA; or

 

(C)

a company not so resident in the United Kingdom which carries on a trade in the United Kingdom through a permanent establishment and which brings into account interest payable in respect of that advance in computing the chargeable profits (within the meaning of section 19 of the CTA) of that company.

“ Tax Credit ” means a credit against, relief or remission for, or repayment of any Tax.

“ Tax Deduction ” means a deduction or withholding for or on account of Tax from a payment under a Credit Document.

-85-

 

“ Tax Payment ” means either the increase in a payment made by a UK Subsidiary to a Lender under Section 5.05(b) ( Tax gross-up ) or a payment under Section 5.05(c) ( Tax indemnity ).

“ Treaty Lender ” means a Lender which:

(i) is treated as a resident of a Treaty State for the purposes of the Treaty; and

(ii) does not carry on a business in the United Kingdom through a permanent establishment with which that Lender’s participation in the Loan is effectively connected.

“ Treaty State ” means a jurisdiction having a double taxation agreement (a “ Treaty ”) with the United Kingdom which makes provision for full exemption from tax imposed by the United Kingdom on interest.

“ UK Non-Bank Lender ” means:

(i) where a Lender becomes a Party on the day on which this Agreement is entered into, a Lender listed as a UK Non-Bank Lender on Schedule 1.01(a) ; and

(ii) where a Lender becomes a Party after the day on which this Agreement is entered into, a Lender which gives a Tax Confirmation in the Assignment and Assumption Agreement which it executes on becoming a Party.

“ VAT ” means value added tax as provided for in the United Kingdom Value Added Tax Act 1994 and any other tax of a similar nature, wherever imposed.

(b) Tax Gross-Up .

(i) Each UK Subsidiary shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

(ii) The UK Company shall promptly upon becoming aware that a UK Subsidiary must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Administrative Agent accordingly.  Similarly, a Lender shall notify the Administrative Agent on becoming so aware in respect of a payment payable to that Lender; provided that any failure to deliver any such notification shall not constitute a failure to comply with such Lender’s express obligations under, where applicable, subparagraph (vii) or (x) below.  If the Administrative Agent receives such notification from a Lender it shall notify the UK Company and that UK Subsidiary.

(iii) If a Tax Deduction is required by law to be made by a UK Subsidiary, the amount of the payment due from that UK Subsidiary shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

(iv) A UK Subsidiary is not required to make an increased payment to a Lender under paragraph (b)(iii) above for a Tax Deduction in respect of tax imposed by the United Kingdom from a payment of interest on a Loan, if on the date on which the payment falls due:

(A)

the payment could have been made to the relevant Lender without a Tax Deduction if it was a Qualifying Lender, but on that date that Lender is not or has ceased to be a Qualifying Lender other than as a result of any change after the date it became a Lender under this Agreement in (or in the interpretation, administration, or application of) any law or Treaty, or any published practice or concession of any relevant taxing authority; or

(B)

(1)

the relevant Lender is a Qualifying Lender solely under sub-paragraph (i)(B) of the definition of Qualifying Lender;

 

(2)

an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a “ Direction ”) under section 931 of the ITA which relates to that payment and that Lender has received from that UK Subsidiary or the UK Company a certified copy of that Direction; and

-86-

 

 

(3)

the payment could have been made to the Lender without any Tax Deduction in the absence of that Direction; or

(C)

the relevant Lender is a Qualifying Lender solely under sub-paragraph (i)(B) of the definition of Qualifying Lender and it has not given a Tax Confirmation to the UK Company and the payment could have been made to that Lender without a Tax Deduction if that Lender had given a Tax Confirmation to the UK Company, on the basis that the Tax Confirmation would have enabled the UK Company to have formed a reasonable belief that the payment was an “excepted payment” for the purpose of section 930 of the ITA;  or

(D)

the relevant Lender is a Treaty Lender and the UK Subsidiary making the payment is able to demonstrate to the satisfaction of the Administrative Agent (in its sole discretion) that the payment could have been made to the Lender without the Tax Deduction had that Lender not failed to satisfy its express obligations under, where applicable, subparagraph (vii) or (x) below, after the express written request from a Borrower to do so.

 

(v) If a UK Subsidiary is required to make a Tax Deduction, that UK Subsidiary shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

(vi) Within thirty days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the UK Subsidiary making that Tax Deduction shall deliver to the Administrative Agent for the Lender entitled to the payment a statement under Section 975 of the ITA or other evidence reasonably satisfactory to that Lender that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

(vii) Subject to subparagraph (ix) below, each Treaty Lender shall, upon the express written request of the applicable UK Subsidiary which makes, or may make, a payment to which such Treaty Lender is entitled, use reasonable efforts to co-operate with such UK Subsidiary or such other Person in completing any procedural formalities reasonably requested by such UK Subsidiary and necessary for that UK Subsidiary to obtain authorisation to make that payment without a Tax Deduction.

(viii) Each Original Treaty Lender set forth on Part II of Schedule 1.01(a) hereof hereby (A) confirms that it holds a passport under the HMRC DT Treaty Passport scheme, (B) elects that scheme to apply to such Lender’s Commitment and its participation in any Loan hereunder and (C) confirms its scheme reference number and its jurisdiction of tax residence, in each case set forth opposite its name in Part II of Schedule 1.01(a) ; and having done so, that Lender shall be under no further obligation pursuant to subparagraph (vii) above.

(ix) Each Additional Treaty Lender that becomes a Lender after the date of this Agreement that elects to (A) confirm that it holds a passport under the HMRC DT Treaty Passport scheme, (B) have that scheme apply to such Lender’s participation in this Agreement and (C) confirms its scheme reference number and its jurisdiction of tax residence, shall, in each case, do so in the Assignment and Assumption Agreement to which it is a party; and having done so, that Lender shall be under no further obligation pursuant to subparagraph (vii) above.

(x) If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with paragraph (viii) or (ix) above and:

 

(A)

a Borrower making a payment to that Lender has not made a Borrower DTTP Filing in respect of that Lender; or

 

(B)

a Borrower making a payment to that Lender has made a Borrower DTTP Filing in respect of that Lender but (1) that Borrower DTTP Filing has been rejected by HM Revenue & Customs; or (2) HM Revenue & Customs has not given the Borrower authority to make payments to that Lender without a Tax Deduction within 60 days of the date of the Borrower DTTP Filing

and in each case, the Borrower has notified that Lender in writing requesting such cooperation, the applicable Lender shall use its reasonable efforts to co-operate with the applicable Borrower in completing any additional procedural formalities necessary for that Borrower to obtain authorisation to make that payment without a Tax Deduction.

-87-

 

(xi) If a Treaty Lender has not made the HMRC DT Treaty Passport scheme elections and confirmations in accordance with paragraph (viii) or (ix) above, as applicable, no Borrower shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of a Commitment by such Lender or its participation in any Loan unless the Lender otherwise agrees.  

(xii) Each Borrower shall, promptly on making any Borrower DTTP Filing, deliver a copy of that Borrower DTTP Filing to the Administrative Agent for delivery to the relevant Lender.

(xiii) A UK Non-Bank Lender which becomes a Party on the day on which this Agreement is entered into gives a Tax Confirmation to the UK Company by entering into this Agreement.

(xiv) A UK Non-Bank Lender shall promptly notify the UK Company and the Administrative Agent if there is any change in the position from that set out in the Tax Confirmation.

(c) Tax Indemnity .

(i) The UK Company shall (within three Business Days of demand by the Administrative Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Credit Document.

(ii) Paragraph (a) above shall not apply:

 

(A)

with respect to any Tax assessed on a Lender:

 

(1)

under the law of the jurisdiction in which that Lender is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Lender is treated as resident for tax purposes; or

 

(2)

under the law of the jurisdiction in which that Lender’s lending office is located in respect of amounts received or receivable in that jurisdiction,

if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Lender;

 

(B)

to the extent a loss, liability or cost:

 

(1)

is compensated for by an increased payment under Section 5.05(b) ( Tax gross-up ); or

 

(2)

would have been compensated for by an increased payment under Section 5.05(b) ( Tax gross-up ) but was not so compensated solely because one of the exclusions in paragraph (d) of Section 5.05(b) ( Tax gross-up ) applied.

(iii) A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Administrative Agent of the event which will give, or has given, rise to the claim, following which the Administrative Agent shall notify the UK Company.

(iv) A Protected Party shall, on receiving a payment from a UK Subsidiary under this Section 5.05(c), notify the Administrative Agent.

(d) Tax Credit .

If a UK Subsidiary makes a Tax Payment and the relevant Lender determines in its sole discretion that:

 

(a)

a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was repaired; and

 

(b)

that Lender has obtained, utilised and retained that Tax Credit,

-88-

 

the Lender shall pay an amount to the UK Subsidiary which that Lender determines in its sole discretion will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the UK Subsidiary.

(e) Stamp Taxes .

The UK Company shall pay and, within three Business Days of demand, indemnify each Lender, Issuing Lender or Agent against any cost, loss or liability that Lender, Issuing Lender or Agent incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Credit Document.

(f) Value Added Tax .

(i) All amounts set out, or expressed to be payable under a Credit Document by any Party to a Lender, Issuing Lender or Agent which (in whole or in part) constitute the consideration for any supply for VAT purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply, and accordingly, subject to paragraph (ii) below, if  VAT is or becomes chargeable on any supply made by any Lender, Issuing Lender or Agent to any Party under a Credit Document, that Party shall pay to the Lender, Issuing Lender or Agent (in addition to and at the same time as paying the consideration for such supply) an amount equal to the amount of the VAT (and such Lender, Issuing Lender or Agent shall promptly provide an appropriate VAT invoice to such Party).

(ii) If VAT is chargeable on any supply made by any Lender, Issuing Lender or Agent (the “ Supplier ”) to any other Lender, Issuing Lender or Agent (the “ Receiver ”) under a Credit Document, and any Party other than the Recipient (the “ Relevant Party ”) is required by the terms of any Credit Document to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse or indemnify the Receiver in respect of that consideration):

 

(A)

(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT.  The Recipient must (where this paragraph (A) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which it reasonably determines relates to the VAT chargeable on that supply; and

 

(B)

(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

(iii) Where a Credit Document requires any Party to reimburse a Lender, Issuing Lender or Agent for any costs or expenses, that Party shall also at the same time reimburse or indemnify (as the case may be) the Lender, Issuing Lender or Agent for the full amount of such cost or expense, including such part thereof as represents VAT save to the extent that the Lender, Issuing Lender or Agent reasonably determines that it is entitled to credit or repayment from the relevant tax authority in respect of such VAT.

(iv) Any reference in this Section 5.05(f) to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term “representative member” to have the same meaning as in the Value Added Tax Act 1994).

(v) In relation to any supply made by a Lender, Issuing Lender or Agent to any Party under a Credit Document, if reasonably requested by such Lender, Issuing Lender or Agent, that Party must promptly provide such Lender, Issuing Lender or Agent with details of that Party’s VAT registration and such other information as is reasonably requested in connection with such Lender, Issuing Lender or Agent’s VAT reporting requirements in relation to such supply.

5.06 Net Payments – Canadian Borrowers . (a) All payments made by or on behalf of the Canadian Borrowers hereunder and under any Note will be made without setoff, counterclaim or other defense.  All such payments will be made free and clear of, and without deduction or withholding for, any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever nature now or hereafter imposed by any jurisdiction or by any political subdivision or taxing authority thereof or

-89-

 

therein with respect to such payments (but excluding any tax imposed on or measured by the net income or profits (including branch profits taxes) and franchise or similar taxes imposed in lieu of income taxes of a Lender that holds Canadian Obligations pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office or applicable lending office of such Lender is located or any subdivision thereof or therein, or Other Connection Taxes), and all interest, penalties or similar liabilities with respect to such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same) (all such non-excluded taxes, levies, imposts, duties, fees, assessments or other charges or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same) being referred to collectively as “ Canadian Taxes ”).  

(b) If any Canadian Taxes are so levied or imposed, the Canadian Borrowers shall be entitled to withhold such amounts that it is required to withhold in respect thereof and the Canadian Borrowers jointly and severally agree to remit the full amount of such Canadian Taxes to the relevant Government Authority, and shall pay such additional amounts as may be necessary so that every payment of all amounts due under this Agreement or under any Note, after withholding or deduction for or on account of any Canadian Taxes, will not be less than the amount that would have been paid and is provided for herein or in such Note had such Canadian Taxes not been levied or imposed.  The Canadian Borrowers jointly and severally agree to indemnify and hold harmless each Lender that holds Canadian Obligations, and reimburse such Lender upon its written request, for the amount of any Canadian Taxes so levied or imposed and paid by such Lender (including, for greater certainty, any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Canadian Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority).

(c) If any amounts are payable in respect of Canadian Taxes pursuant to Section 5.06(b) hereof, the Canadian Borrowers jointly and severally agree to reimburse each Lender that holds Canadian Obligations, upon the written request of such Lender, for taxes imposed on or measured by the net income or profits (including branch profits taxes) and franchise or similar taxes imposed in lieu of income taxes of such Lender pursuant to the laws of the jurisdiction in which such Lender is organized or in which the principal office or applicable lending office of such Lender is located or under the laws of any political subdivision or taxing authority of any such jurisdiction in which such Lender is organized or in which the principal office or applicable lending office of such Lender is located and for any withholding of taxes as such Lender shall determine are payable by, or withheld from, such Lender, in respect of such amounts so paid to or on behalf of such Lender pursuant to Section 5.06(b) and in respect of any amounts paid to or on behalf of such Lender pursuant to this Section 5.06(c) .

(d) The Canadian Borrowers will furnish to the Administrative Agent within 45 days after the date the payment of any Canadian Taxes is due pursuant to Applicable Law the original or a certified copy of a receipt issued by the relevant Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(e) The Canadian Borrowers’ obligations under this Section 5.06 shall survive indefinitely following the termination, cancellation, settlement or extinguishment of this Agreement or any Note.

SECTION 6. Conditions Precedent to Credit Events on the Effective Date. The effectiveness of this Agreement and the obligation of each Lender to make Loans, and the obligation of each Issuing Lender to issue Letters of Credit, on the Effective Date, are subject at the time of the making of such Loans or the issuance of such Letters of Credit to the satisfaction of the following conditions:

6.01 Effective Date; Notes. On or prior to the Effective Date, (a) the Effective Date shall have occurred as provided in Section 13.10 and (b) there shall have been delivered to the Administrative Agent for the account of each of the Lenders that has requested same the appropriate Revolving Notes executed by the appropriate Borrowers and if requested by the Swingline Lender, the appropriate Swingline Notes executed by the appropriate Borrowers, in each case, in the amount, maturity and as otherwise provided herein.

6.02 Officer’s Certificate. On the Effective Date, the Administrative Agent shall have received a certificate, dated the Effective Date and signed on behalf of US Company by the chairman of the board, the chief executive officer, the chief financial officer, the president or any vice president of US Company, certifying on behalf of US Company that all of the conditions have been satisfied on such date.

6.03 Opinions of Counsel. (a) On the Effective Date, the Administrative Agent shall have received from DLA Piper LLP (US), counsel to the Credit Parties, opinions addressed to the Administrative Agent, the Collateral Agent and each of the Lenders and dated the Effective Date covering the matters set forth in Exhibit J-1 and such other matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.

-90-

 

(b) On the Effective Date, the Administrative Agent shall have received from DLA Piper UK LLP, counsel to the Credit Parties, an opinion addressed to the Administrative Agent, the Collateral Agent and each of the Lenders and dated the Effective Date covering the matters set forth in Exhibit J-2 and such other matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.  

(c) On the Effective Date, the Administrative Agent shall have received: (i) from LaBarge Weinstein LLP, Ontario and British Columbia counsel to the Credit Parties, an opinion addressed to the Administrative Agent, the Collateral Agent and each of the Lenders and dated the Effective Date covering certain matters of Ontario and British Columbia law set forth in Exhibit J-3 and such other matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request; and (ii) from Stikeman Elliott LLP, Canadian counsel to the Lenders, an opinion addressed to the Administrative Agent, the Collateral Agent and each of the Lenders and dated the Effective Date covering certain matters of Alberta law set forth in Exhibit J-3 and such other matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.

(d) On the Effective Date, the Administrative Agent shall have received from Morris James LLP, special Delaware counsel, an opinion addressed to the Administrative Agent, the Collateral Agent, each of the Lenders and the other parties named therein, and dated the Effective Date covering the matters set forth in Exhibit J-4 and such other matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request.

(e) On the Effective Date, the Administrative Agent shall have received from DLA Piper LLP (US), local counsel to the Credit Parties in Arizona, California, Illinois and Texas, opinions addressed to the Administrative Agent, the Collateral Agent and each of the Lenders and dated the Effective Date covering the matters set forth in Exhibit J-5 and such other matters incident to the transaction contemplated herein as the Administrative Agent may reasonably request.

6.04 Company Documents; Proceedings; etc . (a) On the Effective Date, the Administrative Agent shall have received a certificate from each Credit Party, dated the Effective Date, signed by the chairman of the board, the chief executive officer, the president, a director, or any vice president of such Credit Party, and attested to by the secretary or any assistant secretary of such Credit Party, in the form of Exhibit K with appropriate insertions, together with copies of the certificate and memorandum and articles of incorporation or association and by-laws and any unanimous shareholder agreement or declaration relating to such Credit Party (or other equivalent organizational documents), as applicable, of such Credit Party and the resolutions of such Credit Party referred to in such certificate, and each of the foregoing shall be in form and substance reasonably acceptable to the Administrative Agent.

(b) On the Effective Date, all limited liability company and legal proceedings and all instruments and agreements in connection with the transactions contemplated by this Agreement and the other Credit Documents shall be reasonably satisfactory in form and substance to the Administrative Agent, and the Administrative Agent shall have received all information and copies of all documents and papers, including records of limited liability company proceedings, governmental approvals, good standing certificates (if applicable) and bring-down telegrams or facsimiles, if any, which the Administrative Agent reasonably may have requested in connection therewith, such documents and papers where appropriate to be certified by proper limited liability company or Governmental Authorities.

6.05 Consummation of the Transactions; etc. On or prior to the Effective Date, the Refinancing shall have occurred.  After giving effect to the Transactions, US Company and its Subsidiaries shall have no outstanding Indebtedness, Indebtedness convertible into Equity Interests, or other preferred Equity Interests except as set forth on Schedule 8.30 .

6.06 No Material Adverse Effect on US Company. There shall not have occurred any event, development or circumstance since December 31, 2014 that has caused or could reasonably be expected to cause a material adverse effect on the business, operations, results of operations, assets, liabilities or financial condition of US Company and its Subsidiaries, taken as a whole.

6.07 US Pledge Agreement. On the Effective Date, subject to Section 9.13(e), each US Credit Party shall have delivered to the Collateral Agent, as pledgee under the US Pledge Agreement, all of the US Pledge Agreement Collateral, if any, referred to therein and then owned by such US Credit Party, together with executed and undated endorsements for transfer in the case of promissory notes and Equity Interests constituting certificated US Pledge Agreement Collateral, along with evidence that all other actions necessary or, in the reasonable opinion of the Administrative Agent, desirable, to perfect and protect the Liens purported to be created by the US Pledge Agreement have been taken and the US Pledge Agreement shall be in full force and effect.

6.08 UK Second Supplemental Share Charge. On the Effective Date, each US Subsidiary directly owning Equity Interests in a UK Subsidiary shall have duly authorized, executed and delivered the UK Second Supplemental Share Charge in the

-91-

 

form of Exhibit L (as amended, restated, modified and/or supplemented from time to time, the “ UK Second Supplemental Share Charge ”) and shall have delivered to the Collateral Agent, as pledgee thereunder, all share certificates and blank stock transfer forms required to be delivered thereunder, along with evidence that all other actions necessary or, in the reasonable opinion of the Administrative Agent, desirable, to perfect and protect the Liens purported to be created by the UK Second Supplemental Share Charge have been taken and the UK Second Supplemental Share Charge shall be in full force and effect.  

6.09 US Security Agreement. On the Effective Date, the US Security Agreement shall be in full force and effect and each US Credit Party shall have duly authorized, executed and delivered:

(a) proper financing statements (Form UCC-1 or the equivalent) fully authorized and/or executed and completed for filing under the UCC, the PPSA or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable, to perfect the Liens purported to be created by the US Security Agreement;

(b) certified copies of requests for information or copies (Form UCC-11), or equivalent reports as of a recent date, listing all effective financing statements that name US Company or any of its Subsidiaries as debtor and that are filed in the jurisdictions referred to in clause (a) above and in such other jurisdictions in which Collateral is located on the Effective Date, together with copies of such other financing statements that name US Company or any of its Subsidiaries as debtor (none of which shall cover any of the Collateral except (i) to the extent evidencing Permitted Liens or (ii) those in respect of which the Collateral Agent shall have received termination statements (Form UCC-3) or such other termination statements as shall be required by local law fully executed for filing); and

(c) evidence of the completion of all other recordings and filings of, or with respect to, the US Security Agreement as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable, to perfect and protect the Liens intended to be created by the US Security Agreement, including control agreements, access agreements and similar third party agreements as the Administrative Agent shall reasonably request (or an appropriate and customary reserve has been established therefore), and the US Security Agreement shall be in full force and effect.

6.10 UK Debentures and UK Second Supplemental Debentures. On the Effective Date, UK Company and the UK Subsidiaries, as applicable, shall have duly authorized, executed and delivered the UK Second Supplemental Debenture and the UK Second Supplemental Partnership Debenture in the form of Exhibit M , together with all share certificates, blank stock transfer forms, deeds and documents of title to property and notices of security to third parties required to be delivered thereunder along with that all other actions necessary or, in the reasonable opinion of the Administrative Agent, desirable, to perfect and protect the Liens intended to be created by the UK Second Supplemental Debenture and the UK Second Supplemental Partnership Debenture have been taken and the UK Second Supplemental Debenture and the UK Second Supplemental Partnership Debenture shall be in full force and effect.

6.11 Canadian Security Agreement and Canadian Share Pledge Agreement. On the Effective Date, the Canadian Security Agreement and the Canadian Share Pledge Agreement shall be in full force and effect and the Canadian Company shall have duly authorized, executed and delivered:

(a) executed and undated endorsements for transfer in the case of promissory notes and Equity Interests constituting certificated Canadian Security Agreement Collateral;

(b) proper financing statements for filing under the PPSA or other appropriate filing offices of each jurisdiction as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable, to perfect the Liens purported to be created by the Canadian Security Agreement and Canadian Share Pledge Agreement;

(c) copies of all customary lien searches or equivalent reports as of a recent date, listing all effective financing statements or liens that name Canadian Company or its Subsidiaries, if any, as debtor and that are filed in the jurisdictions referred to in clause (b) above and in such other jurisdictions in which Collateral is located on the Effective Date, together with evidence of such other financing statements or liens that name Canadian Company or its Subsidiaries, if any, as debtor (none of which shall cover any of the Collateral except (i) to the extent evidencing Permitted Liens or (ii) those in respect of which the Collateral Agent shall have received discharge statements (Form 3C) or such other discharge statements as shall be required by local law); and

(d) evidence of the completion of all other actions, recordings and filings of, or with respect to, the Canadian Security Agreement as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable, to perfect and

-92-

 

protect the Liens intended to be created by the Canadian Security Agreement, including control agreements, access agreements and similar third party agreements as the Administrative Agent shall reasonably request (or an appropriate and customary reserve has been established therefore).  

6.12 Master Reaffirmation Agreement. On the Effective Date, each Credit Party shall have duly authorized, executed and delivered the Master Reaffirmation Agreement in the form of Exhibit Q and the Canadian Master Reaffirmation Agreement in the form of Exhibit R and each Master Reaffirmation Agreement shall be in full force and effect.

6.13 Mortgages. On the Effective Date, each Credit Party that owns a Real Property listed on Schedule 6.13 shall have duly authorized, executed, had notarized, and delivered a Mortgage over such Real Property (or, if a Mortgage in favor of the Administrative Agent was previously recorded against such Real Property, a modification to such Mortgage in form and substance reasonably acceptable to the Administrative Agent (a “Mortgage Modification”)), which shall be in full force and effect, and shall have delivered evidence satisfactory to the Administrative Agent that each such Mortgage, as modified by the related Mortgage Modification, is a valid and enforceable perfected security interest in and mortgage lien on the respective Mortgaged Property in favor of the Administrative Agent (or such other trustee as may be required or desired under local law) for the benefit of the Secured Creditors, superior and prior to the rights of all third Persons (except that the security interest and mortgage lien created on such Mortgaged Property may be subject to the Permitted Encumbrances related thereto) and subject to no other Liens.  In connection with the delivery of each such Mortgage or Mortgage Modification, US Company will, and will cause each other Credit Party to, in each case unless waived by the Administrative Agent, deliver (i) a Mortgage Policy (or, with respect to a Mortgage Modification, mortgage modification and date down endorsements to the related Mortgage Policy) issued by a title insurer reasonably satisfactory to the Administrative Agent, in form and substance and in an amount reasonably satisfactory to the Administrative Agent, insuring that the Mortgage, as modified by the Mortgage Modification, is a valid and enforceable First Priority Lien on the respective property other than Permitted Encumbrances; and in conjunction therewith, such Credit Party shall have previously provided to the Administrative Agent and/or the title insurer issuing the Mortgage Policy or endorsements thereto a current title commitment from the title insurance company for such Real Property (together with copies of all underlying documents), an owner’s affidavit with respect to such Real Property, a gap indemnity with respect to the Mortgage Policy or endorsements to be issued by the title insurer, and any other documentation reasonably requested or required by the title insurer to issue the Mortgage Policy or the endorsements, as applicable, (ii) a then current A.L.T.A. survey, certified to the Administrative Agent by a licensed surveyor sufficient to allow the issuer of the Mortgage Policy to issue such Mortgage Policy without a survey exception, (iii) environmental due diligence in form and substance reasonably satisfactory to the Administrative Agent and (iv) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the applicable Borrower), and if such Mortgaged Property, or any portion thereof, is in a flood zone, deliver evidence satisfactory to the Administrative Agent that the flood insurance required to be maintained pursuant to Section 9.03 has been obtained and is in effect.  

6.14 Financial Statements; Pro Forma Balance Sheet; Projections; etc. (a) On or prior to the Effective Date, the Arrangers shall have received (i) audited financial statements of each of US Company and its Subsidiaries for the fiscal year ended December 31, 2014 and (ii) unaudited quarterly financial statements of US Company and its Subsidiaries for the most recent fiscal quarter ended at least 45 days prior to the Effective Date that is not the last fiscal quarter of a fiscal year.

(b) On the Effective Date, the Administrative Agent shall have received and be satisfied with projected consolidated financial statements of US Company and its Subsidiaries for at least the four fiscal years ended after the Effective Date (including monthly projections for each of the first 12 months after the Effective Date (to include projected Borrowing Base and Total Borrowing Availability, as applicable, for such periods)), which projections shall (x) reflect the forecasted consolidated financial condition of US Company and its Subsidiaries after giving effect to the Transactions and (y) be prepared and approved by US Company.

6.15 Solvency Certificate; Insurance Certificates. On the Effective Date, the Administrative Agent shall have received:

(a) a solvency certificate from the chief financial officer of US Company in the form of Exhibit N ; and

(b) certificates of insurance complying with the requirements of Section 9.03 for the business and properties of US Company and its Subsidiaries, in form and substance reasonably satisfactory to the Administrative Agent and naming the Collateral Agent as an additional insured and/or as loss payee, as applicable, and stating that such insurance shall not be canceled or materially revised without at least 30 days’ prior written notice by the insurer to the Collateral Agent.

6.16 Fees, etc. On the Effective Date, the Borrowers shall have paid to the Administrative Agent (and its relevant affiliates), the Collateral Agent and each Lender all costs, fees and expenses (including, without limitation, reasonable legal

-93-

 

fees and expenses) and other compensation contemplated hereby and as separately agreed with the Administrative Agent (and/or its relevant affiliates), the Collateral Agent or such Lender to the extent then invoiced.  

6.17 Initial Borrowing Base Certificate; etc. On the Effective Date, the Administrative Agent shall have received the initial Borrowing Base Certificate meeting the requirements of Section 9.01(i) , which shall be calculated after giving effect to the Transactions (and the Credit Events hereunder).

6.18 No Defaults under Senior Note Indentures. There shall not exist (on a pro forma basis before and immediately after giving effect to the Transactions) any default or event of default under the Mobile Mini 2020 Indenture relating to non-payment, bankruptcy, material judgments or negative covenants.

6.19 Patriot Act. On or prior to the Effective Date, the Administrative Agent and the Lenders shall have received from the Credit Parties, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act.

6.20 Absence of Litigation. On the Effective Date, no litigation by any entity (private or governmental) shall be pending or, to the knowledge of any Credit Party, threatened with respect to any of the Credit Documents, or the Transactions or which has had, or could reasonably be expected to have, a Material Adverse Effect.

6.21 Margin Regulations. On the Effective Date, all Loans made on the Effective Date and all other financings to the Borrowers (and all guaranties thereof and security therefor), as well as the Transactions and the consummation thereof, shall be in compliance with all applicable requirements of law, including Regulations T, U and X of the Federal Reserve Board.

In determining the satisfaction of the conditions specified in this Section 6 , to the extent any item is required to be satisfactory to any Lender, such item shall be deemed satisfactory to each Lender which has not notified the Administrative Agent in writing prior to the occurrence of the Effective Date that the respective item or matter does not meet its satisfaction.

SECTION 7. Conditions Precedent to All Credit Events. The obligation of each Lender to make Loans (including Loans made on the Effective Date), and the obligation of each Issuing Lender to issue Letters of Credit (including Letters of Credit issued on the Effective Date), are subject, at the time of each such Credit Event (except as hereinafter indicated), to the satisfaction of the following conditions:

7.01 No Default; Representations and Warranties. At the time of each such Credit Event and also after giving effect thereto (a) there shall exist no Default or Event of Default, (b) all representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on the date of such Credit Event (it being understood and agreed that (x) any representations and warranties stated to relate to a specific earlier date shall have been true and correct in all material respects as of such earlier date and (y) any representations and warranties qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects at such time), (c) the Aggregate Exposure shall not exceed the Total Revolving Loan Commitment, as then in effect, (d) the Aggregate US Exposure shall not exceed the US Maximum Amount, as then in effect, (e) the Aggregate UK Exposure shall not exceed the UK Maximum Amount, as then in effect, (f) the Aggregate Canadian Exposure shall not exceed the Canadian Maximum Amount, as then in effect, (g) the Aggregate Exposure shall not exceed the Aggregate Borrowing Base at such time (based on the most recently delivered Borrowing Base Certificate) (except in the case of Agent Advances), (h) the Aggregate US Exposure shall not exceed the US Borrowing Base at such time (based on the most recently delivered Borrowing Base Certificate) (except in the case of Agent Advances), (i) the Aggregate UK Exposure shall not exceed the UK Borrowing Base at such time (based on the most recently delivered Borrowing Base Certificate) and (j) the Aggregate Canadian Exposure shall not exceed the Canadian Borrowing Base at such time (based on the most recently delivered Borrowing Base Certificate).

7.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to the making of each Loan (other than a Swingline Loan or a Revolving Loan made pursuant to a Mandatory Borrowing), the Administrative Agent shall have received a Notice of Borrowing meeting the requirements of Section 2.03(a) .  Prior to the making of each Swingline Loan, the Swingline Lender shall have received the notice referred to in Section 2.03(b)(i) or (ii) as applicable.

(b) Prior to the issuance of each Letter of Credit, the Administrative Agent and the respective Issuing Lender shall have received a US Letter of Credit Request meeting the requirements of Section 3.07, a UK Letter of Credit Request meeting the requirements of Section 3.08 or a Canadian Letter of Credit Request meeting the requirements of Section 3.09 .

-94-

 

The acceptance of the benefits of each Credit Event shall constitute a representation and warranty by each of US Company and the Borrowers to the Administrative Agent and each of the Lenders that all the conditions specified in Section 6 (with respect to Credit Events on the Effective Date) and in this Section 7 (with respect to Credit Events on or after the Effective Date) and applicable to such Credit Event are satisfied as of that time.  All of the Notes, certificates, legal opinions and other documents and papers referred to in Section 6 and in this Section 7 , unless otherwise specified, shall be delivered to the Administrative Agent at the Notice Office for the account of each of the Lenders and, except for the Notes, in sufficient counterparts or copies for each of the Lenders requesting same and shall be in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders.

SECTION 8. Representations, Warranties and Agreements. In order to induce the Agent and the Lenders to enter into this Agreement and to make the Loans, and issue (or participate in) the Letters of Credit as provided herein, each of US Company (in respect of itself and each other Credit Party) and each other Credit Party (in respect of itself) makes the following representations, warranties and agreements, in each case after giving effect to the Transactions, all of which shall survive the execution and delivery of this Agreement and the Notes and the making of the Loans and the issuance of the Letters of Credit, with the occurrence of each Credit Event on or after the Effective Date being deemed to constitute a representation and warranty that the matters specified in this Section 8 are true and correct in all material respects on and as of the Effective Date and on the date of each such other Credit Event (it being understood and agreed that (x) any representations and warranties stated to relate to a specific earlier date shall have been true and correct in all material respects as of such earlier date and (y) any representations and warranties qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects at such time).

8.01 Organization and Qualification . US Company and each other Credit Party is a corporation, limited partnership or limited liability company duly organized, validly existing and in good standing (or the foreign equivalent of “good standing”, if any, in the relevant foreign jurisdiction) under the laws of the jurisdiction of its incorporation or organization.  US Company and each other Credit Party is duly qualified and is authorized to do business and is in good standing (or the foreign equivalent of “good standing”, if any, in the relevant foreign jurisdiction) as a limited liability company, limited partnership or corporation, as applicable, in each state or jurisdiction listed on Schedule 8.01 hereto and in all other states and jurisdictions in which the failure of such Credit Party to be so qualified would reasonably be expected to have a Material Adverse Effect.

8.02 Power and Authority; No Violation . US Company and each other Credit Party (a) is duly authorized, has the capacity and is empowered to enter into, execute, deliver and perform this Agreement and each of the other Credit Documents to which it is a party and (b) has the power and authority to own its property and assets and to transact the business in which it is engaged and presently proposes to engage.  The execution, delivery and performance of this Agreement and each of the other Credit Documents have been duly authorized by all necessary corporate or other relevant action and do not and will not (i) require any consent or approval of the shareholders of US Company or any of the shareholders, partners or members, as the case may be, of any other Credit Party other than such consents and approvals which have been obtained prior to the Effective Date; (ii) contravene US Company’s or any other Credit Party’s charter, articles or certificate of incorporation, partnership agreement, certificate of formation, by-laws, limited liability company agreement, operating agreement or other organizational documents (as the case may be); (iii) violate, or cause US Company or any other Credit Party to be in default under, any provision of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award in effect having applicability to US Company or any other Credit Party; (iv) result in a breach of or constitute a default under any indenture or loan or credit agreement or any other agreement, lease or instrument to which US Company or any other Credit Party is a party or by which it or its properties may be bound or affected; or (v) result in, or require, the creation or imposition of any Lien (other than Permitted Liens) upon or with respect to any of the properties now owned or hereafter acquired by US Company or any other Credit Party.

8.03 Legally Enforceable Agreement . This Agreement is, and each of the other Credit Documents when delivered under this Agreement will be, a legal, valid and binding obligation of each of US Company and each other Credit Party, in each case to the extent it is a party thereto, enforceable against it in accordance with its respective terms, except as limited by applicable bankruptcy or insolvency laws, and by general principles of equity.

8.04 Capital Structure . Schedule 8.04 hereto states, as of the Effective Date, (i) the correct name of each of the Subsidiaries of US Company, its jurisdiction of incorporation or organization and the percentage of its Voting Stock owned by US Company or a Subsidiary of US Company, (ii) the name of each of US Company’s and each other Credit Party’s corporate or joint venture relationships and the nature of the relationship, (iii) the number and nature of all outstanding Equity Interests of US Company and the number, nature and holder of Equity Interests of each other Credit Party and (iv) the number of issued and treasury Equity Interests of US Company.  US Company and each other Credit Party has good title to all of the Equity Interests it purports to own of each of such Subsidiaries, free and clear in each case of any Lien other than Permitted Liens.  All such Equity Interests have been duly issued and are fully paid and non-assessable.  As of the Effective Date, there are no outstanding options to purchase, or any rights or warrants to subscribe for, or any commitments or agreements to issue or sell any Equity Interests or obligations convertible into, or any powers of attorney relating to any Equity Interests of any of US Company’s direct or indirect Subsidiaries.  Except as set forth on

-95-

 

Schedule 8.04, as of the Effective Date, there are no outstanding agreements or instruments binding upon any of Company’s or any other Credit Party’s partners, members or shareholders, as the case may be, relating to the ownership of its Equity Interests.  As of the Effective Date, 100% of the Equity Interests of each Credit Party (other than US Company) are owned directly or indirectly by US Company.  

8.05 Names . Neither US Company nor any other Credit Party has been known as or has used any legal, fictitious or trade names except those listed on Schedule 8.05 hereto as such Schedule may be amended in connection with a Permitted Acquisition.  Except as set forth on Schedule 8.05 , neither US Company nor any other Credit Party has been the surviving entity of a merger or consolidation or has acquired all or substantially all of the assets of any Person in the past 3 years.  US Company’s and each other Credit Party’s respective states of incorporation or organization, type of organization and organizational identification number are set forth on Schedule 8.04 or Schedule 8.05 , as such Schedule may be amended in connection with a Permitted Acquisition.  The respective exact legal names of US Company and each other Credit Party are set forth on Schedule 8.04 , as such Schedule may be amended in connection with a Permitted Acquisition.

8.06 Business Locations; Agent for Process . Each of US Company’s and each other Credit Party’s chief executive office and other places of business are as listed on Schedule 8.06 hereto, as updated from time to time by US Company.  During the preceding one-year period, neither US Company nor any other Credit Party has had an office or place of business other than as listed on Schedule 8.06 .  All tangible Collateral is and will at all times be kept by US Company and each other Credit Party in accordance with the applicable Security Agreement.  Except as shown on Schedule 8.06 , as of the date hereof, no Inventory is stored with a bailee, distributor, warehouseman or similar party, nor is any Inventory consigned to any Person.

8.07 Title to Properties; Priority of Liens . Except with respect to the fact that the LKE Joint Accounts are jointly owned by US Company or one of its Domestic Subsidiaries and the applicable LKE Qualified Intermediary(ies) pursuant to the terms of the applicable LKE Master Exchange Agreements, US Company and each other Credit Party has good record, indefeasible and marketable title to and fee simple ownership of real property owned by it, or valid leasehold interests in, all of its leased real property, and good title to all of the Collateral and all of its other Property, in each case, free and clear of all Liens except Permitted Liens.  US Company and each other Credit Party has paid or discharged all lawful claims which, if unpaid, might become a Lien against any of US Company’s or such Credit Party’s Properties that is not a Permitted Lien.  The Liens granted to the Collateral Agent under the Security Documents are First Priority Liens, subject only to Permitted Liens.

8.08 Accounts . Agent may rely, in determining which Accounts are Eligible Accounts, on all statements and representations made by US Company with respect to any Account or Accounts of US Company or any other Credit Party.  With respect to each of such Accounts, whether or not such Account is an Eligible Account, unless otherwise disclosed to Agent in writing:

(a) It is genuine and in all respects what it purports to be, and it is not evidenced by a judgment;

(b) It arises out of a completed, bona fide sale and delivery of goods or rendition of services by US Company or the applicable Credit Party, in the ordinary course of its business and in accordance with the terms and conditions of all purchase orders, contracts or other documents relating thereto and forming a part of the contract between US Company or the applicable Credit Party and the Account Debtor and the Account Debtor is not an Affiliate of US Company or any other Credit Party;

(c) It is for a liquidated amount maturing as stated in the invoice covering such sale or rendition of services;

(d) There are no facts, events or occurrences which in any way impair the validity or enforceability of any Accounts or tend to reduce the amount payable thereunder from the face amount of the invoice and statements delivered or made available to Agent with respect thereto;

(e) To US Company’s knowledge, the Account Debtor thereunder (1) had the capacity to contract at the time any contract or other document giving rise to the Account was executed and (2) such Account Debtor is Solvent; and

To US Company’s knowledge, there are no proceedings or actions which are threatened or pending against the Account Debtor thereunder which might result in any material adverse change in such Account Debtor’s financial condition or the collectability of such Account (other than non-material disputes involving de minimis amounts arising in the ordinary course of business).

8.09 Equipment . The Equipment of US Borrower and each other Credit Party is in good operating condition and repair, ordinary wear and tear excepted.

-96-

 

8.10 Financial Statements; Financial Condition; Undisclosed Liabilities; Projections . (a) The audited Consolidated balance sheet of US Company as at the last day of its fiscal year ended December 31, 2014 and the related Consolidated statements of income, retained earnings, stockholders’ equity and cash flows of US Company for its fiscal year ended on such date, copies of which have been furnished to the Lenders prior to the Effective Date, present fairly in all material respects the consolidated financial position of US Company at the date of said financial statements and the Consolidated results of its operations for the respective period covered thereby.  The unaudited Consolidated balance sheet of US Company as at the last day of its fiscal quarter ended September 30, 2015 and the related Consolidated statements of income, retained earnings, stockholders’ equity and cash flows of US Company for the three-month period ended on such date, copies of which in each case have been furnished to the Lenders prior to the Effective Date, present fairly in all material respects the Consolidated financial condition of US Company at the date of said financial statements and the Consolidated results of its operations for the period covered thereby.  All of the foregoing historical financial statements have been prepared in accordance with GAAP consistently applied except to the extent provided in the notes to said financial statements and subject, in the case of the unaudited financial statements, to normal year-end audit adjustments (all of which are of a recurring nature and none of which, individually or in the aggregate, would be material) and the absence of footnotes.  

(b) On and as of the Effective Date, and after giving effect to the Transactions and to all Indebtedness (including the Loans) being incurred or assumed and Liens created by the Credit Parties in connection therewith, US Company and each of its Subsidiaries is or are Solvent.

(c) Except as disclosed in the financial statements delivered pursuant to Section 8.10(a) , and except purchase accounting reserves required pursuant to GAAP and except for the Indebtedness incurred under this Agreement, there were as of the Effective Date no liabilities or obligations with respect to US Company or any of its Subsidiaries of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) known to US Company or any of its Subsidiaries which, either individually or in the aggregate, could reasonably be expected to be material to US Company and its Subsidiaries taken as a whole.  As of the Effective Date, US Company does not know of any basis for the assertion against it or any of its Subsidiaries of any liability or obligation of any nature whatsoever that is not fully disclosed in the financial statements delivered pursuant to Section 8.10(a) or referred to in the immediately preceding sentence which, either individually or in the aggregate, could reasonably be expected to be material to US Company and its Subsidiaries taken as a whole.

(d) The Projections delivered to the Administrative Agent and the Lenders prior to the Effective Date have been prepared in good faith and are based on reasonable assumptions, and there are no statements or conclusions in the Projections which are based upon or include information known to US Company or its Subsidiaries to be misleading in any material respect or which fail to take into account material information known to US Company or its Subsidiaries regarding the matters reported therein.  On the Effective Date, US Company and its Subsidiaries believe that the Projections are reasonable and attainable, it being recognized by the Lenders, however, that projections as to future events are not to be viewed as facts and that the actual results during the period or periods covered by the Projections may differ from the projected results and such differences may be material.

(e) After giving effect to the Transactions, since December 31, 2014, nothing has occurred that has had, or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect with respect to the US Company and its Subsidiaries, taken as a whole.

(f) As of the Effective Date, the fiscal year of US Company and each of its Subsidiaries ends on December 31 of each year.

8.11 Full Disclosure . The financial statements referred to in Section 8.10 hereof do not, nor does this Agreement or any other written statement of US Company to Administrative Agent or any Lender, contain any untrue statement of a material fact or omit a material fact necessary to make the statements contained therein or herein not misleading. There is no fact which US Company has failed to disclose to Administrative Agent or any Lender in writing which would reasonably be expected to have a Material Adverse Effect.

8.12 Surety Obligations . Except as set forth on Schedule 8.12 , as of the Effective Date, neither US Company nor any other Credit Party is obligated as surety or indemnitor under any surety or similar bond or other contract issued or entered into to assure payment, performance or completion of performance of any undertaking or obligation of any Person.

8.13 Tax Returns and Payments . Each of US Company and each of its Subsidiaries has timely filed or caused to be timely filed with the appropriate Governmental Authority all returns, statements, forms and reports for taxes (the “ Returns ”) required to be filed by, or with respect to the income, properties or operations of, US Company and/or any of its Subsidiaries.  The Returns accurately reflect all liability for taxes of US Company and its Subsidiaries, as applicable, for the periods covered thereby.  Each of US Company and each of its Subsidiaries has paid all taxes and assessments payable by it which have become due, other than those that are being contested in good faith and adequately disclosed and for which adequate reserves have been established in

-97-

 

accordance with GAAP.  There is no action, suit, proceeding, investigation, audit or claim now pending or, to the knowledge of US Company or any other Credit Party, threatened by any Governmental Authority regarding any taxes relating to US Company or any of its Subsidiaries.  Neither US Company nor any of its Subsidiaries is party to any tax sharing agreement.  

8.14 [Reserved] .

8.15 Intellectual Property, etc . Each of US Company and each of its Subsidiaries owns or has the right to use all the patents, trademarks, permits, domain names, service marks, trade names, copyrights, licenses, franchises, inventions, trade secrets, proprietary information and know-how of any type, whether or not written (including, but not limited to, rights in computer programs and databases) and formulas, or rights with respect to the foregoing, and has obtained assignments of all leases, licenses and other rights of whatever nature, necessary for the present conduct of its business, without any known conflict with the rights of others which, or the failure to own or have which, as the case may be, could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.

8.16 Government Consents . US Company and each of its Subsidiaries has, and is in good standing (or the foreign equivalent of “good standing”, if any, in the relevant foreign jurisdiction) with respect to, all governmental consents, approvals, licenses, authorizations, permits, certificates, inspections and franchises necessary to continue to conduct its business as heretofore or proposed to be conducted by it and to own or lease and operate its Properties as now owned or leased by it.

8.17 Compliance with Laws . US Company and each of its Subsidiaries has duly complied in all material respects with, and its Properties, business operations and leaseholds are in compliance in all material respects with, the provisions of all federal, state, provincial, local, foreign and other laws, rules and regulations applicable to US Company or such Subsidiary, as applicable, its Properties or the conduct of its business, and there have been no citations, notices or orders of noncompliance issued to US Company or any of its Subsidiaries under any such law, rule or regulation.  US Company and each of its Subsidiaries has established and maintains an adequate monitoring system to insure that it remains in compliance in all material respects with all federal, state, provincial, local, foreign and other rules, laws and regulations applicable to it.  No Inventory has been produced by US Company or any of its Subsidiaries in violation of the Fair Labor Standards Act (29 USC. §201 et seq.), as amended.

8.18 Restrictions . Neither US Company nor any other Credit Party is a party or subject to any contract or agreement which restricts its right or ability to incur Indebtedness, other than as set forth on Schedule 8.18 hereto, none of which prohibit the execution of or compliance with this Agreement or the other Credit Documents by US Company or any other Credit Party, as applicable.  Except as permitted in this Agreement, none of the Collateral is subject to contractual obligations that may restrict or inhibit Collateral Agent’s or Administrative Agent’s rights or abilities to sell or dispose of the Collateral or any part thereof after the occurrence and during the continuance of an Event of Default.

8.19 Litigation . Except as set forth on Schedule 8.19 hereto, there are no actions, suits, proceedings or investigations pending, or to the knowledge of US Company or any other Credit Party, threatened, against or involving US Company or any of its Subsidiaries, or the business, operations, Properties, prospects, profits or condition of US Company or any of its Subsidiaries which, singly or in the aggregate, would reasonably be expected to have a Material Adverse Effect. Neither US Company nor any of its Subsidiaries is in default with respect to any order, writ, injunction, judgment, decree or rule of any court, governmental authority or arbitration board or tribunal, which, singly or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

8.20 No Defaults . No event has occurred and no condition exists which would, upon or after the execution and delivery of this Agreement or each Credit Party’s performance hereunder, constitute a Default or an Event of Default.  Neither US Company nor any other Credit Party is in default in (and no event has occurred and no condition exists which constitutes, or which the passage of time or the giving of notice or both would constitute, a default in) the payment of any Indebtedness to any Person in excess of the lesser of $10,000,000 or the Equivalent Amount thereof or that amount which would have a Material Adverse Effect.  All Obligations are permitted under the Senior Note Indentures and the other Senior Note Documents and the Permitted Additional Financing Documents, in each case that are in effect on any date on which this representation is made.

8.21 Leases . Schedule 8.21 hereto is a complete listing of all capitalized and operating personal property leases of US Company and the other Credit Parties and all real property leases of US Company and the other Credit Parties.  US Company and each other Credit Party is in full compliance with all of the terms of each of its respective capitalized and operating leases, except where the failure to so comply would not reasonably be expected to have a Material Adverse Effect.

8.22 Use of Proceeds; Margin Regulations . (a) All proceeds of the Loans will be used on the Effective Date to refinance the Refinanced Indebtedness and thereafter for the working capital, Capital Expenditures, Permitted Acquisitions and

-98-

 

general corporate purposes of US Company and its Subsidiaries, provided that the proceeds of the Loans shall not be used for purposes which would constitute unlawful financial assistance for the purposes of Sections 678 to 679 of the United Kingdom Companies Act of 2006 (as amended or otherwise re-enacted from time to time).  

(b) No part of any Credit Event (or the proceeds thereof) will be used to purchase or carry any Margin Stock or to extend credit for the purpose of purchasing or carrying any Margin Stock.  Neither the making of any Loan nor the use of the proceeds thereof nor the occurrence of any other Credit Event will violate or be inconsistent with the provisions of Regulation T, U or X.

8.23 Compliance with ERISA . (a) Schedule 8.23 sets forth a listing of each Plan as of the Effective Date.   Except as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect :  (i) each Plan (and each related trust, insurance contract or fund) is in compliance with its terms and with all Applicable Laws, including without limitation ERISA and the Code; (ii) each Plan which is intended to be qualified under Section 401(a) of the Code has either received a determination letter from the Internal Revenue Service to the effect that it meets the requirements of Section 401(a) of the Code or is comprised of a master or prototype plan that is the subject of a favorable opinion letter from the Internal Revenue Service , and each trust forming a part of any such Plan that is intended to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code is so exempt ; (iii) no Reportable Event has occurred; (iv) no Multiemployer Plan is “ insolvent ” (as defined under Section 4245 of ERISA), is in “ reorganization ” (as defined under Section 4241 of ERISA), is in “endangered or critical status” (as defined in Section 305 of ERISA) or has been terminated (within the meaning of Title IV of ERISA); (v) no Plan has an Unfunded Current Liability; (vi) neither any US Borrower nor any of its Subsidiaries nor any of their respective ERISA Affiliates has failed to meet the minimum funding requirements of Sections 412 and 430 of the Code or Sections 302 and 303 of ERISA with respect to any Plan, whether or not waived or failed to make by its due date a required installment under Section 430(j) of the Code or Section 303 (j) of ERISA with respect to any Plan ; (vii) all contributions required to be made with respect to a Plan or Multiemployer Plan have been timely made; (viii) neither any US Borrower nor any of its Subsidiaries nor any of their respective ERISA Affiliates has incurred any liability (including any indirect, contingent or secondary liability) to or on account of a Plan pursuant to Section 406, 409, 502(i), 502(l), 4062, 4063, 4064 or 4069 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code, or to or on account of a Multiemployer Plan pursuant to Section 515, 4201, 4204 or 4212 of ERISA or expects to incur any such liability under any of the foregoing sections with respect to any Plan or Multiemployer Plan; (ix) no event has occurred or condition exists which presents a risk to any US Borrower or any of its Subsidiaries or any ERISA Affiliate of incurring a liability to or on account of a Plan or Multiemployer Plan pursuant to the foregoing provisions of ERISA and the Code; (x) there has been no filing of a notice by the plan administrator of an intent to terminate, no plan amendment has been treated as a termination under Section 4041 or 4041A of ERISA of, and no proceedings have been instituted by the PBGC to terminate or appoint a trustee to administer under Section 4042 of ERISA, any Plan or Multiemployer Plan; (xi) there has been no 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 any Plan; (xii) no Plan is, or is expected to be, in “at-risk” status pursuant to Section 430(i) of the Code or Section 303(i) of ERISA; (xiii ) no action, suit, proceeding, hearing, audit or investigation with respect to the administration, operation or the investment of assets of any Plan (other than routine claims for benefits) is pending, expected or threatened; (xi v ) there has been no violation of the applicable requirements of Section 404 or 405 of ERISA or the exclusive benefit rule under Section 401(a) of the Code by any fiduciary or disqualified person with respect to any Plan for which any US Borrower or any of its Subsidiaries may be directly or indirectly liable; ( xv ) neither any US Borrower nor any of its Subsidiaries has filed, or is considering filing, an application under the Internal Revenue Service Employee Plans Compliance Resolution System (the “ EPCRS ”) or the Department of Labor’s Voluntary Fiduciary Correction Program (the “ VFCP ”) with respect to any Plan; (xv i ) to the knowledge of the Credit Parties, no plan administrator or a “plan official” (as defined under VFCP) of any Multiemployer Plan has filed, or is considering filing, an application under the EPCRS or the VFCP with respect to any Multiemployer Plan; ( xvii ) using actuarial assumptions and computation methods consistent with Part 1 of subtitle E of Title IV of ERISA, neither any US Borrower nor any of its Subsidiaries nor any of their respective ERISA Affiliate s would incur any liabilities with respect to any Multiemployer Plan s in the event of a complete or partial withdrawal (within the meanings of Sections 4203 and 4205 of ERISA) therefrom, or with respect to the withdrawal from any Plan subject to Section 4063 of ERISA during a plan year in which any such US Borrower or any of its Subsidiaries or any of their respective ERISA Affiliates was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (xviii ) each group health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) which covers or has covered employees or former employees of any US Borrower or any of its Subsidiaries or any ERISA Affiliate has at all times been operated in compliance with the provisions of Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code; (xi x ) each group health plan (as defined in 45 Code of Federal Regulations Section 160.103) which covers or has covered employees or former employees of any US Borrower or any of its Subsidiaries has at all times been operated in compliance with the provisions of the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder; ( xx ) no lien imposed under the Code or ERISA on the assets of any US Borrower or any of its Subsidiaries or any of their respective ERISA Affiliates exists on account of any Plan or Multiemployer Plan and no event or condition has occurred or exists that could reasonably be expected to result in the imposition of any such lien; ( xxi) any US Borrower or any of its Subsidiaries or any of their respective ERISA Affiliate s may cease contributions to or terminate any Plan maintained by any of them without incurring any liability; and (xxii) neither any US

-99-

 

Borrower nor any of its Subsidiaries maintain or contribute to any employee welfare benefit plan (as defined in Section 3(1) of ERISA) which provides benefits to retired employees or other former employees (other than as required by Section 601 of ERISA).  

(b) Except as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect:  (i) each Foreign Pension Plan has been maintained in compliance with its terms and with the requirements of any and all Applicable Laws, statutes, rules, regulations and orders and has been maintained, where required, in good standing with applicable regulatory authorities; (ii) neither US Company nor any of its Subsidiaries has incurred any obligation in connection with the termination of, or withdrawal from, any Foreign Pension Plan; and (iii) the present value of the accrued benefit liabilities (whether or not vested) under each Foreign Pension Plan, determined as of the end of US Company’s most recently ended fiscal year on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the assets of such Foreign Pension Plan allocable to such benefit liabilities. All contributions required to be made with respect to a Foreign Pension Plan have been timely made.  No Foreign Pension Plan contains a “defined benefit provision” as such term is defined in the Income Tax Act (Canada) ( “ CITA ” ) or is a “multi-employer pension plan” subject to the Supplemental Pension Plans Act (Quebec) .

8.24 Trade Relations . Except as set forth on Schedule 8.24 , there exists no actual or, to any Credit Party’s knowledge, threatened termination, cancellation or limitation of, or any modification or change in, the business relationship between US Company or any other Credit Party and any customer or any group of customers whose purchases individually or in the aggregate are material to the business of US Company and the other Credit Parties (taken as a whole), or with any material supplier, except in each case, where the same would not reasonably be expected to have a Material Adverse Effect, and there exists no present condition or state of facts or circumstances which would prevent US Company or any other Credit Party from conducting such business after the consummation of the transaction contemplated by this Agreement in substantially the same manner in which it has heretofore been conducted.

8.25 Security Documents . (a)  The provisions of the Security Agreements (as reaffirmed or supplemented, as applicable, by the Master Reaffirmation Agreements and the UK Second Supplemental Deeds) are effective to create in favor of the Collateral Agent for the benefit of the Secured Creditors a legal, valid and enforceable security interest in all right, title and interest of the Credit Parties in all of the Security Agreement Collateral, and the Collateral Agent, for the benefit of the Secured Creditors, has a fully perfected security interest in all right, title and interest in all of the Security Agreement Collateral described therein, subject to no other Liens other than Permitted Liens.   

(b) The recordation of (i) the Grant of Security Interest in US Patents and (ii) the Grant of Security Interest in US Trademarks in the respective form attached to the US Master Reaffirmation Agreement (or, if filed prior to the Effective Date pursuant to the Existing Credit Agreement, in the respective form attached to the US Security Agreement), in each case in the United States Patent and Trademark Office, together with filings on Form UCC-1 made pursuant to the Security Agreement, will create, to the extent as may be perfected by such filings and recordation, a perfected security interest in the United States trademarks and patents covered by the Security Agreement, and the recordation of the Grant of Security Interest in US Copyrights in the form attached to the US Master Reaffirmation Agreement (or, if filed prior to the Effective Date pursuant to the Existing Credit Agreement, in the respective form attached to the US Security Agreement) with the United States Copyright Office, together with filings on Form UCC-1 made pursuant to the US Security Agreement, will create, to the extent as may be perfected by such filings and recordation, a perfected security interest in the United States copyrights covered by the US Security Agreement.

(c) The filing of the Confirmation of Security Interest in Intellectual Property in the form attached to the Canadian Master Reaffirmation Agreement (or, if filed prior to the Effective Date pursuant to the Existing Credit Agreement, in the respective form attached to the Canadian Security Agreement) in the Canadian Intellectual Property Office, together with the filing of PPSA financing statements made pursuant to the Canadian Security Agreement, will create, to the extent as may be perfected by such filings, a perfected security interest in the Canadian Intellectual Property (as defined in the Canadian Security Agreement) covered by the Canadian Security Agreement.

(d) The Liens created under the US Pledge Agreement (as reaffirmed by the US Master Reaffirmation Agreement) in favor of the Collateral Agent, as pledgee thereunder, for the benefit of the Secured Creditors, constitute perfected Liens in all US Pledge Agreement Collateral, subject to no Liens of any other Person.  No filings or recordings are required in order to perfect (or maintain the perfection or priority of) the Liens created in the US Pledge Agreement Collateral under the US Pledge Agreement (as reaffirmed by the US Master Reaffirmation Agreement) other than with respect to that portion of the US Pledge Agreement Collateral constituting General Intangibles under the UCC.

(e) The Liens created under the Canadian Security Agreement (as reaffirmed by the Canadian Master Reaffirmation Agreement) in favor of the Collateral Agent for the benefit of the Secured Creditors, constitute perfected Liens in all Securities (as defined in the Canadian Security Agreement) and Instruments (as defined in the Canadian Security Agreement), subject to no Liens of any other Person.

-100-

 

(f) Each Mortgage (as modified by the applicable Mortgage Modification) creates, as security for the obligations purported to be secured thereby, a valid and enforceable perfected security interest in and mortgage lien on the respective Mortgaged Property in favor of the Administrative Agent or Collateral Agent, as applicable (or such other trustee as may be required or desired under local law) for the benefit of the Secured Creditors, superior and prior to the rights of all third Persons (except that the security interest and mortgage lien created on such Mortgaged Property may be subject to the Permitted Encumbrances related thereto) and subject to no other Liens.  

8.26 Investment Company Act . Neither US Company nor any of its Subsidiaries is an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.

8.27 Representations and Warranties in Other Credit Documents . All representations and warranties set forth in the other Credit Documents were true and correct in all material respects at the time as of which such representations and warranties were made (or deemed made) and shall be true and correct in all material respects as of the Effective Date as if such representations or warranties were made on and as of such date (it being understood and agreed that (x) any representations and warranties stated to relate to a specific earlier date shall have been true and correct in all material respects as of such earlier date and (y) any representations and warranties qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects at such time).

8.28 Environmental Matters . (a)  Each of US Company and each of its Subsidiaries is in compliance in material respects with all applicable Environmental Laws and the requirements of any permits issued under such Environmental Laws.  There are no pending or, to the knowledge of US Company or any other Credit Party, threatened Environmental Claims against US Company or any of its Subsidiaries or any Real Property owned, leased or operated by US Company or any of its Subsidiaries (including any such claim arising out of the ownership, lease or operation by US Company or any of its Subsidiaries of any Real Property formerly owned, leased or operated by US Company or any of its Subsidiaries but no longer owned, leased or operated by US Company or any of its Subsidiaries).  There are no facts, circumstances, conditions or occurrences with respect to the business or operations of US Company or any of its Subsidiaries, or any Real Property owned, leased or operated by US Company or any of its Subsidiaries (including, to the knowledge of US Company or any other Credit Party, any Real Property formerly owned, leased or operated by US Company or any of its Subsidiaries but no longer owned, leased or operated by US Company or any of its Subsidiaries) or, to the knowledge of US Company or any other Credit Party, any property adjoining or adjacent to any such Real Property that could be reasonably expected (i) to form the basis of an Environmental Claim against US Company or any of its Subsidiaries or any Real Property owned, leased or operated by US Company or any of its Subsidiaries or (ii) to cause any Real Property owned, leased or operated by US Company or any of its Subsidiaries to be subject to any restrictions on the ownership, lease, occupancy or transferability of such Real Property by US Company or any of its Subsidiaries under any applicable Environmental Law.

(b) To the knowledge of US Company or any of its Subsidiaries, Hazardous Materials have not at any time been generated, used, treated or stored on, or transported to or from, or Released on or from, any Real Property owned, leased or operated by US Company or any of its Subsidiaries or, to the knowledge of US Company or any other Credit Party, any property adjoining or adjacent to any Real Property, where such generation, use, treatment, storage, transportation or Release has violated or could be reasonably expected to violate any applicable Environmental Law or give rise to an Environmental Claim.

(c) Notwithstanding anything to the contrary in this Section 8.28 , the representations and warranties made in this Section 8.28 shall be untrue only if the effect of any or all conditions, violations, claims, restrictions, failures and non-compliances of the types described above could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

8.29 Employment and Labor Relations . Neither US Company nor any of its Subsidiaries is engaged in any unfair labor practice that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  There is (a) no unfair labor practice complaint pending against US Company or any of its Subsidiaries or, to the knowledge of US Company or any other Credit Party, threatened against any of them, before the National Labor Relations Board, and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement is so pending against US Company or any of its Subsidiaries or, to the knowledge of US Company or any other Credit Party, threatened against any of them, (b) no strike, labor dispute, slowdown or stoppage pending against US Company or any of its Subsidiaries or, to the knowledge of US Company or any other Credit Party, threatened against US Company or any of its Subsidiaries, (c) no union representation question exists with respect to the employees of US Company or any of its Subsidiaries, (d) no equal employment opportunity charges or other claims of employment discrimination are pending or, to the knowledge of US Company or any other Credit Party, threatened against US Company or any of its Subsidiaries, and (e) no wage and hour department investigation has been made of US Company or any of its Subsidiaries, except (with respect to any matter specified in clauses (a) – (e) above, either individually or in the aggregate) such as could not reasonably be expected to have a Material Adverse Effect.

-101-

 

8.30 Indebtedness . Schedule 8.30 sets forth a list of all Indebtedness (including Contingent Obligations) of US Company and its Subsidiaries as of the Effective Date and which is to remain outstanding after giving effect to the Transaction (excluding the Obligations), in each case showing the aggregate principal amount thereof and the name of the respective borrower and any Credit Party or any of its Subsidiaries which directly or indirectly guarantees such debt (all such non-excluded Indebtedness, the “ Existing Indebtedness ”).  

8.31 Insurance . Schedule 8.31 sets forth a listing of all insurance maintained by US Company and its Subsidiaries as of the Effective Date, with the amounts insured (and any deductibles) set forth therein.

8.32 Plans; Non-Compete Agreements; Collective Bargaining Agreements; Existing Indebtedness Agreements . Schedule 8.32 sets forth a list of all Plans, Non-Compete Agreements, Collective Bargaining Agreements and Existing Indebtedness Agreements maintained by US Company and its Subsidiaries as of the Effective Date and which are to remain in effect after giving effect to the Transactions.

8.33 Anti-Terrorism Laws . (a) Neither US Company nor any of its Subsidiaries is in violation (other than immaterial, unknowing or unintentional violations) of any legal requirement relating to any laws with respect to terrorism or money laundering (“ Anti-Terrorism Laws ”), including Executive Order No. 13224 on Terrorist Financing effective September 24, 2001 (the “ Executive Order ”) and the Patriot Act. Neither US Company nor any of its Subsidiaries and, to the knowledge of US Company and each of its Subsidiaries, no director, officer, employee, agent, Affiliate or representative thereof, is any of the following:

(i) a Person that is listed in the annex to, or it otherwise subject to the provisions of, the Executive Order;

(ii) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order;

(iii) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;

(iv) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order;

(v) a Person that is (A) named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control (“ OFAC ”) at its official website or any replacement website or other replacement official publication of such list; (B) included on HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List; or (C) included on any similar list enforced by any other relevant sanctions authority ;

(vi) a Person that is currently the subject or target of Sanctions; or

(vii) located, organized or resident in a Designated Jurisdiction .

(b) Neither US Company nor any of its Subsidiaries and, to the knowledge of US Company and each of its Subsidiaries, no director, officer, employee, agent, Affiliate or representative thereof, (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of a Person described in Section 8.33(a) , (ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order, or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.

 

8.34 UK Pensions . To the knowledge of US Company or any of its Subsidiaries, no UK Subsidiary has ever participated in a UK defined benefit pension plan or been associated or connected with the employer in relation to a UK defined benefit pension plan.

8.35 Anti-Corruption Laws . US Company and its Subsidiaries have conducted their businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions applicable to the US Company and its Subsidiaries and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.

-102-

 

SECTION 9. Affirmative Covenants . Each of US Company and each other Credit Party hereby covenants and agrees that on and after the Effective Date and until the Total Revolving Loan Commitment and all Letters of Credit have terminated and the Loans, Notes and Unpaid US Drawings, Unpaid UK Drawings and Unpaid Canadian Drawings (in each case together with interest thereon), Fees and all other Obligations (other than indemnities described in Section 13.13 which are not then due and payable) incurred hereunder and thereunder, are paid in full in cash:  

9.01 Information Covenants . US Company will furnish to Administrative Agent and each Lender:

(a) [ Reserved ].

(b) Quarterly Financial Statements .  As soon as available, but not later than 45 days after the end of each fiscal quarter of US Company, excluding the last quarter of US Company’s fiscal year, unaudited quarterly financial statements  (including, but not limited to, balance sheet, income statement and statement of cash flows) of US Company and its Subsidiaries as of the end of such fiscal quarter, on a Consolidated basis, certified by the principal financial officer or principal accounting officer of US Company as prepared in accordance with GAAP and fairly presenting in all material respects the financial position and results of operations of US Company and its Subsidiaries for such fiscal quarter and period (subject only to changes from audit and year-end adjustments and except that such statements need not contain notes) and, at the request of the Administrative Agent, unaudited interim financial statements on a consolidating basis (A) with respect to US Company and its Domestic Subsidiaries, on the one hand and (B) the US Company’s Foreign Subsidiaries, on the other hand, in each case in a form consistent with US Company’s historical practices of preparation of consolidating financial statements.  In addition, at the time of the delivery of the foregoing financial statements, US Company will deliver to the Collateral Agent such information and/or documents relating to intellectual property of the Credit Parties as may be required pursuant to the terms of the Security Agreements.

(c) Annual Financial Statements .  As soon as available, but not later than 90 days after the close of each fiscal year of US Company, unqualified (except for a qualification for a change in accounting principles with which the accountant concurs) audited financial statements (including, but not limited to, balance sheet, income statement and statement of cash flows) of US Company and its Subsidiaries as of the end of such year, on a Consolidated basis, certified by a firm of independent certified public accountants of recognized standing selected by US Company but reasonably acceptable to Administrative Agent, together with, at the request of the Administrative Agent, unaudited consolidating balance sheets, income statements and statements of cash flows (A) with respect to US Company and its Domestic Subsidiaries, on the one hand and (B) the US Company’s Foreign Subsidiaries, on the other hand, and, within a reasonable time thereafter a copy of any management letter issued in connection therewith.

(d) Compliance Certificates .  Concurrently with the delivery of the financial statements described in clause (c) of this Section 9.01 , US Company shall forward to Administrative Agent a copy of the accountants’ letter to US Company’s management (if any) that is prepared in connection with such financial statements.  Concurrently with the delivery of the financial statements described in paragraph (b) and (c)  of this Section 9.01 , or more frequently if reasonably requested by Agent, US Company shall cause to be prepared and furnished to Agent a Compliance Certificate in the form of Exhibit O hereto executed by the Chief Financial Officer or principal accounting officer of US Company.  To the extent any deliverable described in Section 9.01(b) or (c) is contained in a 10-Q or 10-K which is delivered to the Agent and each Lender pursuant to Section 9.01(g) , US Company’s obligation to deliver such item shall be deemed satisfied.

(e) Notice of Default, Litigation and Material Adverse Effect .  (i) Promptly, and in any event within three Business Days after any officer of US Company or any of its Subsidiaries obtains knowledge thereof, notice of the occurrence of any event which constitutes a Default or an Event of Default, and (ii) promptly, and in any event within five Business Days after any officer of US Company or any of its Subsidiaries obtains knowledge thereof, notice of (A) any litigation or governmental investigation or proceeding pending against US Company or any of its Subsidiaries which, either individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect, or (B) any other event, change or circumstance that has had, or could reasonably be expected to have, a Material Adverse Effect.

(f) Notice of Material Changes .  Promptly notify Administrative Agent in writing of the occurrence of any event or the existence of any fact that, in either case, is known to US Company or any other Credit Party, which renders any representation or warranty in this Agreement or any of the other Credit Documents inaccurate, incomplete or misleading in any material respect as of the date made.  In addition, US Company agrees to provide Administrative Agent with (i) 10 Business Days’ prior written notice of (1) any change in the legal name of US Company or any other Credit Party, (2) the adoption by US Company or any other Credit Party of any new fictitious name or trade name and (3) any change in the chief executive office of US Company or any other Credit Party, and (ii) prompt written notice of any change in the information disclosed in any Schedule hereto (which notice shall be deemed given in respect of information set forth within any periodic

-103-

 

report filed by US Company with the SEC pursuant to Section 13 or 15 of the Securities Exchange Act of 1934, as amended, upon delivery of notice to the Administrative Agent of such filing), in each case after giving effect to the materiality limits and Material Adverse Effect qualifications contained therein.  

(g) Other Reports and Filings .  Promptly after the filing or delivery thereof, copies of all financial information, proxy materials, reports, and, with respect to (ii) below, notices, if any, which US Company or any of its Subsidiaries shall (i) publicly file with the SEC, or any national securities exchange, or (ii) deliver to holders (or any trustee, agent or other representative therefor) of any of its material Indebtedness pursuant to the terms of the documentation governing the same, in each case, if the same is not available in the SEC’s EDGAR database or, if so available, US Company has not delivered notice of such filing with the SEC to the Administrative Agent.

(h) Environmental Matters .  Promptly after any officer of US Company or any of its Subsidiaries obtains knowledge thereof, notice of one or more of the following environmental matters to the extent that such environmental matters, either individually or when aggregated with all other such environmental matters, could reasonably be expected to have a Material Adverse Effect:

(i) any pending or threatened Environmental Claim against US Company or any of its Subsidiaries or any Real Property owned, leased or operated by US Company or any of its Subsidiaries;

(ii) any condition or occurrence on or arising from any Real Property owned, leased or operated by US Company or any of its Subsidiaries that (A) results in noncompliance by US Company or any of its Subsidiaries with any applicable Environmental Law or (B) could reasonably be expected to form the basis of an Environmental Claim against US Company or any of its Subsidiaries or any such Real Property;

(iii) any condition or occurrence on any Real Property owned, leased or operated by US Company or any of its Subsidiaries that could reasonably be expected to cause such Real Property to be subject to any restrictions on the ownership, lease, occupancy, use or transferability by US Company or any of its Subsidiaries of such Real Property under any Environmental Law; and

(iv) the taking of any removal or remedial action in response to the actual or alleged presence or Release of any Hazardous Material on any Real Property owned, leased or operated by US Company or any of its Subsidiaries as required by any Environmental Law or any governmental or other administrative agency; provided that in any event US Company shall deliver to each Lender all notices received by US Company or any of its Subsidiaries from any government or governmental agency under, or pursuant to, CERCLA which identify US Company or any of its Subsidiaries as potentially responsible parties for remediation costs or which otherwise notify US Company or any of its Subsidiaries of potential liability under CERCLA.

All such notices shall describe in reasonable detail the nature of the claim, investigation, condition, occurrence or removal or remedial action and US Company’s or such Subsidiary’s response thereto.  In addition to the foregoing, prior to inclusion of any Eligible Real Property in the US Borrowing Base, provide the Administrative Agent with environmental reports, in form and substance reasonably satisfactory to the Administrative Agent and from a firm reasonably satisfactory to Administrative Agent, relating to the properties owned by US Company or any of its Subsidiaries.

(i) Borrowing Base Certificate .  (i) On the Effective Date, (ii) not later than 5:00 P.M. (New York time) on or before the 15th day of each month thereafter (or at such other times as the Administrative Agent may reasonably request), (iii) at the time of the consummation of a Permitted Acquisition, (iv) not later than 5:00 P.M. (New York time) on or before each Wednesday on a weekly basis during a Compliance Period or after the occurrence and during the continuance of an Event of Default, (v) at the time of consummation of any Asset Sale (or series of contemporaneous or related Asset Sales) of assets with a book value which is equal to or greater than $25,000,000 or the Equivalent Amount thereof and (vi) at such other times as US Company may elect ( provided that if US Company elects to deliver a borrowing base certificate at any other time pursuant to this clause (v), US Company shall deliver a borrowing base certificate on a weekly basis for the 60 day period following such delivery), a borrowing base certificate setting forth the Borrowing Base (in each case with supporting calculations in reasonably detail) substantially in the form of Exhibit P (each, a “ Borrowing Base Certificate ”), which shall be prepared (A) as of November 30, 2015 in the case of the initial Borrowing Base Certificate and (B) as of the last Business Day of the preceding month in the case of each subsequent Borrowing Base Certificate (but adjusted, in the case of a Borrowing Base Certificate delivered in connection with a Permitted Acquisition, to reflect any Eligible Accounts, Eligible Inventory, Eligible Machinery and Equipment and Eligible Real Property acquired by a Borrowing Base Party pursuant to such Permitted Acquisition) (or, if any such Borrowing Base Certificate is delivered more frequently than monthly, as of the last Business Day of the week preceding such delivery).  Each such Borrowing Base Certificate shall include the then

-104-

 

applicable, marked-to-market Swap Termination Value which the Borrower intends be treated as a Qualified Swap Termination Value for purposes of Section 5.03(d) , and all such supporting information as may be reasonably requested from time to time by the Administrative Agent.  

(j) Notice of Compliance Period .  Promptly, and in any event within two Business Days after any officer of US Company or any of its Subsidiaries obtains knowledge thereof, notice of the commencement of a Compliance Period.

(k) Material Real Property .  Promptly upon, and in any event within ten Business Days after, US Company or any other Credit Party acquires any Real Property the Fair Market Value of which is equal to or greater than $15,000,000 or the Equivalent Amount thereof, notice of such acquisition, together with US Company’s good faith determination of the Fair Market Value thereof.

(l) Other Information .  From time to time, such other information or documents (financial or otherwise) with respect to US Company or any of its Subsidiaries as the Administrative Agent or any Lender (through the Administrative Agent) may reasonably request.

9.02 Books, Records and Inspections; Field Examinations; Appraisals; Records and Reports of Inventory, Machinery and Equipment . (a) US Company will, and will cause each of its Subsidiaries to, keep proper books of record and accounts in which full, true and correct entries in conformity with GAAP of all financial transactions in relation to its business and activities.  US Company will, and will cause each of its Subsidiaries to, permit representatives of Administrative Agent and Collateral Agent, and during the continuation of any Compliance Period, Default or Event of Default, any Lender, from time to time, as often as may be reasonably requested, but only during normal business hours, (i) to visit and inspect the Properties of US Company and each of its Subsidiaries (including the Collateral), inspect, audit and make extracts from their books and records, and discuss with their officers, their employees and their independent accountants, US Company’s and each of its Subsidiaries’ business, assets, liabilities, financial condition, business prospects and results of operations and (ii) to verify Eligible Accounts, Eligible Machinery and Equipment, Eligible Inventory and Eligible Real Property.  Neither Administrative Agent, Collateral Agent nor any Lender shall have any duty to make any such inspection and shall not incur any liability by reason of its failure to conduct or delay in conducting any such inspection.  Administrative Agent or Collateral Agent, as applicable, if no Default or Event of Default then exists, shall give US Company reasonable prior notice of any such inspection or audit.  Without limiting the foregoing, US Company will participate and will cause its key management personnel to participate in a meeting with Administrative Agent and Lenders at least once during each year or more frequently, as Administrative Agent may reasonably request (except that during the continuation of an Event of Default such meetings may be held more frequently as requested by Administrative Agent or Required Lenders), which meeting(s) shall be held at such times and such places as may be reasonably requested by Administrative Agent.

(b) In addition to Section 9.02(a) , (i) in the case of succeeding sub-clauses (1) and (2), (x) no more than once during each fiscal year of US Company or (y) if the Borrowers fail to maintain Total Borrowing Availability of at least the greater of (A) $130,000,000 and (B) 15% of the lesser of (a) the Total Revolving Loan Commitments at such time and (b) the Aggregate Borrowing Base at such time, no more than twice during each fiscal year of US Company, (ii) in the case of succeeding sub-clause (3), at the Administrative Agent’s discretion during the term of this Agreement, but not more than once during each fiscal year of US Company, and (iii) in the case of either succeeding sub-clause (1), (2) or (3), at any time that any Event of Default exists, as often as the Administrative Agent may reasonably request, US Company will, and will cause each of its Subsidiaries to, permit officers and designated representatives of the Administrative Agent or any third-party appraiser or consultant reasonably satisfactory to the Administrative Agent to visit and inspect (at the Borrowers’ joint and several expense), under guidance of officers of US Company or such Subsidiary, any of the properties of US Company or such Subsidiary and to verify Eligible Accounts, Eligible Machinery and Equipment, Eligible Inventory and/or Eligible Real Property in order to complete (1) an appraisal of the Eligible Rental Fleet Inventory of the Borrowing Base Parties, (2) a collateral examination of the Borrowing Base Parties, and in connection therewith US Company shall provide Administrative Agent and any field examiner or appraiser reasonable access to the books and records and the Collateral and shall cooperate with such field examiner or appraiser with respect to the foregoing and (3) an appraisal of the Eligible Machinery and Equipment and/or (if included in the Canadian Borrowing Base, the UK Borrowing Base or the US Borrowing Base) Eligible Real Property of the Borrowing Base Parties.

(c) When reasonably requested by Administrative Agent, US Company shall, and shall cause each of its Subsidiaries to, provide the following to Administrative Agent, with a copy to any Lender which requests delivery (which, at US Company’s election, may be made by email or other electronic means of communication, or by web posting) of such reports: a report of Eligible Container Fleet Inventory and Eligible Trailer Fleet Inventory by category and by item (in detail), a report of Inventory, based upon a physical count, which shall describe Inventory of the Borrowing Base Parties by category and by item (in detail) and report the then appraised value of such Inventory, and a report of Equipment which shall describe Borrower’s and Guarantors’ Equipment (in detail) and report the then appraised value of such Equipment.

-105-

 

(d) US Company shall, and shall cause its Subsidiaries to, keep records of its Inventory and Equipment, which records shall be complete and accurate in all material respects.  Borrower shall furnish to Administrative Agent and Lenders updates of Schedule 1.01(b) and Inventory and Equipment reports concurrently with the delivery of each Borrowing Base Certificate or more frequently as requested by Administrative Agent, which reports will be in such other format and detail as Administrative Agent, as applicable, shall request and shall include (a) a current list of all locations of Inventory and Equipment of US Company and its Subsidiaries and (b) a list of all Inventory and Equipment of US Company and its Subsidiaries which are Motor Vehicles, which list shall specify the certificate of title holder (or the equivalent), the vehicle identification number (or equivalent) and the state or province (or equivalent) in which such Inventory or Equipment is located.  US Company shall conduct a physical inventory of all container Inventory on premises owned or leased by US Company or any of its Subsidiaries no less frequently than monthly and shall provide to Administrative Agent on request a report based on each such physical inventory promptly thereafter, together with such supporting information as Administrative Agent shall reasonably request.  

9.03 Maintenance of Property; Insurance . (a) US Company will, and will cause each of its Subsidiaries to, (i) keep all property necessary to the business of US Company and its Subsidiaries in good working order and condition, ordinary wear and tear excepted and subject to the occurrence of casualty events, (ii) maintain with financially sound and reputable insurance companies insurance on all such property and against all such risks as is consistent and in accordance with industry practice for companies similarly situated owning similar properties and engaged in similar businesses as US Company and its Subsidiaries, and (iii) furnish to the Administrative Agent, upon its request therefor, full information as to the insurance carried.  Such insurance shall include physical damage insurance on all real and personal property (whether now owned or hereafter acquired) on an all risk basis and business interruption insurance.  The provisions of this Section 9.03 shall be deemed supplemental to, but not duplicative of, the provisions of any Security Documents that require the maintenance of insurance.  In addition to the foregoing, US Company and the Borrowers acknowledge and agree that (x) the Administrative Agent has the right, on an annual basis, to review the insurance then being maintained by US Company and its Subsidiaries and to require US Company and its Subsidiaries to increase their levels of coverage from that which then exists to the extent that the Administrative Agent has a reasonable basis to require same and (y) it will, within 30 days following such a request by the Administrative Agent, obtain such increased insurance coverage.  Without limiting the foregoing, if any portion of any Mortgaged Property is at any time located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or any successor act thereto), then US Company will, and shall cause the Credit Party owning such Mortgaged Property, to (i) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Administrative Agent evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent.

(b) US Company will, and will cause each of its Subsidiaries to, at all times keep its property insured in favor of the Collateral Agent, and all policies or certificates (or certified copies thereof) with respect to such insurance (and any other insurance maintained by US Company and/or such Subsidiaries) (i) shall be endorsed to the Collateral Agent’s satisfaction for the benefit of the Collateral Agent (including, without limitation, by naming the Collateral Agent as loss payee and/or additional insured), (ii) shall state that such insurance policies shall not be canceled without at least 30 days’ prior written notice thereof by the respective insurer to the Collateral Agent, (iii) shall provide that the respective insurers irrevocably waive any and all rights of subrogation with respect to the Collateral Agent and the other Secured Creditors, and (iv) shall be deposited with the Collateral Agent.

(c) If US Company or any of its Subsidiaries shall fail to maintain insurance in accordance with this Section 9.03 , or if US Company or any of its Subsidiaries shall fail to so endorse and deposit all policies or certificates with respect thereto, the Administrative Agent shall have the right (but shall be under no obligation) to procure such insurance and the Borrowers jointly and severally agree to reimburse the Administrative Agent for all costs and expenses of procuring such insurance.

9.04 Administration of Equipment; Maintenance of Equipment . (a) US Company shall, and shall cause its Subsidiaries to, keep records of its Equipment which shall be complete and accurate in all material respects itemizing and describing the kind, type, quality, quantity and book value of its Equipment and all dispositions made in accordance with this Agreement, and US Company shall, and shall cause its Subsidiaries to, furnish Administrative Agent with a current schedule containing the foregoing information on at least an annual basis and more often if reasonably requested by Administrative Agent.  Promptly after the reasonable request therefore by Administrative Agent, US Company shall deliver to Administrative Agent any and all evidence of ownership, if any, of any Equipment.

(b) US Company shall, and shall cause its Subsidiaries to, make or cause to be made all necessary replacements of and repairs to Equipment so that the operating efficiency thereof shall be maintained and preserved, reasonable wear and tear excepted, except where the failure to so maintain the same would not reasonably be expected to have a Material Adverse Effect.  US Company will not, and will not allow any other Credit Party to, permit any Equipment to become affixed to any Real Property leased to US Company or any other Credit Party so that an interest arises therein under

-106-

 

the real estate laws of the applicable jurisdiction unless the landlord of such Real Property has executed a landlord waiver or leasehold mortgage in favor of and in form reasonably acceptable to Administrative Agent, and US Company will not permit, nor will it allow any other Credit Party to permit, any of the Equipment of US Company or any other Credit Party to become an accession to any personal Property other than Equipment that is subject to First Priority (except for Permitted Liens) Liens in favor of Administrative Agent.  

9.05 Existence; Franchises . US Company will, and will cause each of its Subsidiaries to, do or cause to be done, all things necessary to preserve and keep in full force and effect its existence and its material rights, franchises, licenses, permits, copyrights, trademarks and patents; provided , however , that nothing in this Section 9.05 shall prevent (a) sales of assets and other transactions by US Company or any of its Subsidiaries in accordance with Section 10.03 or (b) the withdrawal by US Company or any of its Subsidiaries of its qualification as a foreign limited liability company (or other applicable entity) in any jurisdiction if such withdrawal could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

9.06 Compliance with Statutes, etc . US Company will, and will cause each of its Subsidiaries to, comply with all applicable statutes, regulations and orders of, and all applicable restrictions imposed by, all Governmental Authorities in respect of the conduct of its business and the ownership of its property in any jurisdiction (including applicable statutes, regulations, orders and restrictions relating to environmental standards and controls), except such non-compliances as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

9.07 Compliance with Environmental Laws . (a) US Company will comply, and will cause each of its Subsidiaries to comply, with all Environmental Laws and permits applicable to, or required by, the ownership, lease or use of its Real Property now or hereafter owned, leased or operated by US Company or any of its Subsidiaries, except such non-compliances as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and will promptly pay or cause to be paid all costs and expenses incurred in connection with such compliance, and will keep or cause to be kept all such Real Property free and clear of any Liens imposed pursuant to such Environmental Laws.  Neither US Company nor any of its Subsidiaries will generate, use, treat, store, Release or dispose of, or permit the generation, use, treatment, storage, Release or disposal of Hazardous Materials on any Real Property now or hereafter owned, leased or operated by US Company or any of its Subsidiaries, or transport or permit the transportation of Hazardous Materials to or from any such Real Property, except for Hazardous Materials generated, used, treated, stored, Released or disposed of at any such Real Properties in compliance in all material respects with all applicable Environmental Laws and as required in connection with the normal operation, use and maintenance of the business or operations of US Company or any of its Subsidiaries.

(b) (i) After the receipt by the Administrative Agent or any Lender of any notice of the type described in Section 9.01(h) , (ii) at any time that US Company or any of its Subsidiaries are not in compliance with Section 9.07(a) or (iii) in the event that the Administrative Agent or the Lenders have exercised any of the remedies pursuant to the last paragraph of Section 11 , the Borrowers will provide, at the sole joint and several expense of the Borrowers and at the request of the Administrative Agent, an environmental site assessment report concerning any Real Property owned, leased or operated by US Company or any of its Subsidiaries, prepared by an environmental consulting firm reasonably approved by the Administrative Agent, indicating the presence or absence of Hazardous Materials and the potential cost of any removal or remedial action in connection with such Hazardous Materials on such Real Property.  If the Borrowers fail to provide the same within 30 days after such request was made, the Administrative Agent may order the same, the cost of which shall be borne by the Borrowers on a joint and several basis, and the Borrowers shall grant and hereby grant to the Administrative Agent and the Lenders and their respective agents reasonable access to such Real Property and specifically grant the Administrative Agent and the Lenders an irrevocable non-exclusive license, subject to the rights of tenants, to undertake such an assessment at any reasonable time following reasonable notice to US Company, all at the sole joint and several expense of the Borrowers.

9.08 ERISA . (a) As soon as possible and, in any event, within ten (10) days after any US Borrower or any of its Subsidiaries or any ERISA Affiliate knows or has reason to know of the occurrence of any of the following ERISA matters that could reasonably be expected to have a Material Adverse Effect, US Company will deliver to each of the Lenders a certificate of any Authorized Officer of US Company setting forth the full details as to such occurrence and the action, if any, that any such US Borrower , such Subsidiary or such ERISA Affiliate is required or proposes to take, together with any notices required or proposed to be given or filed by such US Borrower , such Subsidiary, such ERISA Affiliate or the applicable plan administrator to or with the PBGC or any other Governmental Authority, or a Plan or Multiemployer Plan participant and any notices received by any such US Borrower , such Subsidiary or such ERISA Affiliate from the PBGC or any other Governmental Authority, or a Plan or Multiemployer Plan participant with respect thereto: (i)   that a Reportable Event has occurred or is reasonably expected to occur; (ii) that any US Borrower or any of its Subsidiaries or an ERISA Affiliate has failed to meet the minimum funding requirements of Sections 412 and 430 of the Code or Sections 302 and 303 of ERISA with respect to any Plan, whether or not waived or failed to make by its due date a required installment under Section 430(j) of the Code or Section 303(j) of ERISA with respect to any Plan; (iii) that a 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 has been

-107-

 

made with respect to any Plan; (iv) that any contribution required to be made with respect to a Plan, Multiemployer Plan or Foreign Pension Plan has not been timely made; (v) that a Plan or Multiemployer Plan has been terminated (within the meaning of Title IV of ERISA), that a Multiemployer Plan has been reorganized (within the meaning of Section 4241 of ERISA) or declared “insolvent” (within the meaning of Section 4245 of ERISA) or in “endangered or critical status” (within the meaning of Section 305 of ERISA), or that a Plan has been, is, or is expected to be, in “at-risk” status pursuant to Section 430(i) of the Code or Section 303(i) of ERISA; (vi) that a Plan has an Unfunded Current Liability; (vii) that proceedings have been instituted by the PBGC to terminate or appoint a trustee to administer under Section 4042 of ERISA any Plan or Multiemployer Plan; (viii) that a proceeding has been instituted pursuant to Section 515 of ERISA to collect a delinquent contribution to a Multiemployer Plan; (ix) that any US Borrower or any of its Subsidiaries or any ERISA Affiliate will or may incur any liability (including any indirect, contingent, or secondary liability) to or on account of the termination of or withdrawal from a Plan under Section 4062, 4063, 4064 or 4069 of ERISA, or to or on account of a Multiemployer Plan under Section 4201, 4204 or 4212 of ERISA or with respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409, 502(i) or 502(l) of ERISA or with respect to a group health plan (as defined in Section 607(1) of ERISA, Section 4980B(g)(2) of the Code or 45 Code of Federal Regulations Section 160.103) under Section 4980B of the Code and/or the Health Insurance Portability and Accountability Act of 1996; or (x) that any US Borrower or any of its Subsidiaries may incur any liability pursuant to any employee welfare benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to retired employees or other former employees (other than as required by Section 601 of ERISA).  US Company will deliver to each of the Lenders (i) a copy of each application for a waiver of the minimum funding standard filed with the Internal Revenue Service or any other Governmental Authority with respect to any Plan and all communications received by any US Borrower or any of its Subsidiaries or any ERISA Affiliate from the Internal Revenue Service or any other Governmental Authority with respect to such Plan of any US Borrower or any of its Subsidiaries or any ERISA Affiliate, (ii) copies of any records, documents or other information that must be furnished to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA and (iii) upon the request of the Administrative Agent, a complete copy of the annual report (on Internal Revenue Service Form 5500-series) of each Plan (including, to the extent required, the related financial and actuarial statements and opinions and other supporting statements, certifications, schedules and information) required to be filed with the US Department of Labor.  In addition to any certificates or notices delivered to the Lenders pursuant to the first sentence hereof, copies of annual reports and any records, documents or other information required to be furnished to the PBGC, and any material notices received by any US Borrower or any of its Subsidiaries or any ERISA Affiliate with respect to any Plan or Foreign Pension Plan or received from any government agency or plan administrator or sponsor or trustee with respect to any Multiemployer Plan, shall be delivered to the Lenders no later than ten (10) days after the date such annual report has been filed or such records, documents and/or information has been furnished to the PBGC or such notice has been received by any such US Borrower or such Subsidiaries or such ERISA Affiliate, as applicable.  

(b) US Company and each of its applicable Subsidiaries shall ensure that all Foreign Pension Plans administered by it or into which it makes payments obtains or retains (as applicable) registered status under and as required by Applicable Law and is administered in a timely manner in all respects in compliance with all Applicable Laws, except where the failure to do any of the foregoing, either individually or in the aggregate, could not be reasonably likely to result in a Material Adverse Effect.

9.09 End of Fiscal Years; Fiscal Quarters . US Company will cause (i) its and each of its Subsidiaries’ fiscal years to end on December 31 of each calendar year and (ii) its and each of its Subsidiaries’ fiscal quarters to end on March 31, June 30, September 30 and December 31 of each calendar year.

9.10 Performance of Obligations . US Company will, and will cause each of its Subsidiaries to, perform all of its obligations under the terms of each mortgage, indenture, security agreement, loan agreement or credit agreement and each other agreement, contract or instrument by which it is bound, except such non-performances as could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

9.11 Payment of Taxes . US Company will timely pay and discharge, and will cause each of its Subsidiaries to timely pay and discharge all its obligations and liabilities, including (a) all material Taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or upon any properties belonging to it, and (b) all lawful claims which, if unpaid, might become a Lien or charge upon any properties of US Company or any of its Subsidiaries not otherwise permitted under Section 10.02 ; provided that neither US Company nor any of its Subsidiaries shall be required to pay any such Tax, assessment, charge, levy or claim which is being contested in good faith and by proper proceedings if it has maintained adequate reserves with respect thereto in accordance with GAAP.

9.12 Use of Proceeds . The Borrowers will use the proceeds of the Loans only as provided in Section 8.22.

9.13 Additional Security; Further Assurances; etc . (a)  US Company will, and will cause each other Credit Party to, grant to the Collateral Agent for the benefit of the Secured Creditors Liens, hypothecs and Mortgages in such assets and owned Real Property of US Company and such other Credit Party as are not covered by the original Security Documents and as may be

-108-

 

reasonably requested from time to time by the Administrative Agent or the Required Lenders (collectively, the “ Additional Security Documents ”).  All such Liens, hypothecs and Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and shall constitute valid and enforceable perfected Liens, hypothecations and Mortgages superior to and prior to the rights of all third Persons and enforceable against third parties and subject to no other Liens except for Permitted Liens or, in the case of Real Property, the Permitted Encumbrances related thereto ( provided that Administrative Agent’s Liens on the LKE Joint Accounts need not be perfected).  The Additional Security Documents or instruments related thereto shall have been duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Security Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full.   In connection with the delivery of any Mortgage, US Company will, and will cause each other Credit Party to, to the extent reasonably requested from time to time by the Administrative Agent or the Required Lenders, deliver (i) a Mortgage Policy issued by a title insurer reasonably satisfactory to the Administrative Agent, in form and substance and in an amount reasonably satisfactory to the Administrative Agent insuring that the Mortgage is a valid and enforceable First Priority Lien on the respective property other than Permitted Encumbrances, (ii) a then current A.L.T.A. survey, certified to the Administrative Agent and the Collateral Agent by a licensed surveyor sufficient to allow the issuer of the Mortgage Policy to issue such Mortgage Policy without a survey exception, (iii) an environmental site assessment prepared by a qualified firm reasonably acceptable to the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent and (iv) a certificate in a form reasonably acceptable to the Administrative Agent (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the applicable Borrower) indicating that the property is not in a flood zone, or if the property is in a flood zone, evidence that appropriate insurance reasonably acceptable to the Administrative Agent has been obtained.   Notwithstanding the foregoing, this Section 9.13 (a) shall not apply to (and US Company and the other Credit Parties shall not be required to grant a Mortgage in) any Real Property the Fair Market Value of which is less than $15,000,000 or the Equivalent Amount thereof.  

(b) US Company will, and will cause each of the other Credit Parties to, at the expense of US Company, make, execute, endorse, acknowledge, file and/or deliver to the Collateral Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports, landlord waivers, bailee agreements, control agreements and other assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents as the Administrative Agent may reasonably require.  Furthermore, US Company will, and will cause the other Credit Parties to, deliver to the Administrative Agent and the Collateral Agent such opinions of counsel, title insurance and other related documents as may be reasonably requested by the Administrative Agent and the Collateral Agent to assure itself that this Section 9.13 has been complied with.

(c) If the Administrative Agent or the Required Lenders reasonably determine that they are required by law or regulation to have appraisals prepared in respect of any Real Property of US Company and the other Credit Parties constituting Collateral, US Company will, at its own expense, provide to the Administrative Agent appraisals which satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of the Financial Institution Reform, Recovery and Enforcement Act of 1989, as amended, and which shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent.

(d) US Company agrees that each action required by clauses (a) through (c) of this Section 9.13 shall be completed as soon as possible, but in no event later than 60 days after such action is requested to be taken by the Administrative Agent or the Required Lenders; provided that, in no event will US Company or any of its Subsidiaries be required to take any action, other than using its commercially reasonable efforts, to obtain consents from third parties with respect to its compliance with this Section.

(e) Notwithstanding anything contained in this Section 9.13 or this Agreement or any other Credit Document to the contrary, in no event shall (i) the assets of any of the UK Company, the Canadian Company or any other Foreign Subsidiary be pledged to secure the US Obligations or (ii) more than 65% of the voting securities of any first-tier Foreign Subsidiary held by the US Company or any Domestic Subsidiary be pledged to secure the US Obligations.

(f) Subject to Section 9.13(e) , if at any time a Subsidiary ceases to be an Immaterial Subsidiary, within thirty (30) days thereof (or such later date as is agreed to by the Administrative Agent in its sole discretion) such Subsidiary shall have executed and delivered to Administrative Agent such Security Documents (or joinders thereto, in form and substance satisfactory to Administrative Agent) and other documents as are necessary (or advisable in Administrative Agent’s and Collateral Agent’s judgment) under Applicable Law in order to grant Collateral Agent for the benefit of the Secured Creditors a perfected First Priority security interest and Lien in the assets of, and ownership interests in, such Subsidiary and US Company or the applicable Credit Party shall execute and deliver an amendment to the applicable pledge agreement in form and substance satisfactory to Administrative Agent, together with stock certificates and promissory notes and other instruments endorsed in blank, to pledge its equity interests in such Subsidiary and all intercompany Loans to such Subsidiary.

-109-

 

(g) If at any time a Domestic Subsidiary ceases to be an Immaterial Subsidiary, within thirty (30) days thereof (or such later date as is agreed to by the Administrative Agent in its sole discretion) such Domestic Subsidiary shall become a party to this Agreement, either as a US Borrower, US Guarantor and Non-US Obligation Guarantor or as a US Guarantor and a Non-US Obligation Guarantor, as determined by the Administrative Agent or the Required Lenders, in each case by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement, and in the event that such Subsidiary is to become a US Borrower hereunder, by executing and delivering to the Administrative Agent a counterpart to the US Revolving Notes and the US Swingline Note.  

(h) (i) If at any time a UK Subsidiary ceases to be an Immaterial Subsidiary, within thirty (30) days thereof (or such later date as is agreed to by the Administrative Agent in its sole discretion) such UK Subsidiary shall become a party to this Agreement, either as a UK Borrower and a Non-US Obligation Guarantor or as a Non-US Obligation Guarantor, as determined by the Administrative Agent or the Required Lenders, in each case by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement, and in the event that such Subsidiary is to become a UK Borrower hereunder, by executing and delivering to the Administrative Agent a counterpart to the UK Revolving Notes and the UK Swingline Note, (ii) if at any time a Canadian Subsidiary ceases to be an Immaterial Subsidiary, within thirty (30) days thereof (or such later date as is agreed to by the Administrative Agent in its sole discretion) such Canadian Subsidiary shall become a party to this Agreement, either as a Canadian Borrower and a Non-US Obligation Guarantor or as a Non-US Obligation Guarantor, as determined by the Administrative Agent or the Required Lenders, in each case by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement, and in the event that such Subsidiary is to become a Canadian Borrower hereunder, by executing and delivering to the Administrative Agent a counterpart to the Canadian Revolving Note, and (iii) if at any time a Foreign Subsidiary that is not a UK Subsidiary or a Canadian Subsidiary ceases to be an Immaterial Subsidiary, within thirty (30) days thereof (or such later date as is agreed to by the Administrative Agent in its sole discretion) such Foreign Subsidiary shall become a party to this Agreement as a Non-US Obligation Guarantor by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement.

(i) On or prior to the date on which any Subsidiary becomes a Borrower or a Guarantor under this Section 9.13 , the Administrative Agent and the Lenders shall have received from the Credit Parties, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act.

9.14 [Reserved].

9.15 Projections . US Company shall, no later than 60 days after the end of each fiscal year of US Company, deliver to Administrative Agent Projections of US Company and each of its Subsidiaries for the forthcoming fiscal year, month by month (including, but not limited to, projected balance sheets, income statements, statements of cash flows and Total Borrowing Availability, US Borrowing Availability, UK Borrowing Availability, Canadian Borrowing Availability and calculations of projected covenant compliance.

9.16 Landlord, Processor and Storage Agreements . US Company shall provide Administrative Agent on request with copies of all agreements between US Company or any other Credit Party and any landlord, processor, distributor, warehouseman or consignee which owns any premises at which any Collateral may, from time to time, be kept.

9.17 Deposit and Brokerage Accounts . For each deposit account or brokerage account that US Company or any other Credit Party that is a Domestic Subsidiary of US Company at any time opens or maintains (including, without limitation, any LKE Joint Account, but excluding any account for which such a Cash Management Control Agreement is expressly not required pursuant to Section 3.9 of the US Security Agreement), US Company shall, at Administrative Agent’s request and option, pursuant to a Cash Management Control Agreement in form and substance satisfactory to Administrative Agent, cause the depository bank or securities intermediary, as applicable, to agree to comply at any time with instructions from Collateral Agent to such depository bank or securities intermediary, as applicable, directing the disposition of funds from time to time credited to such deposit or brokerage account, without further consent of US Company or such other Credit Party, during the continuance of a Compliance Period, a Default or an Event of Default.

9.18 Credit Party Financial Statements . US Company shall deliver or cause to be delivered to Administrative Agent financial statements, if any, for each other Credit Party (to the extent not consolidated or combined with the financial statements delivered to Administrative Agent under Section 9.01 ) in form and substance reasonably satisfactory to Administrative Agent at such intervals and covering such time periods as Administrative Agent may request.

9.19 Qualified Derivative Obligations . Prior to or concurrently with US Company or any other Credit Party entering into any Derivative Obligation or any modification of such Derivative Obligation with any Lender or any Affiliate of a Lender (other than Administrative Agent or any Affiliate of Administrative Agent), US Company shall provide, or shall cause such

-110-

 

Lender or such Affiliate to provide, written notice to Administrative Agent specifying, in a manner reasonably acceptable to Administrative Agent, the terms and conditions of such Derivative Obligations.  In addition, any Lender or any Affiliate of a Lender that enters into any Derivative Obligation or any modification of a Derivative Obligation with a Credit Party may provide notice thereof to the Administrative Agent.  

9.20 Centre of Main Interest . Each UK Subsidiary shall have and maintain its centre of main interest (as that term is used in Article 3(1) of The Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings (the “ Regulation ”)) for purposes of the Regulation within the United Kingdom.

9.21 Administration of Accounts . (a) US Company shall, and shall cause each of its Subsidiaries to, keep accurate and complete records of its Accounts and all payments and collections thereon and shall submit to Administrative Agent on such periodic basis as Administrative Agent shall request a sales and collections report for the preceding period, in form consistent with the reports currently prepared by US Company with respect to such information.  When requested by Administrative Agent, from and after the date hereof, US Company shall deliver to Administrative Agent a detailed aging of all Accounts of US Company and its Subsidiaries, and upon Administrative Agent’s request therefore, copies of proof of delivery and the original copy of all documents, including, without limitation, repayment histories and present status reports relating to the Accounts so scheduled and such other matters and information relating to the status of then existing Accounts as Administrative Agent shall reasonably request.

(b) If an Account includes a charge for any Tax payable to any governmental taxing authority, Administrative Agent is authorized, in its sole discretion, to pay the amount thereof to the proper taxing authority for the account of US Company or its Subsidiaries and to charge US Company therefore, except for Taxes that (i) are being actively contested in good faith and by appropriate proceedings and with respect to which US Company or such Subsidiary maintains reasonable reserves on its books therefore and (ii) would not reasonably be expected to result in any Lien other than a Permitted Lien.  In no event shall Administrative Agent or any Lender be liable for any Taxes to any governmental taxing authority that may be due by US Company or any of its Subsidiaries or Affiliates.

9.22 Post-Closing Matters . Each Credit Party shall deliver and/or complete, or shall cause the delivery and/or completion of, each of the actions required to be taken by it or any other Credit Party as set forth in Schedule 9.22 no later than the dates for such actions set forth therein (or such later date as may be agreed by the Administrative Agent in its sole discretion).

SECTION 10. Negative Covenants . Each of US Company and each other Credit Party hereby covenants and agrees that on and after the Effective Date and until the Total Revolving Loan Commitment and all Letters of Credit have terminated and the Loans, Notes and Unpaid US Drawings, Unpaid UK Drawings and Unpaid Canadian Drawings (in each case, together with interest thereon), Fees and all other Obligations (other than any indemnities described in Section 13.13 which are not then due and payable) incurred hereunder and thereunder, are paid in full in cash:

10.01 [Reserved] .

10.02 Liens . US Company will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets (real or personal, tangible or intangible) of US Company or any of its Subsidiaries, whether now owned or hereafter acquired, or sell any such property or assets subject to an understanding or agreement, contingent or otherwise, to repurchase such property or assets (including sales of accounts receivable with recourse to US Company or any of its Subsidiaries), or assign any right to receive income or permit the filing of any financing statement under the UCC or any other similar notice of Lien under any similar recording or notice statute; provided that the provisions of this Section 10.02 shall not prevent the creation, incurrence, assumption or existence of the following (Liens described below are herein referred to as “ Permitted Liens ”):

(a) Liens granted to Collateral Agent for the benefit of the Secured Creditors under the Security Documents to secure the Obligations;

(b) Liens listed on Schedule 10.02 ;

(c) Liens for taxes not yet due or being contested in good faith and by appropriate proceedings, and for which adequate reserves are maintained by US Company or the relevant Credit Party for their payment in accordance with GAAP;

(d) Purchase Money Liens and Leases;

-111-

 

(e) Liens of warehousemen, mechanics, materialmen, workers, repairmen, common carriers, or landlords, liens for taxes, assessments or other governmental charges, and other similar Liens (other than Liens arising under ERISA) arising by operation of law for amounts that are not yet due and payable or which are being diligently contested in good faith by a Credit Party, and for which adequate reserves are maintained by US Company for their payment in accordance with GAAP ;  

(f) Attachment or judgment Liens not to exceed an aggregate of $15,000,000 or the Equivalent Amount thereof excluding in each case amounts (i) bonded to the reasonable satisfaction of Administrative Agent or (ii) covered by insurance to the reasonable satisfaction of Administrative Agent;

(g) Deposits or pledges to secure obligations under worker’s compensation, social security or similar laws, or under unemployment insurance, not to exceed an aggregate of $15,000,000 or the Equivalent Amount thereof;

(h) Deposits or pledges to secure bids, tenders, contracts (other than contracts for the payment of money), leases, statutory obligations, surety and appeal bonds and other obligations of like nature arising in the ordinary course of business not to exceed an aggregate of $10,000,000 or the Equivalent Amount thereof;

(i) Easements, rights of way, restrictions and other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are not substantial in amount and which do not materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of US Company or any of its Subsidiaries;

(j) Liens securing Indebtedness described in Section 10.05(d) which has been refinanced so long as such refinanced Indebtedness is not secured by any collateral which did not secure the Indebtedness prior to such refinancing;

(k) Liens securing Indebtedness described in Section 10.05(j) and (k) ;

(l) Extensions and renewals of any of the foregoing so long as the aggregate amount of extended or renewed Liens are not increased and are on terms and conditions no more restrictive than the terms and conditions of the Liens extended or renewed;

(m) Liens securing Indebtedness of a Foreign Subsidiary permitted under Section 10.05(e)(iii) ;

(n) Liens securing Capitalized Lease Obligations permitted pursuant to Section 10.05(m) ;

(o) Liens securing Indebtedness permitted pursuant to Section 10.05(n) ; provided that such Liens do not extend to any real or personal property other than the property acquired in such Permitted Acquisition; and

(p) (i) statutory and common law rights of set-off and other similar rights and remedies as to deposits of cash, securities, commodities and other funds in favor of banks, other depositary institutions, securities or commodities intermediaries or brokerages and (ii) Liens of a collecting bank arising in the ordinary course of business under Section 4-208 of the UCC in effect in the relevant jurisdiction and covering only the items being collected upon.

10.03 Sale of Assets . US Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, sell, lease, assign, transfer, liquidate or otherwise dispose of any assets (an “ Asset Sale ”) other than:

(a) Inventory (including containers held for lease) in the ordinary course of business;

(b) individual items of Collateral with a book value of less than $25,000,000 or the Equivalent Amount thereof in the aggregate during any fiscal year;

(c) obsolete or worn out property disposed of in the ordinary course of business;

(d) Asset Sales (including, without limitation, transfers of Inventory, Equipment or Real Property from US Company to a Credit Party) from US Company to a Credit Party, or from one Credit Party to another Credit Party or to US Company, provided , in each case, that any transfer of Inventory, Equipment or Real Property from a Borrower shall be made to another Credit Party that is or, concurrently with such transfer, becomes, a Borrower;

-112-

 

(e) sales of Trailers acquired in Permitted Acquisitions or owned by US Company or a Credit Party on the date hereof;  

(f) so long as no Default or Event of Default has occurred and is continuing, to the extent permitted by the Senior Note Indentures and the Permitted Additional Financing Documents then in effect, sales of container Inventory held for lease pursuant to sale and leaseback transactions (with the “leaseback” portion of such transaction under a capital lease permitted by Section 10.05(m) ), provided that the Orderly Liquidation Value of such container Inventory sold from and after the Effective Date shall not exceed $50,000,000 or the Equivalent Amount thereof;

(g) sales of Equipment which US Company or a Credit Party will lease back under a capital lease permitted under Section 10.05(d) or an operating lease permitted under Section 10.12 ;

(h) sales of Real Property not in excess of $25,000,000 in the aggregate for the term of this Agreement that US Company or a Credit Party promptly leases back pursuant to an operating lease permitted under Section 10.12 ;

(i) sales or other dispositions of Inventory or Equipment to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such sale or other disposition are applied to the purchase price of such replacement property, in each case as part of a LKE Transaction and pursuant to the terms and conditions of the applicable LKE Master Exchange Agreement;

(j) additional Asset Sales not otherwise permitted under this Section 10.03 so long as (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) not less than 75% of the aggregate consideration is paid in cash or Cash Equivalents at the time of such Asset Sales; and

(k) sale of the Real Property located at 15100 South San Pedro St., Gardena, CA on or before the date which occurs 6 months after the Effective Date;

provided , that , with respect to subsections (b), (c), (d), (e), (f), (g), (h), (i), (j) and (k), such dispositions are for Fair Market Value and with respect to subsections (b), (c), (d), (e), (f), (g), (h) and (k) the aggregate consideration is paid in full in cash at the time of disposition.

10.04 Restricted Payments . US Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly:

(a) declare or pay any dividend (other than dividends payable solely in common stock of US Company) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any shares of any class of Equity Interests of US Company or any warrants, options or rights to purchase any such Equity Interests, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of US Company or any of its Subsidiaries (each of the foregoing, a “ Restricted Payment ”); provided , (i) any Subsidiary may declare and pay dividends or distributions to US Company or any other Domestic Subsidiary of US Company which is a US Credit Party; (ii) any Foreign Subsidiary may declare and pay dividends or distributions to UK Company, Canadian Company or any other Foreign Subsidiary; (iii) US Company may purchase on the open market or in privately-negotiated transactions Equity Interests consisting of its common stock for an amount not to exceed $10,000,000 in the aggregate during any fiscal year of the US Company if, (A) both before and after giving effect to such purchase, no Default or Event of Default exists or would result therefrom and (B) all shares of such Equity Interests so purchased are thereafter immediately cancelled or shall have the status of treasury stock of US Company; (iv) US Company may make any Restricted Payment permitted pursuant to the Senior Note Documents and the Permitted Additional Financing Documents then in effect so long as at the time of such Restricted Payment, the Payment Conditions shall have been satisfied; and (v) so long as no Event of Default has occurred and is continuing or would result therefrom, Restricted Payments may be made by US Company to pay dividends and make distributions to its equity holders in an aggregate amount per annum no greater than 3.0% of the Market Capitalization; or

(b) make any payment or prepayment of principal of, or any prepayment of interest on, or any redemption (including, without limitation, by making payments to a sinking or analogous fund), repurchase or defeasance of, any Indebtedness (other than the Obligations) or of any Mandatory Redeemable Obligation; provided that (i) any Subsidiary may make payments on account of Indebtedness owing to US Company or any other Credit Party, (ii) the US Company may repurchase or redeem up to 35% of the aggregate principal amount of the Senior Notes and pay accrued interest and premium thereon with the proceeds of the issuance of US Company’s Equity Interests in an “Equity Offering” under and as defined in

-113-

 

the Senior Note Indentures if, both before and after giving effect to such repurchase or redemption, no Default or Event of Default exists, (iii) US Company and its Subsidiaries may make scheduled principal and interest payments on Indebtedness permitted under Sections 10.05(a) , (b) , (c) , (d) , (g) , (h) , (i) , (j) , (k) and (l) and scheduled interest payments on the Senior Notes and the Permitted Additional Financing Indebtedness then outstanding, (iv) US Company may prepay, repurchase or redeem any Indebtedness permitted to be prepaid, repurchased or redeemed pursuant to the Senior Note Documents then in effect (including, without limitation, any Indebtedness outstanding under any such Senior Note Documents to the extent so permitted) so long as at the time of such prepayments, repurchases or redemptions, the Payment Conditions shall have been satisfied, (v) US Company may prepay, repurchase or redeem any Indebtedness outstanding under the Senior Note Documents with the proceeds of any Permitted Senior Notes Refinancing incurred in accordance with Section 10.05(f) , (vi) US Company may prepay, repurchase or redeem any Indebtedness permitted to be prepaid, repurchased or redeemed pursuant to the Permitted Additional Financing Documents (including, without limitation, any Indebtedness outstanding under any such Permitted Additional Financing Documents to the extent so permitted) so long as at the time of such prepayments, repurchases or redemptions, the Payment Conditions shall have been satisfied, and (vii) US Company may prepay, repurchase or redeem any Permitted Additional Financing Indebtedness with the proceeds of any Permitted Additional Financing incurred in accordance with Section 10.05(h) or (j) .  

10.05 Indebtedness . US Company will not, and will not permit any of its Subsidiaries to, contract, create, incur, assume or suffer to exist any Indebtedness, except:

(a) Indebtedness under the Credit Documents and Derivative Obligations under which a Lender or an Agent (or one of their respective Affiliates) is the counterparty incurred in the ordinary course of business;

(b) Unsecured Derivative Obligations incurred in the ordinary course of business;

(c) Indebtedness described on Schedule 10.05 , and any refinancing of such Indebtedness, so long as the aggregate principal amount of the Indebtedness so refinanced shall not be increased and the refinancing shall be on terms and conditions no more restrictive than the terms and conditions of the Indebtedness to be refinanced;

(d) Indebtedness, including Capitalized Lease Obligations, secured by purchase money liens on Equipment, not to exceed $100,000,000 or the Equivalent Amount thereof in the aggregate for all Indebtedness under this Section 10.05(d) (irrespective of when due) outstanding at any one time (“ Purchase Money Liens and Leases ”) so long as each Purchase Money Lien or Lease shall attach or relate only to the property (and accessions thereto and proceeds thereof) to be acquired or the acquisition cost of which is financed through leasing and the principal amount of the debt incurred (including the principal component of lease payments) shall not exceed one hundred percent (100%) of the purchase price of the item or items of equipment;

(e) (i) Indebtedness consisting of loans and advances by US Company or any Subsidiary of US Company to US Company or any Domestic Subsidiary that is a Credit Party; (ii) Indebtedness consisting of loans and advances by the UK Company, the Canadian Company or any Foreign Subsidiary to UK Company, Canadian Company or any Foreign Subsidiary that is a Credit Party; (iii) Indebtedness consisting of loans and advances by the US Company or any Domestic Subsidiary to UK Company, Canadian Company or any Foreign Subsidiary that is a Credit Party, in an amount, together with Investments under Section 10.07(b)(iii) , not to exceed $100,000,000 or the Equivalent Amount thereof at any time outstanding; (iv) Indebtedness of any Foreign Subsidiary (other than a Credit Party) for which none of a US Borrower, a UK Borrower, a Canadian Borrower or any Credit Party has provided credit support (by guarantee, granting of Liens on its assets or otherwise) in an amount not to exceed $50,000,000 or the Equivalent Amount thereof at any time outstanding, and (v) other Indebtedness consisting of loans and advances made by Credit Parties to Foreign Subsidiaries, which together with Investments made by any Credit Party in Foreign Subsidiaries under Section 10.07(b)(iv) (such loans and advances to Foreign Subsidiaries, together with Investments made under Section 10.07(b)(iv) , “ Restricted Foreign Funding ”), does not exceed $10,000,000 or the Equivalent Amount thereof in the aggregate at any time outstanding; provided that (X) all loans and advances described under (i), (ii), (iii) and (v) are evidenced by an intercompany note, which is pledged to the Collateral Agent and are subordinated to the Obligations on terms and conditions reasonably acceptable to the Administrative Agent and (Y) US Company may make any Restricted Foreign Funding in excess of the limitations in the foregoing clause (v) which are otherwise permitted pursuant to the Senior Note Documents then in effect so long as at the time of such Restricted Foreign Funding, the Payment Conditions shall have been satisfied.

(f) Indebtedness under (i) the Senior Note Documents described in clause (a) of the definition thereof and (ii) in the event of any Permitted Senior Notes Refinancing of Indebtedness permitted under this Section 10.05(f) , the Senior Note Documents described in clause (b) of the definition thereof entered into pursuant to such Permitted Senior Notes Refinancing; provided that in connection with the incurrence of any Permitted Senior Notes Refinancing, immediately

-114-

 

following the incurrence of any such Permitted Senior Notes Refinancing, the aggregate amount of all Indebtedness then outstanding pursuant to this Section 10.05(f) does not exceed the aggregate principal amount of all Indebtedness under the Senior Note Documents described in clause (a) of the definition thereof on the Effective Date (plus accrued and unpaid interest with respect to such Indebtedness and reasonable fees, premium and expenses relating to the applicable extension, renewal or refinancing (and in each case any prior extension, renewal or refinancing permitted under this Section 10.05(f) )); provided further that notwithstanding the foregoing, the aggregate amount of all Indebtedness incurred pursuant to this Section 10.05(f) may exceed the amount set forth in the first proviso of this Section 10.05(f) so long as both before and after giving effect to the incurrence of any such Permitted Senior Notes Refinancing, US Company and its Subsidiaries shall have, on a pro forma basis (after giving effect to such Permitted Senior Notes Refinancing and such other customary adjustments requested by US Company and reasonably acceptable to the Administrative Agent) a Debt Ratio of no greater than 6.00:1.00, as of the last day of the most recently ended fiscal quarter;  

(g) Indebtedness (other than Indebtedness under this Agreement) incurred to finance insurance premiums, not to exceed $10,000,000 or the Equivalent Amount thereof in any fiscal year;

(h) (i) unsecured Permitted Ratio Debt and (ii) unsecured Permitted Capped Debt, in each case, so long as (A) the creditors with respect to such Indebtedness enter into an intercreditor agreement or other customary arrangements in form and substance satisfactory to Administrative Agent, (B) before and immediately after giving effect to the incurrence of such Indebtedness and any contemporaneous use of the proceeds thereof, no Default or Event of Default has occurred and is continuing or would be created thereby, and (C) such Indebtedness is not prohibited by the Senior Note Documents or the Permitted Additional Financing Documents then in effect;

(i) unsecured Indebtedness in an aggregate principal amount not to exceed $50,000,000 or the Equivalent Amount thereof so long as (i) before and immediately after giving effect to the incurrence of such Indebtedness and any contemporaneous use of the proceeds thereof, no Default or Event of Default has occurred and is continuing or would be created thereby, and (ii) such Indebtedness is not prohibited by the Senior Note Documents or the Permitted Additional Financing Documents then in effect.

(j) (i) Permitted Ratio Debt which is secured by a Lien junior to the Lien granted to Administrative Agent for the benefit of the Secured Creditors under the Security Documents and (ii) Permitted Capped Debt which is secured by a Lien junior to the Lien granted to Administrative Agent for the benefit of the Secured Creditors under the Security Documents, in each case, so long as (A) the creditors with respect to such Indebtedness enter into an intercreditor agreement or other customary arrangements in form and substance reasonably satisfactory to Administrative Agent, (B) before and immediately after giving effect to the incurrence of such Indebtedness and any contemporaneous use of the proceeds thereof, no Default or Event of Default has occurred and is continuing or would be created thereby and (C) such Indebtedness is not prohibited by the Senior Notes Documents or the Permitted Additional Financing Documents then in effect;

(k) Indebtedness which is secured by a first or second priority Lien on the assets of the US Company or other Credit Party, in an aggregate principal amount for all Credit Parties not to exceed $20,000,000 or the Equivalent Amount thereof so long as (i) the creditors with respect to such Indebtedness enter into an intercreditor agreement in form and substance satisfactory to Administrative Agent, (ii) before and immediately after giving effect to the incurrence of such Indebtedness and any contemporaneous use of the proceeds thereof, no Default or Event of Default has occurred and is continuing or would be created thereby, and (iii) such Indebtedness is not prohibited by the Senior Notes Documents or the Permitted Additional Financing Documents then in effect;

(l) [Reserved];  

(m) Capitalized Lease Obligations in respect of leasehold interests in container Inventory which is sold in a sale and leaseback transaction (with the sale portion of such transaction being permitted pursuant to Section 10.03(f) ) so long as each lease shall attach or relate only to the property subject to such sale leaseback transaction and the principal amount of the debt incurred (including the principal component of lease payments) shall not exceed one hundred percent (100%) of the purchase price of the item or items of container Inventory;

(n) assumed Indebtedness incurred in connection with a Permitted Acquisition in an aggregate amount not to exceed $50,000,000 or the Equivalent Amount thereof in the aggregate at any time outstanding , so long as such Indebtedness (A) constitutes either purchase money Indebtedness incurred in connection with the purchase of fixtures and Equipment or Capitalized Lease Obligations and (B) was not incurred in anticipation of such Permitted Acquisition; and

-115-

 

(o) Indebtedness under Banking Products Agreements incurred in the ordinary course of business and consistent with past practices of the Credit Parties.  

10.06 Contingent Obligations . Neither US Company nor any of its Subsidiaries shall directly or indirectly incur, assume, or suffer to exist any Contingent Obligation, excluding indemnities given in connection with the sale of Inventory or other asset dispositions permitted hereunder and Contingent Obligations for Indebtedness permitted to be incurred under Section 10.05 hereof

10.07 Advances, Investments and Loans . US Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make any Investment in any Person, whether in cash, securities, or other property of any kind including, without limitation, any Subsidiary or Affiliate of US Company, other than:

(a) Advances or loans (but not sales on open account on ordinary course of business terms) made in the ordinary course of business, including those made to finance the sale of Inventory, not to exceed $1,000,000 or the Equivalent Amount thereof outstanding at any one time to any one Person and $5,000,000 or the Equivalent Amount thereof in the aggregate outstanding at any one time;

(b) Investments (including in the form of loans or advances permitted by Section 10.5(e) ): (i) by US Company or any Subsidiary of US Company in US Company or any Domestic Subsidiary that is a Credit Party, (ii) by the UK Company, the Canadian Company or any Foreign Subsidiary in UK Company, the Canadian Company or any Foreign Subsidiary that is a Credit Party, (iii) by US Company or a Domestic Subsidiary in UK Company, Canadian Company or a Foreign Subsidiary that is a Credit Party; provided that all Investments in such Foreign Subsidiaries, together with Indebtedness of Foreign Subsidiaries permitted under Section 10.05(e)(iii) , shall not exceed $100,000,000 or the Equivalent Amount thereof at any time outstanding and (iv) in Foreign Subsidiaries, which together with Indebtedness incurred in reliance on Section 10.05(e)(v) , does not exceed $10,000,000 or the Equivalent Amount thereof in the aggregate at any time outstanding; provided that (X) all Investments in the form of loans and advances described under (i), (ii), (iii) and (iv) are evidenced by an intercompany note in accordance with Section 10.05(e)(v) and (Y) US Company may make any Restricted Foreign Funding in excess of the limitations set forth in the foregoing clause (iv) which are otherwise permitted pursuant to the Senior Note Documents and the Permitted Additional Financing Documents then in effect so long as at the time of such Restricted Foreign Funding, the Payment Conditions shall have been satisfied;

(c) Cash Equivalents;

(d) Permitted Acquisitions;

(e) Deposits with financial institutions, disclosed on Schedule 10.07 , and which are insured by the Federal Deposit Insurance Corporation (“ FDIC ”) or a similar federal insurance program; provided , however , that US Company may, in the ordinary course of its business, maintain in its disbursement accounts from time to time amounts in excess of then applicable FDIC or other program insurance limits; and

(f) Such other Investments as Required Lenders may approve in writing in their sole discretion.

10.08 Transactions with Affiliates .  US Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, enter into any transaction with, including, without limitation, the purchase, sale or exchange of property or the rendering of any service to, any Subsidiary or Affiliate of US Company, except (a) the transactions in existence on the Effective Date as described on Schedule 10.08 , (b) transactions between or among US Company and its wholly-owned Subsidiaries which are Credit Parties and (c) transactions in the ordinary course of and pursuant to the reasonable requirements of US Company’s or such Subsidiary’s or Affiliate’s business, as the case may be, and upon fair and reasonable terms no less favorable to US Company or such Subsidiary than could be obtained in a comparable arm’s‑length transaction with an unaffiliated Person.

10.09 Registered Pension Plans .  None of the Borrowers or any other Credit Party shall establish or commence contributing to or become otherwise obligated in respect of a Foreign Pension Plan which contains a “defined benefit provision” as such term is defined in the CITA or which is a “multi-employer pension” plan subject to the Supplemental Pension Plans Act (Quebec) .

10.10 Additional Negative Pledges .  US Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective, (i) any prohibition or restriction (including any agreement to provide equal and ratable security to any other Person in the event a Lien is granted to or for the benefit of Collateral

-116-

 

Agent and the Secured Creditors) on the creation or existence of any Lien upon the assets of US Company or its Subsidiaries to secure the Obligations (other than under the documents governing any Purchase Money Liens and Leases so long as such restrictions are limited to the property subject thereto) or (ii) any contractual obligation which may restrict or inhibit Administrative Agent’s or Collateral Agent’s rights or ability to sell or otherwise dispose of the Collateral or any part thereof after the occurrence of an Event of Default, other than (A) by reason of Applicable Law, (B) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of US Company or any of its Subsidiaries, (C) customary provisions restricting assignment of any licensing agreement (in which US Company or any of its Subsidiaries is the licensee) or other contract entered into by US Company or any of its Subsidiaries in the ordinary course of business, (D) restrictions on the transfer of any asset pending the close of the sale of such asset and (E) pursuant to the Senior Note Documents as in effect on the Effective Date (and in the case of any Permitted Senior Notes Refinancing, as in effect on the date of such Permitted Senior Notes Refinancing, provided that such terms are no more restrictive than those in the Senior Notes Documents as in effect on the Effective Date) and pursuant to the Permitted Additional Financing Documents (so long as such terms are no more restrictive than those in the Senior Notes Documents as in effect on the Effective Date) and pursuant to the documents governing any Purchase Money Liens and Leases (so long as such restrictions are limited to the property subject thereto).  

10.11 No Subsidiaries .  US Company shall not, directly or indirectly, form or acquire any new Subsidiar ies, except (a) in connection with Permitted Acquisitions in compliance with Section 10.13 and (b) if each of the following conditions is met:

(i) each new Subsidiary is a Wholly-Owned Subsidiary of US Company created to conduct business in a specific jurisdiction;

(ii) both before and after giving effect to the creation of such Subsidiary and the transfer of any assets from US Company or its Subsidiaries to such Subsidiary, all representations and warranties of US Company and its Subsidiaries contained in any Credit Document are true and correct in all material respects, on and as of such date as if made as of such date (except (x) such revisions as are necessary to reflect the formation of such new Subsidiary and (y) it being understood and agreed that (A) any representations and warranties stated to relate to a specific earlier date shall have been true and correct in all material respects as of such earlier date and (B) any representations and warranties qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects at such time), no Default or Event of Default shall have occurred and be continuing, and US Company and its Subsidiaries shall be Solvent;

(iii) US Company shall have delivered to Administrative Agent written notice at least fifteen (15) Business Days prior to consummation of any transfer of assets to, or acquisition of assets by, such new Subsidiary, describing in reasonable detail the proposed new Subsidiary and its assets;

(iv) subject to Section 9.13(e) , if such Subsidiary is not an Immaterial Subsidiary, any such new Subsidiary shall have executed and delivered to Administrative Agent such Security Documents (or joinders thereto, in form and substance satisfactory to Administrative Agent) and other documents as are necessary (or advisable in Administrative Agent’s and Collateral Agent’s judgment) under Applicable Law in order to grant Collateral Agent for the benefit of the Secured Creditors a perfected First Priority security interest and Lien in the assets of, and ownership interests in, such Subsidiary and US Company or the applicable Credit Party shall execute and deliver an amendment to the applicable pledge agreement in form and substance satisfactory to Administrative Agent, together with stock certificates and promissory notes and other instruments endorsed in blank, to pledge its equity interests in such new Subsidiary and all intercompany Loans to such Subsidiary;

(v) each such new Subsidiary that is a Domestic Subsidiary, if such Subsidiary is not an Immaterial Subsidiary, shall become a party to this Agreement, either as a US Borrower, US Guarantor and Non-US Obligation Guarantor or as a US Guarantor and a Non-US Obligation Guarantor, as determined by the Administrative Agent or the Required Lenders, in each case by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement, and in the event that the Subsidiary is to become a US Borrower hereunder, by executing and delivering to the Administrative Agent a counterpart to the US Revolving Notes and the US Swingline Note;

(vi) (i) each such new Subsidiary that is a UK Subsidiary shall become a party to this Agreement, either as a UK Borrower and a Non-US Obligation Guarantor or as a Non-US Obligation Guarantor, as determined by the Administrative Agent or the Required Lenders, in each case by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement, and in the event that the Subsidiary is to become a UK Borrower hereunder, by executing and delivering to the Administrative Agent a counterpart to the UK Revolving Notes and the UK Swingline Note, (ii) each such new Subsidiary that is a Canadian Subsidiary shall become a party to this Agreement, either as a Canadian Borrower and a Non-US Obligation Guarantor or as a Non-US Obligation Guarantor, as determined by the Administrative Agent or the Required Lenders, in each case by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement, and in the event that the Subsidiary is to become a Canadian Borrower

-117-

 

hereunder, by executing and delivering to the Administrative Agent a counterpart to the Canadian Revolving Note, and (iii) each such new Subsidiary that is a Foreign Subsidiary other than a UK Subsidiary or a Canadian Subsidiary shall become a party to this Agreement as a Non-US Obligation Guarantor by executing and delivering to the Administrative Agent a counterpart of a Joinder Agreement;  

(vii) if required by Administrative Agent, Administrative Agent shall have received opinions of counsel, in form and substance satisfactory to it, as to the due execution, delivery and enforceability of the Credit Documents executed by such new Subsidiary, together with such evidences of solvency, certificates, Certificates of Title, and other documents and instruments reasonably requested by Administrative Agent ; and

(viii) on or prior to the date on which any Subsidiary becomes a Borrower or a Guarantor under this Section 10.11 , Administrative Agent and the Lenders shall have received from the Credit Parties, to the extent requested, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the Patriot Act.

10.12 Operating Leases; Off-Balance Sheet Financing .  Neither US Company nor any of its Subsidiaries shall directly or indirectly incur, create, assume or suffer to exist any liabilities for operating leases or other indebtedness or liabilities not reflected as such on their financial statements other than liabilities described on Schedule 10.12 , and any refinancing of such liabilities, so long as the aggregate amount thereof so refinanced shall not be increased and the refinancing shall be on terms and conditions no more restrictive than the terms and conditions of the liabilities to be refinanced; provided , however , that US Company and its Subsidiaries may incur liabilities in connection with operating leases of real property (including office and yard space) and office and other Equipment in the ordinary course of business.

10.13 Permitted Acquisitions . US Company shall not, and shall not permit any of its Subsidiaries to, make an Acquisition unless each of the following conditions is satisfied:

(a) such Acquisition is made by US Company or another Credit Party;

(b) such Acquisition shall be consensual and, if required under state law, shall have been approved by the board of directors or other governing body of the Person to be acquired (if there is such a governing body) and shall be permitted by the Senior Note Documents and the Permitted Additional Financing Documents then in effect;

(c) both before and after giving effect to such Acquisition, all representations and warranties of US Company and its Subsidiaries contained in any Credit Document are true and correct in all material respects on such date as if made as of such date (it being understood and agreed that (i) any representations and warranties stated to relate to a specific earlier date shall have been true and correct in all material respects as of such earlier date and (ii) any representations and warranties qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects at such time) and no Default or Event of Default shall have occurred and be continuing, and Administrative Agent shall receive a certificate of US Company to such effect on the date on which such Acquisition is consummated;

(d) both before and after giving effect to such Acquisition and the incurrence of Indebtedness in connection therewith, US Company and its Subsidiaries (including any Subsidiary acquired in such Acquisition) shall be Solvent;

(e) no Default or Event of Default shall have occurred and be continuing or shall be created thereby and the Payment Conditions shall have been satisfied, each calculated on a pro forma basis (whether or not Section 10.21 hereof would then require compliance with such covenant) immediately after giving effect to such payments and any Indebtedness incurred in connection therewith, and Administrative Agent shall receive a certificate of US Company to such effect on the date on which such Acquisition is consummated;

(f) if a Revolving Loan is to be made in connection with such Acquisition, Administrative Agent shall have received a Notice of Borrowing and, if US Company desires to include the assets to be acquired in the US Borrowing Base, the UK Borrowing Base or the Canadian Borrowing Base for such Revolving Loan, a Borrowing Base Certificate;

(g) as soon as reasonably practicable following consummation of the Acquisition, Administrative Agent and Collateral Agent shall have received such financing statements, filings, Certificates of Title and other Security Documents as required (or advisable in Administrative Agent’s judgment) to create and perfect Liens on any assets to be acquired, including assets of any new Subsidiary, together with evidence (including Lien search results) satisfactory to Administrative Agent that such Liens are first and prior Liens subject only to Permitted Liens;

-118-

 

(h) all new Subsidiaries formed or acquired in such Permitted Acquisition shall be Wholly-Owned Subsidiaries, directly or indirectly, of US Company;  

(i) the business and assets to be acquired in such Acquisition shall be acquired free and clear of all Liens (other than Permitted Liens);

(j) subject to Section 9.13(e) , if such Subsidiary is not an Immaterial Subsidiary, any new Subsidiary shall become a Borrower and/or Guarantor and all new Subsidiaries shall execute and deliver to Administrative Agent and Collateral Agent such Security Documents as are required to be executed by a Borrower and/or Guarantor (or joinder agreements in form and substance satisfactory to Administrative Agent) and such other documents as are necessary (or advisable in Administrative Agent’s judgment) under Applicable Law in order to grant Collateral Agent for the benefit of the Secured Creditors a perfected First Priority security interest and Lien in the assets of, and ownership interests in, such Subsidiary (subject only to Permitted Liens); and US Company or its Subsidiary, as applicable, shall execute and deliver an amendment to the applicable Pledge Agreement in form and substance satisfactory to Administrative Agent, together with stock certificates and promissory notes and other instruments endorsed in blank in accordance therewith;

(k) prior to inclusion in the US Borrowing Base, the UK Borrowing Base or the Canadian Borrowing Base of any assets acquired in connection with one or more Acquisitions which, (i) individually causes any of the US Borrowing Base, the UK Borrowing Base or the Canadian Borrowing Base to increase by more than $30,000,000 or the Equivalent Amount thereof or (ii) in the aggregate with all prior Acquisitions not included in clause (i) above causes the US Borrowing Base, the UK Borrowing Base and the Canadian Borrowing Base, in the aggregate, to increase by more than $50,000,000 or the Equivalent Amount thereof, in each case of the foregoing sub-clauses (i) and (ii) above the amount of the US Borrowing Base, the UK Borrowing Base and/or the Canadian Borrowing Base, as applicable, reflecting the most recent appraisals delivered or required to be delivered under Section 9.02 , Administrative Agent shall have received appraisals, in form and substance reasonably satisfactory to Administrative Agent, of all Inventory, Equipment and Real Property to be included in the Borrowing Base and shall have completed such review of Accounts, Inventory, Equipment and Real Property as it deems necessary or desirable for inclusion in the applicable Borrowing Base;

(l) the Person or business to be acquired is engaged in the business conducted by US Company and its Subsidiaries immediately prior to the Effective Date or similar activities related or incidental thereto; and

(m) in the case of any Acquisition with a purchase price of $30,000,000 or the Equivalent Amount thereof or more, on or prior to the date of such Acquisition, Administrative Agent shall have received, in form and substance satisfactory to Administrative Agent, all acquisition documents related thereto and certificates, and other documents and instruments reasonably requested by Administrative Agent, which collectively shall confirm, to Administrative Agent’s reasonable satisfaction, that the conditions set forth herein have been satisfied.

10.14 Modifications of Certificate of Incorporation, By-Laws and Certain Other Agreements, etc . US Company will not, and will not permit any of its Subsidiaries to :   

(a) amend, modify, change or waive any term or provision of any Senior Note Document or any Permitted Additional Financing Document, unless such amendment, modification, change or waiver could not reasonably be expected to be adverse to the interests of the Lenders; or

(b) amend, modify or change its certificate or articles of incorporation (including, without limitation, by the filing or modification of any certificate or articles of designation), certificate of formation, limited liability company agreement or by-laws (or the equivalent organizational documents), as applicable, or any agreement entered into by it with respect to its capital stock or other Equity Interests (including any shareholders’ agreement or any Qualified Preferred Stock), or enter into any new agreement with respect to its capital stock or other Equity Interests, unless such amendment, modification, change or other action contemplated by this clause (b) could not reasonably be expected to be adverse to the interests of the Lenders in any material respect and the terms of any such amendment, modification, change or other action will not violate any of the other provisions of this Agreement or any other Credit Document.

10.15 Limitation on Certain Restrictions on Subsidiaries .  US Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any such Subsidiary to (a) pay dividends or make any other distributions on its capital stock or any other Equity Interest or participation in its profits owned by US Company or any of its Subsidiaries, or pay any Indebtedness owed to US Company or any of its Subsidiaries, (b) make loans or advances to US Company or any of its Subsidiaries or (c) transfer any of its properties or assets to US Company or any of its Subsidiaries, except for such encumbrances or restrictions existing under or by reason of (i)

-119-

 

Applicable Law, (ii) this Agreement and the other Credit Documents, (iii) customary provisions restricting subletting or assignment of any lease governing any leasehold interest of US Company or any of its Subsidiaries, (iv) customary provisions restricting assignment of any licensing agreement (in which US Company or any of its Subsidiaries is the licensee) or other contract entered into by US Company or any of its Subsidiaries in the ordinary course of business, (v) restrictions on the transfer of any asset pending the close of the sale of such asset and (vi) restrictions on loans or advances from a Foreign Subsidiary reasonably intended to prevent negative US federal income tax consequences under Code Section 956.  

10.16 Limitation on Issuance of Equity Interests .  (a)  US Company will not, and will not permit any of its Subsidiaries to, issue (i) any Preferred Equity other than issuance by US Company of the Qualified Preferred Stock or (ii) any redeemable common stock or other redeemable common Equity Interests other than common stock or other redeemable common Equity Interests that is or are redeemable at the sole option of US Company or such Subsidiary, as the case may be.

(b) US Company will not permit any of its Subsidiaries to issue any capital stock or other Equity Interests (including by way of sales of treasury stock) or any options or warrants to purchase, or securities convertible into, capital stock or other Equity Interests, except (i) for transfers and replacements of then outstanding shares of capital stock or other Equity Interests, (ii) for stock splits, stock dividends and other issuances which do not decrease the aggregate percentage ownership of US Company or any of its Subsidiaries in any class of the capital stock or other Equity Interests of such Subsidiary, (iii) in the case of Foreign Subsidiaries of US Company, to qualifying directors to the extent required by Applicable Law and for other nominal share issuances to Persons other than US Company and its Subsidiaries to the extent required under Applicable Law and (iv) for issuances by Subsidiaries of US Company which are newly created or acquired in accordance with the terms of this Agreement.

10.17 Business; etc . US Company will not, and will not permit any of its Subsidiaries to, engage directly or indirectly in any business other than the businesses engaged in by US Company and its Subsidiaries as of the Effective Date and reasonable extensions thereof and businesses ancillary or complimentary thereto.

10.18 No Additional Deposit Accounts; etc .  US Company will not, and will not permit any other Credit Party to, directly or indirectly, open, maintain or otherwise have any checking, savings, deposit, securities or other accounts at any bank or other financial institution where cash or Cash Equivalents are or may be deposited or maintained with any Person, other than (a) the Concentration Accounts set forth on Part A of Schedule 10.18 , (b) the Collection Accounts set forth on Part B of Schedule 10.18 , (c) the Disbursement Accounts set forth on Part C of Schedule 10.18 , (d) the Designated Petty Cash Accounts set forth on Part D of Schedule 10.18 , (e) the Designated Payroll Accounts set forth on Part E of Schedule 10.18 and (f) the Foreign Accounts set forth on Part F of Schedule 10.18 ; provided that any US Credit Party, any UK Subsidiary and any Canadian Subsidiary may open a new Concentration Account, Collection Account, Disbursement Account, Designated Petty Cash Account, Designated Payroll Account or LKE Joint Account not set forth in such Schedule 10.18 , so long as prior to opening any such account (i) the Administrative Agent has consented in writing to such opening (which consent shall not be unreasonably withheld or delayed), (ii) US Company has delivered an updated Schedule 10.18 to the Administrative Agent listing such new account and (iii) in the case of any new Concentration Account, Collection Account, Disbursement Account, Designated Petty Cash Account, Designated Payroll Account or LKE Joint Account, (A) opened by a US Credit Party, the financial institution with which such account is opened, together with US Company or such other US Credit Party which has opened such account and the Collateral Agent have executed and delivered to the Administrative Agent a Cash Management Control Agreement reasonably acceptable to the Administrative Agent if and to the extent required by the US Security Agreement and (B) opened by a UK Subsidiary, such Subsidiary has complied with its obligations under clauses 4.1 and 10 of the UK Debentures.

10.19 Tax Consolidation .  US Company shall not file or consent to the filing of any consolidated income tax return with any Person other than US Company’s Subsidiaries.

10.20 Fiscal Year End .  US Company shall not change, or permit any Subsidiary of US Company to change, its fiscal year end.

10.21 Fixed Charge Coverage Ratio .  During the term of this agreement, and thereafter for so long as there are any Obligations outstanding, US Company covenants that if a Compliance Period is in effect, then as of the end of the most recent fiscal quarter for which financial statements shall have been required to be delivered pursuant to Section 9.01(b) and (c) and as of the end of each subsequent fiscal quarter until a Compliance Period is not in effect, US Company and its Subsidiaries shall maintain a Fixed Charge Coverage Ratio of not less than 1.00:1.00.  If GAAP changes from the basis used in preparing the audited financial statements delivered to Administrative Agent by US Company on or before the Effective Date, US Company will provide Administrative Agent with certificates demonstrating compliance with such financial covenants and will include, at the election of US Company or upon the request of Administrative Agent, calculations setting forth the adjustments necessary to demonstrate how US Company is in compliance with such financial covenants based upon GAAP as in effect on the Effective Date.

-120-

 

10.22 Sanctions .  No Borrower shall, directly or indirectly, use the proceeds of any Credit Event, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual or entity, to fund any activities of or business with any individual or entity, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, in each case, in any manner that will result in a violation by an individual or entity (including any individual or entity participating in the Transactions, whether as Lender, Arranger, Administrative Agent, or otherwise) of Sanctions.  

10.23 Anti-Corruption Laws .  No Borrower shall, directly or indirectly use the proceeds of any Credit Event for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, or any other similar anti-corruption legislation in any other applicable jurisdictions.

SECTION 11. Events of Default .  The occurrence of one or more of the following events shall constitute an “Event of Default”:

11.01 Payment of Obligations .  Any Credit Party shall fail to pay (i) any principal on the Loans or any reimbursement obligation in respect of any Letter of Credit on the due date thereof or (ii) any interest on the Loans or any other Obligation within three (3) Business Days of the date the same becomes due and payable;

11.02 Misrepresentations .  Any representation, warranty or other statement made or furnished to Administrative Agent or any Lender by or on behalf of US Company, or any other Credit Party in this Agreement, any of the other Credit Documents or any instrument, certificate or financial statement furnished in compliance with or in reference thereto proves to have been false or misleading in any material respect (or any such representation, warranty or other statement qualified by “materiality” or “Material Adverse Effect” proves to have been false or misleading in any respect) when made, furnished or remade;

11.03 Breach of Specific Covenants .  US Company shall (i) fail or neglect to perform, keep or observe any covenant contained in Section 5.03(c) and (d) (Method and Place of Payment), Sections 9.03 (Maintenance of Property; Insurance), 9.02 (Books, Records and Inspections; Field Examinations; Appraisals), 9.01(i) (Borrowing Base Certificates), or 9.13(f) , (g) and (h) (Additional Security; Further Assurances; etc.) or Section 10 (Negative Covenants) hereof on the date that US Company is required to perform, keep or observe such covenant or (ii) fail or neglect to perform, keep or observe any covenant contained in Section 9.01 (Information Covenants) other than Section 9.01(i) hereof within ten (10) Business Days following the date on which US Company is required to perform, keep or observe such covenant;

11.04 Breach of Other Covenants .  Any Credit Party shall fail or neglect to perform, keep or observe any covenant contained in this Agreement (other than a covenant which is dealt with specifically elsewhere in Section 11 hereof) or any other Credit Document and the breach of such other covenant is not cured to Administrative Agent’s satisfaction by the earlier to occur of ten (10) Business Days after (i) the date US Company or such Subsidiary thereof or Credit Party knew or should have known of such occurrence and (ii) the date of giving of notice thereof by Administrative Agent to US Company.

11.05 Default Under Other Agreements .  A default or event of default shall occur (and continue beyond any applicable grace period) under any note, agreement or instrument evidencing any other Indebtedness of US Company or any of its Subsidiaries, which default or event of default permits the acceleration of its maturity, provided that the aggregate principal amount of all such Indebtedness for which the default or event of default has occurred exceeds $35,000,000 or the Equivalent Amount thereof;

11.06 Failure of Enforceability of Credit Documents; Security .  Any material covenant, agreement or Obligation of US Company or any other Credit Party contained in or evidenced by any of the Credit Documents shall cease to be enforceable, or shall be determined to be unenforceable, in accordance with its terms; US Company or any other Credit Party shall deny or disaffirm any of its material Obligations under any of the Credit Documents or any Liens granted in connection therewith; or, any Liens granted in any of the Collateral shall be determined to be void, voidable, invalid or unperfected, are subordinated or not given the priority contemplated by this Agreement (except where such circumstance arises as a result of any action or inaction by any Lender);

11.07 Canadian Insolvency and Related Proceedings .  The US Company, any Subsidiary of the US Company, any Canadian Borrower or any other Credit Party (other than an Immaterial Subsidiary) (i) institutes or has instituted against it any proceeding seeking (x) to adjudicate it a bankrupt or insolvent, (y) liquidation, winding up, administration, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any applicable law relating to bankruptcy, insolvency, reorganization, arrangement, adjustment, protection, relief or composition of it or its debtors including any Canadian Insolvency Law, or (z) the entry of an order for relief or the appointment of a receiver, receiver-manager, administrator, custodian, monitor, trustee or other similar official for it or for any substantial part of its assets, and in the case of any such proceeding instituted against it (but not instituted by it), either the proceeding remains undismissed or unstayed for a period of 90 days, such Person fails to diligently and actively oppose such proceeding, or any of the actions sought in such proceeding (including the entry of an order for

-121-

 

relief against it or the appointment of a receiver, receiver-manager, administrator, custodian, monitor, trustee or other similar official for it or for any substantial part of its properties and assets) occurs, or (ii) takes any corporate action to authorize any of the above actions.  

11.08 Insolvency and Related Proceedings .  US Company, any Subsidiary of US Company or any other Credit Party (other than an Immaterial Subsidiary) shall cease to be Solvent or shall suffer the appointment of a receiver, trustee, custodian or similar fiduciary, or shall make an assignment for the benefit of creditors, or any petition for an order for relief shall be filed by or against a Credit Party (other than an Immaterial Subsidiary) under the federal bankruptcy laws and such proceeding shall continue for more than 30 days, or a Credit Party (other than an Immaterial Subsidiary) shall make any offer of settlement, extension or composition to their respective unsecured creditors generally; or, with respect to the UK Subsidiaries: (in addition to the preceding provisions of this Section 11.08 such provisions not to be deemed to otherwise limit the following) (i) such UK Subsidiary stops or suspends or threatens or announces an intention to stop or suspend payment of its debts or is for the purpose of section 123(1) of the Insolvency Act 1986 of England and Wales (on the basis that the words “proved to the satisfaction of the court” are deemed omitted from section 123(1)(e)) or any other Applicable Law deemed to be unable or shall admit in writing its inability to pay its debts as they fall due or shall become insolvent or a moratorium is declared in respect of its indebtedness; (ii) a petition is presented or meeting convened or application made for the purpose of appointing an administrator (either in or out of court) or receiver or other similar officer of, or for the making of an administration order in respect of, any UK Subsidiary and (A) (other than in the case of a petition to appoint an administrator) such petition or application is not discharged within 14 days; or (B) in the case of a petition to appoint an administrator, the Administrative Agent is not satisfied that it will be discharged before it is heard; (iii) any UK Subsidiary convenes a meeting of its creditors generally or proposes or makes any arrangement or composition with, or any assignment for the benefit of, its creditors generally or in relation to a scheme of arrangement or voluntary arrangement; (iv) any UK Subsidiary enters into any negotiations for or in connection with the re-scheduling, restructuring or readjustment of any Indebtedness by reason of, or with a view to avoiding, financial difficulties; (v) any meeting of any UK Subsidiary is convened for the purpose of considering any resolution for (or to petition for) its winding up or any UK Subsidiary passes such a resolution; (vi) a petition is presented for the winding-up of any UK Subsidiary (other than a frivolous or vexatious petition discharged within 14 days of being presented or any other petition which is contested on bona fide grounds and discharged at least 7 days before its hearing date); or (vi) any order is made or resolution passed or other action taken for the suspension of payments, protection from creditors or bankruptcy or insolvency of any UK Subsidiary;

11.09 Business Disruption; Condemnation .  There shall occur a cessation of a substantial part of the business of US Company, any Subsidiary of US Company or any Credit Party for a period which materially adversely affects the capacity of US Company and its Subsidiaries, taken as a whole, to continue its business on a profitable basis; or US Company, any Subsidiary of US Company or any Credit Party shall suffer the loss or revocation of any material license or permit now held or hereafter acquired by US Company, any Subsidiary of US Company or any Credit Party which is necessary to the continued or lawful operation of its business; or US Company, any Subsidiary of US Company or any Credit Party shall be enjoined, restrained or in any way prevented by court, governmental or administrative order from conducting all or any material part of its business affairs; or any material lease or agreement pursuant to which US Company, any Subsidiary of US Company or any Credit Party leases, uses or occupies any Property shall be canceled or terminated prior to the expiration of its stated term, except any such lease or agreement the cancellation or termination of which would not reasonably be expected to have a Material Adverse Effect; or any material portion of the Collateral shall be taken through condemnation or the value of such Property shall be impaired through condemnation;

11.10 ERISA .  The occurrence of any of the following: (i) any Plan shall fail to satisfy the minimum funding requirements for any plan year or part thereof under Section s 412 and 430 of the Code or Section s 302 and 303 of ERISA or a waiver of such standard is sought or granted under Section 412 (c) of the Code or Section 302(c) of ERISA, (ii) a contribution failure occurs with respect to any Plan sufficient to give rise to a lien under Section 303(k) of ERISA on assets of any Credit Party or any of their respective ERISA Affiliates, (iii) a Reportable Event shall have occurred, (iv) a contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan subject to Title IV of ERISA shall be subject to the advance reporting requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph (b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur with respect to such Plan within the following 30 days, (v) any Plan shall have had or is likely to have a trustee appointed to administer such Plan , under Section 4042 of ERISA, (vi) any Plan or any Multiemployer Plan is or shall have been or is likely to be terminated or to be the subject of termination proceedings under Section 4042 of ERISA, (vii) any Plan shall have an Unfunded Current Liability, (viii) a contribution required to be made with respect to a Plan, a Multiemployer Plan or a Foreign Pension Plan has not been timely made, (ix) any US Borrower or any of its Subsidiaries or any of their respective ERISA Affiliates has incurred or is likely to incur any liability to or on account of a Plan under Section 406, 409, 502(i), 502(l), 4062, 4063, 4064 or 4069 of ERISA or Section 401(a)(29), 4971 or 4975 of the Code or on account of a Multiemployer Plan under Section 515, 4201, 4204 or 4212 of ERISA or on account of a group health plan (as defined in Section 607(1) of ERISA, Section 4980B(g)(2) of the Code or 45 Code of Federal Regulations Section 160.103) under Section 4980B of the Code and/or the Health Insurance Portability and Accountability Act of 1996, (x) any US Borrower or any of its Subsidiaries has incurred or is likely to incur liabilities pursuant to one or more employee welfare benefit plans (as defined in Section 3(1) of ERISA)

-122-

 

that provide benefits to retired employees or other former employees (other than as required by Section 601 of ERISA) , (xi) a “default,” within the meaning of Section 4219(c)(5) of ERISA, shall occur with respect to any Plan , (xii) any Plan becomes in “at-risk” status (pursuant to Section 430(i) of the Code or Section 303(i) of ERISA) or any Multiemployer Plan becomes “insolvent” (as defined under Section 4245 of ERISA), is in “reorganization” (as defined under Section 4241 of ERISA) or becomes in “endangered or critical status” (as defined in Section 305 of ERISA), or (xiii) any US Borrower or any of its Subsidiaries or any of their respective ERISA Affiliates incurs any liabilities with respect to any Multiemployer Plans in the event of a complete or partial withdrawal (within the meanings of Sections 4203 and 4205 of ERISA) therefrom, or with respect to the withdrawal from any Plan subject to Section 4063 of ERISA during a plan year in which any such US Borrower or any of its Subsidiaries or any of their respective ERISA Affiliates was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; in each case, which event or events, either individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect;  

11.11 Guarantee .  Any Guarantee or any provision thereof shall cease to be in full force or effect as to any Guarantor (except as a result of a release of any Guarantor in accordance with the terms thereof and hereof), or any Guarantor or any Person acting for or on behalf of such Guarantor shall deny or disaffirm such Guarantor’s obligations under the Guarantee to which it is a party or any Guarantor shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to the Guarantee to which it is a party;

11.12 Criminal Forfeiture .  US Company, any Subsidiary of US Company or any Credit Party shall be criminally indicted or convicted under any law that could lead to a forfeiture of any Property of US Company, any Subsidiary of US Company or any other Credit Party;

11.13 Judgments .  Any money judgments, writ of attachment or similar processes (collectively, “ Judgments ”) are issued or rendered against US Company, any Subsidiary of US Company or any other Credit Party, or any of their respective Property (i) in the case of money judgments in an amount of $35,000,000 or the Equivalent Amount thereof or more for all such judgments, attachments or processes in the aggregate, in each case in excess of any applicable insurance with respect to which the insurer has admitted liability, and (ii) in the case of non-monetary Judgments, such Judgment or Judgments (in the aggregate) would reasonably be expected to have a Material Adverse Effect, in each case which Judgment is not stayed, released or discharged within 30 days; or

11.14 Change of Control .  A Change of Control shall occur;

then, and in any such event, and at any time thereafter, if any Event of Default shall then be continuing, the Administrative Agent, upon the written request of the Required Lenders, shall by written notice to the US Company, take any or all of the following actions, without prejudice to the rights of the Administrative Agent, any Lender or the holder of any Note to enforce its claims against any Credit Party ( provided that, if an Event of Default specified in Section 11.07 or Section 11.08 shall occur with respect to any Credit Party, the result which would occur upon the giving of written notice by the Administrative Agent as specified in clauses (a) and (b) below, shall occur automatically without the giving of any such notice):  (a) declare the Total Revolving Loan Commitment terminated, whereupon the Revolving Loan Commitment of each Lender shall forthwith terminate immediately and any Commitment Commission shall forthwith become due and payable without any other notice of any kind; (b) declare the principal of and any accrued interest in respect of all Loans and the Notes and all Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Credit Party; (c) terminate any Letter of Credit which may be terminated in accordance with its terms; (d) direct the Borrowers to pay (and the Borrowers jointly and severally agree that upon receipt of such notice, or upon the occurrence of an Event of Default specified in Section 11.07 or Section 11.08 with respect to any Borrower, they will pay) to the Collateral Agent at the Payment Office such additional amount of cash or Cash Equivalents, to be held as security by the Collateral Agent, as is equal to the aggregate Stated Amount of all Letters of Credit issued for the account of the Borrowers and then outstanding; (e) enforce, in its capacity as Administrative Agent or as Collateral Agent, all of the Liens and security interests created pursuant to the Security Documents; and (f) apply any cash collateral held by the Administrative Agent pursuant to Section 5.02 to the repayment of the Obligations

SECTION 12. The Administrative Agent and the Collateral Agent .

12.01 Appointment .  The Lenders hereby irrevocably designate and appoint Deutsche Bank AG New York Branch as Administrative Agent (for purposes of this Section 12 and Section 13.01 , the term “Administrative Agent” also shall include DBNY in its capacity as Collateral Agent pursuant to the Security Documents) to act as specified herein and in the other Credit Documents.  The Lenders hereby irrevocably designate and appoint Deutsche Bank AG New York Branch as Collateral Agent to act as specified herein and in the other Credit Documents.  Each Lender hereby irrevocably authorizes, and each holder of any Note by the acceptance of such Note shall be deemed irrevocably to authorize, the Administrative Agent to take such action on its behalf under the provisions of this Agreement, the other Credit Documents and any other instruments and agreements referred to herein or

-123-

 

therein and to exercise such powers and to perform such duties hereunder and thereunder as are specifically delegated to or required of the Administrative Agent by the terms hereof and thereof and such other powers as are reasonably incidental thereto.  Each Lender hereby irrevocably authorizes, each holder of any Note by the acceptance of such Note, and each other Secured Creditor by the acceptance of the Obligations secured by the Security Documents, shall be deemed irrevocably to authorize, the Collateral Agent to take such action on its behalf under the provisions of this Agreement and any other instruments and agreements referred to herein and to exercise such powers and to perform such duties hereunder as are specifically delegated or required of the Collateral Agent by the terms hereof and such other powers as are reasonably incidental thereto.  The Lenders hereby authorize the Collateral Agent (and any sub-agents appointed in accordance with Section 12.13 below), at its option and in its sole discretion, to execute powers of attorney in favor of US Company and/or its Subsidiaries with respect to the release of Liens on Collateral constituting Motor Vehicles which are sold in accordance with the terms of the Credit Documents. The Administrative Agent and the Collateral Agent may perform any of their respective duties hereunder or under any other Credit Document by or through its officers, directors, agents, employees or affiliates.  

12.02 Nature of Duties .  (a)  Neither the Administrative Agent nor the Collateral Agent shall have any duties or responsibilities except those expressly set forth in this Agreement and in the other Credit Documents.  Neither the Administrative Agent nor the Collateral Agent nor any of their respective  officers, directors, agents, employees or affiliates shall be liable for any action taken or omitted by it or them hereunder or under any other Credit Document or in connection herewith or therewith, unless caused by its or their gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).  The duties of the Administrative Agent and the Collateral Agent shall be mechanical and administrative in nature; neither the Administrative Agent nor the Collateral Agent shall have by reason of this Agreement or any other Credit Document a fiduciary relationship in respect of any Lender or the holder of any Note; and nothing in this Agreement or in any other Credit Document, expressed or implied, is intended to or shall be so construed as to impose upon the Administrative Agent or the Collateral Agent any obligations in respect of this Agreement or any other Credit Document except as expressly set forth herein or therein.

(b) Notwithstanding any other provision of this Agreement or any provision of any other Credit Document, each of the Lead Arrangers, the Joint Bookrunners, the Co-Syndication Agents, the Senior Managing Agents and the Co-Documentation Agents are named as such for recognition purposes only, and each in its respective capacity as such shall have no powers, duties, responsibilities or liabilities with respect to this Agreement or the other Credit Documents or the transactions contemplated hereby and thereby except as explicitly provided for herein; it being understood and agreed that each of the Lead Arrangers, the Joint Bookrunners, the Co-Syndication Agents, the Senior Managing Agents and the Co-Documentation Agents shall be entitled to all indemnification and reimbursement rights in favor of the Administrative Agent and the Collateral Agent as, and to the extent, provided for under Sections 12.06 and 13.01 .  Without limitation of the foregoing, each of the Lead Arrangers, the Joint Bookrunners, the Co-Syndication Agents, the Senior Managing Agents and the Co-Documentation Agents shall not, solely by reason of this Agreement or any other Credit Documents, have any fiduciary relationship in respect of any Lender or any other Person.

12.03 Lack of Reliance on the Administrative Agent and the Collateral Agent .  Independently and without reliance upon the Administrative Agent or the Collateral Agent, each Lender and the holder of each Note, to the extent it deems appropriate, has made and shall continue to make (a) its own independent investigation of the financial condition and affairs of US Company and its Subsidiaries in connection with the making and the continuance of the Loans and the participation in the Letters of Credit and the taking or not taking of any action in connection herewith and (b) its own appraisal of the creditworthiness of US Company and its Subsidiaries and, except as expressly provided in this Agreement, the Administrative Agent and the Collateral Agent shall not have any duty or responsibility, either initially or on a continuing basis, to provide any Lender or the holder of any Note with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or the issuance of any Letter of Credit or at any time or times thereafter.  Neither the Administrative Agent nor the Collateral Agent shall be responsible to any Lender or the holder of any Note for any recitals, statements, information, representations or warranties herein or in any document, certificate or other writing delivered in connection herewith or for the execution, effectiveness, genuineness, validity, enforceability, perfection, collectability, priority or sufficiency of this Agreement or any other Credit Document or the financial condition of US Company or any of its Subsidiaries or be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any other Credit Document, or the financial condition of US Company or any of its Subsidiaries or the existence or possible existence of any Default or Event of Default.

12.04 Certain Rights of the Agents .  If the Administrative Agent or the Collateral Agent shall request instructions from the Required Lenders with respect to any act or action (including failure to act) in connection with this Agreement or any other Credit Document, the Administrative Agent and the Collateral Agent shall be entitled to refrain from such act or taking such action unless and until the Administrative Agent or the Collateral Agent, as applicable, shall have received instructions from the Required Lenders; and the Administrative Agent and the Collateral Agent shall not incur liability to any Lender by reason of so refraining.  Without limiting the foregoing, neither any Lender nor the holder of any Note shall have any right of action whatsoever against the

-124-

 

Administrative Agent or the Collateral Agent as a result of the Administrative Agent or the Collateral Agent acting or refraining from acting hereunder or under any other Credit Document in accordance with the instructions of the Required Lenders.  

12.05 Reliance .  The Administrative Agent and the Collateral Agent shall be entitled to rely, and shall be fully protected in relying, upon any note, writing, resolution, notice, statement, certificate, telex, teletype or telecopier message, cablegram, radiogram, order or other document or telephone message signed, sent or made by any Person that the Administrative Agent or the Collateral Agent believed to be the proper Person, and, with respect to all legal matters pertaining to this Agreement and any other Credit Document and its duties hereunder and thereunder, upon advice of counsel selected by the Administrative Agent or the Collateral Agent, as the case may be.

12.06 Indemnification .  To the extent the Administrative Agent (or any affiliate thereof) or the Collateral Agent (or any affiliate thereof) is not reimbursed and indemnified by US Company or the Borrowers, the Lenders will reimburse and indemnify the Administrative Agent (and any affiliate thereof) or the Collateral Agent (and any affiliate thereof) in proportion to their respective “percentage” as used in determining the Required Lenders (determined as if there were no Defaulting Lenders) for and against any and all liabilities, obligations, losses, damages, Taxes, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Administrative Agent (or any affiliate thereof) or the Collateral Agent (or any affiliate thereof) in performing its respective duties hereunder or under any other Credit Document or in any way relating to or arising out of this Agreement or any other Credit Document; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, Taxes, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s (or such affiliates’ thereof) or the Collateral Agent’s (or such affiliates’ thereof) gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision); provided further, that nothing contained in this Section 12.06 shall be deemed to limit the obligations of the Borrowers pursuant to Section 13.01 .

12.07 The Administrative Agent and the Collateral Agent in their Individual Capacities .  With respect to their obligation to make Loans, or issue or participate in Letters of Credit, under this Agreement, the Administrative Agent and the Collateral Agent shall have the rights and powers specified herein for a “ Lender ” and may exercise the same rights and powers as though it were not performing the duties specified herein; and the term “ Lender ,” “ Required Lenders ,” “ Supermajority Lenders ,” “ holders of Notes ” or any similar terms shall, unless the context clearly indicates otherwise, include the Administrative Agent and the Collateral Agent in their respective individual capacities.  The Administrative Agent and the Collateral Agent and their respective affiliates may accept deposits from, lend money to, and generally engage in any kind of banking, investment banking, trust or other business with, or provide debt financing, equity capital or other services (including financial advisory services) to any Credit Party or any Affiliate of any Credit Party (or any Person engaged in a similar business with any Credit Party or any Affiliate thereof) as if they were not performing the duties specified herein, and may accept fees and other consideration from any Credit Party or any Affiliate of any Credit Party for services in connection with this Agreement and otherwise without having to account for the same to the Lenders.

12.08 Holders .  The Administrative Agent and the Collateral Agent may deem and treat the payee of any Note as the owner thereof for all purposes hereof unless and until a written notice of the assignment, transfer or endorsement thereof, as the case may be, shall have been filed with the Administrative Agent.  Any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is the holder of any Note shall be conclusive and binding on any subsequent holder, transferee, assignee or endorsee, as the case may be, of such Note or of any Note or Notes issued in exchange therefor.

12.09 Resignation and Removal of the Administrative Agent and the Collateral Agent .  (a)  

(i) The Administrative Agent and/or the Collateral Agent may resign from the performance of all their respective functions and duties hereunder and/or under the other Credit Documents at any time by giving 15 Business Days’ prior written notice to the Lenders and, unless a Default or an Event of Default under Section 11.08 then exists, the US Company.  Any such resignation by the Administrative Agent hereunder shall also constitute its resignation as an Issuing Lender and the Swingline Lender, in which case the resigning Administrative Agent (x) shall not be required to issue any further Letters of Credit or make any additional Swingline Loans hereunder and (y) shall maintain all of its rights as Issuing Lender or Swingline Lender, as the case may be, with respect to any Letters of Credit issued by it, or Swingline Loans made by it, prior to the date of such resignation.  Such resignation of the Administrative Agent and/or Collateral Agent shall take effect upon the appointment of a successor Administrative Agent and/or Collateral Agent, as applicable, pursuant to clauses (b) and (c) below or as otherwise provided below.

(ii) If the Person serving as Administrative Agent and/or Collateral Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by Applicable Law, by giving 15 Business Days’ prior written notice to such Person and, unless a Default or an Event of Default under Section 11.08 then exists, the US Company, remove such Person as Administrative Agent and/or Collateral Agent, as applicable.  Any such

-125-

 

removal of the Administrative Agent hereunder shall also constitute its removal as an Issuing Lender and the Swingline Lender, in which case the removed Administrative Agent (x) shall not be required to issue any further Letters of Credit or make any additional Swingline Loans hereunder and (y) shall maintain all of its rights as Issuing Lender or Swingline Lender, as the case may be, with respect to any Letters of Credit issued by it, or Swingline Loans made by it, prior to the date of such removal.  Such removal of the Administrative Agent and/or Collateral Agent shall take effect upon the appointment of a successor Administrative Agent and/or Collateral Agent, as applicable, pursuant to clauses (b) and (c) below or as otherwise provided below.  

(b) Upon any such notice of resignation by or removal of the Administrative Agent and/or Collateral Agent, the Required Lenders shall appoint a successor Administrative Agent and/or Collateral Agent, as applicable, hereunder and under the other Credit Documents from among the Lenders, who shall be a commercial bank or trust company reasonably acceptable to US Company, which acceptance shall not be unreasonably withheld or delayed ( provided that US Company’s approval shall not be required if an Event of Default then exists).

(c) If a successor Administrative Agent and/or Collateral Agent shall not have been so appointed within such 15 Business Day period, the Administrative Agent and/or Collateral Agent, as applicable, with the consent of US Company (which consent shall not be unreasonably withheld or delayed, provided that US Company’s consent shall not be required if an Event of Default then exists), shall then appoint a successor Administrative Agent and/or Collateral Agent, as applicable, who shall serve as Administrative Agent and/or Collateral Agent, as applicable, hereunder and under the other Credit Documents until such time, if any, as the Required Lenders appoint a successor Administrative Agent and/or Collateral Agent, as applicable, as provided above.

(d) If no successor Administrative Agent and/or Collateral Agent, as applicable, has been appointed pursuant to clause (b) or (c) above by the 20th day after the date such notice of resignation was given by the Administrative Agent and/or Collateral Agent, as applicable, or such notice of removal was given by the Required Lenders, as applicable, the Administrative Agent’s and/or Collateral Agent’s, as applicable, resignation or removal shall become effective and the Required Lenders shall thereafter perform all the duties of the Administrative Agent and/or Collateral Agent, as applicable, hereunder and/or under any other Credit Document until such time, if any, as the Required Lenders appoint a successor Administrative Agent and/or Collateral Agent, as applicable, as provided above.

(e) Upon a resignation or removal of the Administrative Agent or the Collateral Agent pursuant to this Section 12.09 , such Agent shall remain indemnified to the extent provided in this Agreement and the other Credit Documents and the provisions of this Section 12 (and the analogous provisions of the other Credit Documents) shall continue in effect for the benefit of such Agent for all of its actions and inactions while serving as an Agent hereunder and under the other Credit Documents.

12.10 Collateral Matters . (a)  Each Lender authorizes and directs the Collateral Agent to enter into the Security Documents for the benefit of the Lenders and the other Secured Creditors.  Each Lender hereby agrees, and each holder of any Note by the acceptance thereof will be deemed to agree, and each other Secured Creditor by its acceptance of the Obligations will be deemed to agree, that, except as otherwise set forth herein, any action taken by the Required Lenders in accordance with the provisions of this Agreement and the Security Documents, and the exercise by 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 Secured Creditors.  The Collateral Agent is hereby authorized on behalf of all of the Secured Creditors, without the necessity of any notice to or further consent from any Secured Creditor, from time to time prior to an Event of Default, to take any action with respect to any Collateral or Security Documents which may be necessary to perfect and maintain perfected the security interest in and liens upon the Collateral granted pursuant to the Security Documents.  Without prejudice to the foregoing, each of the Administrative Agent and the Secured Creditors hereby acknowledges, agrees and accepts that the Collateral Agent holds Collateral which is the subject of the UK Security Agreements as trustee for and on behalf of the Secured Creditors in accordance with the terms of the declaration of trust set out in the UK Security Agreements and that the terms of its appointment, and such trust, shall be as set out (or referred to) in the UK Security Agreements and this Agreement.  

(b) The Secured Creditors hereby authorize the Collateral Agent, at its option and in its discretion, to release any Lien granted to or held by the Collateral Agent upon any Collateral (i) upon termination of the Total Revolving Loan Commitment (and all Letters of Credit) and payment and satisfaction of all of the Obligations (other than (A) contingent indemnification obligations and (B) Banking Products Obligations and any Qualified Derivative Obligations owing to a Banking Products Provider or a Qualified Derivative Counterparty, as applicable, as to which arrangements reasonably satisfactory to the applicable Banking Products Provider or a Qualified Derivative Counterparty shall have been made) at any time arising under or in respect of this Agreement or the Credit Documents or the transactions contemplated hereby or thereby, (ii) constituting property being sold or otherwise disposed of (to Persons other than US Company and its Subsidiaries) upon the sale or other disposition thereof in compliance with Section 10.03 , (iii) if approved, authorized or ratified in writing by the Required Lenders (or all of the Lenders hereunder, to the extent required by Section 13.12(a) ) or (iv) as otherwise may be expressly provided in the relevant Security

-126-

 

Documents.  The Secured Creditors hereby irrevocably authorize the Collateral Agent, at its option and in its discretion, to subordinate any Lien granted to Collateral Agent on Collateral if required by the holder of any Indebtedness (including Capitalized Lease Obligations) secured by Purchase Money Liens and Leases permitted hereunder or Liens permitted by Section 10.02(n) .  Upon request by the Administrative Agent at any time, the Secured Creditors will confirm in writing the Collateral Agent’s authority to release particular types or items of Collateral pursuant to this Section 12.10 .  

(c) The Collateral Agent shall have no obligation whatsoever to the Secured Creditors or to any other Person to assure that the Collateral exists or is owned by any Credit Party or is cared for, protected or insured or that the Liens granted to the Collateral Agent herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise or to continue exercising at all or in any manner or under any duty of care, disclosure or fidelity any of the rights, authorities and powers granted or available to the Collateral Agent in this Section 12.10 , or in any of the Security Documents, it being understood and agreed that in respect of the Collateral, or any act, omission or event related thereto, the Collateral Agent may act in any manner it may deem appropriate, in its sole discretion, given the Collateral Agent’s own interest in the Collateral as one of the Lenders and that the Collateral Agent shall have no duty or liability whatsoever to the Secured Creditors, except for its gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).  For purposes of this Section 12.10 and any related or similar provision of this Agreement, references to “Collateral Agent” shall be deemed to also be references to the Administrative Agent in its capacity as the grantee or mortgagee or similar role under any Mortgage.

12.11 Delivery of Information .  Neither the Administrative Agent nor the Collateral Agent shall be required to deliver to any Lender originals or copies of any documents, instruments, notices, communications or other information received by the Administrative Agent or the Collateral Agent from any Credit Party, any Subsidiary thereof, the Required Lenders, any Lender or any other Person under or in connection with this Agreement or any other Credit Document except (a) as specifically provided in this Agreement or any other Credit Document and (b) as specifically requested from time to time in writing by any Lender with respect to a specific document, instrument, notice or other written communication received by and in the possession of the Administrative Agent or the Collateral Agent, as the case may be, at the time of receipt of such request and then only in accordance with such specific request.

12.12 Withholding .  To the extent required by Applicable Law, the Administrative Agent may withhold from any payment to any Lender or other Person receiving a payment under the Credit Documents an amount equivalent to any applicable withholding tax.  If the Internal Revenue Service or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold tax from amounts paid to or for the account of any Lender or other Person receiving payment under the Credit Documents because such Lender or other Person failed to notify the Administrative Agent that withholding on payments was required, including, without limitation, because of a change in circumstances which rendered an exemption from or reduction of withholding tax ineffective or for any other reason, such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including any penalties or interest and together with all expenses incurred.

12.13 Delegation of Duties . Each of Administrative Agent and Collateral Agent may perform any and all of its duties and exercise its rights and powers under this Agreement or under any other Credit Document by or through any one or more sub-agents appointed by Administrative Agent or Collateral Agent, as applicable. Administrative Agent, Collateral Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Affiliates. The exculpatory, indemnification and other provisions of Section 12.02 and of Section 12.06 shall apply to any Affiliates of Administrative Agent or Collateral Agent and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent and Collateral Agent.  All of the rights, benefits, and privileges (including the exculpatory and indemnification provisions) of Section 12.02 and of Section 12.06 shall apply to any such sub-agent and to the Affiliates of any such sub-agent, and shall apply to their respective activities as sub-agent as if such sub-agent and Affiliates were named herein.  Notwithstanding anything herein to the contrary, with respect to each sub-agent appointed by Administrative Agent or Collateral Agent, as applicable (i) such sub-agent shall be a third party beneficiary under this Agreement with respect to all such rights, benefits and privileges (including exculpatory rights and rights to indemnification) and shall have all of the rights and benefits of a third party beneficiary, including an independent right of action to enforce such rights, benefits and privileges (including exculpatory rights and rights to indemnification) directly, without the consent or joinder of any other Person, against any or all of Credit Parties and the Lenders, (ii) such rights, benefits and privileges (including exculpatory rights and rights to indemnification) shall not be modified or amended without the consent of such sub-agent, and (iii) such sub-agent shall only have obligations to Administrative Agent or Collateral Agent, as applicable, and not to any Credit Party, Lender or any other Person and no Credit Party, Lender or any other Person shall have any rights, directly or indirectly, as a third party beneficiary or otherwise, against such sub-agent.

-127-

 

12.14 Quebec Security . In  its capacity as Collateral Agent hereunder, Deutsche Bank AG New York Branch is hereby appointed and shall serve as the hypothecary representative for each present and future Lender (for its benefit and the benefit of its Affiliates), each Issuing Lender, the Administrative Agent and each other Agent as contemplated by Article 2692 of the Civil Code of Quebec for purposes of holding any security required hereby to be granted by any Borrower or by an Affiliate or Subsidiary of any Borrower governed by the laws of the Province of Quebec.  

SECTION 13. Miscellaneous.

13.01 Payment of Expenses, etc .  The Credit Parties hereby jointly and severally agree to:  (a) whether or not the transactions herein contemplated are consummated, pay all reasonable out-of-pocket costs and expenses (including Expenses) of the Administrative Agent and the Collateral Agent (including, without limitation, the reasonable fees and disbursements of Latham & Watkins LLP and the Administrative Agent’s and Collateral Agent’s other counsel and consultants and the fees and expenses in connection with the appraisals and collateral examinations required pursuant to Section 9.02 ) in connection with the preparation, execution, delivery and administration of this Agreement and the other Credit Documents and the documents and instruments referred to herein and therein and any amendment, waiver or consent relating hereto or thereto, of the Administrative Agent and its Affiliates in connection with its or their syndication efforts with respect to this Agreement and of the Administrative Agent and the Collateral Agent and, after the occurrence of an Event of Default, each of the Issuing Lenders and Lenders in connection with the enforcement of this Agreement and the other Credit Documents and the documents and instruments referred to herein and therein or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or pursuant to any insolvency or bankruptcy proceedings (including, in each case without limitation, the reasonable fees and disbursements of counsel and consultants for the Administrative Agent and the Collateral Agent and, after the occurrence of an Event of Default, counsel for each of the Issuing Lenders and Lenders); (b) pay and hold the Administrative Agent, each of the Issuing Lenders and each of the Lenders harmless from and against any and all present and future stamp, excise, court or documentary, intangible, recording, filing and other similar documentary Taxes with respect to the foregoing matters (collectively, the “ Other Taxes ”)  and save the Administrative Agent, each of the Issuing Lenders and each of the Lenders harmless from and against any and all liabilities with respect to or resulting from any delay or omission (other than to the extent attributable to the gross negligence or willful misconduct of the Administrative Agent, such Issuing Lender or such Lender) to pay such Other Taxes; and (c) indemnify each Arranger, the Administrative Agent, the Collateral Agent, each Issuing Lender and each Lender, and each of their respective officers, directors, employees, representatives, agents, affiliates, trustees and investment advisors (collectively, the “ Indemnified Persons ”) from and hold each of them harmless against any and all liabilities, obligations (including removal or remedial actions), losses, damages, penalties, claims, actions, judgments, suits, costs, expenses and disbursements (including reasonable attorneys’ and consultants’ fees and disbursements) incurred by, imposed on or assessed against any of them as a result of, or arising out of, or in any way related to, or by reason of, (i) any investigation, litigation or other proceeding (whether or not the Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender is a party thereto and whether or not such investigation, litigation or other proceeding is brought by or on behalf of any Credit Party) related to the entering into and/or performance of this Agreement or any other Credit Document or the use of any Letter of Credit or the proceeds of any Loans hereunder or the consummation of the Transactions or any other transactions contemplated herein or in any other Credit Document or the exercise of any of their rights or remedies provided herein or in the other Credit Documents, or (ii) the actual or alleged presence of Hazardous Materials in the air, surface water or groundwater or on the surface or subsurface of any Real Property at any time owned, leased or operated by US Company or any of its Subsidiaries, the generation, storage, transportation, handling or disposal of Hazardous Materials by US Company or any of its Subsidiaries at any location, whether or not owned, leased or operated by US Company or any of its Subsidiaries, the non-compliance by US Company or any of its Subsidiaries with any Environmental Law (including applicable permits thereunder) applicable to any Real Property, or any Environmental Claim asserted against US Company, any of its Subsidiaries or any Real Property at any time owned, leased or operated by US Company or any of its Subsidiaries, including, in each case, without limitation, the reasonable fees and disbursements of counsel and other consultants incurred in connection with any such investigation, litigation or other proceeding (but excluding any losses, liabilities, claims, damages or expenses to the extent incurred by reason of the gross negligence or willful misconduct of the Person to be indemnified (as determined by a court of competent jurisdiction in a final and non-appealable decision)).  To the extent that the undertaking to indemnify, pay or hold harmless any Indemnified Person set forth in the preceding sentence may be unenforceable because it is violative of any law or public policy, the Credit Parties jointly and severally shall make the maximum contribution to the payment and satisfaction of each of the indemnified liabilities which is permissible under Applicable Law.  In addition, the Credit Parties jointly and severally agree to reimburse the Administrative Agent and the Collateral Agent for all reasonable third party administrative, audit and monitory expenses incurred in connection with the Borrowing Base and determinations thereunder.  For the avoidance of doubt, except with respect to Other Taxes, this Section 13.01 shall not apply to Taxes which shall be governed by Section 5.04 , Section 5.05 or Section 5.06 , as applicable, other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.

To the full extent permitted by applicable law, each of US Company and each other Credit Party shall not assert, and hereby waives, any claim against any Indemnified Person, on any theory of liability, for special, indirect, consequential or incidental damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or

-128-

 

instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnified Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Credit Documents or the transactions contemplated hereby or thereby, except to the extent the liability of such Indemnified Person results from such Indemnified Person’s gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).

13.02 Right of Setoff. (a)  In addition to any rights now or hereafter granted under Applicable Law or otherwise, and not by way of limitation of any such rights, upon the occurrence and during the continuance of an Event of Default, the Administrative Agent, the Collateral Agent, each Issuing Lender and each Lender is hereby authorized at any time or from time to time, without presentment, demand, protest or other notice of any kind to any Credit Party or to any other Person, any such notice being hereby expressly waived,  but with prior written notice to the Administrative Agent, to set off and to appropriate and apply any and all deposits (general or special) and any other Indebtedness at any time held or owing by the Administrative Agent, the Collateral Agent, such Issuing Lender or such Lender (including, without limitation, by branches and agencies of the Administrative Agent, the Collateral Agent, such Issuing Lender or such Lender wherever located) to or for the credit or the account of US Company or any of its Subsidiaries against and on account of the Obligations and liabilities of the Credit Parties to the Administrative Agent, the Collateral Agent, such Issuing Lender or such Lender under this Agreement or under any of the other Credit Documents, including, without limitation, all interests in Obligations purchased by such Lender pursuant to Section 13.04(b), and all other claims of any nature or description arising out of or connected with this Agreement or any other Credit Document, irrespective of whether or not the Administrative Agent, the Collateral Agent, such Issuing Lender or such Lender shall have made any demand hereunder and although said Obligations, liabilities or claims, or any of them, shall be contingent or unmatured; provided that notwithstanding anything to the contrary contained in this Section 13.02(a), the Administrative Agent and each Lender hereby waive all rights of setoff, whether granted hereunder, pursuant to any Applicable Law or otherwise, with respect to any LKE Proceeds.

(b) NOTWITHSTANDING THE FOREGOING SUBSECTION (a), AT ANY TIME THAT THE LOANS OR ANY OTHER OBLIGATION SHALL BE SECURED BY REAL PROPERTY LOCATED IN CALIFORNIA, NO LENDER SHALL EXERCISE A RIGHT OF SETOFF, LIEN OR COUNTERCLAIM OR TAKE ANY COURT OR ADMINISTRATIVE ACTION OR INSTITUTE ANY PROCEEDING TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR ANY NOTE UNLESS IT IS TAKEN WITH THE CONSENT OF THE REQUIRED LENDERS OR APPROVED IN WRITING BY THE ADMINISTRATIVE AGENT, IF SUCH SETOFF OR ACTION OR PROCEEDING WOULD OR MIGHT (PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580a, 580b, 580d AND 726 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE OR SECTION 2924 OF THE CALIFORNIA CIVIL CODE, IF APPLICABLE, OR OTHERWISE) AFFECT OR IMPAIR THE VALIDITY, PRIORITY OR ENFORCEABILITY OF THE LIENS GRANTED TO THE COLLATERAL AGENT PURSUANT TO THE SECURITY DOCUMENTS OR THE ENFORCEABILITY OF THE NOTES AND OTHER OBLIGATIONS HEREUNDER, AND ANY ATTEMPTED EXERCISE BY ANY LENDER OF ANY SUCH RIGHT WITHOUT OBTAINING SUCH CONSENT OF THE REQUIRED LENDERS OR THE ADMINISTRATIVE AGENT SHALL BE NULL AND VOID.  THIS SUBSECTION (b) SHALL BE SOLELY FOR THE BENEFIT OF EACH OF THE LENDERS AND THE ADMINISTRATIVE AGENT HEREUNDER.

13.03 Notices . (a) Except as otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including telegraphic, telecopier or cable communication) and mailed, telegraphed, telecopied, cabled or delivered:  (i) if to any Credit Party, at the following address:

Mobile Mini, Inc.
4646 E. Van Buren Street, Suite 400

Phoenix, AZ 85008
Attention:  Chief Financial Officer
Email: MFunk@mobilemini.com
Phone:  (480) 477-0241  
Fax: (480) 281-3451

With a copy to:

 

DLA Piper LLP (US)

1251 Avenue of the Americas

New York, New York 10020

Attention: Jamie Knox

Phone: (212) 335-4500

Fax: (212) 335-4501

-129-

 

(ii) if to any Lender, at its address specified on Schedule 13.03 ; and (c) if to the Administrative Agent or the Collateral Agent, at the Notice Office; or, as to any Credit Party or the Administrative Agent or the Collateral Agent, at such other address as shall be designated by such party in a written notice to the other parties hereto and, as to each Lender, at such other address as shall be designated by such Lender in a written notice to US Company and the Administrative Agent; provided that any notice to the Administrative Agent of the filing by a Credit Party of a document with the SEC pursuant to Section 9.01(f) or (g) may be given by email.  All such notices and communications shall, when mailed, telegraphed, telecopied, or cabled or sent by overnight courier, be effective when deposited in the mails, delivered to the telegraph company, cable company or overnight courier, as the case may be, or sent by telecopier, except that notices and communications to the Administrative Agent, the Collateral Agent, US Company, UK Company and Canadian Company shall not be effective until received by the Administrative Agent, US Company, UK Company or Canadian Company, as the case may be.

(b) Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Section 2 unless otherwise agreed by the Administrative Agent and the applicable Lender. Each of the Administrative Agent, the US Company and  the other Borrowers may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.

 

13.04 Benefit of Agreement; Assignments; Participations . (a)  This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and assigns of the parties hereto; provided , however , that neither US Company nor any other Credit Party may assign or transfer any of its rights, obligations or interest hereunder without the prior written consent of the Lenders (and any other attempted assignment or transfer by US Company or any other Credit Party shall be null and void) and, provided further , that, although any Lender may transfer, assign or grant participations in its rights hereunder, such Lender shall remain a “Lender” for all purposes hereunder (and may not transfer or assign all or any portion of its Revolving Loan Commitment hereunder except as provided in Sections 2.13 and 13.04(b) ) and the transferee, assignee or participant, as the case may be, shall not constitute a “Lender” hereunder and, provided further , that no Lender shall transfer or grant any participation under which the participant shall have rights to approve any amendment to or waiver of this Agreement or any other Credit Document except to the extent such amendment or waiver would (i) extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the Final Maturity Date) in which such participant is participating or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates) or reduce the principal amount thereof (it being understood that any amendment or modification to the financial definitions in this Agreement or to Section 13.07 (a) shall not constitute a reduction in the rate of interest or Fees payable hereunder), or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Total Revolving Loan Commitment shall not constitute a change in the terms of such participation, and that an increase in any Revolving Loan Commitment (or the available portion thereof) or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (ii) consent to the assignment or transfer by US Company or any Credit Party of any of its rights and obligations under this Agreement or (iii) release all or substantially all of the Collateral under all of the Security Documents (except as expressly provided in the Credit Documents) supporting the Loans or Letters of Credit hereunder in which such participant is participating.  In the case of any such participation, the participant shall not have any rights under this Agreement or any of the other Credit Documents (the participant’s rights against such Lender in respect of such participation to be those set forth in the agreement executed by such Lender in favor of the participant relating thereto) and all amounts payable by the Credit Parties hereunder shall be determined as if such Lender had not sold such participation.  Notwithstanding the foregoing, a participant that holds a US Obligation shall be entitled to the benefits, and bound by the obligations, of Section 5.04 as though it were a Lender; provided , however , that such participant shall not be entitled to receive any greater payment under Section 5.04 than the applicable Lender would have been entitled to receive with respect to the participation transferred to such participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Credit Documents (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any commitments, loans, letters of credit or its other obligations under any Credit Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  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.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(b) Notwithstanding the foregoing, any Lender (or any Lender together with one or more other Lenders) may (x) assign all or a portion of its Revolving Loan Commitment and related outstanding Obligations (or, if the Revolving Loan

-130-

 

Commitment has terminated, outstanding Obligations) hereunder to (i) (A) its parent company and/or any affiliate of such Lender which is at least 50% owned by such Lender or its parent company or (B) to one or more other Lenders or any affiliate of any such other Lender which is at least 50% owned by such other Lender or its parent company ( provided that any fund that invests in loans and is managed or advised by the same investment advisor of another fund which is a Lender (or by an Affiliate of such investment advisor) shall be treated as an affiliate of such other Lender for the purposes of this sub-clause (x)(i)(B)), provided, that no such assignment may be made to any such Person that is, or would at such time constitute, a Defaulting Lender or (ii) in the case of any Lender that is a fund that invests in loans, any other fund that invests in loans and is managed or advised by the same investment advisor of any Lender or by an Affiliate of such investment advisor or (y) assign all, or if less than all, a portion equal to at least $5,000,000 or the Equivalent Amount thereof in the aggregate for the assigning Lender or assigning Lenders, of such Revolving Loan Commitments and related outstanding Obligations (or, if the Revolving Loan Commitments have terminated, outstanding Obligations) hereunder to one or more Eligible Transferees (treating any fund that invests in loans and any other fund that invests in loans and is managed or advised by the same investment advisor of such fund or by an Affiliate of such investment advisor as a single Eligible Transferee), each of which assignees shall become a party to this Agreement as a Lender by execution of an Assignment and Assumption Agreement, provided that (i) at such time, Schedule 1.01(a) shall be deemed modified to reflect the Revolving Loan Commitments and/or outstanding Revolving Loans, as the case may be, of such new Lender and of the existing Lenders, (ii) upon the surrender of the relevant Notes by the assigning Lender (or, upon such assigning Lender’s indemnifying the Borrowers for any lost Note pursuant to a customary indemnification agreement) new Notes will be issued, at the Borrowers’ joint and several expense, to such new Lender and to the assigning Lender upon the request of such new Lender or assigning Lender, such new Notes to be in conformity with the requirements of Section 2.05 (with appropriate modifications) to the extent needed to reflect the revised Revolving Loan Commitments and/or outstanding Revolving Loans, as the case may be, (iii) the consent of the Administrative Agent and, so long as no Event of Default then exists, the US Company, shall be required in connection with any such assignment pursuant to clause (y) above (such consents, in any case, not to be unreasonably withheld, delayed or conditioned); provided that the US Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within 5 Business Days after having received notice thereof, (iv) the consent of each Issuing Lender shall be required in connection with any such assignment of Revolving Loan Commitments (and related Obligations) pursuant to clause (y) above (such consent, in any case, not to be unreasonably withheld), (v) the Administrative Agent shall receive at the time of each such assignment, from the assigning or assignee Lender, the payment of a non-refundable assignment fee of $3,500 (provided that only one such fee shall be payable in the case of one or more concurrent assignments by or to investment funds managed or advised by the same investment advisor or an affiliated investment advisor) and (vi) no such transfer or assignment will be effective until recorded by the Administrative Agent on the Register pursuant to Section 13.15 .  To the extent of any assignment pursuant to this Section 13.04(b) , the assigning Lender shall be relieved of its obligations hereunder with respect to its assigned Revolving Loan Commitment and outstanding Revolving Loans.  At the time of each assignment of a US Obligation pursuant to this Section 13.04(b) to a Person which is not already a Lender hereunder which is a Non-U.S. Lender, the respective assignee Lender shall, to the extent legally entitled to do so, provide to the US Company the appropriate Internal Revenue Service Forms (and, if applicable, a Section 5.04(b)(ii) Certificate) described in Section 5.04(b) .  To the extent that an assignment of all or any portion of a Lender’s Revolving Loan Commitment and related outstanding Obligations pursuant to Section 2.13 or this Section 13.04(b) would, at the time of such assignment, result in increased costs under Section 2.10 , 3.16 , 3.17 , 3.18 , 5.04 , 5.05 or 5.06 from those being charged by the respective assigning Lender prior to such assignment, then the Borrowers shall not be obligated to pay such increased costs (although the Borrowers, in accordance with and pursuant to the other provisions of this Agreement, shall be obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective assignment).  

(c) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(d) Any Lender which assigns all of its Revolving Loan Commitment and/or Loans hereunder in accordance with Section 13.04(b) shall cease to constitute a “Lender” hereunder, except with respect to indemnification provisions under this Agreement (including, without limitation, Sections 2.10 , 2.11 , 3.16 , 3.17 , 3.18 , 5.04 , 5.05 , 12.06 , 13.01 and 13.06 ), which shall survive as to such assigning Lender.

13.05 No Waiver; Remedies Cumulative . No failure or delay on the part of the Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender in exercising any right, power or privilege hereunder or under any other Credit Document and no course of dealing between US Company or any other Credit Party and the Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder or under any other Credit Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder.  The rights, powers and remedies herein or in any other Credit Document expressly provided are cumulative and not exclusive of any rights, powers or remedies which the Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender would otherwise have.  No notice to or demand on any Credit Party in any case shall entitle any

-131-

 

Credit Party to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Administrative Agent, the Collateral Agent, any Issuing Lender or any Lender to any other or further action in any circumstances without notice or demand.  

13.06 Payments Pro Rata . (a) Except as otherwise provided in this Agreement, the Administrative Agent agrees that promptly after its receipt of each payment from or on behalf of any Borrower in respect of any Obligations hereunder, the Administrative Agent shall distribute such payment to the Lenders entitled thereto (other than any Lender that has consented in writing to waive its pro rata share of any such payment) pro rata based upon their respective shares, if any, of the Obligations with respect to which such payment was received.

(b) Each of the Lenders agrees that, if it should receive any amount hereunder (whether by voluntary payment, by realization upon security, by the exercise of the right of setoff or banker’s lien, by counterclaim or cross action, by the enforcement of any right under the Credit Documents, or otherwise), which is applicable to the payment of the principal of, or interest on, the Loans, Unpaid US Drawings, Unpaid UK Drawings, Unpaid Canadian Drawings, Commitment Commission or Letter of Credit Fees, of a sum which with respect to the related sum or sums received by other Lenders is in a greater proportion than the total of such Obligation then owed and due to such Lender bears to the total of such Obligation then owed and due to all of the Lenders immediately prior to such receipt, then such Lender receiving such excess payment shall purchase for cash without recourse or warranty from the other Lenders an interest in the Obligations of the respective Credit Party to such Lenders in such amount as shall result in a proportional participation by all the Lenders in such amount; provided that if all or any portion of such excess amount is thereafter recovered from such Lenders, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.

(c) Notwithstanding anything to the contrary contained herein, the provisions of the preceding Sections 13.06(a) and (b) shall be subject to the express provisions of this Agreement which require, or permit, differing payments to be made to Non-Defaulting Lenders as opposed to Defaulting Lenders.

13.07 Calculations; Computations . (a) The financial statements to be furnished to the Lenders pursuant hereto shall be made and prepared in accordance with GAAP consistently applied throughout the periods involved (except as set forth in the notes thereto or as otherwise disclosed in writing by US Company to the Lenders); provided that, (i) except as otherwise specifically provided herein, all computations and all definitions (including accounting terms) shall utilize GAAP and policies in conformity with those used to prepare the audited financial statements of US Company referred to in Section 8.10(a) for the fiscal year ended December 31, 2014 and (ii) to the extent expressly provided herein, certain calculations shall be made on a pro forma basis.

(b) All computations of interest, Commitment Commission and other Fees hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first day but excluding the last day; except that in the case of Letter of Credit Fees and Facing Fees, the last day shall be included) occurring in the period for which such interest, Commitment Commission or Fees are payable; provided , however , all computations of interest on Base Rate Loans and Canadian Prime Rate Loans determined by reference to the Prime Lending Rate or the Canadian Prime Rate, as applicable, shall be made on the basis of a year of 365/366 days (as applicable) for the actual number of days occurring in the period for which such interest is payable.

(c) For purposes of the Interest Act (Canada), (i) whenever any interest or fee under this Agreement or any Note is calculated using a rate based on a year of 360 or 365 days, the rate determined pursuant to such calculation, when expressed as an annual rate, is equivalent to (x) the applicable rate based on a year of 360 or 365 days, as the case may be, (y) multiplied by the actual number of days in the calendar year in which the period for which such interest or fee is payable (or compounded) ends, and (z) divided by 360 or 365, as the case may be, (ii) the principle of deemed reinvestment of interest does not apply to any interest or fee calculation under this Agreement and any Note, and (iii) the rates of interest stipulated in this Agreement and any Note are intended to be nominal rates and not effective rates or yields.

13.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY TRIAL . (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE PROVIDED IN ANY MORTGAGE, BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).  ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT, EACH BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS.  EACH BORROWER HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK PERSONAL

-132-

 

JURISDICTION OVER SUCH CREDIT PARTY, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFOREMENTIONED COURTS, THAT SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH BORROWER.  EACH BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH BORROWER AT ITS ADDRESS SET FORTH OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.  EACH BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE.  NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, ANY ISSUING LENDER, ANY LENDER OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST EACH BORROWER IN ANY OTHER JURISDICTION.  

(b) EACH BORROWER IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

13.09 Counterparts . This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument.  A set of counterparts executed by all the parties hereto shall be lodged with US Company, the Borrowers and the Administrative Agent.  Delivery of an executed counterpart hereof by facsimile or other electronic transmission shall be as effective as delivery of an original executed counterpart hereof.

13.10 Effectiveness . This Agreement shall become effective on the date (the “ Effective Date ”) on which (i) US Company, the Borrowers, the Administrative Agent and each of the Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered the same to the Administrative Agent at the Notice Office or, in the case of the Lenders, shall have given to the Administrative Agent telephonic (confirmed in writing), written or telex notice (actually received) at such office that the same has been signed and mailed to it and (ii) each of the other conditions set forth in Section 6 shall have been met to the reasonable satisfaction of the Administrative Agent.  Unless the Administrative Agent has received actual notice from any Lender that the conditions described in clause (ii) of the preceding sentence have not been met to its satisfaction, upon the satisfaction of the condition described in clause (i) of the immediately preceding sentence and upon the Administrative Agent’s good faith determination that the conditions described in clause (ii) of the immediately preceding sentence have been met, then the Effective Date shall be deemed to have occurred, regardless of any subsequent determination that one or more of the conditions thereto had not been met (although the occurrence of the Effective Date shall not release the Borrowers from any liability for failure to satisfy one or more of the applicable conditions contained in Section 6 , other than any condition that must be satisfied to the Administrative Agent’s satisfaction or other subjective standard of similar effect).  The Administrative Agent will give US Company, the other Borrowers and each Lender prompt written notice of the occurrence of the Effective Date.

13.11 Headings Descriptive . The headings of the several sections and subsections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.

13.12 Amendment or Waiver; etc . (a) Neither this Agreement nor any other Credit Document nor any terms hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing signed by the respective Credit Parties party hereto or thereto and the Required Lenders although additional parties may be added to (and annexes may be modified to reflect such additions) and, other than as further set forth below, Subsidiaries of the US Company may be deleted from, the Guaranty and the Security Documents in accordance with the provisions hereof and thereof without the consent of the other Credit Parties party thereto or the Required Lenders, provided that no such change, waiver, discharge or termination shall, without the consent of each Lender (other than, except with respect to the following clause (i), a Defaulting Lender) (with Obligations being directly affected in the case of following clause (i)), (i) extend the final scheduled maturity of any Loan or Note, extend the final expiration date of the Revolving Loan Commitment of any Lender, or extend the stated expiration date of any

-133-

 

Letter of Credit beyond the Final Maturity Date, or reduce the rate or extend the time of payment of interest or Fees thereon (except in connection with the waiver of applicability of any post-default increase in interest rates), or reduce (or forgive) the principal amount thereof (it being understood that any amendment or modification to the financial definitions in this Agreement or to Section 13.07(a) shall not constitute a reduction in the rate of interest or Fees for the purposes of this clause (i)), (ii) release all or substantially all of the Collateral (except as expressly provided in the Credit Documents) under all the Security Documents, (iii) amend, modify or waive any provision of this Section 13.12(a) (except for technical amendments with respect to additional extensions of credit pursuant to this Agreement which afford the protections to such additional extensions of credit of the type provided to the Revolving Loan Commitments and the Loans on the Effective Date), (iv) reduce the “majority” voting threshold specified in the definition of Required Lenders (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Required Lenders on substantially the same basis as the extensions of Revolving Loan Commitments are included on the Effective Date), (v) consent to the assignment or transfer by US Company or any Borrower of any of their rights and obligations under this Agreement, (vi) amend, change or modify this Agreement or any Security Document in any manner that would change the effect of Section 5.03(d) hereof, Section 8.4 of the US Security Agreement, Section 9 of the US Pledge Agreement, Clause 19 of the UK Debentures, Clause 14 of the UK Share Charges, Section 8.7 of the Canadian Security Agreement, Section 21(15) of the Canadian Share Pledge Agreement or any similar provision of any Security Document, (vii) amend, change or modify the provisions of Section 2.17 or 5.02(a)(i) , (ii) , (iii) , (iv) , (v) or (vi) ; or (viii) subordinate the Liens granted for the benefit of the Secured Creditors in respect of the Collateral under any of the Security Documents; provided further, that no such change, waiver, discharge or termination shall (1) increase the Revolving Loan Commitment of any Lender over the amount thereof then in effect without the consent of such Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Total Revolving Loan Commitment shall not constitute an increase of the Revolving Loan Commitment of any Lender, and that an increase in the available portion of the Revolving Loan Commitment of any Lender shall not constitute an increase of the Revolving Loan Commitment of such Lender), (2) without the consent of each Issuing Lender, amend, modify or waive any provision of Section 2 or alter its rights or obligations with respect to Letters of Credit, (3) without the consent of the Swingline Lender, alter the Swingline Lender’s rights or obligations with respect to Swingline Loans, (4) without the consent of the Administrative Agent, amend, modify or waive any provision of Section 12 or any other provision of this Agreement or any other Credit Document as same relates to the rights or obligations of the Administrative Agent, (5) without the consent of the Collateral Agent, amend, modify or waive any provision relating to the rights or obligations of the Collateral Agent, or (6) without the consent of the Supermajority Lenders, (w) release any Guarantor with assets in the US Borrowing Base, UK Borrowing Base or Canadian Borrowing Base from any obligations arising under the Guarantees, (x) amend the definition of Supermajority Lenders (it being understood that, with the consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be included in the determination of the Supermajority Lenders on substantially the same basis as the extensions of Loans and Revolving Loan Commitments are included on the Effective Date), (y) amend the definition of Aggregate Borrowing Base, US Borrowing Base, UK Borrowing Base or Canadian Borrowing Base (or, in each case, any defined terms as used therein) as such definitions are set forth herein on the Effective Date (or as same may be amended from time to time pursuant to this clause (y)) in any manner which would have the effect of increasing availability thereunder as determined in good faith by the Administrative Agent (it being understood that the establishment, modification or elimination of Reserves and adjustment, establishment and elimination of criteria for Eligible Accounts, Eligible Container Fleet Inventory, Eligible Cabin Fleet Inventory, Eligible Container Inventory Held For Sale, Eligible Goods Inventory, Eligible Machinery and Equipment, Eligible Raw Materials Inventory, Eligible Real Property, Eligible Trailer Fleet Inventory and Eligible Work-In-Process Container Inventory, in each case by the Administrative Agent or the Collateral Agent in accordance with the terms hereof, will not be deemed such an increase in advance rates) or (z) increase the percentage of the US Borrowing Base for which Agent Advances may be made pursuant to Section 2.01(i) .  

(b) If, in connection with any proposed change, waiver, discharge or termination of or to any of the provisions of this Agreement as contemplated by clauses (i) through (viii), inclusive, of the first proviso to Section 13.12(a) , the consent of the Required Lenders is obtained but the consent of one or more of such other Lenders whose consent is required is not obtained, then the Borrowers shall have the right, so long as all non-consenting Lenders whose individual consent is required are treated as described in either clause (A) or (B) below, to either (A) replace each such non-consenting Lender or Lenders with one or more Replacement Lenders pursuant to Section 2.13 so long as at the time of such replacement, each such Replacement Lender consents to the proposed change, waiver, discharge or termination or (B) terminate such non-consenting Lender’s Revolving Loan Commitment and/or repay all outstanding Revolving Loans of such Lender and/or Cash Collateralize its applicable RL Percentage of the Letter of Credit of Outstandings in accordance with Sections 4.02(b) and/or 5.01(b) , provided that, unless the Revolving Loan Commitments which are terminated and Revolving Loans which are repaid pursuant to preceding clause (B) are immediately replaced in full at such time through the addition of new Lenders or the increase of the Revolving Loan Commitments and/or outstanding Revolving Loans of existing Lenders (who in each case must specifically consent thereto), then in the case of any action pursuant to preceding clause (B), the Required Lenders (determined after giving effect to the proposed action) shall specifically consent thereto, provided further , that the Borrowers shall not have the right to replace a Lender, terminate its Revolving Loan Commitment or repay its Revolving Loans solely as a result of the exercise of such Lender’s rights (and the withholding of any required consent by such Lender) pursuant to the second proviso to Section 13.12(a).

-134-

 

(c) Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by the Borrowers, the Required Lenders and the Administrative Agent (and, if their rights or obligations are affected thereby, each Issuing Lender and the Swingline Lender) if (i) by the terms of such agreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and (ii) at the time such amendment becomes effective, each Lender not consenting thereto receives payment (including pursuant to an assignment to a replacement Lender in accordance with Section 13.04 ) in full of this principal of and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement.  

(d) Notwithstanding anything to the contrary contained in this Section 13.12 , (x) Security Documents (including any Additional Security Documents) and related documents executed by Subsidiaries in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be amended, supplemented and waived with the consent of the Administrative Agent and the Borrowers without the need to obtain the consent of any other Person if such amendment, supplement or waiver is delivered in order (i) to comply with local Law or advice of local counsel, (ii) to cure ambiguities, omissions, mistakes or defects or (iii) to cause such Security Document or other document to be consistent with this Agreement and the other Credit Documents and (y) if following the Effective Date, the Administrative Agent and any Credit Party shall have jointly identified an ambiguity, inconsistency, obvious error or any error or omission of a technical or immaterial nature, in each case, in any provision of the Credit Documents (other than the Security Documents), then the Administrative Agent and the Credit Parties shall be permitted to amend such provision and such amendment shall become effective without any further action or consent of any other party to any Credit Documents if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice thereof.

13.13 Survival . All indemnities set forth herein including, without limitation, in Sections 2.10 , 2.11 , 3.16 , 3.17 , 3.18 , 5.04 , 5.05 , 12.06 , 13.01 and 13.17 shall survive the execution, delivery and termination of this Agreement and the Notes and the making and repayment of the Obligations.

13.14 Domicile of Loans . Each Lender may transfer and carry its Loans at, to or for the account of any office, Subsidiary or Affiliate of such Lender.  Notwithstanding anything to the contrary contained herein, to the extent that a transfer of Loans pursuant to this Section 13.14 would, at the time of such transfer, result in increased costs under Section 2.10 , 2.11 , 3.16 , 3.17 , 3.18 , 5.04 or 5.05 from those being charged by the respective Lender prior to such transfer, then the Borrowers shall not be obligated to pay such increased costs (although the Borrowers shall be jointly and severally obligated to pay any other increased costs of the type described above resulting from changes after the date of the respective transfer).

13.15 Register . The Borrowers hereby designate the Administrative Agent to serve as its agent, solely for purposes of this Section 13.15, to maintain a register (the “ Register ”) on which it will record the Revolving Loan Commitments from time to time of each of the Lenders, the Loans made by each of the Lenders (and stated interest thereon) and each repayment in respect of the principal or interest amount of the Loans of each Lender.  Failure to make any such recordation, or any error in such recordation, shall not affect the Borrowers’ obligations in respect of such Loans.  With respect to any Lender, the transfer of the Revolving Loan Commitment of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Revolving Loan Commitment shall not be effective until such transfer is recorded on the Register maintained by the Administrative Agent with respect to ownership of such Revolving Loan Commitment and Loans and prior to such recordation all amounts owing to the transferor with respect to such Revolving Loan Commitment and Loans shall remain owing to the transferor.  The registration of assignment or transfer of all or part of any Revolving Loan Commitments and Loans shall be recorded by the Administrative Agent on the Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment and Assumption Agreement pursuant to Section 13.04(b) .  Upon such acceptance and recordation, the assignee specified therein shall be treated as a Lender for all purposes of this Agreement.  Coincident with the delivery of such an Assignment and Assumption Agreement to the Administrative Agent for acceptance and registration of assignment or transfer of all or part of a Loan, or as soon thereafter as practicable, the assigning or transferor Lender shall surrender the Note (if any) evidencing such Loan, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the assigning or transferor Lender and/or the new Lender at the request of any such Lender.  The Borrowers jointly and severally agree to indemnify the Administrative Agent from and against any and all losses, claims, damages and liabilities of whatsoever nature which may be imposed on, asserted against or incurred by the Administrative Agent in performing its duties under this Section 13.15 .  Upon the request of any Lender, the Administrative Agent shall provide such Lender with the Revolving Loan Commitment and outstanding Loan amount of such Lender as such information has been recorded in the Register.

13.16 Confidentiality . (a) Subject to the provisions of clause (b) of this Section 13.16 , each Lender agrees that it will use its reasonable efforts not to disclose without the prior consent of the US Company (other than to its employees, officers, partners, directors, agents, trustees, auditors, advisors or counsel or to another Lender if such Lender or such Lender’s holding or parent company in its sole discretion determines that any such party should have access to such information, provided such Persons shall be subject to the provisions of this Section 13.16 to the same extent as such Lender) any information with respect to US

-135-

 

Company or any of its Subsidiaries which is now or in the future furnished pursuant to this Agreement or any other Credit Document, provided that any Lender may disclose any such information (i) as has become generally available to the public other than by virtue of a breach of this Section 13.16(a) by the respective Lender, (ii) as may be required or appropriate in any report, statement or testimony submitted to any municipal, state or Federal regulatory body having or claiming to have jurisdiction over such Lender or to the Federal Reserve Board or the Federal Deposit Insurance Corporation or similar organizations (including any self-regulatory authority with appropriate jurisdiction such as the National Association of Insurance Commissioners) (whether in the United States or elsewhere) or their successors, (iii) as may be required or appropriate in respect to any summons or subpoena or in connection with any litigation, (iv) in order to comply with any law, order, regulation or ruling applicable to such Lender, (v) to the Administrative Agent or the Collateral Agent, (vi) in connection with the exercise of any remedies hereunder or under any other Credit Document or any action or proceeding relating to this Agreement or any other Credit Document or the enforcement of rights hereunder or thereunder, (vii) on a confidential basis to (A) any rating agency in connection with rating the Borrowers or their Subsidiaries or the credit facilities provided hereunder or (B) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers of other market identifiers with respect to the credit facilities provided hereunder, (viii) to any direct or indirect contractual counterparty in any swap, hedge, securitization, derivative or similar agreement, or to any insurance provider related to the Obligations under this Agreement (or to any such contractual counterparty’s or insurance provider’s professional advisor), so long as such contractual counterparty or insurance provider (or such professional advisor) agrees to be bound by the provisions of this Section   13.16 and (ix) to any prospective or actual transferee, pledgee or participant in connection with any contemplated transfer, pledge or participation of any of the Notes or Revolving Loan Commitments or any interest therein by such Lender, provided that such prospective transferee, pledgee or participant agrees to be bound by the confidentiality provisions contained in this Section 13.16 .  In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Agents and the Lenders in connection with the administration of this Agreement, the other Credit Documents, and the Commitments.  

(b) US Company and the Borrowers hereby acknowledge and agree that each Lender may share with any of its affiliates, and such affiliates may share with such Lender, any information related to US Company or any of its Subsidiaries (including, without limitation, any non-public customer information regarding the creditworthiness of US Company and its Subsidiaries), provided such Persons shall be subject to the provisions of this Section 13.16 to the same extent as such Lender.

13.17 No Fiduciary Duty . Each Arranger, each Agent, each Lender and their respective Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Credit Parties, their stockholders and/or their respective affiliates.  Each Credit Party agrees that nothing in the Credit Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and any Credit Party, its respective stockholders or its respective affiliates, on the other. The Credit Parties acknowledge and agree that: (i) the transactions contemplated by the Credit Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, each Credit Party, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Credit Party, its respective stockholders or its respective affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Credit Party, its respective stockholders or its respective Affiliates on other matters) or any other obligation to any Credit Party except the obligations expressly set forth in the Credit Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of such Credit Party, its respective management, stockholders, creditors or any other Person. Each Credit Party acknowledges and agrees that such Credit Party has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each Credit Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Credit Party, in connection with such transaction or the process leading thereto.

13.18 Patriot Act . Each Lender subject to the USA PATRIOT ACT (Title 111 of Pub. L. 107-56 (signed into law October 26, 2001)) (the “ Patriot Act ”) hereby notifies US Company and the Borrowers that pursuant to the requirements of the Patriot Act, they are required to obtain, verify and record information that identifies US Company, the Borrowers and the other Credit Parties and other information that will allow such Lender to identify US Company, the Borrowers and the other Credit Parties in accordance with the Patriot Act.  The Credit Parties shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.

13.19 Interest Rate Limitation . Notwithstanding anything to the contrary contained in any Credit Document, the interest paid or agreed to be paid under the Credit Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable law (the “ Maximum Rate ”).  If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the

-136-

 

Borrowers.  In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.  

13.20 Release of Borrowers . In the event that all of the Equity Interests of one or more Borrowers (other than the US Company) is sold or otherwise disposed of or liquidated in compliance with the requirements of Section 10.03 (or such sale, other disposition or liquidation has been approved in writing by the Required Lenders (or all Lenders if required by Section 13.12 )), such Borrower shall, upon consummation of such sale or other disposition (except to the extent that such sale or disposition is to US Company or any of its Wholly-Owned Subsidiaries), be released from this Agreement and each remaining Borrower agrees that, with no action on its part required, the remaining Borrowers shall remain jointly and severally liable for all Obligations.

13.21 Amendment and Restatement . It is the intention of each of the parties hereto that (a) the Existing Credit Agreement be amended and restated in its entirety pursuant to this Agreement so as to preserve the perfection and priority of all security interests securing indebtedness and obligations under the Existing Credit Agreement, (b) that all Indebtedness and Obligations of the Borrowers and the Guarantors hereunder and under the other Credit Documents shall be secured by the liens and security interests evidenced under the Credit Documents (as defined in the Existing Credit Agreement), as amended hereby and by the Master Reaffirmation Agreements, the UK Second Supplemental Debenture, the UK Second Supplemental Partnership Debenture and the UK Second Supplemental Share Charge and that such documents (other than any such documents which have been amended and restated on the Effective Date) shall continue in full force and effect as so amended and (c) that this Agreement does not constitute a novation or termination of the obligations and liabilities existing under the Existing Credit Agreement (or serve to terminate Sections 12.06 and 13.01 of the Existing Credit Agreement or any of the Borrowers’ obligations thereunder with respect to the Agents (as defined in the Existing Credit Agreement) or the Lenders (as defined in the Existing Credit Agreement) or any other Indemnified Persons (as defined in the Existing Credit Agreement).  The parties hereto further acknowledge and agree that this Agreement constitutes an amendment of the Existing Credit Agreement made under and in accordance with the terms of Section 13.12 of the Existing Credit Agreement.  In addition, unless specifically amended hereby, each of the Credit Documents shall continue in full force and effect.  This Agreement restates and replaces, in its entirety, the Existing Credit Agreement; from and after the Effective Date, any reference in any of the other Credit Documents to the “ABL Credit Agreement” or the “Credit Agreement” or any like term shall be deemed to refer to this Agreement.  Each Lender with a Revolving Loan Commitment on the Effective Date shall be deemed to have agreed that its Revolving Loan Commitment set forth on Schedule 1.01(a) hereto replaces in its entirety such Lender’s “Revolving Loan Commitment” under the Existing Credit Agreement (if any) and each such Lender shall further be deemed to agree that (a) the repayment in full of all outstanding “Revolving Loans” and “Swingline Loans” (each as defined in the Existing Credit Agreement) together with all interest, fees and other amounts accrued and payable thereon and all fees and other amounts accrued and payable in respect of all “Letters of Credit” (as defined in the Existing Credit Agreement) under the Existing Credit Agreement, in each case, to such date on the Effective Date with the proceeds of the initial Borrowing of Revolving Loans under this Agreement, (b) the continuance of the outstanding “Letters of Credit” (as defined in the Existing Credit Agreement) as Letters of Credit under this Agreement, constitutes the payment in full of all Obligations owed to it under the Existing Credit Agreement (other than unasserted contingent obligations that would survive the termination of the Existing Credit Agreement) and (c) such Lender waives the right to any compensation due under Section 2.11 of the Existing Credit Agreement solely as a result of the early repayment in full of all outstanding “Revolving Loans” (as defined in the Existing Credit Agreement) on the Effective Date.

SECTION 14. Nature of Borrower Obligations .

14.01 Nature of Borrower Obligations . (a) Notwithstanding anything to the contrary contained elsewhere in this Agreement, it is understood and agreed by the various parties to this Agreement that all US Obligations to repay principal of, interest on, and all other amounts with respect to, all US Revolving Loans, US Swingline Loans, US Letters of Credit and all other US Obligations pursuant to this Agreement and each other Credit Document, Banking Products Agreement and Qualified Derivative Agreement (including, without limitation, all fees, indemnities, taxes and other US Obligations in connection therewith or in connection with the related Revolving Loan Commitments) shall constitute the joint and several obligations of each of the US Borrowers.  In addition to the direct (and joint and several) obligations of the US Borrowers with respect to US Obligations as described above, all such US Obligations shall be guaranteed pursuant to, and in accordance with the terms of, the Guaranties.

(b) Notwithstanding anything to the contrary contained elsewhere in this Agreement, it is understood and agreed by the various parties to this Agreement that all UK Obligations to repay principal of, interest on, and all other amounts with respect to, all UK Revolving Loans, UK Swingline Loans, UK Letters of Credit and all other UK Obligations pursuant to this Agreement and each other Credit Document, Banking Products Agreement and Qualified Derivative Agreement (including, without limitation, all fees, indemnities, taxes and other UK Obligations in connection therewith or in connection with the related Revolving Loan Commitments) shall constitute the joint and several obligations of each of the US Borrowers, the UK Borrowers and the

-137-

 

Canadian Borrowers.  In addition to the direct (and joint and several) obligations of the US Borrowers, the UK Borrowers and the Canadian Borrowers with respect to UK Obligations as described above, all such UK Obligations shall be guaranteed pursuant to, and in accordance with the terms of, the Guaranties.  

(c) Notwithstanding anything to the contrary contained elsewhere in this Agreement, it is understood and agreed by the various parties to this Agreement that all Canadian Obligations to repay principal of, interest on, and all other amounts with respect to, all Canadian Revolving Loans, Canadian Letters of Credit and all other Canadian Obligations pursuant to this Agreement and each other Credit Document, Banking Products Agreement and Qualified Derivative Agreement (including, without limitation, all fees, indemnities, taxes and other Canadian Obligations in connection therewith or in connection with the related Revolving Loan Commitments) shall constitute the joint and several obligations of each of the US Borrowers, the UK Borrowers and the Canadian Borrowers.  In addition to the direct (and joint and several) obligations of the US Borrowers, the UK Borrowers and the Canadian Borrowers with respect to Canadian Obligations as described above, all such Canadian Obligations shall be guaranteed pursuant to, and in accordance with the terms of, the Guaranties

14.02 Independent Obligation . The obligations of each Borrower with respect to the Obligations are independent of the obligations of each other Borrower or any Guarantor under the Guaranty of such Obligations, and a separate action or actions may be brought and prosecuted against each Borrower, whether or not any other Borrower or any Guarantor is joined in any such action or actions.  Each Borrower waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement thereof.  Any payment by any Borrower or other circumstance which operates to toll any statute of limitations as to any Borrower shall, to the fullest extent permitted by law, operate to toll the statute of limitations as to each Borrower.

14.03 Authorization . Each of the Borrowers authorizes the Administrative Agent, the Collateral Agent, the Issuing Lender, the Lenders and the other Secured Creditors without notice or demand (except as shall be required by applicable statute and cannot be waived), and without affecting or impairing its liability hereunder, from time to time to:

(a) exercise or refrain from exercising any rights against any other Borrower or any Guarantor or others or otherwise act or refrain from acting;

(b) release or substitute any other Borrower, endorsers, Guarantors or other obligors;

(c) settle or compromise any of the Obligations of any other Borrower or any other Credit Party, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Borrower to its creditors other than the Lenders;

(d) apply any sums paid by any other Borrower or any other Person, howsoever realized to any liability or liabilities of such other Borrower or other Person regardless of what liability or liabilities of such other Borrower or other Person remain unpaid; and/or

(e) consent to or waive any breach of, or act, omission or default under, this Agreement or any of the instruments or agreements referred to herein, or otherwise, by any other Borrower or any other Person.

14.04 Reliance . It is not necessary for the Administrative Agent, the Collateral Agent, any Issuing Lender, any Lender or any other Secured Creditor to inquire into the capacity or powers of US Company, any Borrower or any of its Subsidiaries or the officers, directors, members, partners or agents acting or purporting to act on its behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall constitute the joint and several obligations of the Borrowers hereunder.

14.05 Contribution; Subrogation . No Borrower shall have any rights of contribution or subrogation with respect to any other Borrower as a result of payments made by it hereunder, in each case unless and until the Total Revolving Loan Commitment and all Letters of Credit have been terminated and all Obligations have been paid in full in cash.

14.06 Waiver . Each Borrower waives any right to require the Administrative Agent, the Collateral Agent, the Issuing Lenders, the Lenders or any other Secured Creditor to (i) proceed against any other Borrower, any Guarantor or any other party, (ii) proceed against or exhaust any security held from any Borrower, any Guarantor or any other party or (iii) pursue any other remedy in the Administrative Agent’s, the Collateral Agent’s, any Issuing Lender’s, any Lender’s or any other Secured Creditor’s power whatsoever.  Each Borrower waives any defense based on or arising out of suretyship or any impairment of security held from any Borrower, any Guarantor or any other party or on or arising out of any defense of any other Borrower, any Guarantor or any other

-138-

 

party other than payment in full in cash of the Obligations, including, without limitation, any defense based on or arising out of the disability of any other Borrower, any Guarantor or any other party, or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, in each case other than as a result of the payment in full in cash of the Obligations.  

SECTION 15. Guarantee .

15.01 The Guarantees . (a) The US Guarantors hereby jointly and severally guarantee, as a primary obligor and not as a surety to each Secured Creditor and their respective successors and assigns, the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the principal of and interest (including any interest, fees, costs or charges that would accrue but for the provisions of the Title 11 of the United States Code after any bankruptcy or insolvency petition under Title 11 of the United States Code) on the US Revolving Loans made by the Lenders to, and the corresponding Notes held by each Lender of, the US Borrowers, and all other US Obligations from time to time owing to the Secured Creditors by any US Credit Party (such obligations being herein collectively called the “ US Guaranteed Obligations ”).  The US Guarantors hereby jointly and severally agree that if any US Borrower or any US Guarantor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the US Guaranteed Obligations, the US Guarantors will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the US Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.

(b) The Non-US Obligation Guarantors hereby jointly and severally guarantee, as a primary obligor and not as a surety to each Secured Creditor and their respective successors and assigns, the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the principal of and interest (including any interest, fees, costs or charges that would accrue but for the provisions of the Title 11 of the United States Code after any bankruptcy or insolvency petition under Title 11 of the United States Code) on the UK Revolving Loans and the Canadian Revolving Loans made by the Lenders to, and the corresponding Notes held by each Lender of, each UK Borrower and each Canadian Borrower, and all other UK Obligations and Canadian Obligations from time to time owing to the Secured Creditors by any UK Credit Party or Canadian Credit Party (such obligations being herein collectively called the “ Non-US Guaranteed Obligations ”).  The Non-US Obligation Guarantors hereby jointly and severally agree that if any UK Borrower or any Canadian Borrower or any other Non-US Obligation Guarantor shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Non-US Guaranteed Obligations, the Non-US Obligation Guarantors will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Non-US Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.

15.02 Obligations Unconditional . (a) The obligations of the US Guarantors under Section 15.01(a) shall constitute a guaranty of payment (and not of collection) and to the fullest extent permitted by Applicable Law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the US Guaranteed Obligations under this Agreement, the corresponding Notes, if any, or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any other guarantee of or security for any of the US Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or US Guarantor (except for payment in full).  Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the US Guarantors hereunder which shall remain absolute, irrevocable and unconditional under any and all circumstances as described above :

(i) at any time or from time to time, without notice to the US Guarantors, the time for any performance of or compliance with any of the US Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;

(ii) any of the acts mentioned in any of the provisions of this Agreement or the Notes, if any, or any other agreement or instrument referred to herein or therein shall be done or omitted;

(iii) the maturity of any of the US Guaranteed Obligations shall be accelerated, or any of the US Guaranteed Obligations shall be amended in any respect, or any right under the Credit Documents or any other agreement or instrument referred to herein or therein shall be amended or waived in any respect or any other guarantee of any of the US Guaranteed Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;

-139-

 

(iv) any Lien or security interest granted to, or in favor of, any US Issuing Lender or any Lender or Collateral Agent as security for any of the US Guaranteed Obligations shall fail to be perfected; or  

(v) the release of any other US Guarantor pursuant to Section 15.09(a) .

The US Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that any Secured Creditor exhaust any right, power or remedy or proceed against any US Borrower, UK Borrower or Canadian Borrower under this Agreement or the Notes, if any, or any other agreement or instrument referred to herein or therein, or against any other person under any other guarantee of, or security for, any of the US Guaranteed Obligations.  The US Guarantors waive any and all notice of the creation, renewal, extension, waiver, termination or accrual of any of the US Guaranteed Obligations and notice of or proof of reliance by any Secured Creditor upon this US Guarantee or acceptance of this Guarantee, and the US Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between US Borrowers and the Secured Creditors shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee.  This Guarantee shall be construed as a continuing, absolute, irrevocable and unconditional guarantee of payment (and not of collection) without regard to any right of offset with respect to the US Guaranteed Obligations at any time or from time to time held by Secured Creditors, and the obligations and liabilities of the US Guarantors hereunder shall not be conditioned or contingent upon the pursuit by the Secured Creditors or any other person at any time of any right or remedy against the US Borrowers or against any other person which may be or become liable in respect of all or any part of the US Guaranteed Obligations or against any collateral security or guarantee therefor or right of offset with respect thereto.  This Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the US Guarantors and the successors and assigns thereof, and shall inure to the benefit of the Lenders, and their respective successors and assigns, notwithstanding that from time to time during the term of this Agreement there may be no US Guaranteed Obligations outstanding.

(b) The obligations of the Non-US Obligation Guarantors under Section 15.01(b) shall constitute a guaranty of payment (and not of collection) and to the fullest extent permitted by Applicable Law, are absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Non-US Guaranteed Obligations under this Agreement, the corresponding Notes, if any, or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any other guarantee of or security for any of the Non-US Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Non-US Obligation Guarantor (except for payment in full).  Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Non-US Obligation Guarantors hereunder which shall remain absolute, irrevocable and unconditional under any and all circumstances as described above:

(i) at any time or from time to time, without notice to the Non-US Obligation Guarantors, the time for any performance of or compliance with any of the Non-US Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;

(ii) any of the acts mentioned in any of the provisions of this Agreement or the Notes, if any, or any other agreement or instrument referred to herein or therein shall be done or omitted;

(iii) the maturity of any of the Non-US Guaranteed Obligations shall be accelerated, or any of the Non-US Guaranteed Obligations shall be amended in any respect, or any right under the Credit Documents or any other agreement or instrument referred to herein or therein shall be amended or waived in any respect or any other guarantee of any of the Non-US Guaranteed Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;

(iv) any Lien or security interest granted to, or in favor of, any UK Issuing Lender, Canadian Issuing Lender or any Lender or Collateral Agent as security for any of the Non-US Guaranteed Obligations shall fail to be perfected; or

(v) the release of any other Non-US Obligation Guarantor pursuant to Section 15.09(b) .

(c) The Non-US Obligation Guarantors hereby expressly waive any requirement that any Secured Creditor exhaust any right, power or remedy or proceed against the UK Borrowers and the Canadian Borrowers under this Agreement or the Notes, if any, or any other agreement or instrument referred to herein or therein, or against any other person under any other guarantee of, or security for, any of the Non-US Guaranteed Obligations.  The Non-US Obligation Guarantors waive any and all notice of the creation, renewal, extension, waiver, termination or accrual of any of the Non-US Guaranteed Obligations and notice of or proof of reliance by any Secured Creditor upon this Guarantee or acceptance of this Guarantee, and the Non-US Guaranteed Obligations, and

-140-

 

any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between any UK Borrower, any Canadian Borrower and the Secured Creditors shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee.  This Guarantee shall be construed as a continuing, absolute, irrevocable and unconditional guarantee of payment (and not of collection) without regard to any right of offset with respect to the Non-US Guaranteed Obligations at any time or from time to time held by Secured Creditors, and the obligations and liabilities of the Non-US Obligation Guarantors hereunder shall not be conditioned or contingent upon the pursuit by the Secured Creditors or any other person at any time of any right or remedy against any UK Borrower or Canadian Borrower or against any other person which may be or become liable in respect of all or any part of the Non-US Guaranteed Obligations or against any collateral security or guarantee therefor or right of offset with respect thereto.  This Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Non-US Obligation Guarantors and the successors and assigns thereof, and shall inure to the benefit of the Lenders, and their respective successors and assigns, notwithstanding that from time to time during the term of this Agreement there may be no Non-US Guaranteed Obligations outstanding.  

15.03 Reinstatement . (a) The obligations of the US Guarantors under this Section 15 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any US Borrower, any UK Borrower, any Canadian Borrower or any US Guarantor in respect of the US Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the US Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.

(b) The obligations of the Non-US Obligation Guarantors under this Section 15 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any of the UK Borrowers, the Canadian Borrowers or any Non-US Obligation Guarantor in respect of the Non-US Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Non-US Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.

15.04 Subrogation; Subordination . (a) Each US Guarantor hereby agrees that until the indefeasible payment and satisfaction in full in cash of all US Guaranteed Obligations and the expiration and termination of the Revolving Loan Commitments of the Lenders under this Agreement it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 15.01(a) , whether by subrogation or otherwise, against US Borrower, UK Borrower, Canadian Borrower or any other US Guarantor of any of the US Guaranteed Obligations or any security for any of the US Guaranteed Obligations.  Any Indebtedness of any US Credit Party permitted pursuant to Section 10.05(e) shall be subordinated to such US Credit Party’s US Obligations, UK Obligation and Canadian Obligations in the manner set forth in the intercompany note evidencing such Indebtedness (in a form reasonably acceptable to the Administrative Agent).

(b) Each Non-US Obligation Guarantor hereby agrees that until the indefeasible payment and satisfaction in full in cash of all Non-US Guaranteed Obligations and the expiration and termination of the Revolving Loan Commitments of the Lenders to make UK Revolving Loans and Canadian Revolving Loans under this Agreement it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in Section 15.01(b) , whether by subrogation or otherwise, against any of the UK Borrowers, Canadian Borrowers or any other Non-US Obligation Guarantor of any of the Non-US Guaranteed Obligations or any security for any of the Non-US Guaranteed Obligations.  Any Indebtedness of any Credit Party permitted pursuant to Section 10.05(e) shall be subordinated to such Credit Party’s UK Obligations and Canadian Obligations in the manner set forth in the intercompany note evidencing such Indebtedness (in a form reasonably acceptable to the Administrative Agent).

15.05 Remedies . (a) The US Guarantors jointly and severally agree that, as between the US Guarantors and the Lenders, the obligations of the US Borrowers, UK Borrowers and Canadian Borrowers under this Agreement and the corresponding Notes, if any, may be declared to be forthwith due and payable as provided in Section 11 (and shall be deemed to have become automatically due and payable in the circumstances provided in Section 11 ) for purposes of Section 15.01(a) , notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against any US Borrower, UK Borrower or Canadian Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by US Borrower, UK Borrower or Canadian Borrower) shall forthwith become due and payable by the US Guarantors for purposes of Section 15.01(a) .

(b) The Non-US Obligation Guarantors jointly and severally agree that, as between the Non-US Obligation Guarantors and the Lenders, the obligations of the UK Borrowers and the Canadian Borrowers under this Agreement and the corresponding Notes, if any, may be declared to be forthwith due and payable as provided in Section 11 (and shall be deemed to have become automatically due and payable in the circumstances provided in Section 11 ) for purposes of Section 15.01(b) , notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against any UK Borrower or Canadian Borrower and that, in the event of such declaration (or such obligations being

-141-

 

deemed to have become automatically due and payable), such obligations (whether or not due and payable by a UK Borrower) shall forthwith become due and payable by the Non-US Obligation Guarantors for purposes of Section 15.01(b) .  

15.06 Instrument for Payment of Money . (a) Each US Guarantor hereby acknowledges that the guarantee in this Section 15 constitutes an instrument for the payment of money, and consents and agrees that any Lender or Administrative Agent, at its sole option, in the event of a dispute by such US Guarantor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.

(b) Each Non-US Obligation Guarantor hereby acknowledges that the guarantee in this Section 15 constitutes an instrument for the payment of money, and consents and agrees that any Lender or Administrative Agent, at its sole option, in the event of a dispute by such Non-US Obligation Guarantor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.

15.07 Continuing Guarantee . (a) The guarantee in this Section 15.01(a) is a continuing guarantee of payment (and not of collection), and shall apply to all US Guaranteed Obligations whenever arising.

(b) The guarantee in this Section 15.01(b) is a continuing guarantee of payment (and not of collection), and shall apply to all Non-US Guaranteed Obligations whenever arising.

15.08 General Limitation on Guarantee Obligations . (a) In any action or proceeding involving any state corporate, limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any US Guarantor under Section 15.01(a) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 15.01(a) , then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such US Guarantor, any US Credit Party, UK Credit Party or Canadian Credit Party or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 15.10(a)) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.

(b) In any action or proceeding involving any state corporate, limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of any Non-US Obligation Guarantor under Section 15.01(b) would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 15.01(b) , then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Non-US Obligation Guarantor, any US Credit Party, any UK Credit Party, Canadian Credit Party or any other person, be automatically limited and reduced to the highest amount (after giving effect to the right of contribution established in Section 15.10(b) ) that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.

(c) Notwithstanding any provision to the contrary in contained in this agreement or in any Credit Document, the guarantee provided under Section 15.01(b) by any Canadian Loan Party shall be an unlimited, unconditional full recourse guarantee of only the Non-US Guaranteed Obligations.

15.09 Release of Guarantors . (a) If, in compliance with the terms and provisions of the Credit Documents, all or substantially all of the Equity Interests or property of any US Guarantor are sold or otherwise transferred (a “ US Transferred Guarantor ”) to a person or persons, none of which is a US Borrower or a Domestic Subsidiary of US Company, or liquidated in a transaction permitted under the Credit Documents, such US Transferred Guarantor shall, upon the consummation of such sale or transfer, be automatically released from its obligations under this Agreement and its obligations to pledge and grant any Collateral owned by it pursuant to any Security Document or Pledge Agreement and, in the case of a sale of all or substantially all of the Equity Interests of the US Transferred Guarantor, the pledge of such Equity Interests to the Collateral Agent pursuant to the Security Agreements or Pledge Agreements shall be automatically released, and the Collateral Agent shall take such actions as are necessary to effect each release described in this Section 15.09 in accordance with the relevant provisions of the Security Documents or Pledge Agreements, so long as US Company shall have provided the Administrative Agent such certifications or documents as Administrative Agent shall reasonably request in order to demonstrate compliance with this Agreement; provided that, if the Equity Interests or property of any US Guarantor are sold or otherwise transferred to a person or persons who are a Foreign Subsidiary of US Company, US Company shall take such actions as reasonably necessary or required in order to make such US Guarantor a Non-US Obligation Guarantor.

-142-

 

(b) If, in compliance with the terms and provisions of the Credit Documents, all or substantially all of the Equity Interests or property of any Non-US Obligation Guarantor are sold or otherwise transferred (a “ Non-US Obligation Transferred Guarantor ”) to a person or persons, none of which is a US Borrower, US Guarantor, UK Borrower, Canadian Borrower, UK Credit Party or Canadian Credit Party, such Non-US Obligation Transferred Guarantor shall, upon the consummation of such sale or transfer, be automatically released from its obligations under this Agreement and its obligations to pledge and grant any Collateral owned by it pursuant to any Security Document or Pledge Agreement and, in the case of a sale of all or substantially all of the Equity Interests of the Non-US Obligation Transferred Guarantor, the pledge of such Equity Interests to the Collateral Agent pursuant to the Security Agreements or Pledge Agreements shall be automatically released, and the Collateral Agent shall take such actions as are necessary to effect each release described in this Section 15.09 in accordance with the relevant provisions of the Security Documents or Pledge Agreements, so long as the applicable Borrower shall have provided the Administrative Agent such certifications or documents as the Administrative Agent shall reasonably request in order to demonstrate compliance with this Agreement.  

15.10 Right of Contribution . (a) Each US Guarantor hereby agrees that to the extent that a US Guarantor shall have paid more than its proportionate share of any payment made hereunder, such US Guarantor shall be entitled to seek and receive contribution from and against any other US Guarantor hereunder which has not paid its proportionate share of such payment; provided that , for the avoidance of doubt, no US Guarantor shall be required to make any contribution hereunder on account of any Excluded Swap Obligations of such US Guarantor.  Each US Guarantor’s right of contribution shall be subject to the terms and conditions of Section 15.04(a) .  The provisions of this Section 15.10(a) shall in no respect limit the obligations and liabilities of any US Guarantor to the Secured Creditors, and each US Guarantor shall remain liable to the Secured Creditors for the full amount guaranteed by such US Guarantor hereunder.  

(b) Each Non-US Obligation Guarantor hereby agrees that to the extent that a Non-US Obligation Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Non-US Obligation Guarantor shall be entitled to seek and receive contribution from and against any other Non-US Obligation Guarantor hereunder which has not paid its proportionate share of such payment; provided that , for the avoidance of doubt, no Non-US Obligation Guarantor shall be required to make any contribution hereunder on account of any Excluded Swap Obligations of such Non-US Obligation Guarantor.  Each Non-US Obligation Guarantor’s right of contribution shall be subject to the terms and conditions of Section 15.04(b) .  The provisions of this Section 15.10(b) shall in no respect limit the obligations and liabilities of any Non-US Obligation Guarantor to the Secured Creditors, and each Non-US Obligation Guarantor shall remain liable to the Secured Creditors for the full amount guaranteed by such Non-US Obligation Guarantor hereunder.

15.11 Keepwell . Each Credit Party that is a Qualified ECP Guarantor at the time the Guarantee or the grant of the security interest hereunder and under the Credit Documents, in each case, by any Specified Credit Party, becomes effective with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Credit Party with respect to such Swap Obligation as may be needed by such Specified Credit Party from time to time to honor all of its obligations under this Guarantee and the other Credit Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Section 15.11 , or otherwise under this Agreement or any other Credit Document or under any agreement in respect of such Swap Obligation, voidable under Applicable Law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount).  The obligations and undertakings of each Qualified ECP Guarantor under this Section 15.11 shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full.  Each Qualified ECP Guarantor intends this Section 15.11 to constitute, and this Section 15.11 shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support, or other agreement” for the benefit of, each Specified Credit Party for all purposes of the Commodity Exchange Act.

[Signature pages follow]

 

 

 

-143-

 

IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Agreement as of the date first above written.

 

Address:

US BORROWERS, US GUARANTORS AND NON-US OBLIGATION GUARANTORS:

 

 

 

 

MOBILE MINI, INC.

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 

 

MOBILE STORAGE GROUP, INC.

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 

 

MSG INVESTMENTS, INC.

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 

 

MOBILE MINI I, INC.

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 

 

MOBILE MINI, LLC

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 

 

MOBILE MINI, LLC

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 


[ABL Credit Agreement]

 

 

 

UK BORROWERS AND NON-US OBLIGATION GUARANTORS:

 

 

Executed by RAVENSTOCK MSG

LIMITED by a director:

)

Signature

/s/ Mark Funk

 

 

 

 

 

 

Name (block capitals)

MARK FUNK

 

 

 

Director

 

Executed by MOBILE MINI UK

LIMITED by a director:

)

Signature

/s/ Mark Funk

 

 

 

 

 

 

Name (block capitals)

MARK FUNK

 

 

 

Director

 

Address:

 

CANADIAN BORROWERS AND NON-US OBLIGATION GUARANTORS:

 

 

 

 

 

MOBILE MINI CANADA ULC

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

 

 

Fax:  (480) 281-3451

By:

/s/ Mark Funk

 

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 


[ABL Credit Agreement]

 

Address:

US GUARANTORS AND NON-US OBLIGATION GUARANTORS:

 

 

 

 

A BETTER MOBILE STORAGE COMPANY, a California corporation

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 

MOBILE MINI DEALER, INC., an Arizona corporation

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 

A ROYAL WOLF PORTABLE STORAGE, INC., a California corporation

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 

TEMPORARY MOBILE STORAGE, INC., California corporation

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 

MSG MMI (TEXAS) L.P., a Texas limited partnership

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 

MOBILE MINI FINANCE, LLC, a Delaware limited liability company

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 

EVERGREEN TANK SOLUTIONS, INC., a Delaware corporation

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 

GULF TANKS HOLDINGS, INC., a Delaware corporation

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

[ABL Credit Agreement]

 

 

 

WATER MOVERS, INC., an Arizona corporation

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 

WATER MOVERS CONTRACTING, LLC, an Arizona limited liability company

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 

SBOX STORAGE, LLC, a Delaware limited liability company

Attention: Chief Financial Officer

 

 

Phone:  (480) 477-0241  

By:

/s/ Mark Funk

Fax:  (480) 281-3451

 

Name: Mark Funk

 

 

Title: Executive Vice President and Chief Financial Officer

 

 

 

 


[ABL Credit Agreement]

 

 

Address:

 

NON-US OBLIGATION GUARANTORS:

 

 

 

 

Executed by MOBILE MINI UK

HOLDINGS LIMITED by a director:

)

Signature

/s/ Mark Funk

 

 

 

 

 

 

Name (block capitals)

MARK FUNK

 

 

 

Director

 

Executed by MOBILE STORAGE

(U.K.) LIMITED by a director:

)

Signature

/s/ Mark Funk

 

 

 

 

 

 

Name (block capitals)

MARK FUNK

 

 

 

Director

 

Executed by RAVENSTOCK TAM

(HIRE) LIMITED by a director:

)

Signature

/s/ Mark Funk

 

 

 

 

 

 

Name (block capitals)

MARK FUNK

 

 

 

Director

 

 

 

 

Executed by MOBILE STORAGE UK

FINANCE LIMITED PARTNERSHIP

by a director:

)

Signature

/s/ Mark Funk

 

 

 

 

 

 

Name (block capitals)

MARK FUNK

 

 

 

Director

 


[ABL Credit Agreement]

 

DEUTSCHE BANK AG NEW YORK BRANCH

Individually and as Administrative Agent and as

Collateral Agent

 

By:

/s/ Michael Shannon

 

Name: Michael Shannon

 

Title: Vice President

 

 

By:

/s/ Michael Winters

 

Name: Michael Winters

 

Title: Vice President

 

 

 

[ABL Credit Agreement]

 

SIGNATURE PAGE TO THE AMENDED AND RESTATED ABL CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG MOBILE MINI, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

NAME OF INSTITUTION:

DEUTSCHE BANK AG NEW YORK BRANCH

By:

/s/ Michael Shannon

 

Name: Michael Shannon

 

Title: Vice President

 

 

By:

/s/ Michael Winters

 

Name: Michael Winters

 

Title: Vice President

 


[ABL Credit Agreement]

 

SIGNATURE PAGE TO THE AMENDED AND RESTATED ABL CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG MOBILE MINI, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

Bank of America, N.A.

 

By:

/s/ Brad H. Breidenbach

 

Name: Brad H. Breidenbach

 

Title: Senior Vice President

 

Bank of America, N.A. (acting through its Canada branch)

 

By:

/s/ Sylwia Durkiewicz

 

Name: Sylwia Durkiewicz

 

Title: Vice President

 


[ABL Credit Agreement]

 

SIGNATURE PAGE TO THE AMENDED AND RESTATED ABL CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG MOBILE MINI, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

JPMorgan Chase Bank, N.A.

 

By:

/s/ Jordan Azar

 

Name: Jordan Azar

 

Title: Authorized Officer

 

NAME OF CANADIAN CORRESPONDING LENDER:

JPMorgan Chase Bank, N.A., Toronto Branch:

 

By:

/s/ Michael N. Tam

 

Name: Michael N. Tam

 

Title: Senior Vice President

 


[ABL Credit Agreement]

 

SIGNATURE PAGE TO THE AMENDED AND RESTATED ABL CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG MOBILE MINI, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

BANK OF THE WEST

 

By:

/s/ Cecile Segovia

 

Name: Cecile Segovia

 

Title: Director

 

[[IF APPLICABLE:]

NAME OF CANADIAN CORRESPONDING LENDER:

 

By:

 

 

Name:

 

Title:]

 


[ABL Credit Agreement]

 

SIGNATURE PAGE TO THE AMENDED AND RESTATED ABL CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG MOBILE MINI, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

BARCLAYS BANK PLC

 

By:

/s/ Marguerite Sutton

 

Name: Marguerite Sutton

 

Title: Vice President

 


[ABL Credit Agreement]

 

SIGNATURE PAGE TO THE AMENDED AND RESTATED ABL CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG MOBILE MINI, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

Compass Bank

 

By:

/s/ Timothy R. Coffey

 

Name: Timothy R. Coffey

 

Title: Senior Vice President

 

[[IF APPLICABLE:]

NAME OF CANADIAN CORRESPONDING LENDER:

 

By:

 

 

Name:

 

Title:]

 


[ABL Credit Agreement]

 

SIGNATURE PAGE TO THE AMENDED AND RESTATED ABL CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG MOBILE MINI, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

ING Capital LLC:

 

By:

/s/ Bill Beddingfield

 

Name: Bill Beddingfield

 

Title: Managing Director

 

By:

/s/ Doug Clarida

 

Name: Doug Clarida

 

Title: Director

 


[ABL Credit Agreement]

 

SIGNATURE PAGE TO THE AMENDED AND RESTATED ABL CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG MOBILE MINI, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

NAME OF INSTITUTION: MUFG UNION BANK, N.A.

 

By:

/s/ Brent Housteau

 

Name: Brent Housteau

 

Title: Director

 

NAME OF CANADIAN CORRESPONDING LENDER: UNION BANK, CANADA BRANCH

 

By:

/s/ Anne Collins

 

Name: Anne Collins

 

Title: Director

 


[ABL Credit Agreement]

 

SIGNATURE PAGE TO THE AMENDED AND RESTATED ABL CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG MOBILE MINI, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

NAME OF INSTITUTION:

WELLS FARGO BANK, NATIONAL ASSOCIATION

 

By:

/s/ Kathryn Schame

 

Name: Kathryn Schame

 

Title: Authorized Signatory

 

NAME OF CANADIAN CORRESPONDING LENDER:

WELLS FARGO CAPTIAL FINANCE CORPORATION CANADA

By:

/s/ David G. Phillips

 

Name: David G. Phillips

 

Title:

Senior Vice President Credit Officer, Canada

Wells Fargo Capital Finance

Corporation Canada

 

 

NAME OF UK CORRESPONDING LENDER:

WELLS FARGO BANK, NATIONAL ASSOCIATION (LONDON BRANCH)

 

By:

/s/ N B Hogg

 

Name: N B Hogg

 

Title: Authorised Signatory

 


[ABL Credit Agreement]

 

SIGNATURE PAGE TO THE AMENDED AND RESTATED ABL CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG MOBILE MINI, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

NAME OF INSTITUTION: Bank of Montreal Chicago Branch

 

By:

/s/ Kara Goodwin

 

Name: Kara Goodwin

 

Title: Managing Director

 


[ABL Credit Agreement]

 

SIGNATURE PAGE TO THE AMENDED AND RESTATED ABL CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG MOBILE MINI, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

NAME OF INSTITUTION: City National Bank, A National Banking Association

 

By:

/s/ Brent Phillips

 

Name: Brent Phillips

 

Title: Senior Vice President

 

[[IF APPLICABLE:]

 

NAME OF CANADIAN CORRESPONDING LENDER: City National Bank, A National Banking Association

 

By:

/s/ Brent Phillips

 

Name: Brent Phillips

 

Title:] Senior Vice President

 


[ABL Credit Agreement]

 

SIGNATURE PAGE TO THE AMENDED AND RESTATED ABL CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG MOBILE MINI, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

CITIZENS BUSINESS CAPITAL, F/K/A/ RBS

CITIZENS BUSINESS CAPTIAL, A DIVISION OF CITIZENS ASSET FINANCE, INC., F/K/A RBS ASSET FINANCE, INC., A SUBSIDIARY OF CITIZENS BANK, N.A., F/K/A RBS CITIZENS, N.A.:

 

By:

/s/ Richard Norberg

 

Name: Richard Norberg

 

Title: Assistant Vice President

 


[ABL Credit Agreement]

 

SIGNATURE PAGE TO THE AMENDED AND RESTATED ABL CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG MOBILE MINI, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

SIEMENS FINANCIAL SERVICES, INC.:

 

By:

/s/ James Tregillies

 

Name: James Tregillies

 

Title: Vice President

 

By:

/s/ Dan Maher

 

Name: Dan Maher

 

Title: Senior Vice President

 


[ABL Credit Agreement]

 

SIGNATURE PAGE TO THE AMENDED AND RESTATED ABL CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG MOBILE MINI, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

U.S. BANK NATIONAL ASSOCIATION:

 

By:

/s/ Rod Swenson

 

Name: Rod Swenson

 

Title: Vice President

 

U.S. BANK NATIONAL ASSOCIATION, ACTING THROUGH ITS CANADIAN BRANCH AS A LENDER:

 

By:

/s/ John P. Rehob

 

Name: John P. Rehob

 

Title: Vice President & Principal Officer

 


[ABL Credit Agreement]

 

SIGNATURE PAGE TO THE AMENDED AND RESTATED ABL CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG MOBILE MINI, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

NAME OF INSTITUTION: Branch Banking and Trust Company

 

By:

/s/ Sarah Bryson

 

Name: Sarah Bryson

 

Title: Senior Vice President

 


[ABL Credit Agreement]

 

SIGNATURE PAGE TO THE AMENDED AND RESTATED ABL CREDIT AGREEMENT DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG MOBILE MINI, INC., CERTAIN OF ITS SUBSIDIARIES FROM TIME TO TIME PARTY HERETO, THE LENDERS PARTY HERETO FROM TIME TO TIME AND DEUTSCHE BANK AG NEW YORK BRANCH, AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT

NAME OF INSTITUTION: The Northern Trust Company

 

By:

/s/ John Lascody

 

Name: John Lascody

 

Title: Vice President

 

[[IF APPLICABLE:]

NAME OF CANADIAN CORRESPONDING LENDER:

 

By:

 

 

Name:

 

Title:]

 

 

[ABL Credit Agreement]

EXHIBIT A-1

 

FORM OF NOTICE OF US BORROWING

[Date]

Deutsche Bank AG New York Branch, as

Administrative Agent (the “ Administrative

Agent ”) for the Lenders party to the Credit

Agreement referred to below

60 Wall Street

New York, New York 10005
Attention:  Michael Shannon

Ladies and Gentlemen:

The undersigned, [ Name of Notifying Borrower] 1 , refers to the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015 (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”, the capitalized terms defined therein being used herein as therein defined), among [the undersigned,] [Mobile Mini, Inc.,] the other Borrowers and Guarantors from time to time party thereto, the lenders party thereto from time to time (each, a “ Lender ” and collectively, the “ Lenders ”), and you, as Administrative Agent for such Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.03(a) of the Credit Agreement, that the undersigned hereby requests [on behalf of [Name of US Borrower] (the “ Applicable Borrower ”)] 2 a US Borrowing under the Credit Agreement to be made to [the undersigned][the Applicable Borrower], and in that connection sets forth below the information relating to such Borrowing (the “ Proposed Borrowing ”) as required by Section 2.03(a) of the Credit Agreement:

(i) The Business Day of the Proposed Borrowing is _________ __, ____. 3

(ii) The aggregate principal amount of the Proposed Borrowing is $__________.

(iii) The Loans to be made pursuant to the Proposed Borrowing shall consist of [US Revolving Loans] [US Swingline Loans].

(iv) The Loans [will] [will not] constitute Agent Advances.

(v) The Loans to be made pursuant to the Proposed Borrowing shall be initially maintained as [Base Rate Loans] [US LIBOR Loans]. 4

(vi) [The initial Interest Period for the Proposed Borrowing is [one month] [two months] [three months] [six months] [, subject to availability to all Lenders, twelve months and, if such Interest Period is unavailable [specify alternative desired].]

(vii) The US Borrowing Base as of the date hereof is [_______], the UK Borrowing Base as of the date hereof is [               ] , and the Canadian Borrowing Base as of the date hereof is [______]. 5

 

1

Insert the name of the applicable Borrower.

2

To be included if the Borrower delivering this Notice of US Borrowing is not the US Borrower making the Proposed Borrowing.

3

Shall be a Business Day with same day notice in the case of Base Rate Loans (and US Swingline Loans) and at least three Business Days’ prior notice in the case of LIBOR Loans, provided that any such notice shall be deemed to have been given on a certain day only if given before (i) 11:00 A.M. (New York City time) on such day in the case of Base Rate Loans (and US Swingline Loans) and (ii) 2:00 P.M. (New York City time) on such day in the case of LIBOR Loans.

4

US Swingline Loans may only be Base Rate Loans.

5

To be based upon the Borrowing Base Certificate last delivered.

 

 

 

 

Exhibit A-1

Page 2

 

The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:

(A) the representations and warranties contained in the Credit Agreement and in the other Credit Documents are and will be true and correct in all material respects, before and after giving effect to the Proposed Borrowing and to the appli cation of the proceeds thereof, as though made on such date, unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (it being understood and agreed that any representations and warranties qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects on the date of the Proposed Borrowing or such specified earlier date, as applicable);

(B) no Default or Event of Default has occurred and is continuing, or would result from such Proposed Borrowing or from the application of the proceeds thereof ;

(C) the Aggregate Exposure (both before and after giving effect to the Proposed Borrowing) does not exceed either (i) the Aggregate Borrowing Base at such time (based upon the most recently delivered Borrowing Base Certificate) (except in the case of Agent Advances) or (ii) the Total Revolving Loan Commitment at such time; [and]

(D) the Aggregate US Exposure (both before and after giving effect to the Proposed Borrowing) does not exceed either (i) the US Borrowing Base at such time (based upon the most recently delivered Borrowing Base Certificate) (except in the case of Agent Advances) or (ii) the US Maximum Amount[.] [; and]

[(E) the US Swingline Loans (both before and after giving effect to the Proposed Borrowing) do not exceed the Maximum US Swingline Amount.] 6

Very truly yours,

[NAME OF NOTIFYING BORROWER]

By:

 

 

Name:

 

Title:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6

To be included if the Proposed Borrowing is a US Swingline Loan.

 

 

Exhibit A-1

Page 3

 

FORM OF NOTICE OF UK BORROWING

[Date]

Deutsche Bank AG New York Branch, as

Administrative Agent (the “ Administrative

Agent ”) for the Lenders party to the Credit

Agreement referred to below

60 Wall Street

New York, New York 10005
Attention:  Michael Shannon

Ladies and Gentlemen:

The undersigned, [Name of Notifying Borrower] 1 , refers to the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015 (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”, the capitalized terms defined therein being used herein as therein defined), among the undersigned, Mobile Mini, Inc., the other Borrowers and Guarantors from time to time party thereto, the lenders party thereto from time to time (each, a “ Lender ” and collectively, the “ Lenders ”), and you, as Administrative Agent for such Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.03(a) of the Credit Agreement, that the undersigned hereby requests [on behalf of [Name of UK Borrower] (the “ Applicable Borrower ”)] 2 a UK Borrowing under the Credit Agreement to be made to [the undersigned][the Applicable Borrower], and in that connection sets forth below the information relating to such Borrowing (the “ Proposed Borrowing ”) as required by Section 2.03(a) of the Credit Agreement:

(i) The Business Day of the Proposed Borrowing is _________ __, ____. 3

(ii) The aggregate principal amount of the Proposed Borrowing is [£][€]__________ with an Equivalent Amount of $__________.

(iii) The Loans to be made pursuant to the Proposed Borrowing shall consist of [UK Revolving Loans] [UK Swingline Loans].

(iv) The Loans to be made pursuant to the Proposed Borrowing shall be initially maintained as [UK LIBOR Loans] [EURIBOR Loans].

(v) [The initial Interest Period for the Proposed Borrowing is [one month] [two months] [three months] [six months] [, subject to availability to all Lenders, twelve months and, if such Interest Period is unavailable [specify alternative desired].]

(vi) The Loans to be made pursuant to the Proposed Borrowing shall be denominated in [Pounds Sterling] [Euros].

(vii) The US Borrowing Base as of the date hereof is [_______], the UK Borrowing Base as of the date hereof is [                ] , and the Canadian Borrowing Base as of the date hereof is [______]. 4

 

1

Insert the name of the applicable Borrower.

2

To be included if the Borrower delivering this Notice of UK Borrowing is not the UK Borrower making the Proposed Borrowing.

3

Shall be a Business Day at least three Business Days (or same day notice in the case of UK Swingline Loans) after the date hereof, provided that (in each case) any such notice shall be deemed to have been given on a certain day only if given before 10:00 A.M. (New York City time) on such day.

4

To be based upon the Borrowing Base Certificate last delivered.

 

 

 

Exhibit A-1

Page 4

 

The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:

(A) the representations and warranties contained in the Credit Agreement and in the other Credit Documents are and will be true and correct in all material respects, before and after giving effect to the Proposed Borrowing and to the appli cation of the proceeds thereof, as though made on such date, unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (it being understood and agreed that any representations and warranties qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects on the date of the Proposed Borrowing or such specified earlier date, as applicable);

(B) no Default or Event of Default has occurred and is continuing, or would result from such Proposed Borrowing or from the application of the proceeds thereof ;

(C) the Aggregate Exposure (both before and after giving effect to the Proposed Borrowing) does not exceed either (i) the Aggregate Borrowing Base at such time (based upon the most recently delivered Borrowing Base Certificate) or (ii) the Total Revolving Loan Commitment at such time; [and]

(D) the Aggregate UK Exposure (both before and after giving effect to the Proposed Borrowing) does not exceed either (i) the UK Borrowing Base at such time (based upon the most recently delivered Borrowing Base Certificate) or (ii) the UK Maximum Amount[.] [; and]

[(E) the UK Swingline Loans (both before and after giving effect to the Proposed Borrowing) do not exceed the Maximum UK Swingline Amount.] 5

Very truly yours,

[NAME OF NOTIFYING BORROWER]

 

By:

 

 

Name:

 

Title:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5

To be included if Proposed Borrowing is a UK Swingline Loan.

 

 

 

Exhibit A-1

Page 5

 

FORM OF NOTICE OF CANADIAN BORROWING

[DATE]

Deutsche Bank AG New York Branch, as

Administrative Agent (the “ Administrative

Agent ”) for the Lenders party to the Credit

Agreement referred to below

60 Wall Street

New York, New York 10005
Attention:  Michael Shannon

Ladies and Gentlemen:

The undersigned, [Name of Borrower] 1 , refers to the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015 (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”, the capitalized terms defined therein being used herein as therein defined), among the undersigned, Mobile Mini, Inc., the other Borrowers and Guarantors from time to time party thereto, the lenders party thereto from time to time (each, a “ Lender ” and collectively, the “ Lenders ”), and you, as Administrative Agent for such Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.03(a) of the Credit Agreement, that the undersigned hereby requests [on behalf of [Name of Canadian Borrower] (the “ Applicable Borrower ”)] 2 a Canadian Borrowing under the Credit Agreement to be made to [the undersigned][the Applicable Borrower], and in that connection sets forth below the information relating to such Borrowing (the “ Proposed Borrowing ”) as required by Section 2.03(a) of the Credit Agreement:

(i) The Business Day of the Proposed Borrowing is _________ __, ____. 3

(ii) The aggregate principal amount of the Proposed Borrowing is CA$__________ with an Equivalent Amount of $__________.

(iii) The Loans to be made pursuant to the Proposed Borrowing shall consist of Canadian Revolving Loans.

(iv) The Loans to be made pursuant to the Proposed Borrowing shall be initially maintained as [Canadian Prime Rate Loans] [Canadian LIBOR Loans].

(v) [The initial Interest Period for the Proposed Borrowing is [one month] [two months] [three months] [six months] [, subject to availability to all Lenders, twelve months and, if such Interest Period is unavailable [specify alternative desired].]

(vi) The US Borrowing Base as of the date hereof is [_______], the UK Borrowin g Base as of the date hereof is [______], and the Canadian Borrowing Base as of the date hereof is [______]. 4

 

1

Insert the name of the applicable Borrower.

2

To be included if the Borrower delivering this Notice of Canadian Borrowing is not the Canadian Borrower making the Proposed Borrowing.

3

Shall be a Business Day at least one Business Day prior to the Borrowing in the case of Canadian Prime Rate Loans and at least three Business Days prior to the Borrowing in the case of Canadian LIBOR Loans, in each case, after the date hereof, provided that (in each case) any such notice shall be deemed to have been given on a certain day only if given before 10:00 A.M. (Toronto time) on such day.

4

To be based upon the Borrowing Base Certificate last delivered.

 

 

 

Exhibit A-1

Page 6

 

The undersigned hereby certifies that the following statements are true on the date hereof, and will be true on the date of the Proposed Borrowing:

(A) the representations and warranties contained in the Credit Agreement and in the other Credit Documents are and will be true and correct in all material respects, before and after giving effect to the Proposed Borrowing and to the appli cation of the proceeds thereof, as though made on such date, unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (it being understood and agreed that any representations and warranties qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects on the date of the Proposed Borrowing or such specified earlier date, as applicable);

(B) no Default or Event of Default has occurred and is continuing, or would result from such Proposed Borrowing or from the application of the proceeds thereof ;

(C) the Aggregate Exposure (both before and after giving effect to the Proposed Borrowing) does not exceed either (i) the Aggregate Borrowing Base at such time (based upon the most recently delivered Borrowing Base Certificate) or (ii) the Total Revolving Loan Commitment at such time; and

(D) the Aggregate Canadian Exposure (both before and after giving effect to the Proposed Borrowing) does not exceed either (i) the Canadian Borrowing Base at such time (based upon the most recently delivered Borrowing Base Certificate) or (ii) the Canadian Maximum Amount.

Very truly yours,

[NAME OF NOTIFYING BORROWER]

 

By:

 

 

Name:

 

Title:

 

 

 

 

EXHIBIT A-2

Page 1

 

FORM OF NOTICE OF CONVERSION/CONTINUATION OF US REVOLVING LOANS

[Date]

Deutsche Bank AG New York Branch,

as Administrative Agent for the Lenders party

to the Credit Agreement

referred to below

60 Wall Street

New York, New York 10005

Attention: Michael Shannon

 

Ladies and Gentlemen:

The undersigned, [Name of Borrower] (the “ Borrower ”), refers to the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015 (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”, the capitalized terms defined therein being used herein as therein defined), among [the Borrower,] [Mobile Mini, Inc.,] certain other Borrowers and Guarantors from time to time party thereto, the lenders from time to time party thereto (the “ Lenders ”), and you, as Administrative Agent for such Lenders, and hereby gives you notice, irrevocably, pursuant to Section [2.06] [2.09] of the Credit Agreement, that the undersigned hereby requests to [convert] [continue] the US Borrowing of US Revolving Loans referred to below, and in that connection sets forth below the information relating to such [conversion] [continuation] (the “ Proposed [Conversion] [Continuation] ”) as required by Section [2.06] [2.09] of the Credit Agreement:

(i) The Proposed [Conversion] [Continuation] relates to the US Borrowing of US Revolving Loans originally made on _________ __, 20__ (the “ Outstanding Borrowing ”) in the principal amount of $__________ and currently maintained as a US Borrowing of [Base Rate Loans] [US LIBOR Loans with an Interest Period ending on _________ __, ____].

(ii) The Business Day of the Proposed [Conversion] [Continuation] is _________ __, ____. 1

(iii) The Outstanding Borrowing shall be [converted into a US Borrowing of [Base Rate Loans] [US LIBOR Loans with an Interest Period of ______]] [continued as a US Borrowing of US LIBOR Loans with an Interest Period of ______]. 2

[The undersigned hereby certifies that no Default or Event of Default has occurred and will be continuing on the date of the Proposed [Conversion] [Continuation] or will have occurred and be continuing on the date of the Proposed [Conversion] [Continuation].] 3

Very truly yours,

[NAME OF BORROWER]

 

By:

 

 

Name:

 

Title:

 

1

In the case of a conversion into, or a continuation of, US LIBOR Loans, this date shall be a Business Day, at least three Business Days after the date hereof or in the case of a conversion into Base Rate Loans, this date shall be a Business Day, at least one Business Day after the date hereof; provided that such notice shall be deemed to have been given on a certain day only if given before 11:00 A.M. (New York City time) on such day.

2

In the event that either (x) only a portion of the Outstanding Borrowing is to be so converted or continued or (y) the Outstanding Borrowing is to be divided into separate US Borrowings with different Interest Periods, the Borrower should make appropriate modifications to this clause to reflect same.

3

In the case of a Proposed Conversion or Continuation, insert this sentence only in the event that the conversion is from a Base Rate Loan to a US LIBOR Loan or in the case of a continuation of a US LIBOR Loan.  

 


 

 

Exhibit A-2

Page 2

 

FORM OF NOTICE OF CONTINUATION OF UK REVOLVING LOANS

[Date]

Deutsche Bank AG New York Branch,

as Administrative Agent for the Lenders party

to the Credit Agreement

referred to below

60 Wall Street

New York, New York 10005

Attention: Michael Shannon

 

Ladies and Gentlemen:

The undersigned, [Name of Borrower] (the “ Borrower ”), refers to the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015 (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”, the capitalized terms defined therein being used herein as therein defined), among the Borrower, Mobile Mini, Inc., certain other Borrowers and Guarantors from time to time party thereto, the lenders from time to time party thereto (the “ Lenders ”), and you, as Administrative Agent for such Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.09 of the Credit Agreement, that the undersigned hereby requests to continue the UK Borrowing of UK Revolving Loans referred to below, and in that connection sets forth below the information relating to such continuation (the “ Proposed Continuation ”) as required by Section 2.09 of the Credit Agreement:

(i) The Proposed Continuation relates to the UK Borrowing of UK Revolving Loans originally made on _________ __, 20__ (the “ Outstanding Borrowing ”) in the principal amount of $__________ and currently maintained as a Borrowing of [UK LIBOR] [EURIBOR] Loans with an Interest Period ending on _________ __, ____.

(ii) The Business Day of the Proposed Continuation is _________ __, ____. 1

(iii) The Outstanding Borrowing shall be continued as a UK Borrowing of [UK LIBOR] [EURIBOR] Loans with an Interest Period of ______. 2

The undersigned hereby certifies that no Default or Event of Default has occurred and will be continuing on the date of the Proposed Continuation or will have occurred and be continuing on the date of the Proposed Continuation.

Very truly yours,

[NAME OF BORROWER]

 

By:

 

 

Name:

 

Title:

 

1

In the case of a continuation of UK LIBOR Loans or EURIBOR Loans, this date shall be a Business Day, at least three Business Days after the date hereof; provided that such notice shall be deemed to have been given on a certain day only if given before 11:00 A.M. (New York City time) on such day.

2

In the event that either (x) only a portion of the Outstanding Borrowing is to be so continued or (y) the Outstanding Borrowing is to be divided into separate UK Borrowings with different Interest Periods, the Borrower should make appropriate modifications to this clause to reflect same.

 


 

Exhibit A-2

Page 3

 

FORM OF NOTICE OF CONVERSION/CONTINUATION OF CANADIAN REVOLVING LOANS

[Date]

Deutsche Bank AG New York Branch,

as Administrative Agent for the Lenders party

to the Credit Agreement

referred to below

60 Wall Street

New York, New York 10005

Attention: Michael Shannon

 

Ladies and Gentlemen:

The undersigned, [Name of Borrower] (the “ Borrower ”), refers to the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015 (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”, the capitalized terms defined therein being used herein as therein defined), among the Borrower, Mobile Mini, Inc., certain other Borrowers and Guarantors from time to time party thereto, the lenders from time to time party thereto (the “ Lenders ”), and you, as Administrative Agent for such Lenders, and hereby gives you notice, irrevocably, pursuant to Section [2.06] [2.09] of the Credit Agreement, that the undersigned hereby requests to [convert] [continue] the Canadian Borrowing of Canadian Revolving Loans referred to below, and in that connection sets forth below the information relating to such [conversion] [continuation] (the “ Proposed [Conversion] [Continuation] ”) as required by Section [2.06] [2.09] of the Credit Agreement:

(i) The Proposed [Conversion] [Continuation] relates to the Canadian Borrowing of Canadian Revolving Loans originally made on _________ __, 20__ (the “ Outstanding Borrowing ”) in the principal amount of $__________ and currently maintained as a Canadian Borrowing of [Canadian Prime Rate Loans] [Canadian LIBOR Loans with a term of _________________].

(ii) The Business Day of the Proposed [Conversion] [Continuation] is _________ __, ____. 3

(iii) The Outstanding Borrowing shall be [converted into a Canadian Borrowing of [Canadian Prime Rate Loans] [Canadian LIBOR Loans with a term of _________________]] [continued as a Canadian Borrowing of Canadian LIBOR Loans with an Interest Period of ______]. 4

[The undersigned hereby certifies that no Default or Event of Default has occurred and will be continuing on the date of the Proposed [Conversion] [Continuation] or will have occurred and be continuing on the date of the Proposed [Conversion] [Continuation].] 5

Very truly yours,

[NAME OF BORROWER]

 

By:

 

 

Name:

 

Title:

 

3

In the case of a conversion into, or a continuation of, Canadian LIBOR Loans, this date shall be a Business Day, at least three Business Days after the date hereof or in the case of a conversion into Canadian Prime Rate Loans, this date shall be a Business Day, at least one Business Day after the date hereof; provided that such notice shall be deemed to have been given on a certain day only if given before 11:00 A.M. (Toronto time) on such day.

4

In the event that either (x) only a portion of the Outstanding Borrowing is to be so converted or continued or (y) the Outstanding Borrowing is to be divided into separate Canadian Borrowings with different Interest Periods, the Borrower should make appropriate modifications to this clause to reflect same.

5

In the case of a Proposed Conversion or Continuation, insert this sentence only in the event that the conversion is from a Canadian Prime Rate Loan to a Canadian LIBOR Loan or in the case of a continuation of a Canadian LIBOR Loan.  

 

 

 

EXHIBIT B-1

 

FORM OF [AMENDED AND RESTATED] US REVOLVING NOTE

 

$__________

New York, New York

 

_________ __, ____

 

 

FOR VALUE RECEIVED, Mobile Mini, Inc., a Delaware corporation (“ US Company ”), Mobile Storage Group, Inc., a Delaware corporation (“ MSG ”), MSG Investments, Inc., a California corporation (“ MSGI ”), Mobile Mini I, Inc., an Arizona corporation (“ MMI ”), Mobile Mini, LLC, a Delaware limited liability company (“ MM (DE) LLC ”), and Mobile Mini, LLC, a California limited liability company (“ MM (CA) LLC ” and, together with US Company, MSG, MSGI, MMI and MM (DE) LLC, the “ US Borrowers ”, and each a “ US Borrower ”), hereby jointly and severally promise to pay to [_____________] or its registered assigns (the “ Lender ”), in lawful money of the United States of America in immediately available funds, at the Payment Office, initially located at 60 Wall Street, New York, New York 10005, on the Final Maturity Date the principal sum of __________ DOLLARS ($__________) or, if less, the unpaid principal amount of all US Revolving Loans made by the Lender pursuant to the Credit Agreement, payable at such times and in such amounts as are specified in the Credit Agreement.  Capitalized terms used herein but not defined herein shall have the meanings ascribed to such terms in the Credit Agreement (as defined herein).

The US Borrowers also jointly and severally promise to pay interest on the unpaid principal amount of each US Revolving Loan made by the Lender in like money at said office from the date hereof until paid at the rates and at the times provided in Section 2.08 of the Credit Agreement.

This Note is one of the US Revolving Notes referred to in the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015, among the US Company, the other Borrowers and Guarantors party thereto from time to time, the lenders party thereto from time to time (including the Lender), and Deutsche Bank AG New York Branch, as Administrative Agent (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”) and is entitled to the benefits thereof and of the other Credit Documents.  This Note is secured by the US Security Agreement, the US Pledge Agreement and all other Security Documents to the extent related to securing the US Obligations and is entitled to the benefits of the Guarantees to the extent set forth in the Credit Agreement.  As provided in the Credit Agreement, this Note is subject to voluntary prepayment and mandatory repayment prior to the Final Maturity Date, in whole or in part, and US Revolving Loans may be converted from one Type into another Type to the extent provided in the Credit Agreement.

In case an Event of Default shall occur and be continuing, the principal of and accrued interest on this Note may be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.

Each US Borrower hereby waives presentment, demand, protest or notice of any kind in connection with this Note.

[This Note amends and restates that certain US Revolving Note, dated ______________ in the principal amount of __________ DOLLARS ($__________) made by the US Borrowers in favor of the Lender, but this Note is not intended to constitute, nor does it constitute, an interruption, suspension of continuity, satisfaction, discharge of prior duties, novation, or termination of the indebtedness, loans, liabilities, expenses, or guaranteed obligations under the Credit Agreement and such prior US Revolving Note is hereby terminated and of no further force and effect upon the issuance of this Note in replacement of such prior US Revolving Note.]

[Signature Page Follows]

 

 

 

Exhibit B-1

Page 2

 

THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).

MOBILE MINI, INC., a Delaware corporation

 

By:

 

 

Name:

 

Title:

 

MOBILE STORAGE GROUP, INC., a Delaware corporation

 

By:

 

 

Name:

 

Title:

 

MSG INVESTMENTS, INC., a California corporation

 

By:

 

 

Name:

 

Title:

 

MOBILE MINI I, INC., an Arizona corporation

 

By:

 

 

Name:

 

Title:

 

MOBILE MINI, LLC, a Delaware limited liability company

 

By:

 

 

Name:

 

Title:

 

MOBILE MINI, LLC, a California limited liability company

 

By:

 

 

Name:

 

Title:

 

 

 

 

[US Revolving Note]

EXHIBIT B-2

 

FORM OF AMENDED AND RESTATED US SWINGLINE NOTE

 

$25,000,000

New York, New York

 

December 14, 2015

 

FOR VALUE RECEIVED, Mobile Mini, Inc., a Delaware corporation (“ US Company ”), Mobile Storage Group, Inc., a Delaware corporation (“ MSG ”), MSG Investments, Inc., a California corporation (“ MSGI ”), Mobile Mini I, Inc., an Arizona corporation (“ MMI ”), Mobile Mini, LLC, a Delaware limited liability company (“ MM (DE) LLC ”), and Mobile Mini, LLC, a California limited liability company (“ MM (CA) LLC ” and, together with US Company, MSG, MSGI, MMI and MM (DE) LLC, the “ US Borrowers ”, and each, a “ US Borrower ”), hereby jointly and severally promise to pay to DEUTSCHE BANK AG NEW YORK BRANCH or its registered assigns (the “ Lender ”), in lawful money of the United States of America in immediately available funds, at the Payment Office, initially located at 60 Wall Street, New York, New York 10005, on the Swingline Expiry Date the principal sum of TWENTY-FIVE MILLION DOLLARS ($25,000,000) or, if less, the unpaid principal amount of all US Swingline Loans made by the Lender pursuant to the Credit Agreement, payable at such times and in such amounts as are specified in the Credit Agreement.  Capitalized terms used herein but not defined herein shall have the meanings ascribed to such terms in the Credit Agreement (as defined herein).

The US Borrowers also jointly and severally promise to pay interest on the unpaid principal amount of each US Swingline Loan made by the Lender in like money at said office from the date hereof until paid at the rates and at the times provided in Section 2.08 of the Credit Agreement.

This Note is the US Swingline Note referred to in the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015, among the US Company, the other Borrowers and Guarantors party thereto from time to time, the lenders party thereto from time to time (including the Lender), and Deutsche Bank AG New York Branch, as Administrative Agent (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”) and is entitled to the benefits thereof and of the other Credit Documents.  This Note is secured by the US Security Agreement, the US Pledge Agreement and all other Security Documents to the extent related to securing the US Obligations and is entitled to the benefits of the Guarantees to the extent set forth in the Credit Agreement.  As provided in the Credit Agreement, this Note is subject to voluntary prepayment and mandatory repayment prior to the Swingline Expiry Date, in whole or in part.

In case an Event of Default shall occur and be continuing, the principal of and accrued interest on this Note may be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.

Each US Borrower hereby waives presentment, demand, protest or notice of any kind in connection with this Note.

This Note amends and restates that certain US Swingline Note, dated February 22, 2012, in the principal amount of TWENTY-FIVE MILLION DOLLARS ($25,000,000) made by the US Borrowers in favor of the Lender, but this Note is not intended to constitute, nor does it constitute, an interruption, suspension of continuity, satisfaction, discharge of prior duties, novation, or termination of the indebtedness, loans, liabilities, expenses, or guaranteed obligations under the Credit Agreement and such prior US Swingline Note is hereby terminated and of no further force and effect upon the issuance of this Note in replacement of such prior US Swingline Note.

[Signature Page Follows]

 

 

Exhibit B-2

Page 2

 

THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).

 

MOBILE MINI, INC., a Delaware corporation

 

By:

 

 

Name:

 

Title:

 

MOBILE STORAGE GROUP, INC., a Delaware corporation

 

By:

 

 

Name:

 

Title:

 

MSG INVESTMENTS, INC., a California corporation

 

By:

 

 

Name:

 

Title:

 

MOBILE MINI I, INC., an Arizona corporation

 

By:

 

 

Name:

 

Title:

 

MOBILE MINI, LLC, a Delaware limited liability company

 

By:

 

 

Name:

 

Title:

 

MOBILE MINI, LLC, a California limited liability company

 

By:

 

 

Name:

 

Title:

 

 

 

 

[Amended and Restated US Swingline Note]

EXHIBIT B-3

 

FORM OF [AMENDED AND RESTATED] UK REVOLVING NOTE

$__________

New York, New York

 

_________ __, ____

 

 

FOR VALUE RECEIVED, Ravenstock MSG Limited, a limited liability company incorporated in England and Wales (the “ UK Company ”), and Mobile Mini UK Limited, a corporation incorporated in England and Wales (“ Mobile Mini UK ” and together with UK Company, the “ UK Borrowers ”, and each, a “ UK Borrower ”), hereby jointly and severally promise to pay to [_____________] or its registered assigns (the “ Lender ”), the Equivalent Amount of the principal sum of __________ DOLLARS ($__________) in Pounds Sterling in respect of UK Borrowings funded by the Lender in Pounds Sterling and Euros in respect of UK Borrowings funded by the Lender in Euros, in each case in immediately available funds, at the Payment Office, initially located at 60 Wall Street, New York, New York 10005, on the Final Maturity Date or, if less, the unpaid principal amount of all UK Revolving Loans made by the Lender pursuant to the Credit Agreement, payable at such times and in such amounts as are specified in the Credit Agreement.  Capitalized terms used herein but not defined herein shall have the meanings ascribed to such terms in the Credit Agreement (as defined herein).

The UK Borrowers also jointly and severally promise to pay interest in Pounds Sterling on the unpaid principal amount of each UK Revolving Loan funded by the Lender in Pounds Sterling at said office from the date hereof until paid at the rates and at the times provided in Section 2.08 of the Credit Agreement.  The UK Borrowers also jointly and severally promise to pay interest in Euros on the unpaid principal amount of each UK Revolving Loan funded by the Lender in Euros at said office from the date hereof until paid at the rates and at the times provided in Section 2.08 of the Credit Agreement.

This Note is one of the UK Revolving Notes referred to in the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015, among the UK Borrowers, the other borrowers and guarantors party thereto from time to time, the lenders party thereto from time to time (including the Lender), and Deutsche Bank AG New York Branch, as Administrative Agent (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”) and is entitled to the benefits thereof and of the other Credit Documents.  This Note is secured by the Security Documents and is entitled to the benefits of the Guarantees.  As provided in the Credit Agreement, this Note is subject to voluntary prepayment and mandatory repayment prior to the Final Maturity Date, in whole or in part.

In case an Event of Default shall occur and be continuing, the principal of and accrued interest on this Note may be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.

Each UK Borrower hereby waives presentment, demand, protest or notice of any kind in connection with this Note.

[This Note amends and restates that certain UK Revolving Note, dated ______________ in the principal amount of __________ DOLLARS ($__________) made by the UK Borrowers in favor of the Lender, but this Note is not intended to constitute, nor does it constitute, an interruption, suspension of continuity, satisfaction, discharge of prior duties, novation, or termination of the indebtedness, loans, liabilities, expenses, or guaranteed obligations under the Credit Agreement and such prior UK Revolving Note is hereby terminated and of no further force and effect upon the issuance of this Note in replacement of such prior UK Revolving Note.]

[Signature Page Follows]

 

 

Exhibit B-3

Page 2

 

THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).

RAVENSTOCK MSG LIMITED

 

By:

 

 

Name:

 

Title:

 

MOBILE MINI UK LIMITED

 

By:

 

 

Name:

 

Title:

 

 

 

[UK Revolving Note]

EXHIBIT B-4

 

FORM OF AMENDED AND RESTATED UK SWINGLINE NOTE

 

$20,000,000

New York, New York

 

December 14, 2015

 

FOR VALUE RECEIVED, Ravenstock MSG Limited, a limited liability company incorporated in England and Wales (the “ UK Company ”), and Mobile Mini UK Limited, a corporation incorporated in England and Wales (“ Mobile Mini UK ” and together with UK Company, the “ UK Borrowers ”, and each, a “ UK Borrower ”), hereby jointly and severally promise to pay to DEUTSCHE BANK AG NEW YORK BRANCH or its registered assigns (the “ Lender ”), in Pounds Sterling in respect of UK Swingline Loans funded by the Lender in Pounds Sterling and Euros in respect of UK Swingline Loans funded by the Lender in Euros, in each case in immediately available funds, at the Payment Office, initially located at 60 Wall Street, New York, New York 10005, on the Swingline Expiry Date the principal sum of TWENTY MILLION DOLLARS ($20,000,000), or the Equivalent Amount thereof or, if less, the unpaid principal amount of all UK Swingline Loans made by the Lender pursuant to the Credit Agreement, payable at such times and in such amounts as are specified in the Credit Agreement. Capitalized terms used herein but not defined herein shall have the meanings ascribed to such terms in the Credit Agreement (as defined herein).

The UK Borrowers also jointly and severally promise to pay interest on the unpaid principal amount of each UK Swingline Loan made by the Lender in like money at said office from the date hereof until paid at the rates and at the times provided in Section 2.08 of the Credit Agreement.

This Note is the UK Swingline Note referred to in the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015 among the UK Borrowers, the other borrowers and guarantors party thereto from time to time, the lenders party thereto from time to time (including the Lender), and Deutsche Bank AG New York Branch, as Administrative Agent (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”) and is entitled to the benefits thereof and of the other Credit Documents.  This Note is secured by the Security Documents and is entitled to the benefits of the Guarantees.  As provided in the Credit Agreement, this Note is subject to voluntary prepayment and mandatory repayment prior to the Swingline Expiry Date, in whole or in part.

In case an Event of Default shall occur and be continuing, the principal of and accrued interest on this Note may be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.

Each UK Borrower hereby waives presentment, demand, protest or notice of any kind in connection with this Note.

This Note amends and restates that certain UK Swingline Note, dated February 22, 2012, in the principal amount of TEN MILLION DOLLARS ($10,000,000) made by the UK Borrowers in favor of the Lender, but this Note is not intended to constitute, nor does it constitute, an interruption, suspension of continuity, satisfaction, discharge of prior duties, novation, or termination of the indebtedness, loans, liabilities, expenses, or guaranteed obligations under the Credit Agreement and such prior UK Swingline Note is hereby terminated and of no further force and effect upon the issuance of this Note in replacement of such prior UK Swingline Note.

[Signature Page Follows]

 

 

Exhibit B-4

Page 2

 

THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).

RAVENSTOCK MSG LIMITED

 

By:

 

 

Name:

 

Title:

 

MOBILE MINI UK LIMITED

 

By:

 

 

Name:

 

Title:

 

 

[Amended and Restated UK Swingline Note]

EXHIBIT B-5

 

FORM OF [AMENDED AND RESTATED] CANADIAN REVOLVING NOTE

 

$[          ]

New York, New York

 

_________ __, ____

 

 

FOR VALUE RECEIVED, MOBILE MINI CANADA ULC, an unlimited liability corporation incorporated in British Columbia (“ Canadian Borrower ”) hereby promises to pay to [_____________] or its registered assigns (the “ Lender ”), the Equivalent Amount of the principal sum of __________ DOLLARS ($__________) in Canadian Dollars in respect of Canadian Revolving Loans funded by the Lender in Canadian Dollars, in immediately available funds, at the Payment Office, initially located at 60 Wall Street, New York, New York 10005, on the Final Maturity Date or, if less, the unpaid principal amount of all Canadian Revolving Loans made by the Lender pursuant to the Credit Agreement, payable at such times and in such amounts as are specified in the Credit Agreement. Capitalized terms used herein but not defined herein shall have the meanings ascribed to such terms in the Credit Agreement (as defined herein).

The Canadian Borrower also promises to pay interest on the unpaid principal amount of each Canadian Revolving Loan made by the Lender at said office from the date hereof until paid at the rates and at the times provided in Section 2.08 of the Credit Agreement.

This Note is one of the Canadian Revolving Notes referred to in the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015, among the Canadian Borrower, the other Borrowers and Guarantors party thereto from time to time, the lenders party thereto from time to time (including the Lender), and Deutsche Bank AG New York Branch, as Administrative Agent (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”) and is entitled to the benefits thereof and of the other Credit Documents.  This Note is secured by the Security Documents and is entitled to the benefits of the Guarantees to the extent set forth in the Credit Agreement.  As provided in the Credit Agreement, this Note is subject to voluntary prepayment and mandatory repayment prior to the Final Maturity Date, in whole or in part.

In case an Event of Default shall occur and be continuing, the principal of and accrued interest on this Note may be declared to be due and payable in the manner and with the effect provided in the Credit Agreement.

The Canadian Borrower hereby waives presentment, demand, protest or notice of any kind in connection with this Note.

[This Note amends and restates that certain Canadian Revolving Note, dated ______________ in the principal amount of __________ DOLLARS ($__________) made by the Canadian Borrower in favor of the Lender, but this Note is not intended to constitute, nor does it constitute, an interruption, suspension of continuity, satisfaction, discharge of prior duties, novation, or termination of the indebtedness, loans, liabilities, expenses, or guaranteed obligations under the Credit Agreement and such prior Canadian Revolving Note is hereby terminated and of no further force and effect upon the issuance of this Note in replacement of such prior Canadian Revolving Note.]

[Signature Page Follows]

 

 

Exhibit B-5

Page 2

 

THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK (WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES).

MOBILE MINI CANADA ULC

By:

 

 

Name:

 

Title:

 

 

 

 

[Canadian Revolving Note]

EXHIBIT C

 

FORM OF ASSIGNMENT

AND

ASSUMPTION AGREEMENT 1

This Assignment and Assumption Agreement (this “ Assignment ”), is dated as of the Effective Date set forth below and is entered into by and between [the][each] Assignor identified in item [1][2] below ([the][each, an] “ Assignor ”) and [the][each] Assignee identified in item 2 below ([the][each, an] “ Assignee ”).  [It is understood and agreed that the rights and obligations of such [Assignees][and Assignors] hereunder are several and not joint.]  Capitalized terms used herein but not defined herein shall have the meanings given to them in the Amended and Restated ABL Credit Agreement identified below (as amended, restated, supplemented and/or otherwise modified from time to time, the “ Credit Agreemen t”).  The Standard Terms and Conditions for Assignment and Assumption Agreement set forth in Annex 1 hereto (the “ Standard Terms and Conditions ”) are hereby agreed to and incorporated herein by reference and made a part of this Assignment as if set forth herein in full.

For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the][each] Assignee, and [the][each] Assignee hereby irrevocably purchases and assumes from [the][each] Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below, the interest in and to all of [the][each] Assignor’s rights and obligations under the Credit Agreement and any other documents or instruments delivered pursuant thereto that represents the amount and percentage interest identified below of all of the [respective] Assignor’s outstanding rights and obligations identified below (including Letters of Credit and Swingline Loans) ([the][each, an] “ Assigned Interest ”).  [Each][Such] sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment, without representation or warranty by [the][any] Assignor.

 

[1.Assignor:

 

2.Assignee:

 

3.Canadian Corresponding Lender:

 

] 2

 

[1][4].Credit Agreement:

Amended and Restated ABL Credit Agreement, dated as of December 14, 2015, among Mobile Mini, Inc. (the “ US Company ”), the other Borrowers and Guarantors from time to time party thereto, the Lenders from time to time party thereto, and Deutsche Bank AG New York Branch, as Administrative Agent.

[2.    Assigned Interest: 3

 


Assignor


Assignee

[Name of Canadian Corresponding Lender] 4

Aggregate Amount of Total Revolving Loan Commitment

Amount of Revolving Loan Commitment Assigned

[Name of Assignor]

[Name of Assignee]

 

[__________]

 

__________

 

__________

[Name of Assignor]

[Name of Assignee]

 

[__________]

 

__________

 

__________

 

1

This Form of Assignment and Assumption Agreement should be used by Lenders for an assignment to a single Assignee or to funds managed by the same or related investment managers.

2

If the form is used for a single Assignor and Assignee, items 1 and 2 should list the Assignor and the Assignee, respectively. Item 3 should list the Canadian Corresponding Lender only if the Assignee desires to fund Canadian Revolving Loans through a Canadian affiliate. In the case of an assignment to funds managed by the same or related investment managers, or an assignment by multiple Assignors, the Assignors and the Assignee(s) and the Canadian Corresponding Lenders, if applicable, should be listed in the table under bracketed item 2 below.

3

Insert this chart if this Form of Assignment and Assumption Agreement is being used for assignments to funds managed by the same or related investment managers or for an assignment by multiple Assignors.  Insert additional rows as needed.

4

If applicable.

 

 

 

 

Exhibit C

Page 2

 

[5.      Assigned Interest: 5

 

Aggregate Amount of Total Revolving Loan Commitment

Amount of Revolving Loan Commitment Assigned

 

$______________

 

$______________

 

Effective Date ___________, ____, ____.

 

Assignor[s] Information

 

 

Assignee[s] Information

 

Payment Instructions:

 

 

Payment Instructions:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Reference:

 

 

 

Reference:

 

 

Assignor[s] Information

 

 

Assignee[s] Information

 

Notice Instructions:

 

 

Notice Instructions:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Reference:

 

 

 

Reference:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5

Insert this chart if this Form of Assignment and Assumption Agreement is being used by a single Assignor for an assignment to a single Assignee.

 

 

 

 

Exhibit C

Page 3

 

Assignee Treaty Lender Information 6

 

To the extent such Assignee[s] [is a][are] Treaty Lender[s], each such Treaty Lender hereby (for purposes of Section 5.05(b)(ix) of the Credit Agreement):

 

A.  Confirms that it holds a passport under the HMRC DT Treaty Passport scheme:

 

[Yes][No][Not applicable].

 

B.  Elects that scheme to apply to such Lender’s participation in the Credit Agreement:

 

[Yes][No][Not applicable].

 

C. Confirms the following as its scheme reference number and its jurisdiction of tax residence:

 

Scheme Reference Number: [_____________][Not applicable.]

 

Jurisdiction of Tax Residence: [_____________][Not applicable.]

 

The terms set forth in this Assignment are hereby agreed to:

 

ASSIGNOR

 

ASSIGNEE

 

[NAME OF ASSIGNOR]

 

[NAME OF ASSIGNEE] 7

 

 

 

 

 

 

 

By:

 

 

By:

 

 

 

Name:

 

 

Name:

 

 

Title:

 

 

Title:

 

 

 

 

 

 

 

 

 

 

[NAME OF CANADIAN CORRESPONDING LENDER:

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

Name:

 

 

 

 

 

Title: 8

 

 

 

 

 

 

 

 

 

 

 

 

6

To be completed by each Additional Treaty Lender that becomes a Lender after the Effective Date of the Credit Agreement in order to confirm whether it elects to have the HMRC DT Treaty Passport scheme apply to such Lender’s participation in the Credit Agreement.  Each non-Treaty Lender to indicate “Not applicable.”

7

Add additional signature blocks, as needed, if this Form of Assignment and Assumption Agreement is being used by funds managed by the same or related investment managers.

8

Insert only if Assignee Lender desires to fund Canadian Revolving Loans through a Canadian affiliate.

 

 

 

 

 

Exhibit C

Page 4

 

[Consented to and] 9 Accepted:

DEUTSCHE BANK AG NEW YORK BRANCH,

as Administrative Agent

 

By:

 

 

Name:

 

Title:

 

By:

 

 

Name:

 

Title:

 

[[MOBILE MINI, INC.

 

By:

 

 

Name:

 

Title: ] 10

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

9

Insert only if assignment is being made to an Eligible Transferee pursuant to Section 13.04(b)(y) of the Credit Agreement.  

10

Insert only if (i) no Event of Default is then in existence and (ii) the assignment is being made to an Eligible Transferee pursuant to Section 13.04(b)(y) of the Credit Agreement.  

 

 

 

 

Annex I

to

Exhibit C

 

MOBILE MINI, INC.

CREDIT AGREEMENT

STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT

1. Representations and Warranties .

1.1. Assignor .  [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][its] Assigned Interest, (ii) [the][its] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with any Credit Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, any other Credit Document or any other instrument or document delivered pursuant thereto (other than this Assignment) or any collateral thereunder, (iii) the financial condition of the US Company, any of its Subsidiaries or affiliates or any other Person obligated in respect of any Credit Document or (iv) the performance or observance by the US Company, any of its Subsidiaries or affiliates or any other Person of any of their respective obligations under any Credit Document.

1.2. Assignee .  [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) confirms that it is (A) a Lender, or the parent company and/or an affiliate of a Lender which is at least 50% owned by such Lender or its parent company, (B) a parent company and/or an affiliate of [the][each] Assignor which is at least 50% owned by [the][each] Assignor or its parent company, (C) a fund that invests in bank loans and is managed by the same investment advisor as a Lender, by an affiliate of such investment advisor or by a Lender or (D) an Eligible Transferee under Section 13.04(b) of the Credit Agreement, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement and, to the extent of [the][its] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 9.01 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and to purchase [the][its] Assigned Interest and on the basis of which it has made such analysis and decision and (v) has attached to this Assignment any tax documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by it; (b) agrees that it will, independently and without reliance upon the Administrative Agent, [the][each] Assignor, 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 the Credit Agreement; (c) appoints and authorizes the Administrative Agent and the Collateral Agent (or any sub-agents appointed in accordance with Section 12.13 of the Credit Agreement) to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to or otherwise conferred upon the Administrative Agent or the Collateral Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (d) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Documents are required to be performed by it as a Lender.

2. Payment .  From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees, commissions and other amounts) to [the][each] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][each] Assignee for amounts which have accrued from and after the Effective Date.

3. Effect of Assignment .  Upon the delivery of a fully executed original hereof to the Administrative Agent, as of the Effective Date, (i) [the][each] Assignee shall be a party to the Credit Agreement and, to the extent provided in this Assignment, have the rights and obligations of a Lender thereunder and under the other Credit Documents and (ii) [the][each] Assignor shall, to the extent provided in this Assignment, relinquish its rights and be released from its obligations under the Credit Agreement and the other Credit Documents.

4. General Provisions .  This Assignment shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns.  This Assignment may be executed in any number of counterparts, which together shall constitute one instrument.  Delivery of an executed counterpart of a signature page of this Assignment by telecopy or other electronic transmission shall be effective as delivery of a manually executed counterpart of the Assignment.  THIS ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING, WITHOUT LIMITATION, SECTION 5.1401 OF THE GENERAL OBLIGATIONS LAW).

*         *         *

 

 

 

 

Exhibit D

 

FORM OF INCREMENTAL COMMITMENT AGREEMENT

[Name(s) of Lender(s)]

[Date]

Mobile Mini, Inc.

4646 E. Van Buren Street

Suite 400

Phoenix, Arizona 85008

Attention:  Chief Financial Officer

Phone:  (---) [ ]

Fax:      (---) [ ]

 

Re:   Incremental Commitments

Ladies and Gentlemen:

Reference is hereby made to the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015, among Mobile Mini, Inc. (“ US Company ”), the other Borrowers and Guarantors from time to time party thereto, the lenders from time to time party thereto (the “ Lenders ”) and Deutsche Bank AG New York Branch, as Administrative Agent (the “ Administrative Agent ”) (as amended, restated, modified or supplemented from time to time, the “ Credit Agreement ”). Unless otherwise defined herein, capitalized terms used herein shall have the respective meanings set forth in the Credit Agreement.  Each Lender (each an “ Incremental Lender ”) party to this letter agreement (this “ Agreement ”) hereby severally agrees to provide the Incremental Commitment set forth opposite its name on Annex I attached hereto (for each such Incremental Lender, its “ Incremental Commitment ”).  Each Incremental Commitment provided pursuant to this Agreement shall be subject to all of the terms and conditions set forth in the Credit Agreement, including, without limitation, Sections 2.01(a), 2.01(b), 2.01(c), and 2.15 thereof.

Each Incremental Lender, the Borrowers and the Administrative Agent acknowledge and agree that the Incremental Commitments provided pursuant to this Agreement shall constitute Incremental Commitments and, upon the Agreement Effective Date (as hereinafter defined), the Incremental Commitment of each Incremental Lender shall become, or in the case of an existing Lender, shall be added to (and thereafter become a part of), the Revolving Loan Commitment of such Incremental Lender.  Each Incremental Lender, the Borrower and the Administrative Agent further agree that, with respect to the Incremental Commitment provided by each Incremental Lender pursuant to this Agreement, such Incremental Lender shall receive from the Borrowers such upfront fees and/or other fees, if any, as may be separately agreed to in writing with the Borrowers and acknowledged by the Administrative Agent, all of which fees shall be due and payable to such Incremental Lender on the terms and conditions set forth in each such separate agreement.  

[Each Incremental Lender, the Borrowers and the Administrative Agent further agree that, the Applicable Margin for the Incremental Commitments shall mean, for the period from the date of the initial Borrowing of the Incremental Commitments until the first Start Date thereafter, a percentage per annum equal to, in the case of

(a) US Revolving Loans maintained as (i) Base Rate Loans, [__]%, and (ii) US LIBOR Loans, [__]%;

(b) US Swingline Loans,  [__]%;  

(c) UK Revolving Loans, [__]%,

(d) UK Swingline Loans, [__]%, and

(e) Canadian Revolving Loans maintained as (i) Canadian Prime Rate Loans, [__]% and (ii) Canadian LIBOR Loans, [__]%.

 

 

 

 

E xhibit D

Page 2

 

From and after each Start Date, to and including the applicable End Date described below, the Adjustable Applicable Margins for the Incremental Commitments shall be those set forth below opposite the Total Borrowing Availability indicated to have been achieved in any certificate delivered in accordance with the following sentence:

Level

 

Daily Average
Total Borrowing

Availability

 

Revolving Loan
B/A Rate/LIBOR/EURIBOR

and UK Swingline Loan Margin

 

US Revolving Loan and
US Swingline Loan Base

Rate Margin and Canadian

Revolving Loan Canadian
Prime Rate Margin

 

 

 

 

 

 

 

I

 

Greater than $725,000,000

 

[__]%

 

[__]%

 

 

 

 

 

 

 

II

 

Greater than $275,000,000 but less than or equal to $725,000,000

 

[__]%

 

[__]%

 

 

 

 

 

 

 

III

 

Less than or equal to $275,000,000

 

[__]%

 

[__]%

 

] 1

 

Furthermore, each of the parties to this Agreement hereby agrees to the terms and conditions set forth on Annex I hereto in respect of each Incremental Commitment provided pursuant to this Agreement.

Each Incremental Lender party to this Agreement, to the extent not already a party to the Credit Agreement as a Lender thereunder, (i) confirms that it is an Eligible Transferee, (ii) confirms that it has received a copy of the Credit Agreement and the other Credit Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement and to become a Lender under the Credit Agreement, (iii) agrees that it will, independently and without reliance upon the Administrative Agent 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 the Credit Agreement and the other Credit Documents, (iv) appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent and the Collateral Agent, as the case may be, by the terms thereof, together with such powers as are reasonably incidental thereto, (v) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement and the other Credit Documents are required to be performed by it as a Lender, and (vi) attaches the forms and/or Section 5.04(b)(ii) Certificate referred to in Section 5.04(b) of the Credit Agreement.

Upon the date of (i) the execution of a counterpart of this Agreement by each Incremental Lender, the Administrative Agent, US Company, each Borrower and each Guarantor, (ii) the delivery to the Administrative Agent of a fully executed counterpart (including by way of facsimile or other electronic transmission) hereof, (iii) the payment of any fees then due and payable in connection herewith and (iv) the satisfaction of any other conditions precedent set forth in Section 3 of Annex I hereto (such date, the “ Agreement Effective Date ”), each Incremental Lender party hereto (i) shall be obligated to make the Revolving Loans to be made by it as provided in this Agreement on the terms, and subject to the conditions, set forth in the Credit Agreement and in this Agreement and (ii) to the extent provided in this Agreement, shall have the rights and obligations of a Lender thereunder and under the other applicable Credit Documents.

 

 

 

 

 

 

 

 

 

1

Revise with such modifications as may be agreed to by the parties hereto to the extent consistent with Section 2.15 of the Credit Agreement.

 

 

 

 

E xhibit D

Page 3

 

The US Borrowers acknowledge and agree that (i) they shall be jointly and severally liable for all Obligations with respect to the Incremental Commitments provided hereby including, without limita tion, all Revolving Loans made pursuant thereto, and (ii) all such Obligations (including all such Revolving Loans) shall be entitled to the  benefits of the Security Documents and the Guarantees to the extent set forth therein.  Each US Borrower (i) reaffirms that each Lien and security interest granted by it to the Administrative Agent or the Collateral Agent for the benefit of the Secured Creditors under the Security Documents is, and shall remain, in full force and effect after giving effect to this Agreement and (ii) acknowledges and agrees that each Guarantee made by it in favor of the Secured Creditors under the Credit Agreement and the other Credit Documents is, and shall remain, in full force and effect after giving effect to this Agreement.

Each US Guarantor acknowledges and agrees that all Obligations with respect to the Incremental Commitments provided hereby and all Revolving Loans made pursuant thereto shall (i) be fully guaranteed pursuant to the Guarantees as, and to the extent, provided in the Credit Agreement and (ii) be entitled to the benefits of the Credit Documents as, and to the extent, provided therein and in the Credit Agreement.  Each US Guarantor (i) reaffirms that each Lien and security interest granted by it to the Administrative Agent or the Collateral Agent for the benefit of the Secured Creditors under the Security Documents is, and shall remain, in full force and effect after giving effect to this Agreement and (ii) acknowledges and agrees that each Guarantee made by it in favor of the Secured Creditors under the Credit Agreement and the other Credit Documents is, and shall remain, in full force and effect after giving effect to this Agreement.

The UK Borrowers acknowledge and agree that (i) they shall be jointly and severally liable for all UK Obligations and Canadian Obligations with respect to the Incremental Commitments provided hereby including, without limitation, all UK Revolving Loans and Canadian Revolving Loans made pursuant thereto, and (ii) all such UK Obligations and Canadian Obligations (including all such UK Revolving Loans and Canadian Revolving Loans) shall be entitled to the benefits of the Security Documents and the Guarantees to the extent set forth therein.  [Each UK Borrower (i) reaffirms that each Lien and security interest granted by it to the Administrative Agent or the Collateral Agent for the benefit of the Secured Creditors under the Security Documents is, and shall remain, in full force and effect after giving effect to this Agreement and (ii) acknowledges and agrees that each Guarantee made by it in favor of the Secured Creditors under the Credit Agreement and the other Credit Documents is, and shall remain, in full force and effect after giving effect to this Agreement.] 2

The Canadian Borrowers acknowledge and agree that (i) they shall be jointly and severally liable for all UK Obligations and Canadian Obligations with respect to the Incremental Commitments provided hereby including, without limitation, all UK Revolving Loans and Canadian Revolving Loans made pursuant thereto, and (ii) all such UK Obligations and Canadian Obligations (including all such UK Revolving Loans and Canadian Revolving Loans) shall be entitled to the  benefits of the Security Documents and the Guarantees to the extent set forth therein.  Each Canadian Borrower (i) reaffirms that each Lien and security interest granted by it to the Administrative Agent or the Collateral Agent for the benefit of the Secured Creditors under the Security Documents is, and shall remain, in full force and effect after giving effect to this Agreement and (ii) acknowledges and agrees that each Guarantee made by it in favor of the Secured Creditors under the Credit Agreement and the other Credit Documents is, and shall remain, in full force and effect after giving effect to this Agreement.

Each Non-US Obligation Guarantor acknowledges and agrees that all UK Obligations and Canadian Obligations with respect to the Incremental Commitments provided hereby and all UK Revolving Loans and Canadian Revolving Loans made pursuant thereto shall (i) be fully guaranteed pursuant to the Guarantees as, and to the extent, provided in the Credit Agreement and (ii) be entitled to the benefits of the Credit Documents as, and to the extent, provided therein and in the Credit Agreement.  Each Non-US Obligation Guarantor (i) reaffirms that each Lien and security interest granted by it to the Administrative Agent or the Collateral Agent for the benefit of the Secured Creditors under the Security Documents is, and shall remain, in full force and effect after giving effect to this Agreement and (ii) acknowledges and agrees that each Guarantee made by it in favor of the Secured Creditors under the Credit Agreement and the other Credit Documents is, and shall remain, in full force and effect after giving effect to this Agreement.

Attached hereto as Annex II [is an opinion][are opinions] of [insert name or names of counsel who will be delivering opinions], counsel to the respective Credit Parties, delivered as required pursuant to clause (iv) of the definition of “Incremental Commitment Requirements” appearing in Section 1 of the Credit Agreement.  

 

2 Include if no supplemental UK security documents are delivered

 

 

 

 

E xhibit D

Page 4

 

Attached hereto as Annex III are true and correct copies of officers’ certificates, board of director (or equivalent) resolutions and good standing certificates of the Credit Parties required to be delivered pursuant to clause (v) of the definition of “Incremental Commitment Requirements” appearing in Section 1 of the Credit Agreement.

You may accept this Agreement by signing the enclosed copies in the space provided below, and returning one copy of same to us before the close of business on ____________ ___, _____.  If you do not so accept this Agreement by such time, our Incremental Commitments set forth in this Agreement shall be deemed canceled.

After the execution and delivery to the Administrative Agent of a fully executed copy of this Agreement (including by way of counterparts and by facsimile or other electronic transmission) by the parties hereto, this Agreement may only be changed, modified or varied by written instrument in accordance with the requirements for the modification of Credit Documents pursuant to Section 13.12 of the Credit Agreement.

In the event of any conflict between the terms of this Agreement and those of the Credit Agreement, the terms of the Credit Agreement shall control.

*         *         *

 

 

 

E xhibit D

Page 5

 

THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.

Very truly yours,

 

 

NAME OF INSTITUTION:

 

 

[NAME OF EACH INCREMENTAL LENDER]

 

 

By

 

 

Name:

 

Title

 

 

 

 

E xhibit D

Page 6

 

Agreed and Accepted

this ___ day of __________, ____:

MOBILE MINI, INC.

 

 

By:

 

 

Name:

 

Title:

 

 

[OTHER BORROWERS]

 

 

By:

 

 

Name:

 

Title:

 

 

[        ]

 

 

By:

 

 

Name:

 

Title:

DEUTSCHE BANK AG NEW YORK BRANCH,

      as Administrative Agent

By:

 

 

Name:

 

Title:

 

 

By:

 

 

Name:

 

Title:

 

 

 

 

E xhibit D

Page 7

 

Each Guarantor acknowledges and agrees to each of the foregoing provisions of this Incremental Commitment Agreement and to the incurrence of the Revolving Loans to be made pursuant thereto.

 

[EACH GUARANTOR], as a Guarantor

 

 

By:

 

 

Name:

 

Title:

 

 

 

 

ANNEX I

 

TERMS AND CONDITIONS FOR INCREMENTAL COMMITMENT AGREEMENT

Dated as of _____________, ____

1.

Name of the Borrower:          [Mobile Mini, Inc.]
                                               [and ______]

2.

Incremental Commitment amounts (as of the Agreement Effective Date):

Names of Incremental Lenders

 

Amount of Incremental Commitment

 

 

 

Total: 1

 

 

 

3.

Other Conditions Precedent: 2

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1

The aggregate amount of Incremental Commitments must be at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof.

2

Insert any additional conditions precedent which may be required to be satisfied prior to the Agreement Effective Date.

 

 

 

 

ANNEX II

 

OPINION[S] OF COUNSEL

[Attached]

 

 

 

 

 

ANNEX III

 

OFFICER’S CERTIFICATES

[Attached]

 

 

 

 

 

EXHIBIT E

 

FORM OF JOINDER AGREEMENT

(use for Domestic Subsidiaries)

THIS JOINDER IN CREDIT AGREEMENT, NOTES, SECURITY AGREEMENT, PLEDGE AGREEMENT, AND DELAWARE TRUST SECURITY AGREEMENT (this “ Joinder ”) is executed as of ___ ___, ___ by [NAME OF NEW SUBSIDIARY], a __________ [corporation] [limited liability company] [partnership] (the “ Joining Party ”), and delivered to Deutsche Bank AG New York Branch, as Administrative Agent and as Collateral Agent, for the benefit of the Secured Creditors (as defined below).  Except as otherwise defined herein, terms used herein and defined in the Credit Agreement (as defined below) shall be used herein as therein defined.

W I T N E S S E T H :

WHEREAS, Mobile Mini, Inc., a Delaware corporation (“ US Company ”), certain other Borrowers and Guarantors from time to time party thereto, the various lenders from time to time party thereto (the “ Lenders ”), and Deutsche Bank AG New York Branch, as Administrative Agent, have entered into an Amended and Restated ABL Credit Agreement, dated as of December 14, 2015 (as the same may be amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”), providing for the making of Loans to, and the issuance of Letters of Credit for the accounts of, the Borrowers as contemplated therein;

WHEREAS, the Joining Party is a direct or indirect Subsidiary of US Company and desires, or is required pursuant to the provisions of the Credit Agreement, to become [a US Borrower under the Credit Agreement,] [a US Guarantor under the Credit Agreement,] an Assignor under the US Security Agreement, a Pledgor under the US Pledge Agreement, and an Assignor under the Delaware Trust Security Agreement; and

WHEREAS, the Joining Party will obtain benefits from the incurrence of Loans by the Borrowers, the issuance of, and participation in, Letters of Credit for the accounts of the Borrowers, and the incurrence of Banking Products Obligations pursuant to the Banking Products Agreements and Qualified Derivative Obligations pursuant to Qualified Derivative Agreements, in each case in accordance with the Credit Agreement and, accordingly, desires to execute this Joinder in order to (i) satisfy the requirements described in the preceding paragraph and (ii) induce the Lenders to make Loans to the Borrowers and issue, and/or participate in, Letters of Credit for the accounts of the Borrowers and the Secured Creditors to enter into Banking Products Agreements and Qualified Derivative Agreements, in each case, with the Borrowers and/or one or more other Subsidiaries of US Company;

NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to the Joining Party, the receipt and sufficiency of which are hereby acknowledged, the Joining Party hereby makes the following representations and warranties to the Secured Creditors and hereby covenants and agrees with each Secured Creditor as follows:

1. By this Joinder, the Joining Party becomes (i) [a US Borrower for all purposes under the Credit Agreement, pursuant to Section[s] [9.13] [10.11] [10.11 and 10.13] thereof and] a US Guarantor for all purposes under the Credit Agreement, pursuant to Section[s] [9.13] [10.11] [10.11 and 10.13] thereof, (ii) a Non-US Obligation Guarantor for all purposes under the Credit Agreement, pursuant to Section 10.11 thereof, (iii) an Assignor for all purposes under the US Security Agreement, pursuant to Section 11.12 thereof, (iv) a Pledgor for all purposes under the US Pledge Agreement, pursuant to Section 30 thereof, and (v) an Assignor for all purposes under the Delaware Trust Security Agreement, pursuant to Section 8.12 thereof.

2. [The Joining Party agrees that, upon its execution hereof, it will become a US Borrower under the Credit Agreement, and will be bound by all terms, conditions and duties applicable to a US Borrower under the Credit Agreement and the other Credit Documents (including each US Revolving Note and each US Swingline Note, whether or not such Joining Party actually signs a counterpart thereof).  Without limitation of the foregoing, and in furtherance thereof, the Joining Party agrees, on a joint and several basis with the other US Borrowers, to irrevocably and unconditionally pay in full all of the Obligations of the US Borrowers in accordance with the terms of the Credit Agreement and the other Credit Documents.]

The Joining Party agrees that, upon its execution hereof, it will become a US Guarantor under the Credit Agreement with respect to all US Guaranteed Obligations, and will be bound by all terms, conditions and duties applicable to a US Guarantor under the Credit Agreement and the other Credit Documents.  Without limitation of the foregoing, and in furtherance thereof, the Joining Party absolutely, unconditionally and irrevocably, and jointly and severally, guarantees the due and punctual payment and performance when due of all US Guaranteed Obligations (on the same basis as the other US Guarantors under the Guarantees).

 

 

 

 

Exhibit E

Page 2

 

The Joining Party agrees that, upon its execution hereof, in addition to becoming a [US Borrower and a] US Guarantor, it will become a Non-US Obligation Guarantor under the Credit Agreement with respect to all Non-US Guaranteed Obligations, and will be bound by all terms, conditions and duties applicable to a Non-US Obligation Guarantor under the Credit Agreement and the other Credit Documents.  Without limitation of the foregoing, and in furtherance thereof, the Joining Party absolutely, unconditionally and irrevocably, and jointly and severally, guarantees the due and punctual payment and performance when due of all Non-US Guaranteed Obligations (on the same basis as the other Non-US Obligation Guarantors under the Guarantees).

3. The Joining Party agrees that, upon its execution hereof, it will become a Pledgor under, and as defined in, the US Pledge Agreement, and will be bound by all terms, conditions and duties applicable to a Pledgor under the US Pledge Agreement.  Without limitation of the foregoing and in furtherance thereof, as security for the due and punctual payment when due of the Secured Obligations (as defined in the Pledge Agreement), the Joining Party hereby pledges and assigns to the Collateral Agent for the benefit of the Secured Creditors and grants to the Collateral Agent for the benefit of the Secured Creditors a security interest in all its right, title and interest in, to and under the Collateral (as defined in the US Pledge Agreement), if any, now owned or hereafter acquired by it, in each case to the extent provided in the US Pledge Agreement.

4. The Joining Party agrees that, upon its execution hereof, it will become an Assignor under, and as defined in, the US Security Agreement, and will be bound by all terms, conditions and duties applicable to an Assignor under the US Security Agreement.  Without limitation of the foregoing and in furtherance thereof, as security for the due and punctual payment when due of the Secured Obligations (as defined in the Security Agreement), the Joining Party hereby pledges and assigns to the Collateral Agent for the benefit of the Secured Creditors and grants to the Collateral Agent for the benefit of the Secured Creditors a security interest in all its right, title and interest in, to and under the Collateral (as defined in the US Security Agreement), if any, now owned or hereafter acquired by it, in each case to the extent provided in the US Security Agreement.

5. The Joining Party agrees that, upon its execution hereof, it will become an Assignor under, and as defined in, the Delaware Trust Security Agreement, and will be bound by all terms, conditions and duties applicable to an Assignor under the Delaware Trust Security Agreement.  Without limitation of the foregoing and in furtherance thereof, as security for the due and punctual payment when due of the Obligations (as defined in the Delaware Trust Security Agreement), the Joining Party hereby pledges and assigns to the Motor Vehicle Agent (as defined in the Delaware Trust Security Agreement) for the benefit of the Collateral Agent and the Secured Creditors and grants to the Motor Vehicle Agent for the benefit of the Collateral Agent and the Secured Creditors a security interest in all its right, title and interest in, to and under the Motor Vehicles (as defined in the Delaware Trust Security Agreement), if any, now owned or hereafter acquired by it, in each case to the extent provided in the Delaware Trust Security Agreement.

6. In connection with the grant by the Joining Party, pursuant to paragraph 3 above, of a security interest in all of its right, title and interest in the Collateral (as defined in the US Pledge Agreement) in favor of the Collateral Agent, the Joining Party agrees to perform (to the extent required) for the benefit of the Secured Creditors, together with the delivery of this Joinder, each of the actions specified in Section 3.2 of the US Pledge Agreement.

7. The Joining Party hereby makes and undertakes, as the case may be, each covenant, representation and warranty made by, and as (i) [each US Borrower under the Credit Agreement,] each US Guarantor under the Credit Agreement and each Non-US Obligation Guarantor under the Credit Agreement, (ii) each Assignor pursuant to Articles II, III, IV, V and VI of the US Security Agreement and (iii) each Pledgor pursuant to Section 16 of the US Pledge Agreement, and (iv) each Assignor pursuant to Articles II, III and IV of the Delaware Trust Security Agreement, in each case as of the date hereof (except to the extent any such representation or warranty relates solely to an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), and agrees to be bound by all covenants, agreements and obligations of [a US Borrower,] a  US Guarantor and a Non-US Obligation Guarantor pursuant to the Credit Agreement, an Assignor and Pledgor pursuant to the US Security Agreement, Delaware Trust Security Agreement and US Pledge Agreement, respectively, and all other Credit Documents to which it is or becomes a party.

8. Annexes A through H to the US Pledge Agreement are hereby amended by supplementing such Annexes with the information for the Joining Party contained on Annexes A through H attached hereto as Annex I.  In addition, Annexes A through F and H through K, inclusive, to the US Security Agreement are hereby amended by supplementing such Annexes with the information for the Joining Party contained on Annexes A through F and H through K, inclusive, attached hereto as Annex II.

 

 

Exhibit E

Page 3

 

9. This Joinder shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of and be enforce able by each of the parties hereto and its successors and assigns, provided , however , that the Joining Party may not assign any of its rights, obligations or interest hereunder or under any other Credit Document without the prior written consent of the Lenders or as otherwise permitted by the Credit Documents.   THIS JOINDER SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.   This Joinder may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one instrument.  Delivery of an executed counterpart hereof by facsimile or other electronic transmission shall be as effective as delivery of an original executed counterpart hereof.  In the event that any provision of this Joinder shall prove to be invalid or unenforceable, such provi sion shall be deemed to be severable from the other provi sions of this Joinder which shall remain binding on all parties hereto.  

10. From and after the execution and delivery hereof by the parties hereto, this Joinder shall constitute a “Credit Document” for all purposes of the Credit Agreement and the other Credit Documents.

11. Each of the representations and warranties set forth in the Credit Agreement and each other Credit Document and applicable to the undersigned is true and correct in all material respects, both before and after giving effect to this Joinder on the date hereof, except to the extent that any such representation and warranty relates solely to any earlier date, in which case such representation and warranty is true and correct in all material respects as of such earlier date.

12. No event has occurred or is continuing as of the date hereof, or will result from the transactions contemplated hereby on the date hereof, that would constitute an Event of Default or a Default.

13. The effective date of this Joinder is [__________], 20__.

*         *         *


 

Exhibit E

Page 4

 

IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be duly executed as of the date first above written.

[NAME OF NEW CREDIT PARTY]

 

 

By:

 

 

Name:

 

Title:

Accepted and Acknowledged by:

DEUTSCHE BANK AG NEW YORK BRANCH ,

as Administrative Agent and as Collateral Agent

 

By:

 

 

Name:

 

Title:

 

 

By:

 

 

Name:

 

Title:

 

[ANNEXES I and II to be attached by the Joining Party]


 

Exhibit E

Page 5

 

FORM OF JOINDER AGREEMENT

(use for UK Subsidiaries and Canadian Subsidiaries)

THIS JOINDER IN CREDIT AGREEMENT, NOTES AND DEBENTURE (this “ Joinder ”) is executed as of ___ ___, ___ by [NAME OF NEW SUBSIDIARY], a __________ [corporation] [limited liability company] [partnership] (the “ Joining Party ”), and delivered to Deutsche Bank AG New York Branch, as Administrative Agent and as Collateral Agent, for the benefit of the Secured Creditors (as defined below).  Except as otherwise defined herein, terms used herein and defined in the Credit Agreement (as defined below) shall be used herein as therein defined.

W I T N E S S E T H :

WHEREAS, Mobile Mini, Inc., a Delaware corporation (“ US Company ”), certain other Borrowers and Guarantors from time to time party thereto, the various lenders from time to time party thereto (the “ Lenders ”), and Deutsche Bank AG New York Branch, as Administrative Agent, have entered into an Amended and Restated ABL Credit Agreement, dated as of December 14, 2015 (as the same may be amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”), providing for the making of Loans to, and the issuance of Letters of Credit for the accounts of, the Borrowers as contemplated therein;

WHEREAS, the Joining Party is a direct or indirect Subsidiary of US Company and desires, or is required pursuant to the provisions of the Credit Agreement, to become [a UK Borrower under the Credit Agreement,] [a Canadian Borrower under the Credit Agreement,] a Non-US Obligation Guarantor under the Credit Agreement and [a Chargor under the UK First Ranking Debenture, the UK Supplemental Debenture and the UK Second Supplemental Debenture (each, a “ Debenture ” and collectively, the “ Debentures ”)] [an Assignor under the Canadian Security Agreement]; and

WHEREAS, the Joining Party will obtain benefits from the incurrence of Loans by the Borrowers, and the issuance of, and participation in, Letters of Credit for the accounts of the Borrowers, and the incurrence of Banking Products Obligations pursuant to the Banking Products Agreements and Qualified Derivative Obligations pursuant to Qualified Derivative Agreements, in each case pursuant to the Credit Agreement and, accordingly, desires to execute this Joinder in order to (i) satisfy the requirements described in the preceding paragraph and (ii) induce the Lenders to make Loans to the Borrowers and issue, and/or participate in, Letters of Credit for the accounts of the Borrowers and the Secured Creditors to enter into Banking Products Agreements and Qualified Derivative Agreements, in each case, with the Borrowers and/or one or more other Subsidiaries of US Company;

NOW, THEREFORE, in consideration of the foregoing and other benefits accruing to the Joining Party, the receipt and sufficiency of which are hereby acknowledged, the Joining Party hereby makes the following representations and warranties to the Secured Creditors and hereby covenants and agrees with each Secured Creditor as follows:

1. By this Joinder, the Joining Party becomes (i) [a UK Borrower for all purposes under the Credit Agreement, pursuant to Section[s] [9.13] [10.11] [10.11 and 10.13] thereof, and] [a Canadian Borrower for all purposes under the Credit Agreement, pursuant to Section[s] [9.13] [10.11] [10.11 and 10.13] thereof, and] a Non-US Obligation Guarantor for all purposes under the Credit Agreement, pursuant to Section[s] [9.13] [10.11] [10.11 and 10.13] thereof, and (ii) [a Chargor for all purposes under each Debenture, pursuant to Clause 31 of each Debenture] [an Assignor for all purposes under the Canadian Security Agreement, pursuant to Section 11.12 thereof].

2. [The Joining Party agrees that, upon its execution hereof, it will become a UK Borrower under the Credit Agreement, and will be bound by all terms, conditions and duties applicable to a UK Borrower under the Credit Agreement and the other Credit Documents (including each UK Revolving Note and UK Swingline Note, whether or not such Joining Party actually signs a counterpart thereof).  Without limitation of the foregoing, and in furtherance thereof, the Joining Party agrees, on a joint and several basis with the other UK Borrowers, to irrevocably and unconditionally pay in full all of the UK Obligations in accordance with the terms of the Credit Agreement and the other Credit Documents.]

[The Joining Party agrees that, upon its execution hereof, it will become a Canadian Borrower under the Credit Agreement, and will be bound by all terms, conditions and duties applicable to a Canadian Borrower under the Credit Agreement and the other Credit Documents (including each Canadian Revolving Note, whether or not such Joining Party actually signs a counterpart thereof).  Without limitation of the foregoing, and in furtherance thereof, the Joining Party agrees, on a joint and several basis with the other Canadian Borrowers, to irrevocably and unconditionally pay in full all of the Canadian Obligations in accordance with the terms of the Credit Agreement and the other Credit Documents.]

 

Exhibit E

Page 6

 

The Joining Party agrees that, upon its execution hereof, [in addition to becoming a [UK Borrower] [Canadian Borrower],] it will become a Non-US Obligation Guarantor under the Credit Agreement with respect to all Non-US Guaranteed Obligations, and will be bound by all terms, conditions and duties applicable to a Non-U.S. Obligation Guarantor under the Credit Agreement and the other Credit Documents.  Without limitation of the foregoing, and in furtherance thereof, the Joining Party absolutely, unconditionally and irrevocably, and jointly and severally, guarantees the due and punctual payment and performance when due of all Non-US Guaranteed Obligations (on the same basis as the other Non-US Obligation Guarantors under the Guarantees).

3. [The Joining Party agrees that, upon its execution hereof and its concurrent execution of a Security Accession Deed (as defined in each Debenture) attached hereto as Annex I , it will become a Chargor under, and as defined in, each Debenture, and will be bound by all terms, conditions and duties applicable to a Chargor under each Debenture.  Without limitation of the foregoing and in furtherance thereof, as security for the due and punctual payment when due of the Secured Obligations (as defined in each Debenture), the Joining Party hereby pledges and assigns to the Collateral Agent for the benefit of the Secured Creditors and grants to the Collateral Agent for the benefit of the Secured Creditors a security interest in all its right, title and interest in, to and under the Charged Property (as defined in each Debenture), if any, now owned or hereafter acquired by it, in each case to the extent provided in each Debenture.]

[The Joining Party agrees that, upon its execution hereof, it will become an Assignor under, and as defined in, the Canadian Security Agreement, and will be bound by all terms, conditions and duties applicable to an Assignor under the Canadian Security Agreement.  Without limitation of the foregoing and in furtherance thereof, as security for the due and punctual payment when due of the Secured Obligations (as defined in the Canadian Security Agreement), the Joining Party hereby pledges and assigns to the Collateral Agent for the benefit of the Secured Creditors and grants to the Collateral Agent for the benefit of the Secured Creditors a security interest in all its right, title and interest in, to and under the Collateral (as defined in the Canadian Security Agreement), if any, now owned or hereafter acquired by it, in each case to the extent provided in the Canadian Security Agreement.]

4. The Joining Party hereby makes and undertakes, as the case may be, each covenant, representation and warranty made by, and as (i) [each UK Borrower under the Credit Agreement and] [each Canadian Borrower under the Credit Agreement and] each Non-US Obligation Guarantor under the Credit Agreement, and (ii) [each Chargor pursuant to Clauses 5 through 14 of each Debenture] [each Assignor pursuant to Articles II, III, IV, V and VI of the Canadian Security Agreement], in each case as of the date hereof (except to the extent any such representation or warranty relates solely to an earlier date in which case such representation and warranty shall be true and correct as of such earlier date), and agrees to be bound by all covenants, agreements and obligations of [a UK Borrower and] [a Canadian Borrower and] a  Non-US Obligation Guarantor pursuant to the Credit Agreement, [a Chargor pursuant to each Debenture] [an Assignor pursuant to the Canadian Security Agreement], and all other Credit Documents to which it is or becomes a party.

5. This Joinder shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of and be enforce able by each of the parties hereto and its successors and assigns, provided , however , that the Joining Party may not assign any of its rights, obligations or interest hereunder or under any other Credit Document without the prior written consent of the Lenders or as otherwise permitted by the Credit Documents.   THIS JOINDER SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.   This Joinder may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one instrument.  Delivery of an executed counterpart hereof by facsimile or other electronic transmission shall be as effective as delivery of an original executed counterpart hereof.  In the event that any provision of this Joinder shall prove to be invalid or unenforceable, such provision shall be deemed to be severable from the other provisions of this Joinder which shall remain binding on all parties hereto.

6. From and after the execution and delivery hereof by the parties hereto, this Joinder shall constitute a “Credit Document” for all purposes of the Credit Agreement and the other Credit Documents.

7 Each of the representations and warranties set forth in the Credit Agreement and each other Credit Document and applicable to the undersigned is true and correct in all material respects, both before and after giving effect to this Joinder on the date hereof, except to the extent that any such representation and warranty relates solely to any earlier date, in which case such representation and warranty is true and correct in all material respects as of such earlier date.

 

Exhibit E

Page 7

 

8. No event has occurred or is continuing as of the date hereof, or will result from the transactions contemplated hereby on the date hereof, that would constitute an Event of Default or a Default.  

9. The effective date of this Joinder is [__________], 20__.

*         *         *


 

Exhibit E

Page 8

 

IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be duly executed as of the date first above written.

[NAME OF NEW CREDIT PARTY]

 

 

By:

 

 

Name:

 

Title:

Accepted and Acknowledged by:

DEUTSCHE BANK AG NEW YORK BRANCH ,

as Administrative Agent and as Collateral Agent

 

By:

 

 

Name:

 

Title:

 

 

By:

 

 

Name:

 

Title:

 

 

 

[ANNEX I to be attached by the Joining Party]

 

 

 

EXHIBIT F

 

FORM OF US LETTER OF CREDIT REQUEST

Dated        1        

Deutsche Bank AG New York Branch, as Administrative Agent, under the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015 (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”), among Mobile Mini, Inc., certain other Borrowers and Guarantors from time to time party thereto, the lenders party thereto from time to time, and Deutsche Bank AG New York Branch, as Administrative Agent.

 

60 Wall Street

New York, New York 10005

Attention:  Michael Shannon

 

[[        2         ], as US Issuing Lender
under the Credit Agreement
_____________________
_____________________
_____________________]

Attention: [_______________]

 

Ladies and Gentlemen:

Pursuant to Section 3.01 of the Credit Agreement, the undersigned hereby requests that the US Issuing Lender referred to above issue a [trade] [standby] US Letter of Credit for the account of the undersigned on       3       (the “ Date of Issuance ”) in the aggregate Stated Amount of        4        .

For purposes of this US Letter of Credit Request, unless otherwise defined herein, all capitalized terms used herein which are defined in the Credit Agreement shall have the respective meaning provided therein.

The beneficiary of the requested US Letter of Credit will be        5        , and such US Letter of Credit will be in support of       6         and will have a stated expiration date of        7        .

 

1

Date of US Letter of Credit Request.

2

Insert name and address of Issuing Lender.  For standby US Letters of Credit issued by Deutsche Bank AG New York Branch insert:  Deutsche Bank AG New York Branch, 60 Wall Street, New York, NY 10005, Attention:  Global Loan Operations, Standby Letter of Credit Unit.  For trade Letters of Credit issued by Deutsche Bank AG New York Branch, insert: Deutsche Bank AG New York Branch, 60 Wall Street, New York, NY 10005, Attention: Trade and Risk Services, Import LC.  For US Letters of Credit issued by another Issuing Lender, insert the correct notice information for that US Issuing Lender.

3

Date of Issuance which shall be a Business Day that is at least 5 Business Days after the date hereof (or such earlier date as is acceptable to the respective Issuing Lender in any given case).

4

Aggregate initial Stated Amount of the US Letter of Credit which should not be less than $25,000 (or such lesser amount as is acceptable to the respective Issuing Lender).

5

Insert name and address of beneficiary.

6

Insert a description of US L/C Supportable Obligations (in the case of standby Letters of Credit) and insert description of permitted trade obligations of the US Company or any of its Subsidiaries (in the case of trade Letters of Credit).

7

Insert the last date upon which drafts may be presented which may not be later than (i) in the case of standby Letters of Credit, the earlier of (x) one year after the Date of Issuance and (y) the 5th Business Day preceding the Final Maturity Date and (ii) in the case of trade Letters of Credit, the earlier of (x) 180 days after the Date of Issuance and (y) 5 Business Days prior to the Final Maturity Date.

 

 

 

 

Exhibit F

Page 2

 

We hereby certify that:

 

(A)

the representations and warranties contained in the Credit Agreement and in the other Credit Documents are and will be true and correct in all material respects on the Date of Issuance, both before and after giving effect to the issuance of the US Letter of Credit requested hereby, unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (it being understood and agreed that any representations and warranties qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects on the Date of Issuance or such specified earlier date, as applicable);

 

(B)

no Default or Event of Default has occurred and is continuing nor, after giving effect to the issuance of the US Letter of Credit requested hereby, would such a Default or Event of Default occur;

 

(C)

the Aggregate US Exposure (both before and after giving effect to the issuance of the US Letter of Credit pursuant to this US Letter of Credit Request) does not exceed either (i) the US Maximum Amount at such time or (ii) the US Borrowing Base at such time (based upon the most recently delivered Borrowing Base Certificate);

 

(D)

the Aggregate Exposure (both before and after giving effect to the issuance of the US Letter of Credit pursuant to this US Letter of Credit Request) does not exceed either (i) the Total Revolving Loan Commitment or (ii) the Aggregate Borrowing Base at such time (based on the Borrowing Base Certificate last delivered); and

 

(E)

after giving effect to the issuance of the US Letter of Credit pursuant to this US Letter of Credit Request, the Stated Amount of the US Letter of Credit Outstandings (exclusive of Unpaid US Drawings which are repaid on the date of, and prior to the issuance of, such US Letter of Credit), does not exceed $50,000,000.

Copies of all documentation with respect to the supported transaction are attached hereto.

[NAME OF US BORROWER]

 

 

By:

 

 

Name:

 

Title:

 

 

 

 

EXHIBIT G

 

FORM OF UK LETTER OF CREDIT REQUEST

Dated        1       

Deutsche Bank AG New York Branch, as Administrative Agent, under the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015 (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”), among Mobile Mini, Inc., certain other Borrowers and Guarantors from time to time party thereto, the lenders party thereto from time to time, and Deutsche Bank AG New York Branch, as Administrative Agent.

 

60 Wall Street

New York, New York 10005

Attention:  Michael Shannon

 

[[         2           ], as UK Issuing Lender
under the Credit Agreement
_____________________
_____________________
_____________________]

Attention: [_______________]

 

Ladies and Gentlemen:

Pursuant to Section 3.02 of the Credit Agreement, the undersigned hereby requests that the UK Issuing Lender referred to above issue a [trade] [standby] UK Letter of Credit for the account of the undersigned on        3       (the “ Date of Issuance ”) in the aggregate Stated Amount of        4        .

For purposes of this UK Letter of Credit Request, unless otherwise defined herein, all capitalized terms used herein which are defined in the Credit Agreement shall have the respective meaning provided therein.

The beneficiary of the requested UK Letter of Credit will be        5        , and such UK Letter of Credit will be in support of       6         and will have a stated expiration date of        7        .

 

1

Date of UK Letter of Credit Request.

2

Insert name and address of Issuing Lender.  For standby UK Letters of Credit issued by Deutsche Bank AG New York Branch insert:  Deutsche Bank AG New York Branch, 60 Wall Street, New York, NY 10005, Attention:  Global Loan Operations, Standby Letter of Credit Unit.  For trade Letters of Credit issued by Deutsche Bank AG New York Branch, insert: Deutsche Bank AG New York Branch, 60 Wall Street, New York, NY 10005, Attention: Trade and Risk Services, Import LC.  For UK Letters of Credit issued by another Issuing Lender, insert the correct notice information for that UK Issuing Lender.

3

Date of Issuance which shall be a Business Day that is at least 5 Business Days after the date hereof (or such earlier date as is acceptable to the respective Issuing Lender in any given case).

4

Aggregate initial Stated Amount of the UK Letter of Credit which shall be denominated in Pounds Sterling or Euros and should not be less than €25,000 or £25,000 (or such lesser amount as is acceptable to the respective Issuing Lender).

5

Insert name and address of beneficiary.

6

Insert a description of UK L/C Supportable Obligations (in the case of standby Letters of Credit) and insert description of permitted trade obligations of the UK Company or any of its Subsidiaries (in the case of trade Letters of Credit).

7

Insert the last date upon which drafts may be presented which may not be later than (i) in the case of standby Letters of Credit, the earlier of (x) one year after the Date of Issuance and (y) the 5th Business Day preceding the Final Maturity Date and (ii) in the case of trade Letters of Credit, the earlier of (x) 180 days after the Date of Issuance and (y) 5 Business Days prior to the Final Maturity Date.

 

 

 

 

 

Exhibit G

Page 2

 

We hereby certify that:

 

(A)

the representations and warranties contained in the Credit Agreement and in the other Credit Documents are and will be true and correct in all material respects on the Date of Issuance, both before and after giving effect to the issuance of the UK Letter of Credit requested hereby, unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (it being understood and agreed that any representations and warranties qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects on the Date of Issuance or such specified earlier date, as applicable);

 

(B)

no Default or Event of Default has occurred and is continuing nor, after giving effect to the issuance of the UK Letter of Credit requested hereby, would such a Default or Event of Default occur;

 

(C)

the Aggregate UK Exposure (both before and after giving effect to the issuance of the UK Letter of Credit pursuant to this UK Letter of Credit Request) does not exceed either (i) the UK Maximum Amount at such time or (ii) the UK Borrowing Base at such time (based upon the most recently delivered Borrowing Base Certificate);

 

(D)

the Aggregate Exposure (both before and after giving effect to the issuance of the UK Letter of Credit pursuant to this UK Letter of Credit Request) does not exceed either (i) the Total Revolving Loan Commitment or (ii) the Aggregate Borrowing Base at such time (based on the Borrowing Base Certificate last delivered); and

 

(E)

After giving effect to the issuance of the UK Letter of Credit pursuant to this UK Letter of Credit Request, the Stated Amount of the UK Letter of Credit Outstandings (exclusive of Unpaid UK Drawings which are repaid on the date of, and prior to the issuance of, such UK Letter of Credit), does not exceed $20,000,000 or the Equivalent Amount thereof.

Copies of all documentation with respect to the supported transaction are attached hereto.

[NAME OF UK BORROWER]

 

By:

 

 

Name:

 

Title:

 

 

 

 

 

EXHIBIT H

 

FORM OF CANADIAN LETTER OF CREDIT REQUEST

Dated        1        

Deutsche Bank AG New York Branch, as Administrative Agent, under the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015 (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”), among Mobile Mini, Inc., certain other Borrowers and Guarantors from time to time party thereto, the lenders party thereto from time to time, and Deutsche Bank AG New York Branch, as Administrative Agent.

 

60 Wall Street

New York, New York 10005

Attention:  Michael Shannon

 

[[         2           ], as Canadian Issuing Lender

under the Credit Agreement
_____________________
_____________________
_____________________]

Attention: [_______________]

 

Ladies and Gentlemen:

Pursuant to Section 3.03 of the Credit Agreement, the undersigned hereby requests that the Canadian Issuing Lender referred to above issue a [trade] [standby] Canadian Letter of Credit for the account of the undersigned on        3       (the “ Date of Issuance ”) in the aggregate Stated Amount of        4        .

For purposes of this Canadian Letter of Credit Request, unless otherwise defined herein, all capitalized terms used herein which are defined in the Credit Agreement shall have the respective meaning provided therein.

The beneficiary of the requested Canadian Letter of Credit will be        5        , and such Canadian Letter of Credit will be in support of       6         and will have a stated expiration date of        7        .

 

1

Date of Canadian Letter of Credit Request.

2

Insert name and address of Issuing Lender.   For standby Canadian Letters of Credit issued by Deutsche Bank AG New York Branch insert:  Deutsche Bank AG New York Branch, 60 Wall Street, New York, NY 10005, Attention:  Global Loan Operations, Standby Letter of Credit Unit.  For trade Letters of Credit issued by Deutsche Bank AG New York Branch, insert: Deutsche Bank AG New York Branch, 60 Wall Street, New York, NY 10005, Attention: Trade and Risk Services, Import LC.  For Canadian Letters of Credit issued by another Issuing Lender, insert the correct notice information for that Canadian Issuing Lender.

3

Date of Issuance which shall be a Business Day that is at least 5 Business Days after the date hereof (or such earlier date as is acceptable to the respective Issuing Lender in any given case).

4

Aggregate initial Stated Amount of the Canadian Letter of Credit which shall be denominated in Canadian Dollars and should not be less than CA $25,000 (or such lesser amount as is acceptable to the respective Issuing Lender).

5

Insert name and address of beneficiary.

6

Insert a description of Canadian L/C Supportable Obligations (in the case of standby Letters of Credit) and insert description of permitted trade obligations of the Canadian Company or any of its Subsidiaries (in the case of trade Letters of Credit).

7

Insert the last date upon which drafts may be presented which may not be later than (i) in the case of standby Letters of Credit, the earlier of (x) one year after the Date of Issuance and (y) the 5th Business Day preceding the Final Maturity Date and (ii) in the case of trade Letters of Credit, the earlier of (x) 180 days after the Date of Issuance and (y) 5 Business Days prior to the Final Maturity Date.

 

 

 

 

Exhibit H

Page 2

 

We hereby certify that:

 

(A)

the representations and warranties contained in the Credit Agreement and in the other Credit Documents are and will be true and correct in all material respects on the Date of Issuance, both before and after giving effect to the issuance of the Canadian Letter of Credit requested hereby, unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (it being understood and agreed that any representations and warranties qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects on the Date of Issuance or such specified earlier date, as applicable);

 

(B)

no Default or Event of Default has occurred and is continuing nor, after giving effect to the issuance of the Canadian Letter of Credit requested hereby, would such a Default or Event of Default occur;

 

(C)

the Aggregate Canadian Exposure (both before and after giving effect to the issuance of the Canadian Letter of Credit pursuant to this Canadian Letter of Credit Request) does not exceed either (i) the Canadian Maximum Amount at such time or (ii) the Canadian Borrowing Base at such time (based upon the most recently delivered Borrowing Base Certificate);

 

(D)

the Aggregate Exposure (both before and after giving effect to the issuance of the Canadian Letter of Credit pursuant to this Canadian Letter of Credit Request) does not exceed either (i) the Total Revolving Loan Commitment or (ii) the Aggregate Borrowing Base at such time (based on the Borrowing Base Certificate last delivered); and

 

(E)

after giving effect to the issuance of the Canadian Letter of Credit pursuant to this Canadian Letter of Credit Request, the Stated Amount of the Canadian Letter of Credit Outstandings (exclusive of Unpaid Canadian Drawings which are repaid on the date of, and prior to the issuance of, such Canadian Letter of Credit), does not exceed $20,000,000.

Copies of all documentation with respect to the supported transaction are attached hereto.

[NAME OF CANADIAN BORROWER]

 

 

By:

 

 

Name:

 

Title:

 

 

 

 

EXHIBIT I

 

FORM OF SECTION 5.04(b)(ii) CERTIFICATE 1

Reference is hereby made to the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015, among Mobile Mini, Inc., the other Borrowers and Guarantors from time to time party thereto, the lenders from time to time party thereto and Deutsche Bank AG New York Branch, as Administrative Agent (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”).  Capitalized terms used herein that are not defined herein shall have the meanings ascribed to them in the Credit Agreement.  Pursuant to the provisions of Section 5.04(b)(ii) of the Credit Agreement, the undersigned Non-U.S. Lender certifies that:

 

(1) it is the sole record and beneficial owner of the Loans (as well as any Note(s) evidencing such Loans) and other obligations under the Credit Agreement in respect of which it is providing this certificate,

 

(2) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code,

 

(3) it is not a 10-percent shareholder of the US Borrowers within the meaning of Section 881(c)(3)(B) of the Code, and

 

(4) it is not a controlled foreign corporation receiving interest from a related person as described in Section 881(c)(3)(C) of the Code.  

 

The undersigned Non-U.S. Lender has furnished you with a certificate of its non-U.S. person status on IRS Form W-8BEN or W-8BEN-E (or successor form). By executing this certificate, the Non-U.S. Lender agrees that (1) if the information on this certificate changes, the Non-U.S. Lender shall inform US Company and the Administrative Agent in writing within 30 days of such change and (2) the Non-U.S. Lender shall furnish the US Borrowers and the Administrative Agent a properly completed and currently effective certificate in either the calendar year in which payment is to be made to the Non-U.S. Lender or in either of the two calendar years preceding such payment.

 

1

If the undersigned Non-U.S. Lender is an intermediary, a foreign partnership or other flow-through entity, the following adjustments shall be made:

A. The following representations shall be provided as applied to the partners, members or beneficial owners claiming the portfolio interest exemption:

 

·

beneficial ownership under Paragraph 1;

 

·

the status in Paragraph 3; and

 

·

the status in Paragraph 4.

B. The following representation shall be provided as applied to the undersigned Non-U.S. Lender as well as the partners, members or beneficial owners claiming the portfolio interest exemption:

 

·

the status in Paragraph 2.

C. The following representation shall be provided by the undersigned Non-U.S. Lender, but not the partners, members or beneficial owners claiming the portfolio interest exemption:

 

·

record ownership under Paragraph 1.

D. The undersigned Non-U.S. Lender shall provide an Internal Revenue Service Form W-8IMY (with underlying W-8BENs, W-8BEN-Es, W-9s or other applicable forms from each of its partners, members or beneficial owners claiming the portfolio interest exemption).

E. Appropriate adjustments shall be made in the case of tiered intermediaries or tiered partnerships or flow-through entities.

 

 

 

IN WITNESS WHEREOF, the undersigned has duly executed this certificate.

 

[NAME OF LENDER]

 

 

By:

 

 

 

Name:

 

Title:

Date:  _______________, _____

 

 

 

 

 

EXHIBIT J-1

 

[Form of DLA Piper (US) Opinion]

 

 

 

 

EXHIBIT J-2

 

[Form of DLA Piper (UK) Opinion]

 

 

 

EXHIBIT J-3

 

[Form of Canadian Opinions]

 

 

 

EXHIBIT J-4

 

[Form of Special Delaware Counsel Opinion]

 

 

 

EXHIBIT J-5

 

[Form of Real Estate Local Counsel Opinions]

 

 

 

EXHIBIT K

 

[Form of Credit Party Secretary’s Certificate]

 

 

 

EXHIBIT L

 

[Form of UK Second Supplemental Share Charge]

 

 

 

EXHIBIT M

 

[Form of UK Second Supplemental Debenture and

UK Second Supplemental Partnership Debenture]

 

 

 

EXHIBIT N

 

SOLVENCY CERTIFICATE

The undersigned, the chief financial officer of MOBILE MINI, INC., a Delaware corporation (the “ US Company ”), hereby certifies, as of December 14, 2015, as follows in the name and on behalf of the US Company and its Subsidiaries and solely in his capacity as an officer of the US Company.  This Certificate is delivered pursuant to Section 6.15 of the Amended and Restated ABL Credit Agreement (the “ Credit Agreement ”), dated as of December 14, 2015, by and among the US Company, the other Borrowers and Guarantors from time to time party thereto, certain financial institutions from time to time party thereto (the “ Lenders ”), and Deutsche Bank AG New York Branch, as administrative agent for the Lenders (in such capacity, the “ Administrative Agent ”).  Capitalized terms used herein without definition shall have the meanings given such terms in the Credit Agreement.

On and as of the Effective Date, and after giving effect to the Transactions and to all Indebtedness (including the Loans) being incurred or assumed and Liens created by the Credit Parties in connection therewith, the US Company and each of its Subsidiaries is or are Solvent.  

The undersigned further certifies that in his capacity as the chief financial officer of the US Company, he is familiar with the properties, businesses and assets of the US Company and its Subsidiaries, is duly authorized to execute this certificate on behalf of the US Company and has reviewed the Credit Documents and the contents of this certificate and, in connection herewith, has made such investigations and inquiries as he has deemed necessary and prudent therefore.

[Signature Page Follows]


 

 

IN WITNESS WHEREOF, the undersigned has executed and delivered this certificate as of the day and year first above written.

 

MOBILE MINI, INC.

 

 

By:

 

Name:

Mark Funk

Title:

Chief Financial Officer

 

 

 

 

 

EXHIBIT O

FORM OF COMPLIANCE CERTIFICATE

[Date]

This Compliance Certificate is delivered to you pursuant to Section 9.01(d) of the Amended and Restated ABL Credit Agreement, dated as of December 14, 2015 (as amended, restated, supplemented and/or modified from time to time, the “ Credit Agreement ”), among Mobile Mini, Inc. (“ US Company ”), certain other Borrowers and Guarantors from time to time party thereto, the lenders from time to time party thereto, and Deutsche Bank AG New York Branch, as Administrative Agent.  Terms defined in the Credit Agreement and not otherwise defined herein are used herein as therein defined.

1. I am the duly elected, qualified and acting _______________ of Mobile Mini, Inc. [insert title of the Chief Financial Officer or principal accounting officer].

2. I have reviewed and am familiar with the contents of this Compliance Certificate.  I am providing this Compliance Certificate solely in my capacity as an officer of US Company.  The matters set forth herein are true to the best of my knowledge after due inquiry.

3. I have reviewed the terms of the Credit Agreement and the other Credit Documents and have made or caused to be made under my supervision a review in reasonable detail of the transactions and condition of US Company and its Subsidiaries during the accounting period covered by the financial statements attached hereto as ANNEX 1 (the “ Financial Statements ”).  Such review did not disclose the existence during or at the end of the accounting period covered by the Financial Statements, and I have no knowledge of the existence, as of the date of this Compliance Certificate, of any condition or event which constitutes a Default or an Event of Default, except as set forth in a separate attachment, if any, to this Certificate, describing in detail, the nature of the condition or event, the period during which it has existed and the action which US Company has taken, is taking, or proposes to take with respect to each such condition or event.

4. Attached hereto as ANNEX 2 are the computations showing (in reasonable detail) compliance with the covenants specified therein.

[Signature Page Follows]

 

 

 

IN WITNESS WHEREOF, the undersigned has caused this Compliance Certificate to be duly executed as of the date first set forth above.

 

MOBILE MINI, INC.

 

 

By:

 

 

Name:

 

Title:

 

[Compliance Certificate]

ANNEX 1

Financial Statements

[Attached]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ANNEX 2

The information described herein is as of _________, ____ 1 (the “ Computation Date ”) and, except as otherwise indicated below, pertains to the period of four fiscal quarters of the US Company ended on the Computation Date (the “ Relevant Period ”).

 

Financial Covenants

 

Amount

A.

Fixed Charge Coverage Ratio (Section 10.21)

 

 

 

 

 

 

a.

Consolidated Net Cash Flow 2 for the four  

 

 

 

 

fiscal quarters ended the Computation Date

$________

 

 

 

 

 

 

 

b.

Fixed Charges 3 for the four  

 

 

 

 

fiscal quarters ended the Computation Date

$________

 

 

 

 

 

 

 

c.

Ratio of line a to line b

_____:1.00

 

 

 

 

 

 

 

d.

Level required pursuant to Section 10.21

_____:1.00

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1

Insert the last day of the respective fiscal quarter or year covered by the financial statements which are required to be accompanied by this Compliance Certificate.

2

Attach hereto in reasonable detail the calculations required to arrive at Consolidated Net Cash Flow for purposes of the Fixed Charge Coverage Ratio.

3

Attach hereto in reasonable detail the calculations to arrive at Fixed Charges.

 

 

EXHIBIT P

 

FORM OF BORROWING BASE CERTIFICATE

[Date]

The undersigned hereby certifies that:

(1) I am the duly elected _________ of Mobile Mini, Inc., a Delaware corporation (the “ US Company ”).

(2) In accordance with subsection 9.01(i) of that certain Amended and Restated ABL Credit Agreement, dated as of December 14 , 2015 (as amended, restated, modified and/or supplemented from time to time, the “ Credit Agreement ”; capitalized terms used herein and not otherwise defined herein being used herein as therein defined), by and among US Company, certain other Borrowers and Guarantors from time to time party thereto, the lenders from time to time party thereto and Deutsche Bank AG New York Branch, as Administrative Agent, attached hereto as Annex 1 is a true and accurate calculation of the US Borrowing Base, the UK Borrowing Base, the Canadian Borrowing Base, and the Aggregate Borrowing Base as of ___________, 20__, determined in accordance with the requirements of the Credit Agreement.

[Signature Page Follows]

IN WITNESS WHEREOF, the undersigned has caused this Borrowing Base Certificate to be duly executed as of the date first set forth above.

 

MOBILE MINI, INC.

 

 

By:

 

 

Name:

 

Title:

 

 

 

 

EXHIBIT Q

[Form of US Master Reaffirmation Agreement]

 

 

 

EXHIBIT R

[Form of Canadian Master Reaffirmation Agreement]

 

 

 

 

 

EXHIBIT S

MASTER EXCHANGE AGREEMENT

 

This MASTER EXCHANGE AGREEMENT or (“MEA”) (this “ Agreement ”), dated and effective as of _______________ [__], [____] (the “ Effective Date ”), is entered into by and among __________________________________________ (“ Exchanger ”) with an office at __________________________________, Accruit, LLC (“ Accruit ” or “ Owner ”) with an office at 1331 17th Street, Suite 1250, Denver, CO 80202, and ____________________________ (“ Intermediary ” or “ QI LLC ”) with an office at 1331 17th Street, Suite 1250, Denver, CO 80202. Exchanger, Accruit and Intermediary shall be referred to herein individually as a “ Party ” and collectively as the “ Parties ”.

 

RECITALS

 

A. Exchanger has entered or will enter into agreements (“ Sale Contracts ”) to sell certain business or investment property (“ Relinquished Property ”) to various purchasers (“ Purchasers ”).

 

B. Exchanger has entered or will enter into agreements (“ Purchase Contracts ”) to purchase certain business or investment property (“ Replacement Property ”) from various sellers (“ Sellers ”).

 

C. Pursuant to Revenue Procedure 2003-39, Exchanger desires to engage in a repetitive like-kind exchange program and structure the sales of certain Relinquished Property and purchases of like-kind Replacement Property as tax-deferred exchanges under Section 1031 of the Internal Revenue Code of 1986, as amended (the “ Code ”).

 

D.

Exchanger has appointed Intermediary as the qualified intermediary pursuant to Section 1031 of the Code and the Treasury Regulations promulgated thereunder.

 

AGREEMENT

 

In consideration of the above Recitals and premises and the mutual covenants contained herein, the receipt and sufficiency being hereby acknowledged as the Parties, Exchanger, Accruit, and Intermediary agree as follows:

 

Article 1

Definitions

 

Certain terms that only appear in a single article of this Agreement are defined within the text of the article.  The following terms appear in multiple articles of this Agreement and are defined as follows:

 

“ Accounts ” means one or more bank accounts maintained by Escrow Agent or Qualified Intermediary created for the purpose of receiving and disbursing Exchange Funds and Other Amounts from time to time on behalf of Exchanger pursuant to the terms of this Agreement, and shall include Collection Account(s), Exchange Funds Account, Disbursement Account(s), and Investment Account(s).

 

“ Agreement ” has the meaning specified in the preamble to this Agreement.

 

“ Banking Business Day ” means a day on which a Federal Reserve Bank is open for business.

 

“ Code ” means the Internal Revenue Code of 1986, as amended.

 

“ Disqualified Person ” means a disqualified person, as defined in Treasury Regulation Section 1.1031(k)-1(k).

 

“ Distribution Event ” means, with respect to each Exchange, the occurrence of one of the following (but no sooner, in any event, before the expiration of the Identification Period for such Exchange): (a) if Exchanger has failed to identify any Replacement Property for such Exchange (including Replacement Property deemed to be identified under the Deemed Identification Procedures), then a Distribution Event shall occur upon the expiration of the Identification Period for such Exchange, or (b) if Exchanger has identified (or is deemed to have identified) any Replacement Property for such Exchange, then a Distribution Event shall occur upon the earliest of (i) Exchanger’s receipt of all Replacement Property for such Exchange, (ii) the expiration of the Exchange Period for such Exchange, and (iii) otherwise in accordance with Section 4.03(b)(2).

 

Page 1 of 15

 

“ Escrow Account ” (or “ Account ”) means an account consisting of a segregated account established in the name of the Escrow Agent, in connection with the Exchanger’s IRC Section 1031 exchange, under the provisions of the MEA and subject to the substantial restrictions as set forth therein.  

“ Escrow Agent ” means a party who provides escrow services to the Exchanger and Intermediary pursuant to Treasury Regulation Section 1.1031(k)-1(g)(3)(ii) and Section 5.02 of Revenue Procedure 2003-39.

“ Exchange ” means an exchange of Relinquished Property for Replacement Property pursuant to this Agreement that Exchanger intends to qualify and be reported as a tax-deferred exchange under Section 1031 of the Code, the regulations thereunder and Revenue Procedure 2003-39.

 

“ Exchange Funds ” means the amount that Intermediary receives from a Purchaser with respect to a sale of Relinquished Property including the value of any trade-in property as described in Section 3.02 herein.

 

“ Exchange Period ” has the meaning specified in Section 6.01.

 

“ Exchanger ” has the meaning specified in the preamble to this Agreement.

 

“ Intermediary ” has the meaning specified in the preamble to this Agreement, and the Intermediary shall meet all requirements under the Code and any other applicable Internal Revenue Rules, Regulations and Procedures in order to serve as a Qualified Intermediary for Exchanger.

 

“ Lender ” means any lender (or group of lenders) that makes loans of money or other property to Exchanger as borrower.

“ LKE Account Bank ” means a bank at which the Accounts are held.

 

“ LKE Tax Services ” means the like-kind exchange tax consulting, compliance and reporting services (which for the avoidance of doubt do not include QI Services).

 

“ Other Amounts ” means monies received in any Account on behalf of Exchanger that are not Exchange Funds.

 

“ Permitted Investments ” has the meaning specified in Section 7.01.

 

“ PwC ” means PricewaterhouseCoopers, the tax advisory firm separately engaged to implement and provide ongoing LKE Tax Services.

 

“ Purchase Contract ” means an agreement entered into by Exchanger for the purchase from a Seller of certain business or investment property that Exchanger desires to qualify as Replacement Property under this Agreement.

 

“ Purchaser ” means a party that enters into a Sale Contract with Exchanger and agrees to purchase Relinquished Property from Exchanger.

 

“ QI Services ” means those services performed by a Qualified Intermediary who enters into a written exchange agreement with Exchanger to transfer Relinquished Property to a Purchaser, transfers Replacement Property to Exchanger and holds proceeds from the sale of Relinquished Property beyond the actual or constructive control of Exchanger (which for the avoidance of doubt do not include LKE Tax Services).

 

“ Qualified Intermediary ” or “ QI ” means an accommodation party, who satisfies the requirements of the Internal Revenue Service set forth in Treasury Regulation Section 1.1031(k)-1(g)(4) and who performs QI Services.

 

“ Relinquished Property ” means certain property acquired and held by Exchanger for business or investment purposes that has been identified in a written notice to all parties to the related Sale Contract of the assignment of such Sale Contract to the Qualified Intermediary, and that Exchanger intends to transfer in an Exchange, subject to the terms of this Agreement.

 

“ Relinquished Property Liability or Liabilities ” means any Liability or Liabilities that must be repaid as a result of a transfer or sale of Relinquished Property.

Page 2 of 15

 

“ Relinquished Property Subject to Liabilities ” means a Relinquished Property that is subject to a Relinquished Property Liability or Liabilities.

“ Replacement Property ” means certain property that Exchanger intends to acquire and hold for business or investment purposes, that is of like-kind to Relinquished Property and that has been identified in a written notice to all parties to the related Purchase Contract of the assignment of such Purchase Contract to the Qualified Intermediary, and that Exchanger desires to receive in an Exchange, subject to the terms of this Agreement.

 

“ Sale Contract ” means an agreement entered into by Exchanger for the sale to a Purchaser of certain business or investment property that Exchanger desires to qualify as Relinquished Property under this Agreement.

 

“ Seller ” means a party that enters into a Purchase Contract with Exchanger and agrees to sell Replacement Property to Exchanger.

 

“ Term ” of this agreement has the meaning specified in Section 13.01.

 

Article 2

Agreement to Exchange

 

2.01 Exchange of Relinquished Property for Replacement Property .  Upon the terms and conditions set forth in this Agreement, Intermediary agrees to acquire Relinquished Property from Exchanger and to transfer such Relinquished Property to Purchaser as specified in a Sale Contract.  Intermediary further agrees to acquire Replacement Property from Seller and to transfer such Replacement Property to Exchanger as specified in a Purchase Contract.  Exchanger’s disposition of Relinquished Property and acquisition of Replacement Property are intended to qualify as a tax-deferred exchange under Section 1031 of the Code.

 

2.02 Direct Transfer .  Section 1031 of the Code, the Treasury Regulations promulgated thereunder, IRS Revenue Ruling 90-34 and Revenue Procedure 2003-39 allow the Relinquished Property to be transferred directly from Exchanger to Purchaser.  Similarly, the Replacement Property is permitted to be transferred directly from Seller to Exchanger.  Pursuant to Treasury Regulation Section 1.1031(k)-1(g)(4)(iv), Intermediary is deemed to have acquired such properties and to have exchanged the Relinquished Property for the Replacement Property.  Intermediary is only deemed to acquire such properties for purposes of Exchanger’s tax-deferred exchanges.  Intermediary shall not be considered to hold title to, or to be a mortgagee in possession of, or to be owner or operator of such properties within the meaning of any federal, state or local environmental laws or regulations.  Intermediary shall not be deemed at any time to acquire legal or equitable title to any Relinquished Property or Replacement Property. The Parties agree and acknowledge that Intermediary and Accruit are not partners, employees, agents or joint venturers of Exchanger.

 

2.03 Designation of Exchange .  As determined by Exchanger, one or more Replacement Properties received in exchange for one or more Relinquished Properties previously transferred shall be treated as a single Exchange.

 

Article 3

Assignment of Rights and Notification of Assignment

 

3.01 Assignment of Sale Contracts and Purchase Contracts .  For value received, Exchanger hereby assigns to Intermediary all of Exchanger’s rights (but not its obligations) under each Sale Contract of Relinquished Property and Purchase Contract of Replacement Property:  (i) outstanding at the time this Agreement is executed, or (ii) entered into during the term of this Agreement.  Intermediary hereby accepts assignment of Exchanger’s rights (but not its obligations) under each such Sale Contract of Relinquished Property and Purchase Contract of Replacement Property.

 

3.02 Trade-in Property .  Where applicable, Exchanger may from time to time accept trade-in property from a Purchaser.  By assigning to Intermediary its rights under a certain Sale Contract, Exchanger thereby assigns to Intermediary its rights relating to such trade-in property.  In exchange for the trade-in property, Exchanger agrees to transfer to Intermediary funds in an amount equal to the value assigned to the trade-in property pursuant to the Sale Contract.  Exchanger agrees to transfer the funds to Intermediary promptly pursuant generally to the provisions of IRS Revenue Procedure 2003-39.  All trade-in property shall be transferred by Purchaser directly to Exchanger on behalf of Intermediary.

 

3.03 Notification of Assignment of Rights .  On or before the date of transfer of the applicable Relinquished Property, Exchanger is responsible for providing written notification to Purchaser that Exchanger’s rights under the Sale Contract have been assigned to Intermediary.  Similarly, on or before the date of transfer of the applicable Replacement Property, Exchanger is

Page 3 of 15

 

responsible for providing written notification to Seller that Exchanger’s rights under the Purchase Contract have been assigned to Intermediary.  

 

3.04 Retention of Sale Contracts and Purchase Contracts .  Exchanger agrees to retain with its business records an original copy of each Sale Contract and Purchase Contract that is assigned to Intermediary pursuant to this Agreement for at least three years from the year of sale.  Intermediary has the right to review any Sale Contract or Purchase Contract that has been assigned to Intermediary.  Intermediary may review a Sale Contract or Purchase Contract at Exchanger’s place of business during normal business hours after providing ten days’ notice of its intention to exercise this right. Intermediary agrees to maintain records of correspondence and reports that Exchanger specifically directs Intermediary to maintain for five years following the date of the record, or if longer, Intermediary’s standard document retention policy.

 

Article 4

Escrow Accounts and Disbursement of Funds

 

4.01 Establishment of Escrow Accounts .  For purposes of collecting, receiving, holding and disbursing Exchange Funds and Other Amounts from time to time on behalf of Exchanger pursuant to the terms of this Agreement, Exchanger and Intermediary shall establish certain escrow accounts on behalf of the Exchanger and Intermediary.  In order to secure Intermediary’s obligations to purchase Replacement Property and transfer it to Exchanger and other Intermediary obligations hereunder, Intermediary shall enter into a Qualified Escrow Agreement (“ QEA ”) with Exchanger and Escrow Agent for repetitive like-kind exchange transactions attached hereto as Exhibit A .  Pursuant to the QEA, Escrow Agent, Exchanger and Intermediary shall establish one or more of the following separate escrow accounts at the LKE Account Bank and subject to the terms of the QEA attached hereto as Exhibit A :

 

 

a)

Joint Accounts.   Exchanger and QI shall establish and maintain one or more accounts (each, an “Account”) at the LKE Account Bank.  Each of the Accounts is intended to qualify within the definition of “Joint Accounts” described in Section 5.02 of Revenue Procedure 2003-39. Accounts will be opened and held in the name of Exchanger and Intermediary (acting on behalf of Exchanger in its capacity as Qualified Intermediary).   

In connection with any intended disbursement from the Joint Accounts, Exchanger shall be required to request and obtain approval from Intermediary prior to causing any disbursement request to be made to the Escrow Agent.  

 

b)

Collection Account .  The Collection Account(s) are intended to facilitate the orderly and efficient collection of proceeds from the disposition of Relinquished Property(ies) and other items, and to allow for the further identification and subsequent sorting of the portion of such funds that are Exchange Funds from the portion of such funds that are considered Other Amounts.  All proceeds received from Purchasers by or on behalf of the QI or Exchanger in respect of sales of Relinquished Property shall be immediately deposited in a Collection Account. From the Collection Accounts, Exchange Funds shall then be moved to the Exchange Funds Account.

 

c)

Exchange Funds Account .  The Exchange Funds Account is intended to (i) receive all Exchange Funds from the Collection Accounts and (ii) disburse Exchange Funds to the Disbursement Account(s).  Funds held on behalf of Exchanger in the Exchange Funds Account may be invested in a Permitted Investment until such time as required to be disbursed, as provided herein.

 

d)

Investment Account .  Funds held on behalf of Exchanger in any Account shall be invested in a Permitted Investment in accordance with Section 7.01 hereof.  Such investment with respect to any Account may be done directly from such Account or by depositing such funds into a separate investment account maintained exclusively for such purpose, which may be a “linked” account.  Such investment account shall be deemed a “Joint Account” for purposes of Section 4.01(a) hereof.  Funds on deposit in any investment account, together with the earnings thereon, shall be re-deposited into the applicable related Account prior to any distribution thereof.

 

e)

Disbursement Account .  The Disbursement Account(s) are intended to facilitate the orderly and efficient disbursement of funds to Sellers, including the disbursement of all funds relating to acquisition of Replacement Property. This account will act as a clearing house for funds disbursed for Replacement Property acquisition costs and for Other Amounts.

Page 4 of 15

 

 

f)

Additional Deposits .  Exchanger may deposit Other Amounts (which may be distributed to Exchanger or used to cover non-QI services fees, as directed by Exchanger) into any of the Accounts from time-to-time during the Term of this Agreement.  

4.02 Proceeds from Transfer of Relinquished Property.

 

a)

Collection of Funds .  From time to time during the Term of this Agreement, Purchasers and other Persons shall be directed to deposit funds into a Collection Account by check, EFT or other methods of payment. The Collection Account is intended to facilitate the orderly and efficient collection of Exchange Funds and Other Amounts from the disposition of each Relinquished Property and to allow for the sorting of Other Amounts from Exchange Funds.  

 

b)

Separation, Consolidation and Transfer of Funds from the Collection Accounts .  Funds from the Collection Accounts shall be periodically transferred as follows: (i) to the Exchange Funds Account, (ii) to Exchanger, but only to the extent of Other Amounts, or (iii) to a Disbursement Account .

 

c)

Identification of and Approval of Fund Transfers from the Collection Accounts .  On any given Banking Business Day, Exchanger may initiate proposed electronic funds transfers from a Collection Account in order to apply any funds in the Collection Account as of such Banking Business Day pursuant to clauses (i), (ii) and/or (iii) of Section 4.02(b) as Exchanger shall direct.  If upon notification of the proposed electronic funds transfers pursuant to this Section 4.02(c), Intermediary approves of such proposed electronic funds transfers, Intermediary agrees to take all appropriate actions needed to approve and transmit such transfers.  If Intermediary does not approve of any of such proposed electronic funds transfers, Intermediary shall notify Exchanger within four hours of the receipt of such notice, via telephone or fax (any such notice given by telephone to be confirmed in writing) of the disapproval and the reasons for such disapproval. In the interest of clarity and notwithstanding anything in this agreement to the contrary, no transfer of any funds from any Account will be made without the explicit approval of the Intermediary.  

 

d)

Transfer of Funds from the Exchange Funds Account .  Funds from the Exchange Funds Account may be periodically transferred as follows: (i) to a Disbursement Account or (ii) to Exchanger, as Exchanger may direct, but only to the extent of Other Amounts or upon a Distribution Event.

 

e)

Ownership of Funds; Restricted Transfers .  Exchanger and Intermediary hereby acknowledge and agree that it is the intent of the parties hereto that funds deposited into the Exchange Funds Account shall be used solely to enable Intermediary to perform its obligations hereunder to acquire Replacement Property and shall not be considered part of Intermediary’s general assets nor subject to claims by Intermediary’s creditors, nor, except as set forth herein, shall Intermediary have any right, title and interest in and to such funds. Exchanger and Intermediary acknowledge and agree that income earned on a Joint Account will be attributable to Exchanger for income tax purposes.

 

f)

Disbursement of Funds from a Disbursement Account .  Funds from a Disbursement Account shall from time to time be disbursed as follows: (i) for Replacement Property acquisition costs or (ii) to make disbursements of Other Amounts.

 

g)

Approval of Transfers and Disbursements .  All funds held in Accounts pursuant to this Agreement shall be transferred or disbursed only upon the joint written (including electronic communications) instruction of Intermediary and Exchanger.  Nothing in this paragraph shall be construed to permit a disbursement to be directed by either party except to the extent permitted by Treasury Regulation Section 1.1031(k)-1(g)(6), Section 5.02 of Revenue Procedure 2003-39, and Section 4.03 hereof. Intermediary is expressly authorized to rely conclusively on the authorized instructions of Exchanger.  Intermediary is expressly authorized to rely conclusively on the accuracy of the authorization, including without limitation the account number and ABA routing transit number.  

 

h)

Funds Netting .  If as a result of funds netting on Relinquished Property, the amount of Exchange Funds to be transferred from the Collection Account to the Exchange Funds Account on any

Page 5 of 15

 

 

Banking Business Day exceeds the amount of funds in such Collection Account, Intermediary may on such day transfer to the Exchange Funds Account an amount equal to such shortfall in accordance with the safe harbor of Section 5.03 of Revenue Procedure 2003-39.  If funds netting occurs with respect to Replacement Property, Intermediary may transfer to Exchanger the excess of the full price for the Replacement Property over the amount paid by Intermediary to Seller as reflected in the netted sales price.  

 

i)

Exchanger as Lender .  If Exchanger ever acts as a lender to a Purchaser, Exchanger shall promptly transfer funds equal to the loan proceeds (plus a market rate of interest on such amount for the period from the date such Purchaser acquires its Relinquished Property through the date Exchanger transfers such funds) to or for the benefit of Intermediary in accordance with the Safe Harbor of Section 5.04 of Revenue Procedure 2003-39.

 

j)

Application of Lease Security Deposit to Purchase Price .  Exchanger may apply a buyer-lessee’s lease security deposit to the purchase price of the related Relinquished Property. Pursuant to the safe harbor set forth in Section 5.05 of Revenue Procedure 2003-39, Exchanger will promptly transfer funds equal to such lease security deposit (plus a market rate of interest on such amount for the period between the date of sale of the Relinquished Property and the date of transfer of the security deposit to Intermediary) to the Intermediary.

4.03 Restrictions on Funds .  WITH RESPECT TO EXCHANGE FUNDS, EXCHANGER HAS NO RIGHT TO RECEIVE, PLEDGE, BORROW, OR OTHERWISE OBTAIN THE BENEFITS OF EXCHANGE FUNDS (AND INTEREST EARNED THEREON) HELD IN THE ACCOUNTS BEFORE THE END OF THE EXCHANGE PERIOD (AS DEFINED IN ARTICLE 6 OF THIS AGREEMENT), EXCEPT AS PROVIDED BELOW BUT IN NO EVENT IN A MANNER INCONSISTENT WITH TREASURY REGULATION SECTION 1.1031(k)-1(g)(6)):

 

 

(a)

If the Exchanger has not identified Replacement Property by the end of the 45-day Identification Period (as defined in Article 5 of this Agreement), the Exchanger has rights to the Exchange Funds, and any interest earned thereon, at any time after the end of the Identification Period;

 

(b)

If the Exchanger has identified Replacement Property, the Exchanger has rights to the Exchange Funds, and interest earned thereon, upon or after:

 

(1) the receipt of all identified Replacement Property; or

 

(2) the occurrence after the end of the Identification Period of a material and substantial contingency that (i) relates to the exchange, (ii) is provided for in writing, and (iii) is beyond the control of the Exchanger and any Disqualified Person, other than the person obligated to transfer the Replacement Property to the Exchanger  and

 

4.04 Purchases of Replacement Property .  In the event that Exchanger instructs Intermediary to acquire Replacement Property using funds held by Intermediary, the Replacement Property shall be purchased by Intermediary using funds in the following order:

 

 

(a)

First, to the extent that such funds exist, Intermediary shall use Exchange Funds held in the applicable Account; and

 

 

(b)

Second, in the event that funds held in the applicable Accounts are insufficient to pay for the Replacement Property, Exchanger shall transfer additional funds to Intermediary for deposit into the Exchange Funds Account, or shall transfer funds directly to a Seller or closing agent.

 

Article 5

Identification of Replacement Property

 

5.01 Identification Period .  For any Replacement Property not otherwise received by Exchanger during the Identification Period, all such Replacement Property must be identified by Exchanger by the end of the Identification Period.  The Identification Period begins on the date that Exchanger transfers the Relinquished Property and ends at midnight on the 45 th day

Page 6 of 15

 

thereafter.  If multiple Relinquished Properties are transferred in a transaction that Exchanger intends to treat as a single Exchange, the Identification Period begins on the date Exchanger transfers the first of such Relinquished Properties. If the Exchanger is entitled to relief for a Federal Declared Disaster, then the Identification Period is automatically extended as provided in Revenue Procedure 2007-56.  Exchanger shall have the sole responsibility to inform Intermediary in writing that Exchanger is entitled to such relief.  

 

5.02 Identification of Replacement Property .  Exchanger acknowledges that Replacement Property is identified only if it is designated as Replacement Property in a written document signed by Exchanger and delivered electronically, mailed, telecopied, or otherwise sent to Intermediary (or any other person allowed pursuant to the regulations under Section 1031 of the Code) before the end of the Identification Period pursuant to 1.1031(k)-1(c) of the applicable Treasury Regulations, provided that such Replacement Property is matched with Relinquished Property no later than the due date (determined without regard to extensions) of Exchanger’s federal tax return.  However, any Replacement Property that is received by Exchanger before the end of the Identification Period is treated as identified before the end of the Identification Period.  Exchanger is solely responsible for making a proper identification of Replacement Property within the Identification Period.  Intermediary and Accruit are not responsible in any way for Exchanger’s identification of Replacement Property.

 

5.03 Identification of Alternative or Multiple Properties .  Exchanger may identify more than one Replacement Property per Exchange.  However, the maximum number of Replacement Properties that Exchanger may identify per Exchange is (i) three properties without regard to the fair market values of the properties, or (ii) any number of properties as long as their aggregate fair market value as of the end of the Identification Period does not exceed 200 percent of the aggregate fair market value of all the Relinquished Properties as of the date the Relinquished Properties were transferred by the Exchanger.

 

Article 6

Exchange Period

 

6.01 Exchange Period .  The Exchange Period begins on the date Exchanger transfers the Relinquished Property and ends at midnight on the earlier of (i) the 180 th day thereafter or (ii) the due date (including extensions) for the Exchanger’s tax return for the taxable year in which the transfer of the Relinquished Property occurs or (iii) the date the Exchanger files its tax return for the taxable year in which the transfer of Relinquished Property occurs.  If multiple Relinquished Properties are transferred in a transaction that Exchanger intends to treat as a single Exchange, the Exchange Period begins on the date Exchanger transfers the first of such Relinquished Properties.  If for any reason the Exchanger is entitled to relief under Federal or State Law, then the Exchange Period is automatically extended as provided by such law.  Exchanger shall have the sole responsibility to inform Intermediary in writing that Exchanger is entitled to such relief.

 

6.02 Receipt of Replacement Property .  The Exchanger acknowledges that the properly identified Replacement Property must be received before the end of the Exchange Period.  Exchanger is solely responsible for receiving the Replacement Property within the Exchange Period.

 

Article 7

Interim Investment of Exchange Funds

 

7.01 Permitted Investment of Funds .  Intermediary shall invest (and reinvest) funds in the Exchange Funds Account in one or more of the following investments (“Permitted Investments”) as authorized and directed by Exchanger:  (i) the money market or other short-term investment vehicle(s) regularly used by Intermediary in the ordinary course of its business; (ii) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America; (iii) repurchase agreements with Intermediary, involving securities of the kind listed in Subsection (ii) above; or, (iv) such other investments as Exchanger may authorize in writing, subject to the approval of Intermediary. Permitted Investments shall not include any investment in any form in the Exchanger or its affiliates.

 

7.02 Investment Losses .  Intermediary and Accruit shall not be liable for any loss of the principal amount of funds in the Exchange Funds Account or the earnings thereon resulting from the investment thereof, except in the case of Intermediary’s or Accruit’s gross negligence or willful and wanton misconduct.

 

7.03 Interest Calculation Rules .  The LKE Account Bank calculates and posts interest for all funds held through a standard method that utilizes interest rates as reported by the investment vehicle utilized by Intermediary.  For check receipts, the first day for interest to be earned is generally two Banking Business Days following actual receipt (to accommodate float).  For all other receipts (ACH, wire and book transfers), the first day for interest to be earned is generally one Banking Business Day following

Page 7 of 15

 

actual receipt.  The last day interest is earned is the day prior to the date funds are disbursed pursuant to this Agreement.  Interest is generally calculated daily and posted monthly to the Exchange Funds Account.  

 

Article 8
Representations, Warranties, and Covenants

 

8.01 Intermediary hereby represents and warrants to Exchanger as of the date hereof and throughout the Term of this Agreement and covenants, where applicable, with Exchanger as follows:

 

 

(a)

Organization, Power, Standing, and Qualification .  Intermediary is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Colorado and have the requisite power and authority to carry on its business as is presently being conducted and as it is intended and reasonably contemplated to be conducted under this Agreement and as part of the like-kind exchange program, and to own and operate the properties and assets presently owned and operated by it, if any, and contemplated to be owned and operated by it in the future.

 

 

(b)

Power and Authority to Act .  Intermediary has the requisite power and authority pursuant to its organizational documents to execute, deliver and perform this Agreement, to acquire rights under the assignment(s) herein, and to otherwise perform its obligations under this Agreement including to effect the Exchanges on behalf of Exchanger.  The execution, delivery, and performance of this Agreement and the consummation of the Exchanges have been duly authorized by all necessary action on the part of Intermediary.  This Agreement is a valid and binding obligation of Intermediary, enforceable in accordance with its terms.

 

 

(c)

Validity of Contemplated Transactions .  The execution, delivery, and performance of this Agreement does not and will not (a) contravene any provisions of the Articles of Organization or bylaws of Intermediary, or (b) violate, conflict with, constitute a default under, cause the acceleration of any payments pursuant to, or otherwise impair the good standing, validity, or effectiveness of any agreement, contract, indenture, lease, or mortgage to which Intermediary is now, or may in the future be a party.

 

 

(d)

Indebtedness .  Neither Accruit, Intermediary, nor any Person acting on behalf of or as an agent for Intermediary, has incurred or will incur any indebtedness for borrowed money or will pledge, assign, transfer, or otherwise encumber or permit any of the foregoing encumbrances with respect to any aspect of this Agreement whatsoever, including the rights assigned herein to Intermediary by Exchanger.

 

 

(e)

Litigation and Compliance .  There is no civil or criminal suit, action, claim, arbitration, administrative, legal, or other proceeding or governmental investigation pending or, to the actual knowledge of Intermediary, threatened against Intermediary or its officers, or directors in such capacity nor has there been any failure by Intermediary or its officers, or directors to comply with nor has there been any violation of, or default with respect to any issued or pending, order, writ, injunction, judgment or decree of any court or federal, state, or local department, official, commission, authority, board, bureau, agency, or other instrumentality against Intermediary or its officers or directors in their capacity as, or in connection with their capacity as, officers and directors of Intermediary.

 

 

(f)

Not a Disqualified Person .  At no time during the Term of this Agreement, will Intermediary knowingly permit itself or any Affiliate of Intermediary to become a Disqualified Person with respect to Exchanger taking into account all exceptions and exclusions there from.  To the best of Intermediary’s knowledge and without inquiry, neither Intermediary nor any Affiliate of Intermediary has, within the two-year period ending on the date of the first transfer of Relinquished Property hereunder, engaged in any activity which would cause Intermediary to be a Disqualified Person with respect to Exchanger.

 

 

(g)

Solvency and Bankruptcy .  Before and after giving effect to the transactions contemplated by this Agreement, Intermediary is solvent within the meaning of the Bankruptcy Code (Chapter 11 of

Page 8 of 15

 

 

Title 11 of the United States Code, or any successor statute) and is not the subject of any voluntary or involuntary case or proceeding seeking liquidation, reorganization or other relief with respect to itself or its debt under any bankruptcy or insolvency law of the United States or any State.  To the extent it may lawfully so agree, Intermediary will not commence any case, proceeding or other action under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, liquidation or other relief with respect to its debts or take any action in furtherance of, or as an indication of its consent, approval of or acquiesce in any of the foregoing.  

 

 

(h)

Ownership .  All of the issued and outstanding equity interests of Intermediary are owned by Owner, and have been validly issued, are fully paid and non-assessable.  Intermediary has no subsidiaries and owns no capital stock or any interest in any other Person.

 

 

(i)

No Other Current Agreements .  Other than as contemplated by this Agreement, (i) Intermediary is not a party to any contract or any agreement of any kind or nature and (ii) Intermediary is not subject to any obligations or liabilities of any kind or nature in favor of any third party other than Affiliates, in the normal course of business, and liabilities that may arise due to income tax consolidation.

 

 

(j)

Company Filings .  Intermediary shall make all necessary filings and pay all fees (unless agreed otherwise) required by any state or local jurisdiction identified and designated in writing by Exchanger, in order to conduct its business in each such jurisdiction and effect the transactions contemplated hereby.

 

 

(k)

No Other Future Agreements .  Intermediary will not enter into or be a party to any agreement or instrument other than this Agreement and any documents and agreements incidental hereto or entered into as contemplated herein.

 

 

(l)

No Other Business .  Intermediary will not engage in any business or enterprise or enter into any transaction other than effecting Exchanges pursuant to this Agreement, the related exercise of its rights as Qualified Intermediary hereunder, the incurrence and payment of ordinary course operating expenses and other activities related to or incidental to either of the foregoing.

 

 

(m)

Common Ownership .  Neither Intermediary, Owner, nor any of their respective Affiliates bear a relationship with PwC as described in either Sections 267(b) or 707(b) of the code.

 

Article 9

Responsibilities of the Parties and Liability Limitations

 

9.01 Intermediary’s and Accruit’s Responsibilities .  Intermediary's and Accruit’s responsibilities are limited in scope to what is specifically provided herein in this Agreement.  Neither Intermediary nor Accruit shall incur any liability whatsoever to Exchanger, except for a violation of this Agreement resulting from Intermediary’s or Accruit’s gross negligence or willful and wanton misconduct.  Intermediary and Accruit shall have no responsibility hereunder other than to follow faithfully the instructions received from Exchanger and reasonably believed by Intermediary and Accruit to have been executed by the proper Parties.  Intermediary and/or Accruit are not required to sign any agreement or participate in any transaction that in the sole, unfettered and absolute opinion of Intermediary and/or Accruit would require Intermediary and/or Accruit to engage in any unlawful or fraudulent action.  Notwithstanding anything to the contrary in this Agreement, Intermediary and/or Accruit shall be under no obligation to disburse any portion of the Exchange Funds if Intermediary and/or Accruit reasonably believe it may be held liable or accountable in any way to any person or entity or local or state or federal agency or governmental department or division for money or other damages or claims.

 

9.02 Exchanger’s Responsibilities .  Without prejudice to any other limitation on Intermediary’s or Accruit’s duties or responsibilities under this Agreement, Exchanger (and not Intermediary or Accruit) shall be solely responsible and liable for:  (i) the sufficiency, accuracy or validity of any document or instrument or transaction arising from or relating to a Sale Contract or a Purchase Contract, including any title or registration documents for Relinquished Property and Replacement Property; (ii) the identity, authority or legal rights or standing of any person or entity signing any document or instrument; and (iii) risk of loss or damage to Relinquished Property, Replacement Property and all other property received or transferred by Intermediary under this Agreement.  Exchanger expressly represents, warrants and covenants that any and all transactions occurring pursuant to this Agreement have and

Page 9 of 15

 

are and shall be conducted such that they are in compliance with, and adhere to, any and all local and state or federal laws, including any and all restrictions or mandated compliance with any such laws, rules or regulations or procedures or policies connected with such local or state and federal laws.  Exchanger represents, warrants and covenants that it is not entering into this Agreement to improperly avoid a tax consequence or otherwise avoid a legal responsibility, and that all information provided to Intermediary and/or Accruit is true and accurate, not misleading, and that there are no material omissions in the information provided.  Intermediary and Accruit are relying upon Exchanger’s representations, warranties and covenants concerning all such transactions contemplated in this Agreement.    

 

9.03 Sale and Purchase Contracts and Transfer Taxes .  Intermediary and Accruit shall not assume or bear any personal liability in connection with any Sale Contract or Purchase Contract.  Without limitation, Exchanger agrees to comply with all relevant sales and use tax laws and any other property transfer tax laws on the basis that it has sold all Relinquished Properties directly to the respective Purchasers and that it has purchased all Replacement Properties directly from the respective Sellers.

 

9.04 Tax Consequences .  Exchanger acknowledges and agrees that Intermediary and Accruit shall not be responsible for any tax consequences to Exchanger (including any responsibility for filing and the payment of any tax owed by or due from Exchanger) resulting from Intermediary's or Accruit’s activities or responsibilities hereunder.  Intermediary and Accruit make no representations, warranties or covenants that its actions, or any exchanges made pursuant to this Agreement, result in the Exchanges being eligible for non-recognition treatment under Section 1031 of the Code.  Exchanger acknowledges that Intermediary and Accruit are under no duty to determine whether Relinquished Property and Replacement Property are of like kind under Section 1031 of the Code, and that Intermediary and Accruit are under no duty to, and will not, undertake to determine whether Exchanger’s allocation of purchase or sale prices attributable thereto is accurate or will be given effect for tax purposes.  Exchanger shall be responsible for the determination of whether properties are of like kind or like class, the segregation or identification of any units of property into separate Exchanges, the determination of any gain to be recognized by Exchanger in any Exchange, and the form and sufficiency of any identification of Replacement Property made by Exchanger (including any internal identification or matching procedure employed by Exchanger).  Exchanger acknowledges that it has engaged the professional services of independent tax advisers and is relying upon the advice of those advisers, and not Intermediary or Accruit, with respect to the determination of any federal, state and local income, gift and estate tax consequences of all transactions contemplated herein.  The foregoing covenants in this paragraph shall survive the resignation of Intermediary or the termination of this Agreement by any of the Parties.

 

9.05 Indemnification .  Exchanger hereby agrees to indemnify and hold harmless Intermediary and Accruit, its and their officers, managers, members, employees and agents (collectively the “ Indemnified Parties ”) from and against all claims, liabilities, demands and expenses, including reasonable attorneys' fees, of any kind which may be asserted against any of the Indemnified Parties by any person or entity which arise out of any acts or omissions related to the carrying out of the terms of this Agreement or any other agreement entered into pursuant or related to this Agreement, including, but not limited to, any agreement related to the establishment of a qualified escrow or qualified trust, as those terms are defined in Treasury Regulation Section 1.1031(k)-1(g)(3), any Sale Contract, any Purchase Contract, or any other contract or agreement entered into with respect to any transfer of property, including taxes, claims for breach of contract or injury to person or property, and fines or penalties under any law, including without limitations under any federal, state or local law with respect to environmental matters or hazardous wastes, except for any of the foregoing which arise from the gross negligence or willful and wanton misconduct of any of the Indemnified Parties.  This indemnification includes any cost or liability associated with Intermediary and/or Accruit being found by a court to be a mortgagee in possession or to be an owner or operator of any Relinquished Property or Replacement Property within the meaning of any federal, state or local environmental laws or regulations.  The foregoing indemnities in this paragraph shall survive the resignation of Intermediary or the termination of this Agreement.

 

9.06 Fees, etc .  Intermediary shall not be required to accept, convey, transfer or otherwise deal with Relinquished Property, Replacement Property, Exchange Funds or any part thereof until all of the payments, advances and expenses made or incurred by it or owed to it (including Intermediary's fee) shall have been paid or until adequate provision has been made therefor, in the sole discretion of Intermediary and/or Accruit.  Nor shall Intermediary or Accruit be responsible for any consequences or liability for the failure to act as a result of Exchanger’s failure to pay or make adequate provisions to pay.

 

9.07 LIABILITY LIMITATION .  EXCHANGER AGREES THAT INTERMEDIARY AND ACCRUIT SHALL NOT BE LIABLE FOR PUNITIVE, EXEMPLARY, CONTRACT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST PROFITS INCURRED BY EXCHANGER OR FOR ANY INCOME TAXES, INTEREST OR PENALTIES INCURRED BY EXCHANGER, WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTES OR ANY OTHER LEGAL THEORY (AND EVEN IF INTERMEDIARY AND/OR ACCRUIT HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).  IN NO EVENT SHALL THE AGGREGATE DAMAGES FOR WHICH INTERMEDIARY AND/OR ACCRUIT SHALL BE HELD LIABLE UNDER THIS AGREEMENT, WHICH DAMAGES SHALL ONLY APPLY IN THE CASE OF GROSS NEGLIGENCE OR WILLFUL AND WANTON MISCONDUCT ON THE PART OF INTERMEDIARY OR ACCRUIT, EXCEED ONE TIMES

Page 10 of 15

 

ANNUAL FEES PAID FOR LKE TAX SERVICES AND QI SERVICES.  EXCHANGER AGREES TO PROMPTLY NOTIFY INTERMEDIARY AND ACCRUIT OF ANY COMPLAINT OR CLAIM EXCHANGER INTENDS TO ASSERT AGAINST INTERMEDIARY AND/OR ACCRUIT, AND EXCHANGER AGREES TO NOT ASSERT ANY CLAIM AGAINST INTERMEDIARY OR ACCRUIT AFTER THE PASSAGE OF 180 DAYS AFTER THE COMPLETION OF THE EXCHANGE INVOLVED.  EXCHANGER AGREES THAT THE FOREGOING LIMITATION ON THE TYPE AND AMOUNT OF DAMAGES RECOVERABLE FROM INTERMEDIARY AND ACCRUIT, AND THE LIMITATION OF THE TIME WITHIN WHICH ANY CLAIM OR DISPUTE MAY BE ASSERTED AGAINST INTERMEDIARY AND ACCRUIT, IS FAIR AND REASONABLE IN LIGHT OF THE SCOPE OF THE RESPONSIBILITY OF INTERMEDIARY AND ACCRUIT UNDER THIS AGREEMENT AND THE LIMITED AMOUNT OF THE FEES EARNED BY INTERMEDIARY AND ACCRUIT.  EXCHANGER ACKNOWLEDGES THAT INTERMEDIARY AND ACCRUIT CONSIDER THIS PROVISION TO BE MATERIAL AND WOULD NOT HAVE BEEN WILLING TO ENTER INTO THIS AGREEMENT IN THE ABSENCE OF SUCH LIMITATIONS.  EXCHANGER ACKNOWLEDGES THAT THE LIMITATIONS CONTAINED HEREIN HAVE BEEN NEGOTIATED, AT ARMS LENGTH, BETWEEN INTERMEDIARY, ACCRUIT, AND EXCHANGER.  

 

Article 10

Intermediary's Fee

So long as the Wrapper Agreement remains in full force and effect, (a)  the fees owed by Exchanger in respect of the services provided under this Agreement shall be as set forth in the Wrapper Agreement, (b) Exchanger agrees to pay such fees, and (c) such fees shall be billed by PwC as billing agent for Intermediary and shall be paid by Exchanger to PwC.  Provided that full payment is made as provided in the Wrapper Agreement, any such payment made to PwC shall be treated as having been made to Intermediary for purposes of this Agreement, and Intermediary shall look exclusively to PwC for payment of amounts that may be due to Intermediary in connection with the services provided pursuant to this Agreement.  Upon expiration or termination of the Wrapper Agreement prior to expiration or termination of this Agreement, PwC and Intermediary will notify Exchanger of the manner in which billing and invoicing will occur under this Agreement for the period from and after the effective date of termination of the Wrapper Agreement.  For every Exchange Funds Account established over two, Intermediary shall be paid $200 to establish each such account.  Banking fees (wire transfer, ACH, and check processing fees) will be charged to Exchanger no additional mark-up by Intermediary.  Any Exchange Funds remaining in the Exchange Funds Account upon expiration of the 180-day Exchange Period will be transferred to the Unrestricted Funds Account and all interest will be earned by Exchanger from that date forward.  Fees for other than LKE Tax Services or QI Services owed pursuant to this Agreement will be automatically taken out of the Exchange Funds Account.  Exchanger may request Intermediary to provide certain services upon giving notice of termination.  Such services requested and approved by Exchanger will be billed in addition to the monthly fee at Intermediary’s hourly rate at the time of termination.  

 

Article 11

Notices

 

All notices and other communications required or permitted herein shall be made in writing by a notifying party and transmitted via mail, fax, or email.  However, a notifying party may give notice or other communication by telephone if such notice or communication is confirmed in writing within 48 hours.  The following contact information for the Parties to this Agreement may be changed upon written notification to the other Parties to this Agreement:

 

Exchanger:

 

 

Address:

 

 

 

Attn:  

 

Phone:

 

 

E-Mail:

 

 

 

 

 

Accruit:

Accruit, LLC

Address:

1331 17th Street, Suite 1250

 

Denver, CO 80202

Phone:

866-397-1031

E-Mail:

notifications@accruit.com

 

 

 

Intermediary:

, LLC, c/o Accruit, LLC

Address:

1331 17th Street, Suite 1250

 

Denver, CO 80202

Phone:

303-865-7300

E-Mail:

notifications@accruit.com

 

Page 11 of 15

 

 

Article 12

Taxpayer Identification Number and Certifications

 

12.01 Taxpayer Identification Number.   Exchanger’s United States Taxpayer Identification Number (“ TIN ”) is _________________________________.

 

12.02 Exchanger’s Address is _____________________________________.

 

12.03 Certifications .  Under penalties of perjury, Exchanger hereby certifies that:

 

(a) Exchanger’s correct TIN is listed in Section 12.01 of this Agreement;

 

(b) Exchanger is not subject to backup withholding; and

 

(c) Exchanger is a U.S. citizen or other U.S. person.

 

Article 13

Term and Termination of Agreement

 

13.01 Term .  The term of this Agreement shall begin on Effective Date and shall continue until terminated as provided in this Section 13.01.  Exchanger or Accruit and/or QI may terminate this Agreement at any time, by providing not less than sixty (60) days prior written notice to the other party.  The date which is 60 days after notice of termination as provided herein shall be called the “ Termination Date .” Upon any such termination, (i) this Agreement shall remain in effect with respect to any pending Exchanges, (ii) any indemnities and obligations owing to any party under this Agreement as of the Termination Date shall survive until satisfied or otherwise terminated, (iii) termination of this Agreement shall not affect any rights or obligations of the parties hereto with respect to any pending Exchanges.  In the event that any party hereto terminates this Agreement, such party shall not do so in a manner that causes a  pending Exchange not to qualify under Section 1031 of the Code or in a manner that would violate Treasury Regulation Sections 1.1031(k)-1(g)(4)(ii) or (g)(6) or Revenue Procedure 2003-39.  Subject to the restrictions above, upon the Termination Date, QI shall, at such time, pay all funds in any Account to Exchanger or Exchanger’s designee; provided , however , that any funds held in a Joint Account with respect to any pending Exchange shall not be disbursed to Exchanger until after the occurrence of a Distribution Event for such Exchange.

13.02 QI LLC Sale .

Exchanger may deliver a written notice (a “ Sale Notice ”) to Owner at any time, directing the Owner to transfer the membership interest of QI LLC to a Person designated by Exchanger in such Sale Notice (such transfer, the “ QI LLC Sale ”).  If Exchanger delivers a Sale Notice and does not deliver another written notice to the Owner withdrawing such Sale Notice before the QI LLC Sale is consummated, then the Owner shall transfer the membership interest of QI LLC to such purchaser as may be designated by Exchanger in such Sale Notice on the date specified for such transfer in the Sale Notice, which date shall not be less than five days (or such shorter period as may be agreed upon by Exchanger and Owner) after the delivery of such Sale Notice.  Any such purchaser shall not be Exchanger or a Disqualified Person.

In the event of a QI LLC Sale, Owner shall :

transfer the membership interest of QI LLC to the purchaser designated in the related Sale Notice for such consideration (which may be nominal) as may be designated by Exchanger in such Sale Notice;

execute and deliver all documents, instruments and consents as may be specified by Exchanger as reasonably necessary or desirable to effectuate the QI LLC Sale;

make representations and warranties as to its title to the membership interest of QI LLC being sold, the absence of any liens thereon and its power, authority and right to consummate the QI LLC Sale without contravention of law or contract;

Page 12 of 15

 

make such further representations and warranties that are reasonable, customary and appropriate and that the purchaser of the QI LLC (the “ New Owner ”) reasonably requests; and

be liable for any breach of the representations and warranties made by it in connection with such QI LLC Sale.

All expenses incurred by Owner in connection with any QI LLC Sale shall be borne by the Exchanger.

Upon the consummation of a QI LLC Sale, (i) the rights, duties and obligations of the transferring Owner shall be assigned and delegated to the New Owner and the transferring Owner shall be released from its obligations under this Agreement, except to the extent such obligations relate to periods prior to the QI LLC Sale, and (ii) the New Owner shall become a party to this Agreement pursuant to an “accession agreement” in substantially the form of Exhibit B hereto.

Exchanger shall have the right to remove QI LLC and appoint a replacement Qualified Intermediary; provided that such replacement party assumes all obligations of QI LLC under this Agreement, and affirmatively makes all the same representations and covenants that QI LLC made in this Agreement; and provided further that such removal and replacement shall occur in a manner that complies with the provisions of Treasury Regulation Section 1.1031(k)-1(g)(6), including with respect to the limitations applicable to Exchange Funds as set forth in this Agreement.  If an Exchanger so elects to remove QI LLC and appoint a replacement Qualified Intermediary, such Exchanger shall provide QI LLC with written notice of its intent 60 days prior to the appointment of replacement Qualified Intermediary.  QI LLC shall cooperate with such Exchanger and shall use its best efforts to promptly transfer its rights and responsibilities hereunder to any successor Qualified Intermediary in a manner that does not (i) prevent any pending Exchange from potentially qualifying as an Exchange, (ii) affect any rights or obligations of the parties under any pending Exchange, and (iii) violate the provisions of Treasury Regulation Section 1.1031(k)-1(g)(6).  Subject to the restrictions above and at the Exchanger’s discretion, upon the Termination Date, QI LLC shall, at such time, and in satisfaction of QI LLC’s remaining obligations under this Agreement: (1) pay all funds in any Joint Account to Exchanger or Exchanger’s designee; or (2) upon receiving written notice of Exchanger’s election to replace QI LLC, as the Qualified Intermediary, Exchanger may direct Owner and sole member of QI LLC to convey, transfer, or otherwise surrender all of its membership interest in QI LLC to the Exchanger’s designee

Article 14

Miscellaneous Provisions

 

14.01 Law Changes.   This Agreement shall be construed by reference to Section 1031 of the Code and the regulations thereunder, as amended from time to time following the date of this Agreement, except to the extent that future changes in the law alter the economic relationship of Exchanger and Intermediary hereunder.  If future amendments to the Code or regulations thereunder result in a provision cited or referred to herein being renumbered, this Agreement shall be construed as referring to such renumbered provision.

 

14.02 Time of Essence.   Time is of the essence in this Agreement.

 

14.03 Governing Law.   This Agreement shall be governed under the laws of the State of Colorado, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of Colorado.  

 

14.04 Arbitration and Attorneys’ Fees and Costs.   The Parties agree that any dispute arising under this Agreement shall be submitted to arbitration.  The result of such arbitration shall be binding and conclusive on the Parties.  Any such arbitration shall be conducted in Denver, Colorado, within 120 days after initiation of an arbitration demand by either Party.  The arbitration shall be conducted by a single arbitrator licensed to practice law.  The single arbitrator shall be either agreed to in writing by the Parties or chosen by two appointees designated in writing by the Parties, with each of the Exchanger and Intermediary selecting one such appointee.  Unless otherwise agreed to by the Parties, the arbitration shall be filed through American Arbitration Association and conducted in accordance with the American Arbitration Association’s then prevailing Commercial Arbitration Rules. The prevailing Party in any claim, demand or cause of action, no matter how filed, shall be awarded its attorneys’ fees and costs associated with either making, or defending any such claim, demand, or cause of action, including any action for injunctive or equitable relief.

Page 13 of 15

 

 

14.05 Counterparts.   This Agreement may be executed in counterparts, each of which when executed and delivered shall be deemed an original, but such counterparts together shall constitute but one and the same document. Facsimile or scanned signatures shall be deemed originals for the purposes of this Agreement.

 

14.06 Assignment.   This Agreement may not be assigned or transferred by any Party without the prior written agreement of the other Parties.  Notwithstanding the foregoing, a Party may assign this Agreement, without the prior written consent of the other Parties, to a successor in interest in connection with a merger, reorganization, or sale of all or substantially all of its assets or equity.  

 

14.07 Successor and Assigns.   Subject to Section 14.06, this Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.

 

14.08 Validity of Agreement and Modification of Agreement .  This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereto and merges and supersedes all prior discussions, whether oral or written, between them, relating to the subject matter hereof.  There are no agreements covenants, conditions, or limitations of this Agreement which are not expressly stated herein.  Further, each of the Parties hereto agrees that this Agreement may not be amended or changed in any way, except by written instrument signed by each of the Parties hereto.  Each of the Parties represents, warrants and covenants that the individuals executing this Agreement on their behalf have the authority to do so.

 

14.09 Severability.   Each of the Parties expressly agrees that if any portion of this Agreement is, or shall hereafter be found by any court, or government or state agency, or arbitral authority to be unlawful, invalid, or otherwise unenforceable, then the remaining portions of this Agreement shall nonetheless continue to be in full force and effect and binding upon each of the Parties hereto.  The Parties agree that this provision is an integral part of this Agreement, and is additional and valued consideration for the Parties to enter into this Agreement.

 

14.10 Exhibits.   The exhibit(s) attached hereto and the recitals set forth above shall all constitute a part of this Agreement.

 

14.11 Singular/Plural.   All terms used herein in the singular shall include the plural and all terms used herein in the plural shall include the singular.

 

14.12 Changes in Law or Regulation. The Parties to this Agreement agree that in the event of any amendment to the Code or Section 1031 of the Code, as well as any amendment to any other applicable rule, regulation, procedure or policy of any local, state or federal governmental agency that affects or otherwise applies to the transactions contemplated by this Agreement (hereinafter the “amendment” in this Section 14.12 of this Agreement), the Parties shall immediately upon discovery of such an amendment revise this Agreement to the extent necessary to comply with the amendment.  

 

14.13 Washington State Regulatory Compliance.    WASHINGTON STATE LAW, RCW 19.310.040, REQUIRES AN EXCHANGE FACILITATOR TO EITHER MAINTAIN A FIDELITY BOND IN AN AMOUNT OF NOT LESS THAN ONE MILLION DOLLARS THAT PROTECTS CLIENTS AGAINST LOSSES CAUSED BY CRIMINAL ACTS OF THE EXCHANGE FACILITATOR, OR TO HOLD ALL CLIENT FUNDS IN A QUALIFIED ESCROW ACCOUNT OR QUALIFIED TRUST THAT REQUIRES YOUR CONSENT FOR WITHDRAWALS. ALL EXCHANGE FUNDS MUST BE DEPOSITED IN A SEPARATELY IDENTIFIED ACCOUNT USING YOUR TAX IDENTIFICATION NUMBER. YOU MUST RECEIVE WRITTEN NOTIFICATION OF HOW YOUR EXCHANGE FUNDS HAVE BEEN DEPOSITED. YOUR EXCHANGE FACILITATOR IS REQUIRED TO PROVIDE YOU WITH WRITTEN DIRECTIONS OF HOW TO INDEPENDENTLY VERIFY THE DEPOSIT OF THE EXCHANGE FUNDS. EXCHANGE FACILITATION SERVICES ARE NOT REGULATED BY ANY AGENCY OF THE STATE OF WASHINGTON OR OF THE UNITED STATES GOVERNMENT. IT IS YOUR RESPONSIBILITY TO DETERMINE THAT YOUR EXCHANGE FUNDS WILL BE HELD IN A SAFE MANNER.

 

14.14 Waivers .  No delay on the part of any Party in the exercise of any rights or remedies pursuant to this Agreement shall operate as a waiver thereof, and no single or partial exercise by any Party of any remedies shall preclude other and further exercise or enforcement or application of any other provision set forth in this Agreement, or the exercise of any other right or remedy.  The waiver of any breach of condition or condition of this Agreement by any Party shall not constitute a precedent in the future enforcement of any terms and conditions of this Agreement.  No waiver shall be valid unless in writing and signed by an authorized officer Accruit in the case of Accruit or any Intermediary.

Page 14 of 15

 

 

14.15 Cooperation .  Each Party agrees to cooperate with the other and execute and deliver or cause to be executed and delivered, all such instruments and documents, and to take all such actions as may be reasonably requested of it from time to time in order to effect the provisions and purposes of this Agreement.  

 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]

 

 

 

Page 15 of 15

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the date first written above by their respective duly authorized officers.

 

(“Exchanger”)

 

 

By:

 

 

 

 

 

 

(“Owner”) Accruit, LLC

 

 

By:

 

 

Brent C. Abrahm, President & CEO

 

(“QI LLC”) Exchange, LLC

 

 

By:  Accruit, LLC, Sole Member  

 

 

By:

 

 

Brent C. Abrahm, President

 

 

 

 

 

Exhibit A

 

Form of Qualified Escrow Agreement (see attached)

 

 

 

Exhibit A

 

Exhibit B

 

Accession Agreement (see attached)

 

 

 

 

Exhibit B

 

Exhibit 10.23

CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETED ASTERISKS [***], HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.

Schedule 1.01(a)

Lenders and Commitments

Part I

[On file with the Administrative Agent]

 

 

 

 

 

 

 

 

Schedule 1.01(a)

Lenders and Commitments

Part II

[On file with the Administrative Agent]

 

 

Schedule 1.01(b)

Locations – United States and Canada (US Borrowing Base Parties)

 

Company

Address

City

State

Zip

Mobile Mini, Inc.

1833 Suntide Road

Corpus Christi

TX

78409

Mobile Mini, Inc.

425 W Plantation

Clute

TX

77531

Mobile Mini, Inc.

2101 Lee Drive

Baytown

TX

77520

Mobile Mini, Inc.

407 Woodlawn

Kilgore

TX

75662

Mobile Mini, Inc.

3900 Highway 30

St Gabriel

LA

70776

Mobile Mini, Inc.

5495 N Twin City Highway

Nederland

TX

77627

Mobile Mini, Inc.

12912 Highway 191

Midland

TX

79707

Mobile Mini, Inc.

191 Production Drive

Sulphur

LA

35603

Mobile Mini, Inc.

2460 FM 3084

Port Lavaca

TX

77979

Mobile Mini, Inc.

25896 S Sunset Drive

Monee

IL

60449

Mobile Mini, Inc.

4800 Malone Road

Memphis

TN

38118

Mobile Mini, Inc.

991 McEntire Lane NW

Decatur

AL

35603

Mobile Mini, Inc.

4192 Crostowne Court

Evans

GA

30809

Mobile Mini, Inc.

5680 I-10 Industrial Pkwy, N

Mobile

AL

36583

Mobile Mini, Inc.

8324 Route 414

Liberty

PA

16930

Mobile Mini, Inc.

8417 Mercer Street

Pulaski

PA

16143

Mobile Mini, Inc.

10 Industrial Highway

Lester

PA

19029

Mobile Mini, Inc.

14120 South Meridian

Oklahoma City

OK

73173

Mobile Mini, Inc.

12000 Hirsch Rd

Houston

TX

77050

Mobile Mini, Inc.

3550 Duncanville Road

Dallas

TX

75236

Mobile Mini, Inc.

18780 IH 35 N

Schertz

TX

78154

Mobile Mini, Inc.

2851 South A.W. Grimes

Round Rock

TX

78664

Mobile Mini, Inc.

39039 Cleastor Lane

Prairieville

LA

70769

Mobile Mini, Inc.

11931 Trans Park Drive

El Paso

TX

79927

Mobile Mini, Inc.

9800 West Expressway 83

Harlingen

TX

78552

Mobile Mini, Inc.

6731 Linwood Avenue

Shreveport

LA

71106

Mobile Mini, Inc.

11020 Hwy 69 N

Tyler

TX

75706

Mobile Mini, Inc.

1550 W Freeway

Vidor

TX

77662

Mobile Mini, Inc.

2326 US Highway 80

Pearl

MS

39208

Mobile Mini, Inc.

61000 St. Tammany Ave

Slidell

LA

70460

Mobile Mini, Inc.

6209 McPherson Road

Laredo

TX

78041

Mobile Mini, Inc.

12700 West County Road 100

Midland

TX

79706

Mobile Mini, Inc.

7934 Bearden Drive

Corpus Christi

TX

78409

Mobile Mini, Inc.

191 Production Drive

Sulphur

LA

70663

Mobile Mini, Inc.

2460 FM 3084

Port Lavaca

TX

77979

Mobile Mini, Inc.

4800 Malone Road

Memphis

TN

38118

Mobile Mini, Inc.

12658 S Winchester

Calumet Park

IL

60827

Mobile Mini, Inc.

1742 Transport Lane

Knoxville

TN

37924

 

 

Mobile Mini, Inc.

8825 Moncrief/Dinsmore Road

Jacksonville

FL

32219

Mobile Mini, Inc.

5900 SW 202nd Ave.

Pembroke Pines

FL

33332

Mobile Mini, Inc.

16590 Gator Road

Fort Myers

FL

33912

Mobile Mini, Inc.

4004 S. 50th Street

Tampa

FL

33619

Mobile Mini, Inc.

11622 Boggy Creek Rd

Orlando

FL

32824

Mobile Mini, Inc.

1055 C Southern Road

Morrow

GA

30260

Mobile Mini, Inc.

5223 S 9th Street

Milwaukee

WI

53221

Mobile Mini, Inc.

7121 Statesville Road

Charlotte

NC

28269

Mobile Mini, Inc.

1700 Nolensville Pike

Nashville

TN

37210

Mobile Mini, Inc.

618 Three Sisters Road

Knightdale

NC

27545

Mobile Mini, Inc.

871 Buckeye Park Road

Columbus

OH

43207

Mobile Mini, Inc.

2710 Millers Lane

Louisville

KY

40216

Mobile Mini, Inc.

3 Palmetto Court

Gaston

SC

29053

Mobile Mini, Inc.

4254 N Point Rd, Suite A1

Baltimore

MD

21222

Mobile Mini, Inc.

10 Industrial Highway

Lester

PA

19029

Mobile Mini, Inc.

14027 Washington Hwy

Ashland

VA

23005

Mobile Mini, Inc.

125 Manley Street

West Bridgewater

MA

2379

Mobile Mini, Inc.

2104 W Epler Avenue

Indianapolis

IN

46217

Mobile Mini, Inc.

981 Steen Road

Bridgeville

PA

15017

Mobile Mini, Inc.

8791 Paul Starr Drive

Pensacola

FL

32514

Mobile Mini, Inc.

1353 Indian Field Road Route 32

Feura Bush

NY

12067

Mobile Mini, Inc.

225 Websterville Road

Websterville

VT

5678

Mobile Mini, Inc.

2601 Center Road

Hinckley

OH

44233

Mobile Mini, Inc.

192 Piper Lane, Suite A

Alabaster

AL

35040

Mobile Mini, Inc.

3106 17th Street East

Palmetto

FL

34221

Mobile Mini, Inc.

7126 Bryhawke Circle

North Charleston

SC

29418

Mobile Mini, Inc.

4400 Dixie Highway

Fairfield

OH

45014

Mobile Mini, Inc.

500 Rock Road North

Fort Pierce

FL

34945

Mobile Mini, Inc.

361 Highway 183

Piedmont

SC

29673

Mobile Mini, Inc.

1015 Old Trail Road

Etters

PA

17319

Mobile Mini, Inc.

6152 New Bern Hwy

Maysville

NC

28555

Mobile Mini, Inc.

4601 Femrite Drive

Madison

WI

53716

Mobile Mini, Inc.

3120 Hollins Rd

Roanoke

VA

24012

Mobile Mini, Inc.

2400 Roosevelt Ave

South Plainfield

NJ

7080

Mobile Mini, Inc.

3703 Gillespie Street

Fayetteville

NC

28306

Mobile Mini, Inc.

1600 Osgood Street

North Andover

MA

1845

Mobile Mini, Inc.

200 Telegraph Road

Prichard

AL

36610

Mobile Mini, Inc.

4444 Burlington Road

Greensboro

NC

27405

Mobile Mini, Inc.

911 South Street Route 75

Suffield

CT

6078

Mobile Mini, Inc.

122 Mac Street

Virginia Beach

VA

23462

Mobile Mini, Inc.

7751 Wellingford Drive

Manassas

VA

20109

Mobile Mini, Inc.

6408 Collamer Road

East Syracuse

NY

13057

 

 

Mobile Mini, Inc.

7579 West Tennessee St

Tallahassee

FL

32304

Mobile Mini, Inc.

4720 SE US Hwy 301

Hawthorne

FL

32640

Mobile Mini, Inc.

30 Old Brickyard Road

Fletcher

NC

28732

Mobile Mini, Inc.

1960 Weaverville Road

Allentown

PA

18109

Mobile Mini, Inc.

175 Container Road

Savannah

GA

31415

Mobile Mini, Inc.

116 Ipsco Road

Decatur

AL

35601

Mobile Mini, Inc.

1075 Buffalo Rd

Rochester

NY

14624

Mobile Mini, Inc.

735 Fox Industrial Road

Lexington

KY

40504

Mobile Mini, Inc.

2222 Oriskany Street

Utica

NY

13502

Mobile Mini, Inc.

40 Sullivan Road

New Milford

CT

6776

Mobile Mini, Inc.

5314 Old Maumee Road

Fort Wayne

IN

46803

Mobile Mini, Inc.

6052 N. Main Street

Acworth

GA

30101

Mobile Mini, Inc.

2699 Waterlevel Highway

Cleveland

TN

37323

Mobile Mini, Inc.

95 Hopkins Street

Buffalo

NY

14220

Mobile Mini, Inc.

73 Browns Line

Toronto

ON

M8W 3S2

Mobile Mini, Inc.

22445 Groesbeck Highway

Warren

MI

48089

Mobile Mini, Inc.

899 Lincoln Avenue

Bohemia

NY

11716

Mobile Mini, Inc.

10304 Cogdill Road

Knoxville

TN

37932

Mobile Mini, Inc.

2123 Storage Street

Chattanooga

TN

37421

Mobile Mini, Inc.

2201 S. 27th Avenue

Phoenix

AZ

85009

Mobile Mini, Inc.

1485 W Glenn Street

Tucson

AZ

85705

Mobile Mini, Inc.

5328 Edith Blvd. NE

Albuquerque

NM

87107

Mobile Mini, Inc.

14120 South Meridian

Oklahoma City

OK

73173

Mobile Mini, Inc.

12044 E Pine St

Tulsa

OK

74116

Mobile Mini, Inc.

95 North 700 West, Ste E

North Salt Lake

UT

84054

Mobile Mini, Inc.

17200 177th Avenue SE

Monroe

WA

98272

Mobile Mini, Inc.

3945 Raytown Road

Kansas City

MO

64129

Mobile Mini, Inc.

5001 West Bethany Road

North Little Rock

AR

72117

Mobile Mini, Inc.

4006 N Broadway

St. Louis

MO

63147

Mobile Mini, Inc.

5940 NE Cully Blvd

Portland

OR

97218

Mobile Mini, Inc.

7309 Lake Drive

Lino Lakes

MN

55014

Mobile Mini, Inc.

250 West 53rd North Street

Park City

KS

67219

Mobile Mini, Inc.

607 Barger Lane

Nampa

ID

83687

Mobile Mini, Inc.

27083 Sundowner Ave

Tea

SD

57064

Mobile Mini, Inc.

18001 E Euclid

Spokane Valley

WA

99216

Mobile Mini, Inc.

2367 East Robinson Avenue

Springdale

AR

72764

Mobile Mini, Inc.

12300 Stagebarn Trail

Blackhawk

SD

57769

Mobile Mini, Inc.

1621 23rd Street South

Moorhead

MN

56560

Mobile Mini, Inc.

12921 Case Road SW

Olympia

WA

98512

Mobile Mini, Inc.

4506 S. 52nd Street

Omaha

NE

68117

Mobile Mini, Inc.

5289 Northwest Beaver Drive

Johnston

IA

50131

Mobile Mini, Inc.

42207 Third Street East

Lancaster

CA

93535

 

 

Mobile Mini, Inc.

13546 Bassett Lane NW

Williston

ND

58801

Mobile Mini, Inc.

135 South 1200 West

Lindon

UT

84042

Mobile Mini, Inc.

43850 Monroe Street

Indio

CA

92201

Mobile Mini, Inc.

15100 San Pedro Street

Gardena

CA

90248

Mobile Mini, Inc.

12345 Crosthwaite Circle

Poway

CA

92064

Mobile Mini, Inc.

14425 Arville Street

Las Vegas

NV

89054

Mobile Mini, Inc.

5300 Eudora

Commerce City

CO

80022

Mobile Mini, Inc.

2905 Capital Drive

Colorado Spring

CO

80939

Mobile Mini, Inc.

16351 S McKinley Avenue

Lathrop

CA

95330

Mobile Mini, Inc.

2660 N Locust Ave

Rialto

CA

92377

Mobile Mini, Inc.

44580 Old Warm Springs Boulevard

Fremont

CA

94538

Mobile Mini, Inc.

2486 W McKinley Avenue

Fresno

CA

93728

Mobile Mini, Inc.

3213 Gibson Street

Bakersfield

CA

93308

Mobile Mini, Inc.

3902 Esplanade

Chico

CA

95973

Mobile Mini, Inc.

8160 Junipero St

Sacramento

CA

95828

Mobile Mini, Inc.

470 Caletti Ave

Windsor

CA

95492

Mobile Mini, Inc.

1794 Lirio Ave

Saticoy

CA

93004

Mobile Mini, Inc.

2615 North Eastgate Ave.

Springfield

MO

65803

Mobile Mini, Inc.

9959 N. Virginia Street

Reno

NV

89506

Mobile Mini, Inc.

30 North 56th Street

Phoenix

AZ

85034

Mobile Mini, Inc.

2809 North Cassie's Place

Safford

AZ

85546

Mobile Mini, Inc.

311 West Utah Avenue

Las Vegas

NV

89102

Mobile Mini, Inc.

1040 West 2100 South

Salt Lake City

UT

84119

Mobile Mini, Inc.

318 Broadway

Kansas City

MO

64105

Mobile Mini, Inc.

1800 S 3rd Street

St Louis

MO

63104

Mobile Mini, Inc.

2615 North Eastgate Ave.

Springfield

MO

65803

Mobile Mini, Inc.

250 West 53rd North Street

Park City

KS

67204

Evergreen Tank Solutions, Inc.

1833 Suntide Road

Corpus Christi

TX

78409

Evergreen Tank Solutions, Inc.

425 W Plantation

Clute

TX

77531

Evergreen Tank Solutions, Inc.

2101 Lee Drive

Baytown

TX

77520

Evergreen Tank Solutions, Inc.

407 Woodlawn

Kilgore

TX

75662

Evergreen Tank Solutions, Inc.

3900 Highway 30

St Gabriel

LA

70776

Evergreen Tank Solutions, Inc.

5495 N Twin City Highway

Nederland

TX

77627

Evergreen Tank Solutions, Inc.

12912 Highway 191

Midland

TX

79707

Evergreen Tank Solutions, Inc.

191 Production Drive

Sulphur

LA

35603

Evergreen Tank Solutions, Inc.

2460 FM 3084

Port Lavaca

TX

77979

Evergreen Tank Solutions, Inc.

25896 S Sunset Drive

Monee

IL

60449

Evergreen Tank Solutions, Inc.

4800 Malone Road

Memphis

TN

38118

Evergreen Tank Solutions, Inc.

991 McEntire Lane NW

Decatur

AL

35603

Evergreen Tank Solutions, Inc.

4192 Crostowne Court

Evans

GA

30809

Evergreen Tank Solutions, Inc.

5680 I-10 Industrial Pkwy, N

Mobile

AL

36583

Evergreen Tank Solutions, Inc.

8324 Route 414

Liberty

PA

16930

 

 

Evergreen Tank Solutions, Inc.

8417 Mercer Street

Pulaski

PA

16143

Evergreen Tank Solutions, Inc.

10 Industrial Highway

Lester

PA

19029

Evergreen Tank Solutions, Inc.

14120 South Meridian

Oklahoma City

OK

73173

Water Movers, Inc.

30 North 56th Street

Phoenix

AZ

85034

Water Movers, Inc.

2809 North Cassie's Place

Safford

AZ

85546

Water Movers, Inc.

311 West Utah Avenue

Las Vegas

NV

89102

Water Movers, Inc.

1040 West 2100 South

Salt Lake City

UT

84119

Water Movers, Inc.

318 Broadway

Kansas City

MO

64105

Water Movers, Inc.

1800 S 3rd Street

St Louis

MO

63104

Water Movers, Inc.

2615 North Eastgate Ave.

Springfield

MO

65803

Water Movers, Inc.

250 West 53rd North Street

Park City

KS

67204

 

 

 

Schedule 1.01(c)

Locations – United Kingdom (UK Borrowing Base Parties)

 

Company

Address

City

State

Zip

Mobile Mini UK Limited

Moss Bank House, Newmillerdam

Wakefield

UK

WF2 6QW

Mobile Mini UK Limited

Albion Parade

Gravesend

UK

DA12 2RU

Mobile Mini UK Limited

Plot 1, Former Ford Site

South Ockendon

UK

RM15 5SJ

Mobile Mini UK Limited

Woodham Industrial Park, Woodham,

Bucks

UK

HP18 0QE

Mobile Mini UK Limited

3 Hornock Road, Coatbridge,

Lanarkshire

UK

ML5 2AQ

Mobile Mini UK Limited

Brickyard Road, Aldridge

West Midlands

UK

WS9 8SR

Mobile Mini UK Limited

Stagg Lane Triumph Trading Park, Liverpool

Merseyside

UK

L24 9BD

Mobile Mini UK Limited

Units 03/04 Greensplott Road, Chitteningham

Avonmouth

UK

BS11 OYB

Mobile Mini UK Limited

North Road

Bridgend

UK

CF31 3TP

Mobile Mini UK Limited

Barras Lane Industrial Estate, Dalston

Cumbria

UK

CA5 7ND

Mobile Mini UK Limited

Lancaster Approach, North Killingholme

Humberside

UK

DN40 3JY

Mobile Mini UK Limited

Riverside Avenue West

Manningtree

UK

C011 1UN

Mobile Mini UK Limited

Teesport Commerce Park, South Bank,

Middlesbrough

UK

TS6 6UZ

Mobile Mini UK Limited

Off Littlewell Lane

IIkeston

UK

DE7 4QU

Mobile Mini UK Limited

Bakers Wharf

Marchwood

UK

SO40 4BX

Mobile Mini UK Limited

Old British Coal Transport Depot

Houghton-Le-Spring

UK

DH4 4TG

 

 

 

Schedule 1.01(d)

Locations – United States and Canada (Canadian Borrowing Base Parties)

 

Company

Address

City

State

Zip

Mobile Mini Canada ULC

7717 84th Street SE

Calgary

AB

T2C 4Y1

 

 

 

Schedule 1.01(e)

Eligible Real Property

Mobile Mini, Inc.:

·

3550 Duncanville Rd., Dallas, TX 75236

·

11755 N. Maricopa Industrial Parkway, Maricopa, AZ 85239

·

2486 West McKinley Ave, Fresno, CA 93728

·

1465 East 130th Street, Chicago, IL 60633

 

 

 

Schedule 1.01(f)

Qualified Derivative Obligations

None.

 

 

 

 

 

Schedule 3.01(c)

Existing US Letters of Credit

 

Amount

Applicant

Lender

Beneficiary

LC Number

Expiration Date

Standby / Trade

2,610,000

Mobile Mini, Inc.

Bank of America

Travelers Indemnity Co.

68027270

3/30/2016

Standby

738,540

Mobile Mini, Inc.

Bank of America

Liberty Mutual Insurance Company

7420584

4/22/2016

Standby

121,193

Mobile Mini, Inc.

Bank of America

EOP - 700 North Branch, L.L.C

68029107

8/1/2016

Standby

1,800,000

Mobile Mini, Inc.

Bank of America

Travelers Indemnity Co. (second LC)

68029280

9/12/2016

Standby

448,000

Mobile Mini, Inc.

Bank of America

National Union Fire Insurance AIG

68029104

2/7/2016

Standby

818,000

Mobile Mini, Inc.

Bank of America

Hartford Fire Insurance Company

68107783

11/12/2016

Standby

$6,535,733.00

 

 

 

 

 

 

 

 

 

Schedule 3.02(c)

Existing UK Letters of Credit

None.

 

 

 

Schedule 3.03(c)

Existing Canadian Letters of Credit

None.

 

 

 

 

 

Schedule 6.13

Effective Date Mortgages

Mobile Mini, Inc.:

·

3550 Duncanville Rd., Dallas, TX 75236

·

11755 N. Maricopa Industrial Parkway, Maricopa, AZ 85239

·

2486 West McKinley Ave, Fresno, CA 93728

·

1465 East 130th Street, Chicago, IL 60633

 

 

 

Schedule 8.01

Qualifications to do Business

 

 

Jurisdiction of

Foreign

Company

Organization

Qualifications

Mobile Mini, Inc.

Delaware

Alabama, Arizona, Arkansas, California, Connecticut, District of Columbia, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming

Mobile Mini I, Inc.

Arizona

Texas

Mobile Mini Dealer, Inc.

Arizona

Pennsylvania

Mobile Mini, LLC

California

 

Mobile Mini, LLC

Delaware

Colorado, Nevada, Michigan

A Royal Wolf Portable Storage, Inc.

California

Texas

Mobile Mini Canada ULC

British Columbia

Alberta, Ontario, Quebec

Mobile Mini UK Holdings Limited

England and Wales

 

Temporary Mobile Storage, Inc.

California

 

Mobile Mini UK Limited

England and Wales

 

Mobile Storage Group, Inc.

Delaware

California, Illinois, Massachusetts, Pennsylvania

A Better Mobile Storage Company

California

Pennsylvania, Texas

MSG Investments, Inc.

California

 

MSG MMI (Texas) L.P.

Texas

 

Ravenstock MSG Limited

United Kingdom

 

Ravenstock Tam (Hire) Limited

United Kingdom

 

Mobile Storage (U.K.) Limited

United Kingdom

 

Mobile Storage UK Finance Limited Partnership

United Kingdom

 

Water Movers Contracting, LLC

Arizona

 

Water Movers, Inc.

Arizona

California, Kansas, Missouri, Nevada, Oklahoma, Utah

Evergreen Tank Solutions, Inc.

Delaware

Alabama, Arkansas, California, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin, West Virginia,

Gulf Tanks Holdings, Inc.

Delaware

 

SBOX STORAGE, LLC

Delaware

Tennessee, Texas

Mobile Mini Finance, LLC

Delaware

 

 

 

Schedule 8.04

Capital Structure

The class and the number of authorized and issued Securities of US Company and each of its Subsidiaries and the record owner of the Securities of the Subsidiaries are as follows:

Mobile Mini, Inc., a Delaware corporation:

 

Class of Securities

Number of Securities

Issued and Outstanding

(September 30, 2015)

Number of Securities

Authorized but

Unissued

Common Stock, par value

$0.01 per share – 95,000,000

49,151,000

45,8490,00

Preferred Stock, par value

$0.01 per share – 20,000,000

None

20,000,000

 

Subsidiaries:

 

Pledgor

Subsidiary

Ownership

Numbers of Shares owned

Jurisdiction of Organization

Mobile Mini, Inc.

Mobile Mini I, Inc.

100%

10,000 shares of common stock

Arizona

Mobile Mini Dealer, Inc.

100%

10,000 shares of common stock

Arizona

Mobile Mini, LLC

100%

100% membership interest

Delaware

Mobile Mini, LLC

100%

100% membership interest

California

A Royal Wolf Portable Storage, Inc.

100%

643,250 shares of common stock

California

Mobile Mini UK Holdings Limited

100%

400 ordinary shares

England and Wales

Mobile Storage Group, Inc.

100%

100 shares of common stock

Delaware

Mobile Mini Canada ULC

100%

2,000 common shares

British Columbia

Gulf Tanks Holdings, Inc.

100%

100 shares of common stock

Delaware

SBOX STORAGE, LLC

100%

100% membership interest

Delaware

Mobile Mini UK Holdings Limited

Mobile Mini UK Limited

99.8%

10,092,070 ordinary shares

England and Wales

Ravenstock MSG Limited

100%

601,100 ordinary shares

England and Wales

Mobile Storage Group, Inc.

MSG Investments, Inc.

100%

10,000 shares of common stock

California

A Better Mobile Storage Company

100%

1,000 shares of common stock

California

MSG MMI (Texas) L.P.

99%

99% partnership interest

Texas

Mobile Storage UK Finance Limited Partnership

1%

1% partnership interest

England and Wales

 

 

Pledgor

Subsidiary

Ownership

Numbers of Shares owned

Jurisdiction of Organization

MSG Investments, Inc.

Mobile Mini Finance, LLC

100%

100% membership interest

Delaware

Mobile Mini Finance, LLC

MSG MMI (Texas) L.P.

1%

1% partnership interest

Texas

Mobile Storage UK Finance Limited Partnership

99%

99% partnership interest

England and Wales

Ravenstock MSG Limited

Ravenstock Tam (Hire) Limited

100%

10,550 ordinary shares

England and Wales

Mobile Storage (U.K.) Limited

100%

100 ordinary shares; 6,000,000 preferred shares

England and Wales

Mobile Mini UK Limited

0.2%

20,000 ordinary shares

England and Wales

A Royal Wolf Portable Storage, Inc.

Temporary Mobile Storage, Inc.

 

100%

1,500 shares of common stock

California

Water Movers, Inc.

Water Movers Contracting, LLC

100%

100% membership interest

Arizona

Evergreen Tank Solutions, Inc.

Water Movers, Inc.

100%

1,000 shares of common stock

Arizona

Gulf Tanks Holdings, Inc.

Evergreen Tank Solutions, Inc.

100%

100 shares of common stock

Delaware

 

The following agreements are binding upon the Company’s or other Credit Party’s partners, members or shareholders:

·

There are no corporate or joint venture relationships.

·

Stockholders Agreement, dated as of June 27, 2008, by and among US Company and the Stockholders signatory thereto.

 

 

Schedule 8.05

Names

 

 

 

Jurisdiction of

Organizational

Company

Type of Organization

Organization

ID Number

Mobile Mini, Inc.

Corporation

Delaware

2344770

Mobile Mini I, Inc.

Corporation

Arizona

0714383-3

Mobile Mini Dealer, Inc.

Corporation

Arizona

0233254-4

Mobile Mini, LLC

Limited liability company

Delaware

3435256

Mobile Mini, LLC

Limited liability company

California

200121110118

Mobile Storage Group, Inc.

Corporation

Delaware

3768960

MSG Investments, Inc.

Corporation

California

C2400028

A Better Mobile Storage Company

Corporation

California

C2468871

MSG MMI (Texas) L.P.

Limited partnership

Texas

800128190

A Royal Wolf Portable Storage, Inc.

Corporation

California

C1197982

Temporary Mobile Storage, Inc.

Corporation

California

C1511337

Mobile Mini Finance, LLC

Limited liability company

Delaware

5276960

SBOX STORAGE, LLC

Limited liability company

Delaware

4044667

Gulf Tanks Holdings, Inc.

Corporation

Delaware

4285940

Evergreen Tank Solutions, Inc.

Corporation

Delaware

4285943

Water Movers, Inc.

Corporation

Arizona

1018679-8

Water Movers Contracting LLC

Limited liability company

Arizona

L-1572091-0

Mobile Mini UK Holdings Limited

Limited liability company

England and Wales

5749804

Mobile Mini UK Limited

Limited liability company

England and Wales

02862423

Ravenstock MSG Limited

Limited liability company

England and Wales

4283040

Ravenstock Tam (Hire) Limited

Limited liability company

England and Wales

1214155

Mobile Storage (U.K.) Limited

Limited liability company

England and Wales

3836369

Mobile Storage UK Finance Limited Partnership

Limited partnership

England and Wales

LP7829

Mobile Mini Canada ULC

Unlimited liability company

British Columbia

BC0926262

 

Description of Certain Transactions Occurring Within the Past Three Years:

 

 

Grantor

 

Date of Acquisition

 

Description of Acquisition

Mobile Mini, Inc.

03/31/2014

Purchase of assets of On Site Storage Inc.

Mobile Mini, Inc.

03/31/2014

Purchase of assets of LongVans, Inc.

Mobile Mini, Inc.

06/30/2014

Purchase of membership interest of SBOX STORAGE, LLC

Mobile Mini, Inc.

06/30/2014

Purchase of assets of Equip Corporation

Mobile Mini, Inc.

09/09/2014

Purchase of assets of All Florida Storage Inc.

Mobile Mini, Inc.

09/24/2014

Purchase of assets of AR Port-A-Stor Inc.

Mobile Mini, Inc.

11/26/2014

Purchase of assets of Beacon Equipment Leasing Corporation

Mobile Mini, Inc.

12/10/2014

Purchase of stock of Gulf Tanks Holdings, Inc.

Mobile Mini, Inc.

07/20/2015

Purchase of assets of Allstate Trailers Inc.

 

 

Schedule 8.06  

Business Locations

 

 

Chief Executive Office for US Credit Parties:

 

4646 E. Van Buren Street, Suite 400, Phoenix, AZ 85008

 

Chief Executive Office for UK Credit Parties:

 

Ravenstock House, 28 Falcon Court, Preston Farm Business Park, Stockton-on-Tees, TS18 3TX, UK

 

Chief Executive Office for Canadian Credit Parties:

 

680-375 Water Street, Vancouver, BC V6B 5C6, Canada

 

Grantor

Address

City

State

Zip

Mobile Mini, Inc.

1833 Suntide Road

Corpus Christi

TX

78409

Mobile Mini, Inc.

425 W Plantation

Clute

TX

77531

Mobile Mini, Inc.

2101 Lee Drive

Baytown

TX

77520

Mobile Mini, Inc.

407 Woodlawn

Kilgore

TX

75662

Mobile Mini, Inc.

3900 Highway 30

St Gabriel

LA

70776

Mobile Mini, Inc.

5495 N Twin City Highway

Nederland

TX

77627

Mobile Mini, Inc.

12912 Highway 191

Midland

TX

79707

Mobile Mini, Inc.

191 Production Drive

Sulphur

LA

35603

Mobile Mini, Inc.

2460 FM 3084

Port Lavaca

TX

77979

Mobile Mini, Inc.

25896 S Sunset Drive

Monee

IL

60449

Mobile Mini, Inc.

4800 Malone Road

Memphis

TN

38118

Mobile Mini, Inc.

991 McEntire Lane NW

Decatur

AL

35603

Mobile Mini, Inc.

4192 Crostowne Court

Evans

GA

30809

Mobile Mini, Inc.

5680 I-10 Industrial Pkwy, N

Mobile

AL

36583

Mobile Mini, Inc.

8324 Route 414

Liberty

PA

16930

Mobile Mini, Inc.

8417 Mercer Street

Pulaski

PA

16143

Mobile Mini, Inc.

10 Industrial Highway

Lester

PA

19029

Mobile Mini, Inc.

14120 South Meridian

Oklahoma City

OK

73173

Mobile Mini, Inc.

12000 Hirsch Rd

Houston

TX

77050

Mobile Mini, Inc.

3550 Duncanville Road

Dallas

TX

75236

Mobile Mini, Inc.

18780 IH 35 N

Schertz

TX

78154

Mobile Mini, Inc.

2851 South A.W. Grimes

Round Rock

TX

78664

Mobile Mini, Inc.

39039 Cleastor Lane

Prairieville

LA

70769

Mobile Mini, Inc.

11931 Trans Park Drive

El Paso

TX

79927

Mobile Mini, Inc.

9800 West Expressway 83

Harlingen

TX

78552

Mobile Mini, Inc.

6731 Linwood Avenue

Shreveport

LA

71106

Mobile Mini, Inc.

11020 Hwy 69 N

Tyler

TX

75706

Mobile Mini, Inc.

1550 W Freeway

Vidor

TX

77662

Mobile Mini, Inc.

2326 US Highway 80

Pearl

MS

39208

Mobile Mini, Inc.

61000 St. Tammany Ave

Slidell

LA

70460

Mobile Mini, Inc.

6209 McPherson Road

Laredo

TX

78041

Mobile Mini, Inc.

12700 West County Road 100

Midland

TX

79706

Mobile Mini, Inc.

7934 Bearden Drive

Corpus Christi

TX

78409

 

 

Mobile Mini, Inc.

191 Production Drive

Sulphur

LA

70663

Mobile Mini, Inc.

2460 FM 3084

Port Lavaca

TX

77979

Mobile Mini, Inc.

4800 Malone Road

Memphis

TN

38118

Mobile Mini, Inc.

12658 S Winchester

Calumet Park

IL

60827

Mobile Mini, Inc.

1742 Transport Lane

Knoxville

TN

37924

Mobile Mini, Inc.

8825 Moncrief/Dinsmore Road

Jacksonville

FL

32219

Mobile Mini, Inc.

5900 SW 202nd Ave.

Pembroke Pines

FL

33332

Mobile Mini, Inc.

16590 Gator Road

Fort Myers

FL

33912

Mobile Mini, Inc.

4004 S. 50th Street

Tampa

FL

33619

Mobile Mini, Inc.

11622 Boggy Creek Rd

Orlando

FL

32824

Mobile Mini, Inc.

1055 C Southern Road

Morrow

GA

30260

Mobile Mini, Inc.

5223 S 9th Street

Milwaukee

WI

53221

Mobile Mini, Inc.

7121 Statesville Road

Charlotte

NC

28269

Mobile Mini, Inc.

1700 Nolensville Pike

Nashville

TN

37210

Mobile Mini, Inc.

618 Three Sisters Road

Knightdale

NC

27545

Mobile Mini, Inc.

871 Buckeye Park Road

Columbus

OH

43207

Mobile Mini, Inc.

2710 Millers Lane

Louisville

KY

40216

Mobile Mini, Inc.

3 Palmetto Court

Gaston

SC

29053

Mobile Mini, Inc.

4254 N Point Rd, Suite A1

Baltimore

MD

21222

Mobile Mini, Inc.

10 Industrial Highway

Lester

PA

19029

Mobile Mini, Inc.

14027 Washington Hwy

Ashland

VA

23005

Mobile Mini, Inc.

125 Manley Street

West Bridgewater

MA

2379

Mobile Mini, Inc.

2104 W Epler Avenue

Indianapolis

IN

46217

Mobile Mini, Inc.

981 Steen Road

Bridgeville

PA

15017

Mobile Mini, Inc.

8791 Paul Starr Drive

Pensacola

FL

32514

Mobile Mini, Inc.

1353 Indian Field Road Route 32

Feura Bush

NY

12067

Mobile Mini, Inc.

225 Websterville Road

Websterville

VT

5678

Mobile Mini, Inc.

2601 Center Road

Hinckley

OH

44233

Mobile Mini, Inc.

192 Piper Lane, Suite A

Alabaster

AL

35040

Mobile Mini, Inc.

3106 17th Street East

Palmetto

FL

34221

Mobile Mini, Inc.

7126 Bryhawke Circle

North Charleston

SC

29418

Mobile Mini, Inc.

4400 Dixie Highway

Fairfield

OH

45014

Mobile Mini, Inc.

500 Rock Road North

Fort Pierce

FL

34945

Mobile Mini, Inc.

361 Highway 183

Piedmont

SC

29673

Mobile Mini, Inc.

1015 Old Trail Road

Etters

PA

17319

Mobile Mini, Inc.

6152 New Bern Hwy

Maysville

NC

28555

Mobile Mini, Inc.

4601 Femrite Drive

Madison

WI

53716

Mobile Mini, Inc.

3120 Hollins Rd

Roanoke

VA

24012

Mobile Mini, Inc.

2400 Roosevelt Ave

South Plainfield

NJ

7080

Mobile Mini, Inc.

3703 Gillespie Street

Fayetteville

NC

28306

Mobile Mini, Inc.

1600 Osgood Street

North Andover

MA

1845

Mobile Mini, Inc.

200 Telegraph Road

Prichard

AL

36610

Mobile Mini, Inc.

4444 Burlington Road

Greensboro

NC

27405

Mobile Mini, Inc.

911 South Street Route 75

Suffield

CT

6078

Mobile Mini, Inc.

122 Mac Street

Virginia Beach

VA

23462

 

 

Mobile Mini, Inc.

7751 Wellingford Drive

Manassas

VA

20109

Mobile Mini, Inc.

6408 Collamer Road

East Syracuse

NY

13057

Mobile Mini, Inc.

7579 West Tennessee St

Tallahassee

FL

32304

Mobile Mini, Inc.

4720 SE US Hwy 301

Hawthorne

FL

32640

Mobile Mini, Inc.

30 Old Brickyard Road

Fletcher

NC

28732

Mobile Mini, Inc.

1960 Weaverville Road

Allentown

PA

18109

Mobile Mini, Inc.

175 Container Road

Savannah

GA

31415

Mobile Mini, Inc.

116 Ipsco Road

Decatur

AL

35601

Mobile Mini, Inc.

1075 Buffalo Rd

Rochester

NY

14624

Mobile Mini, Inc.

735 Fox Industrial Road

Lexington

KY

40504

Mobile Mini, Inc.

2222 Oriskany Street

Utica

NY

13502

Mobile Mini, Inc.

40 Sullivan Road

New Milford

CT

6776

Mobile Mini, Inc.

5314 Old Maumee Road

Fort Wayne

IN

46803

Mobile Mini, Inc.

6052 N. Main Street

Acworth

GA

30101

Mobile Mini, Inc.

2699 Waterlevel Highway

Cleveland

TN

37323

Mobile Mini, Inc.

95 Hopkins Street

Buffalo

NY

14220

Mobile Mini, Inc.

73 Browns Line

Toronto

ON

M8W 3S2

Mobile Mini, Inc.

22445 Groesbeck Highway

Warren

MI

48089

Mobile Mini, Inc.

899 Lincoln Avenue

Bohemia

NY

11716

Mobile Mini, Inc.

10304 Cogdill Road

Knoxville

TN

37932

Mobile Mini, Inc.

2123 Storage Street

Chattanooga

TN

37421

Mobile Mini, Inc.

2201 S. 27th Avenue

Phoenix

AZ

85009

Mobile Mini, Inc.

1485 W Glenn Street

Tucson

AZ

85705

Mobile Mini, Inc.

5328 Edith Blvd. NE

Albuquerque

NM

87107

Mobile Mini, Inc.

14120 South Meridian

Oklahoma City

OK

73173

Mobile Mini, Inc.

12044 E Pine St

Tulsa

OK

74116

Mobile Mini, Inc.

95 North 700 West, Ste E

North Salt Lake

UT

84054

Mobile Mini, Inc.

17200 177th Avenue SE

Monroe

WA

98272

Mobile Mini, Inc.

3945 Raytown Road

Kansas City

MO

64129

Mobile Mini, Inc.

5001 West Bethany Road

North Little Rock

AR

72117

Mobile Mini, Inc.

4006 N Broadway

St. Louis

MO

63147

Mobile Mini, Inc.

5940 NE Cully Blvd

Portland

OR

97218

Mobile Mini, Inc.

7309 Lake Drive

Lino Lakes

MN

55014

Mobile Mini, Inc.

250 West 53rd North Street

Park City

KS

67219

Mobile Mini, Inc.

607 Barger Lane

Nampa

ID

83687

Mobile Mini, Inc.

27083 Sundowner Ave

Tea

SD

57064

Mobile Mini, Inc.

18001 E Euclid

Spokane Valley

WA

99216

Mobile Mini, Inc.

2367 East Robinson Avenue

Springdale

AR

72764

Mobile Mini, Inc.

12300 Stagebarn Trail

Blackhawk

SD

57769

Mobile Mini, Inc.

1621 23rd Street South

Moorhead

MN

56560

Mobile Mini, Inc.

12921 Case Road SW

Olympia

WA

98512

Mobile Mini, Inc.

4506 S. 52nd Street

Omaha

NE

68117

Mobile Mini, Inc.

5289 Northwest Beaver Drive

Johnston

IA

50131

Mobile Mini, Inc.

42207 Third Street East

Lancaster

CA

93535

Mobile Mini, Inc.

13546 Bassett Lane NW

Williston

ND

58801

 

 

Mobile Mini, Inc.

135 South 1200 West

Lindon

UT

84042

Mobile Mini, Inc.

43850 Monroe Street

Indio

CA

92201

Mobile Mini, Inc.

15100 San Pedro Street

Gardena

CA

90248

Mobile Mini, Inc.

12345 Crosthwaite Circle

Poway

CA

92064

Mobile Mini, Inc.

14425 Arville Street

Las Vegas

NV

89054

Mobile Mini, Inc.

5300 Eudora

Commerce City

CO

80022

Mobile Mini, Inc.

2905 Capital Drive

Colorado Spring

CO

80939

Mobile Mini, Inc.

16351 S McKinley Avenue

Lathrop

CA

95330

Mobile Mini, Inc.

2660 N Locust Ave

Rialto

CA

92377

Mobile Mini, Inc.

44580 Old Warm Springs Boulevard

Fremont

CA

94538

Mobile Mini, Inc.

2486 W McKinley Avenue

Fresno

CA

93728

Mobile Mini, Inc.

3213 Gibson Street

Bakersfield

CA

93308

Mobile Mini, Inc.

3902 Esplanade

Chico

CA

95973

Mobile Mini, Inc.

8160 Junipero St

Sacramento

CA

95828

Mobile Mini, Inc.

470 Caletti Ave

Windsor

CA

95492

Mobile Mini, Inc.

1794 Lirio Ave

Saticoy

CA

93004

Mobile Mini, Inc.

2615 North Eastgate Ave.

Springfield

MO

65803

Mobile Mini, Inc.

9959 N. Virginia Street

Reno

NV

89506

Mobile Mini, Inc.

30 North 56th Street

Phoenix

AZ

85034

Mobile Mini, Inc.

2809 North Cassie's Place

Safford

AZ

85546

Mobile Mini, Inc.

311 West Utah Avenue

Las Vegas

NV

89102

Mobile Mini, Inc.

1040 West 2100 South

Salt Lake City

UT

84119

Mobile Mini, Inc.

318 Broadway

Kansas City

MO

64105

Mobile Mini, Inc.

1800 S 3rd Street

St Louis

MO

63104

Mobile Mini, Inc.

2615 North Eastgate Ave.

Springfield

MO

65803

Mobile Mini, Inc.

250 West 53rd North Street

Park City

KS

67204

Evergreen Tank Solutions, Inc.

1833 Suntide Road

Corpus Christi

TX

78409

Evergreen Tank Solutions, Inc.

425 W Plantation

Clute

TX

77531

Evergreen Tank Solutions, Inc.

2101 Lee Drive

Baytown

TX

77520

Evergreen Tank Solutions, Inc.

407 Woodlawn

Kilgore

TX

75662

Evergreen Tank Solutions, Inc.

3900 Highway 30

St Gabriel

LA

70776

Evergreen Tank Solutions, Inc.

5495 N Twin City Highway

Nederland

TX

77627

Evergreen Tank Solutions, Inc.

12912 Highway 191

Midland

TX

79707

Evergreen Tank Solutions, Inc.

191 Production Drive

Sulphur

LA

35603

Evergreen Tank Solutions, Inc.

2460 FM 3084

Port Lavaca

TX

77979

Evergreen Tank Solutions, Inc.

25896 S Sunset Drive

Monee

IL

60449

Evergreen Tank Solutions, Inc.

4800 Malone Road

Memphis

TN

38118

Evergreen Tank Solutions, Inc.

991 McEntire Lane NW

Decatur

AL

35603

Evergreen Tank Solutions, Inc.

4192 Crostowne Court

Evans

GA

30809

Evergreen Tank Solutions, Inc.

5680 I-10 Industrial Pkwy, N

Mobile

AL

36583

Evergreen Tank Solutions, Inc.

8324 Route 414

Liberty

PA

16930

Evergreen Tank Solutions, Inc.

8417 Mercer Street

Pulaski

PA

16143

Evergreen Tank Solutions, Inc.

10 Industrial Highway

Lester

PA

19029

Evergreen Tank Solutions, Inc.

14120 South Meridian

Oklahoma City

OK

73173

Water Movers, Inc.

30 North 56th Street

Phoenix

AZ

85034

 

 

Water Movers, Inc.

2809 North Cassie's Place

Safford

AZ

85546

Water Movers, Inc.

311 West Utah Avenue

Las Vegas

NV

89102

Water Movers, Inc.

1040 West 2100 South

Salt Lake City

UT

84119

Water Movers, Inc.

318 Broadway

Kansas City

MO

64105

Water Movers, Inc.

1800 S 3rd Street

St Louis

MO

63104

Water Movers, Inc.

2615 North Eastgate Ave.

Springfield

MO

65803

Water Movers, Inc.

250 West 53rd North Street

Park City

KS

67204

Mobile Mini UK Limited

Moss Bank House, Newmillerdam

Wakefield

UK

WF2 6QW

Mobile Mini UK Limited

Albion Parade

Gravesend

UK

DA12 2RU

Mobile Mini UK Limited

Plot 1, Former Ford Site

South Ockendon

UK

RM15 5SJ

Mobile Mini UK Limited

Woodham Industrial Park, Woodham,

Bucks

UK

HP18 0QE

Mobile Mini UK Limited

3 Hornock Road, Coatbridge,

Lanarkshire

UK

ML5 2AQ

Mobile Mini UK Limited

Brickyard Road, Aldridge

West Midlands

UK

WS9 8SR

Mobile Mini UK Limited

Stagg Lane Triumph Trading Park, Liverpool

Merseyside

UK

L24 9BD

Mobile Mini UK Limited

Units 03/04 Greensplott Road, Chitteningham

Avonmouth

UK

BS11 OYB

Mobile Mini UK Limited

North Road

Bridgend

UK

CF31 3TP

Mobile Mini UK Limited

Barras Lane Industrial Estate, Dalston

Cumbria

UK

CA5 7ND

Mobile Mini UK Limited

Lancaster Approach, North Killingholme

Humberside

UK

DN40 3JY

Mobile Mini UK Limited

Riverside Avenue West

Manningtree

UK

C011 1UN

Mobile Mini UK Limited

Teesport Commerce Park, South Bank,

Middlesbrough

UK

TS6 6UZ

Mobile Mini UK Limited

Off Littlewell Lane

IIkeston

UK

DE7 4QU

Mobile Mini UK Limited

Bakers Wharf

Marchwood

UK

SO40 4BX

Mobile Mini UK Limited

Old British Coal Transport Depot

Houghton-Le-Spring

UK

DH4 4TG

Mobile Mini Canada ULC

7717 84th Street SE

Calgary

AB

T2C 4Y1

 

 

 

 

 

Schedule 8.12

Surety Obligations

 

Bond Number

Principal Name

Bond Description

Bond Amount

Obligee

Premium

Expiration Date

Client Name

Issuing Carrier

104120445

Mobile Mini, Inc.

Motor Vehicle-Mobile Home Dealer License Bond: D-10 Dealer of Factory Built Buildings, 4010 S. 36th St., Phoenix, AZ 85040

$25,000.00

State of Arizona

$250.00

10/15/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

104120446

Mobile Mini, Inc.

Manufactured Housing License Bond: M-9A Manufacturer of Factory-Built Buildings, 11755 No MIP Entrance Rd., Maricopa, AZ

$10,000.00

State of Arizona

$100.00

10/15/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

104120448

Mobile Mini-Tulsa

Excess Size & Weight Permit Bond

$5,000.00

State of OK, Dept. of Public Safety, Size & Weight Permit Division

$100.00

10/29/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

104120454

Mobile Mini, Inc.

Excess Size & Weight Permit bond

$5,000.00

State of Oklahoma, Dept. of Public Safety, Size & Weight Permit Division

$100.00

11/8/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

104120474

Mobile Mini, Inc.

AZ Motor Vehicle Dealer License Bond

$25,000.00

State of Arizona, Department of Transportation Motor Vehicle Division

$250.00

12/31/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

104194263

Mobile Mini, Inc.

IFTA (Fuel Tax) Bond

$3,000.00

State of AZ, Motor Vehicle Division

$100.00

1/7/2017

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

104260816

Mobile Mini, Inc.

Excess Weight/Size Permit Bond

$2,000.00

State of Arkansas

$100.00

5/24/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

104502835

Mobile Mini, Incorporated

Installer-Modular Units

$25,000.00

State of Tennessee, Department of Commerce and Insurance

$250.00

6/30/2015

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

 

 

Bond Number

Principal Name

Bond Description

Bond Amount

Obligee

Premium

Expiration Date

Client Name

Issuing Carrier

104502836

Mobile Mini, Incorporated

Modular Building Dealer

$50,000.00

State of Tennessee, Department of Commerce and Insurance

$500.00

6/30/2015

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

104502837

Mobile Mini, Incorporated

Modular Building Installer

$25,000.00

State of Tennessee, Department of Commerce and Insurance

$250.00

6/30/2015

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

104502838

Mobile Mini, Incorporated

Modular Building Dealer

$50,000.00

State of Tennessee, Department of Commerce and Insurance

$500.00

6/30/2015

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

104502839

Mobile Mini, Incorporated

Installer of Modular Building Units Bond

$25,000.00

State of Tennessee, Department of Commerce and Insurance

$250.00

6/30/2015

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

104502840

Mobile Mini, Incorporated

Modular Building Dealer

$50,000.00

State of Tennessee, Department of Commerce and Insurance

$500.00

6/30/2015

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

104762618

Mobile Mini, Inc.

Credit Hauling Permit Bond

$5,000.00

State of Maryland, State Highway Administration

$100.00

7/21/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

104980874

Mobile Mini, Inc.

License Bond

$10,000.00

State of Arizona, Department of Building and Fire Safety Office of Administration

$100.00

2/3/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

105036903

Mobile Mini, Inc.

OH Turnpike Commission Toll Charge Bond

$5,000.00

Comptroller, Ohio Turnpike Commission

$100.00

7/1/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

105131611

Mobile Mini, Inc.

PA Toll Charge Bond Rev 9-3-02 (Turnpike, Bridge Toll Bonds)

$3,000.00

Pennsylvania Turnpike Commission

$100.00

12/29/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

105204731

Mobile Mini, Inc.

Toll Bond

$5,000.00

Maine Turnpike Authority

$100.00

2/28/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

 

 

Bond Number

Principal Name

Bond Description

Bond Amount

Obligee

Premium

Expiration Date

Client Name

Issuing Carrier

105325596

Mobile Mini, Inc.

Vehicle Dealer Bond

$30,000.00

Kansas Dept. of Revenue, Div. of Vehicles Dealer Licensing Bureau

$300.00

11/20/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

105325604

Mobile Mini, Inc.

Manufacturer Dealers License

$60,000.00

Commonwealth of Pennsylvania, Bureau of Motor Vehicles

$600.00

11/30/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

105325611

Mobile Mini, Inc.

SD Motor Vehicle Dealer Bond; $10,000

$10,000.00

Department of Revenue and Regulation

$100.00

12/1/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

105680622

Mobile Mini, Inc.

Trailer Dealer Bond

$10,000.00

State of South Dakota Dept. of Revenue

$100.00

10/19/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

105680624

Mobile Mini, Inc.

Trailer Dealer Bond

$10,000.00

State of South Dakota Dept. of Revenue

$100.00

10/19/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

105680630

Jon David Keating the financial responsible officer of Mobile Mini, Inc.

Business License Bond

$100,000.00

State of Florida Dept. of Business & Professional Regulation

$1,000.00

11/15/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

105841731

Mobile Mini, Inc.

TX City of Beaumont Building Contractors Bond

$25,000.00

City of Beaumont

$250.00

11/22/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

105841735

Leon Evans

CA Auctioneer or Auction Company Bond

$20,000.00

People of the State of California

$370.00

2/18/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

105841736

Mobile Mini, Inc.

WA Superior Court Co of King Bond of Indemnity to Sheriff Term (Indemnity Bond to Sheriff or Marshal)

$46,000.00

Green Zone Auto Sales LLC

$460.00

2/24/2015

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

 

 

Bond Number

Principal Name

Bond Description

Bond Amount

Obligee

Premium

Expiration Date

Client Name

Issuing Carrier

105841743

Caleb Pagan

CA Auctioneer or Auction Company Bond

$20,000.00

People of the State of California

$370.00

4/26/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

105841744

David Lopez

CA Auctioneer or Auction Company Bond

$20,000.00

People of the State of California

$370.00

4/26/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

105841748

Mobile Mini, Inc.

TX Sequestration

$1,000.00

CONGRESS RECYCLED AGGREGATES, L.L.C. D/B/A CONGRESS SAND AND GRAVEL, L.L.C. D/B/A CONGRESS MATERIALS, L.L.C.

$100.00

5/22/2015

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106083257

Mobile Mini, Inc.

Mobile Mini vs. John Ramsey

$16,000.00

John Ramsey

$160.00

8/14/2015

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106083260

Mobile Mini, Inc.

Replevin Bond

$2,285.05

Jack Humphreys

$100.00

9/5/2015

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106083262

Mobile Mini, Inc.

TX Sequestration Bond

$5,000.00

TRI SPECIALTY COATINGS, LLC D/B/A TRI SPECIALTY COATINGS

$100.00

9/17/2015

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106083263

Mobile Mini, Inc.

TX Bond for Sequestration and Replevy-Property Eclipse Renewables, LLC D/B/A Eclipse Renewables

$10,063.48

Eclipse Renewables, LLC D/B/A Eclipse Renewables

$101.00

9/23/2015

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106083266

Matthew Wahlgren

CA Auctioneer or Auction Company Bond Rev 3-05 (Auctioneers-Other than Livestock (935))

$20,000.00

People of the State of California

$370.00

10/23/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

 

 

Bond Number

Principal Name

Bond Description

Bond Amount

Obligee

Premium

Expiration Date

Client Name

Issuing Carrier

106083268

Mobile Mini, Inc.

Sheriff Indemnity

$15,000.00

Sherry E. Etchison and John Doe Etchison, wife and husband, individually and the marital community composed thereof

$150.00

11/3/2015

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106083277

Mobile Mini, Inc.

Mini Mobile Storage Container Serial Number AX25MZJ0683 and Mini Mobile Storage Container Serial Number AX2552J0966

$37,470.40

Blue Diamond Contracting, LLC and Arizona limited liability company d/b/a Orosco Contracting

$375.00

1/13/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106083279

Mobile Mini, Inc.

Mobile Mini vs Labelle Dodge,Chrysler, Jeep, Inc. Count I - Model 40Z 40' Premium and Tri Doors Serial #ES40VZK3339 Count II - Model 20S 20' Standard Lease Unit Serial #2955516 Count III - Suit on Off-Site Rental Agreements

$21,068.18

Labelle Dodge, Chrysler, Jeep, Inc.

$211.00

1/20/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106083280

Mobile Mini, Inc.

ALEX SOTELO and ANITA SOTELO, husband and wife; JOHN AND JANE DOES 1-10; ABC PARTNERSHIPS 1-10; DEF LIMITED LIABILITY COMPANIES 1-10; and XYZ CORPORATIONS 1-10; vs Mobile Mini, Inc. Replevin Bond

$15,123.62

Alex Sotelo and Anita Sotelo

$151.00

2/19/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106083281

Mobile Mini, Inc.

Model 20ZS 20' Standard Tri Door Serial #EX18MZI6041

$11,000.00

Cypress Community Care Center

$110.00

3/31/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106083282

Mobile Mini, Inc.

Model 16S 16' Container Serial #ES16VS2000

$10,200.00

Benito Heredia

$102.00

3/31/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

 

 

Bond Number

Principal Name

Bond Description

Bond Amount

Obligee

Premium

Expiration Date

Client Name

Issuing Carrier

106083283

Mobile Mini, Inc.

Mobile Mini, Inc. vs Retro World, LLC - Model 40ZK 40' Premium & Tri Doors Serial #ES40SZK6108

$15,000.00

Retro World, LLC

$150.00

4/21/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106083284

Mobile Mini, Inc.

Mobile Mini, Inc. vs Vision Hospitality Construction, LLC - Model 40ZS 40' Standard Tri Door Serial #LS40LZS3148, #ES40LZS3054, #ES40SZS5003 - Model 25ZJ, 25'x 10' Premium Doors on Both Ends Serial #EX25MZT6105

$62,974.00

Vision Hospitality Construction, LLC

$630.00

4/22/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106083288

Mobile Mini, Inc.

Mobile Mini vs Technic Sonido Corp.- 40'Container Serial #100420, 40' Container Serial #100526, 40' Container Serial #5015171, 40' Container Serial #4900566

$58,000.00

Technic Sonido Corp.

$580.00

4/28/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106273667

Mobile Mini, Inc.

Mobile Mini vs Benefit Providers, Inc. D/B/A Benefit Providers - TX Bond for Sequestration and Replevy -Property (Judicial)- Mobile Mini Container No. JS40XZS1145

$7,500.00

Benefit Providers, Inc. d/b/a Benefit Providers

$100.00

6/11/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106273668

Mobile Mini, Inc.

Mobile Mini vs Green Horizon Landcare, Inc. Container Serial #LS20LZS2286

$10,400.00

Green Horizon Landcare, Inc.

$104.00

6/15/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

 

 

Bond Number

Principal Name

Bond Description

Bond Amount

Obligee

Premium

Expiration Date

Client Name

Issuing Carrier

106273669

Mobile Mini, Inc.

Mobile Mini vs DWC Holdings, LLC and Terry Moore Model 40S6 40' Container - Highcube Serial #9852500MSG ISO

#TTNU9852500

$10,240.00

DWC Holdings, LLC and Terry Moore

$102.00

6/15/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106273672

MOBILE MINI, INC., a Delaware corporation

Replevin Bond - Mobile Mini vs WADE NEWNUM and JANE DOE NEWNUM, husband and wife; JOHN AND JANE DOES 1-10; ABC PARTNERSHI[PS 1-10; DEF LIMITED LIABILITY COMPANIES and XYZ CORPORATIONS - Storage Container Serial Number AH40-LZK-0460

$15,000.00

WADE NEWNUM and JANE DOE NEWNUM, husband and wife; JOHN AND JANE DOES 1-10; ABC PARTNERSHI[PS 1-10; DEF LIMITED LIABILITY COMPANIES and XYZ CORPORATIONS

$150.00

7/8/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106273673

Mobile Mini, Inc.

Mobile Mini vs AIR PARTS MANUFACTURING CO., D/B/A AIR PARTS MAUNFACTURING - One (1) Standard Tri Door storage unit Mobile Mini Container No. JS40XZK0010.

$8,250.00

Air Parts Manufacturing Co., d/b/a Air Parts Manufacturing

$100.00

7/20/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106273674

Mobile Mini, Inc.

Mobile Mini, Inc. vs Renewable Environmental Solutions, L.L.C., a limited liability company - Replevin Bond

$61,096.62

Renewable Environmental Solutions, L.L.C., a limited liability company

$611.00

8/17/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106273675

Mobile Mini, Inc.

Chapter 1310 City of Chillicothe Codified Ordinances Compliance Bond

$15,000.00

City of Chillicothe Building Department

$150.00

9/1/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106273676

Mobile Mini, Inc.

Mobile Mini vs Kathy Weaver and Larry Walraven - Model 20ZS 20' Standard Tri Door Serial #ES20VZS9205

$10,200.00

Kathy Weaver and Larry Walraven

$102.00

9/10/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106273677

Mobile Mini, Inc.

Mobile Mini vs Gotcha Covered Marine and Hydraulics of S.W. Fla, LLC Replevin Bond

$23,241.56

Gotcha Covered Marine and Hydraulics of S.W. Fla, LLC

$232.00

10/29/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

 

 

Bond Number

Principal Name

Bond Description

Bond Amount

Obligee

Premium

Expiration Date

Client Name

Issuing Carrier

106273678

Mobile Mini, Inc.

TX Sequestration Bond (Sequestration Bond - Plaintiff's)

$17,000.00

Triple C Recycling, Inc.

$170.00

11/3/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106273679

Mobile Mini, Inc.

TX Sequestration Bond (Sequestration Bond - Plaintiff's) Mobile Mini vs William Dorsey - One 40" Mobile Mini Container No. 4253011_SB

$5,000.00

William Dorsey

$100.00

11/10/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106273681

Mobile Mini, Inc.

TX Sequestration Bond (Sequestration Bond - Plaintiff's)

$4,091.68

Shayshon Adams D/B/A New Image Collision Center

$100.00

11/23/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106273682

Mobile Mini, Inc.

TX Sequestration Bond (Sequestration Bond - Plaintiff's)

$7,500.00

Circle W Ranches

$100.00

11/23/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106273683

Mobile Mini, Inc.

Sequestration Bond (Sequestration Bond - Plaintiff's)

$5,000.00

Frederick Franklin A/K/A Frederick Franklin III

$100.00

11/24/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106273684

Mobile Mini, Inc.

TX Sequestration Bond (Sequestration Bond - Plaintiff's)

$200.00

Gilberto Rios D/B/A Royalty

$100.00

12/1/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

106273685

Mobile Mini, Inc.

TX Sequestration Bond (Sequestration Bond - Plaintiff's)

$100.00

Fortified Stucco & Masonry LLC

$100.00

12/9/2016

Mobile Mini, Inc.

Travelers Casualty and Surety Company of America

69616291

Mobile Storage Group, Inc.

Motor Vehicle Dealer Bond

$50,000.00

State of Tennessee, Motor Vehicle Commission

$595.00

9/30/2016

Mobile Mini, Inc.

Western Surety Company

929260871

Mobile Mini, Inc.

Excess Weight Permit Bond

$5,000.00

Commonwealth of Pennsylvania, Dept. of Transportation

$100.00

9/16/2016

Mobile Mini, Inc.

Western Surety Company

LSM0382777

Debora A. Enyeart

Az Notary

$35,000.00

State of Arizona Secretary of State

$100.00

4/14/2016

Mobile Mini, Inc.

RLI Insurance Company

LSM0423831

Alicia Guzman

AZ Notary

$35,000.00

State of Arizona Secretary of State

$100.00

7/11/2016

Mobile Mini, Inc.

RLI Insurance Company

 

 

Bond Number

Principal Name

Bond Description

Bond Amount

Obligee

Premium

Expiration Date

Client Name

Issuing Carrier

LSM0539623

Colleen C.

Ackley

AZ Notary

$35,000.00

State of Arizona - Secretary of State

$100.00

12/4/2017

Mobile Mini, Inc.

RLI Insurance Company

LSM0557084

Janet L. Pullen

$5K AZ Notary Bond & $30K E/O

$35,000.00

State of Arizona Secretary of State

$100.00

1/16/2018

Mobile Mini, Inc.

RLI Insurance Company

LSM0557087

Stephanie Figueroa

$5K AZ Notary Bond & $30K E/O

$35,000.00

State of Arizona Secretary of State

$100.00

1/16/2018

Mobile Mini, Inc.

RLI Insurance Company

LSM0564083

Amanda K. Snyder (formerly Jastram)

$5K AZ Notary Bond & $30K E/O

$35,000.00

State of Arizona Secretary of State

$100.00

2/24/2018

Mobile Mini, Inc.

RLI Insurance Company

LSM0578282

Shirley A. Pullen

$5K AZ Notary Bond/$30K E&O Policy

$35,000.00

State of Arizona

$100.00

6/8/2018

Mobile Mini, Inc.

RLI Insurance Company

LSM0646831

Jessica Flores

$5K AZ Notary Bond & $30K E/O

$35,000.00

State of Arizona

$100.00

6/30/2018

Mobile Mini, Inc.

RLI Insurance Company

LSM0718862

Jill Thomas

$5K AZ Notary Bond & $30K Notary E&O Policy

$35,000.00

State of Arizona

$100.00

4/5/2019

Mobile Mini, Inc.

RLI Insurance Company

LSM0748432

Roseann Roberts

$5K AZ Notary Bond & $30K Notary E&O Policy

$35,000.00

State of Arizona

$100.00

6/5/2019

Mobile Mini, Inc.

RLI Insurance Company

LSM0748434

Cynthia K. Barber

$5K AZ Notary Bond & $30K Notary E&O Policy

$35,000.00

State of Arizona

$100.00

6/5/2019

Mobile Mini, Inc.

RLI Insurance Company

 

 

 

 

 

Schedule 8.18

Restrictions

 

Title of Contract

Identity of Parties

Nature of Restrictions

Maturity

7.875% Senior Notes ($200,000,000)

Mobile Mini, Inc.

Various negative covenants

12/1/2020

 

 

 

 

 

Schedule 8.19

Litigation

None.

 

 

Schedule 8.21

Leases

Real Property Leases:

 

Lessee

Lessor

Property Address

City

State

Mobile Mini, Inc.

Castleway Properties, LLC

10 Industrial Highway

Lester

PA

Mobile Mini, Inc.

HWK Investments

1015 Old Trail Road

Etters

PA

Mobile Mini, Inc.

Epperly Family Limited Partnership

10304 Cogdill Road

Knoxville

TN

Mobile Mini, Inc.

Cascada Holdings, LLC

10394 East 48th Ave.

Denver

CO

Mobile Mini, Inc.

L & N Properties, Inc.

1055 C Southern Road

Morrow

GA

Mobile Mini, Inc.

1075 Buffalo Road LLC

1075 Buffalo Rd

Rochester

NY

Mobile Mini, Inc.

A-1 Wrecker

108 San Jacinto Lane

Bryan

TX

Mobile Mini, Inc.

Roger Stebbins & Joe Kendrick

11020 Hwy 69 N

Tyler

TX

Mobile Mini, Inc.

Mary Franks

11042 Southwest US Highway 287

Rhome

TX

Mobile Mini, Inc.

Tri-Star Property Group LLC

116 Ipsco Road

Decatur

AL

Mobile Mini, Inc.

William Mattern

11614 Boggy Creek Rd

Orlando

FL

Mobile Mini, Inc.

The Churchill Group, Inc.

11622 Boggy Creek Rd

Orlando

FL

Mobile Mini, Inc.

R.E. Orion, LLC

11931 Trans Park Drive

El Paso

TX

Mobile Mini, Inc.

KNA Partners

12000 Hirsch Rd

Houston

TX

Mobile Mini, Inc.

Jim M. Phillips

12044 E Pine St

Tulsa

OK

Mobile Mini, Inc.

Witchduck Real Property, Inc.

122 Mac Street

Virginia Beach

VA

Mobile Mini, Inc.

Parks Limited, Inc.

12300 Stagebarn Trail

Blackhawk

SD

Mobile Mini, Inc.

Crosthwaite Circle, LLC

12345 Crosthwaite Circle

Poway

CA

Mobile Mini, Inc.

Kurk Petroulas

125 Manley Street

West Bridgewater

MA

Mobile Mini, Inc.

Epperly Family LP

1258 Topside Road

Alcoa

TN

Mobile Mini, Inc.

J.R. Bramlett / Airline Towing Inc.

12658 S Winchester

Calumet Park

IL

Mobile Mini, Inc.

Kevin & Jennifer Groman

12700 West County Road 100

Midland

TX

Mobile Mini, Inc.

PV Realty LLC

12905 NW 32nd Ave

Opa Locka

FL

Mobile Mini, Inc.

Joe & Lisa Carroll

12921 Case Road SW

Olympia

WA

Mobile Mini, Inc.

Eagle Furniture and Sam Greenwood

1297 Boyd Farris Road

Cookville

TN

Mobile Mini, Inc.

Ace Disposal, Inc.

135 South 1200 West

Lindon

UT

Mobile Mini, Inc.

Flach Properties, LLC

1353 Indian Field Road, Route 32

Feura Bush

NY

Mobile Mini, Inc.

MRL-24

13546 Bassett Lane NW

Williston

ND

Mobile Mini, Inc.

Anderson Towing Service, Inc.

1388 Glendale Ave

Sparks

NV

Mobile Mini, Inc.

Gilman Lumber Company, Inc.

14027 Washington Hwy

Ashland

VA

Mobile Mini, Inc.

Garco Leasing LLC

14120 South Meridian

Oklahoma City

OK

Mobile Mini, Inc.

Diamond Sloan, LLC

14425 Arville Street

Las Vegas

NV

Mobile Mini, Inc.

Bennett Truck Transport, LLC

1444 S Willow Avenue

Rialto

CA

Mobile Mini, Inc.

3 & 2 Enterprises

1485 W Glenn

Tucson

AZ

Mobile Mini, Inc.

I-ACR (formerly Sean Tilley)

1550 W Freeway

Vidor

TX

Mobile Mini, Inc.

1600 Osgood Street, LLC

1600 Osgood Street

North Andover

MA

 

 

Lessee

Lessor

Property Address

City

State

Mobile Mini, Inc.

T & J Wallace Enterprises, LLC

1621 23rd Street South

Moorhead

MN

Mobile Mini, Inc.

Rafael & Frances Sandoval

16351 S. McKinley Avenue

Lathrop

CA

Mobile Mini, Inc.

Flex Industrial Corp.

16590 Gator Road

Fort Myers

FL

Mobile Mini, Inc.

Freeman Investment, LLC (Chas Hawkins)

1700 Nolensville Pike

Nashville

TN

Mobile Mini, Inc.

Wetlands Creation Inc.

17200 177th Avenue SE

Monroe

WA

Mobile Mini, Inc.

Walker Construction Co, Inc

1742 Transport Lane

Knoxville

TN

Mobile Mini, Inc.

Interstate Logistic Park, LLC

175 Lynes Ave. (Container) Rd

Savannah

GA

Mobile Mini, Inc.

Sidney A. Jacobsen

1770 Benchmark Ave

Fort Myers

FL

Mobile Mini, Inc.

Addison Ventura, LLC

1794 Lirio Ave

Saticoy

CA

Mobile Mini, Inc.

Bielec Properties, Inc.

18001 E Euclid

Spokane Valley

WA

Mobile Mini, Inc.

Ron & Clare Carrillo

18780 IH 35 N

Schertz

TX

Mobile Mini, Inc.

Gene & Cymantha Foshee

192 Piper Lane, Suite A

Alabaster

AL

Mobile Mini, Inc.

Glen-Gery Corporation

1960 Weaverville Road

Allentown

PA

Mobile Mini, Inc.

Chippewa Lakes, LLC

200 Telegraph Road

Prichard

AL

Mobile Mini, Inc.

Bob Zadina Trucking, Inc.

2010 Stonehurst Ave

Rialto

CA

Mobile Mini, Inc.

Kopetsky Family LLC

2104 W Epler Avenue

Indianapolis

IN

Mobile Mini, Inc.

POR-MKR Real Estate, LLC

21044 Chippendale Court

Farmington

MN

Mobile Mini, Inc.

Epperly Family LP

2123 Storage Street

Chattanooga

TN

Mobile Mini, Inc.

Southern Landmark Development

220 Piper Lane

Alabaster

AL

Mobile Mini, Inc.

Sage Industrial Properties No.1, LLC

2201 S. 27th Avenue

Phoenix

AZ

Mobile Mini, Inc.

PDC Land and Cattle, Ltd.

2211 County Road 111

Georgetown

TX

Mobile Mini, Inc.

V-PEG, LLC

2222 Oriskany Street

Utica

NY

Mobile Mini, Inc.

Rizzo Properties L.L.C.

22445 Groesbeck Highway

Warren

MI

Mobile Mini, Inc.

Pike Industries, Inc.

225 Websterville Road

Websterville

VT

Mobile Mini, Inc.

GJ Thrash

2326 US Highway 80

Pearl

MS

Mobile Mini, Inc.

HTS Realty, L.L.C.

2367 East Robinson Avenue

Springdale

AR

Mobile Mini, Inc.

Harris Realty Company LLC

2400 Roosevelt Ave.

South Plainfield

NJ

Mobile Mini, Inc.

RT 303 Storage, LLC

2601 Center Road

Hinckley

OH

Mobile Mini, Inc.

Prologis, L.P. (formerly Mobile Mini Systems, Inc.)

2660 N Locust Ave

Rialto

CA

Mobile Mini, Inc.

UPS Ground Freight, Inc., dba UPS Freight

2660 N Locust Ave (Back Lot)

Rialto

CA

Mobile Mini, Inc.

Dixie Transport

2673 US HWY 41

Calhoun

GA

Mobile Mini, Inc.

Sam Beavers

2699 Waterlevel Highway

Cleveland

TN

Mobile Mini, Inc.

Parks Limited, Inc.

27083 Sundowner Ave

Tea

SD

Mobile Mini, Inc.

V.C. Properties, Inc.

2710 Millers Lane

Louisville

KY

Mobile Mini, Inc.

HJH, LLC

2727 N Flowering Wells

Tucson

AZ

Mobile Mini, Inc.

CR 170 Grimes, LP

2851 South A.W. Grimes

Round Rock

TX

Mobile Mini, Inc.

Jenwill & Associates

2888 North Mead

Wichita

KS

Mobile Mini, Inc.

Best California Gas, Ltd.

2904 N Locust Ave

Rialto

CA

Mobile Mini, Inc.

East Constitution Plant, LLC

2905 Capital Drive

Colorado Springs

CO

Mobile Mini, Inc.

Atlantic Coast Investments, LLC

3 Palmetto Court

Gaston

SC

Mobile Mini, Inc.

Leik Incorporated

30 Old Brickyard Road

Fletcher

NC

 

 

Lessee

Lessor

Property Address

City

State

Mobile Mini, Inc.

Atlantic Coast Investments, LLC

3032 Caterpillar Lane

Florence

SC

Mobile Mini, Inc.

Richard & Melanie Knowles

3106 17th Street East

Palmetto

FL

Mobile Mini, Inc.

M2M Properties (formerly TJS, LLC)

3120 Hollins Rd

Roanoke

VA

Mobile Mini, Inc.

KEEVMO, LLC

3213 Gibson Street

Bakersfield

CA

Mobile Mini, Inc.

Ralph Road, LLC

340 W Ralph Road

El Centro

CA

Mobile Mini, Inc.

Rober F Etzel Living Trust

3507 Grant Street South

Bondurant

IA

Mobile Mini, Inc.

Randy's Towing

353 Malaga Alcoa Highway

Wenatchee

WA

Mobile Mini, Inc.

S & K Interstate Properties (formerlyDodd & Freeman)

361 Highway 183

Piedmont

SC

Mobile Mini, Inc.

Kathryn D. Gaines

3703 Gillespie Street

Fayetteville

NC

Mobile Mini, Inc.

Jamcar Partners Limited

3711 Oates Rd

Houston

TX

Mobile Mini, Inc.

David & Laura Stephens

3902 Esplanade

Chico

CA

Mobile Mini, Inc.

Cleastor Lane LLC

39039 Cleastor Lane

Prairieville

LA

Mobile Mini, Inc.

Kaw Development LLC

3945 Raytown Road

Kansas City

MO

Mobile Mini, Inc.

Albert Vallerie Jr.

40 Sullivan Road

Milford

CT

Mobile Mini, Inc.

Stephen & Barbara Baseman

4004 S. 50th Street

Tampa

FL

Mobile Mini, Inc.

J.T.F.P., LP

4006 N Broadway

St. Louis

MO

Mobile Mini, Inc.

VNJ Properties, LLC

4020 S US Hwy 41

Tampa

FL

Mobile Mini, Inc.

Dale & Carol Spooner

42207 Third Street East

Lancaster

CA

Mobile Mini, Inc.

O'Malley Mulch, Inc.

4254 N Point Rd, Suite A1

Baltimore

MD

Mobile Mini, Inc.

JFL 301, LLC

4311 U.S. Hwy 301 North

Tampa

FL

Mobile Mini, Inc.

Monroe Street Partners LLC

43850 Monroe Street

Indio

CA

Mobile Mini, Inc.

4400 Dixie Highway, LLC

4400 Dixie Highway

Fairfield

OH

Mobile Mini, Inc.

Loop Eight, LLC (formerly Pierre & Carolyn Goria)

4444 Burlington Road

Greensboro

NC

Mobile Mini, Inc.

Sunnyvale Lumber, Inc.

44580 Old Warm Springs Boulevard

Fremont

CA

Mobile Mini, Inc.

Joe and Steve Partnership, LLC

4506 S. 52nd Street

Omaha

NE

Mobile Mini, Inc.

JHTK, LLC

4545 NE 14th Street

Des Moines

IA

Mobile Mini, Inc.

Lyle Rudolph & Nancy Rudolph

4601 Femrite Drive

Madison

WI

Mobile Mini, Inc.

PCC Gateway, LLC

4646 E Van Buren Street

Phoenix

AZ

Mobile Mini, Inc.

A.L Hearon Contracting LLC

4659 Shallowford Road

Chattanooga

TN

Mobile Mini, Inc.

Shiloh Road, LLC

470 Caletti Ave

Windsor

CA

Mobile Mini, Inc.

L and S Trailers & Supply, LLC

4720 SE US Hwy 301

Hawthorne

FL

Mobile Mini, Inc.

Dakota Cable Solutions, Inc.

4754 Sturgis Road

Rapid City

SD

Mobile Mini, Inc.

Assure Parking, LLC

4800 Malone Road

Memphis

TN

Mobile Mini, Inc.

Gibney Leasing Corporation of Florida

500 Rock Road North

Fort Pierce

FL

Mobile Mini, Inc.

JWJ Investments

5001 West Bethany Road

North Little Rock

AR

Mobile Mini, Inc.

Clark Burge

510 National Avenue

Augusta

GA

Mobile Mini, Inc.

Gregory G. Schaal

5223 S 9th Street

Milwaukee

WI

Mobile Mini, Inc.

Crow's Auto Service, Inc.

5289 Northwest Beaver Drive

Johnston

IA

Mobile Mini, Inc.

Raymond R. Weigel (payee: Triad Investments LLC)

5300 Eudora

Commerce City

CO

Mobile Mini, Inc.

Elizabeth Ann Staadt Trust

5314 Old Maumee Road

Fort Wayne

IN

 

 

Lessee

Lessor

Property Address

City

State

Mobile Mini, Inc.

John & Ana Ayala dba Ayala Properties

5328 Edith Blvd. NE

Albuquerque

NM

Mobile Mini, Inc.

Coastal Realty Company

5600 Holly Shelter Road

Castle Hayne

NC

Mobile Mini, Inc.

Bartow Municipal Airport Dev. Authority

575 Beechcraft Street

Bartow

FL

Mobile Mini, Inc.

Bergeron Park of Commerce - North Family LP

5900 SW 202nd Ave.

Pembroke Pines

FL

Mobile Mini, Inc.

Wynn Investments, LLC

5940 NE Cully Blvd

Portland

OR

Mobile Mini, Inc.

The Churchill Group, Inc.

6000 Hartford Street

Tampa

FL

Mobile Mini, Inc.

Weldon Center LLC

6024 Weldon Spring Parkway

Weldon Spring

MO

Mobile Mini, Inc.

J.H. Property Management, Inc.

6052 N. Main Street

Acworth

GA

Mobile Mini, Inc.

Larry E. Kling

607 Barger Lane

Nampa

ID

Mobile Mini, Inc.

Car-mine LLC Series I

6070 N Hollywood Blvd

Las Vegas

NV

Mobile Mini, Inc.

St. Tammany Avenue, L.L.C.

61000 St. Tammany Avenue

Slidell

LA

Mobile Mini, Inc.

Morton Mineral, Inc.

6152 New Bern Highway

Maysville

NC

Mobile Mini, Inc.

Steeple Square Court Associates, LLC

618 Three Sisters Road

Knightdale

NC

Mobile Mini, Inc.

McPherson Road, LLC

6209 McPherson Road

Laredo

TX

Mobile Mini, Inc.

Underdog Towing

625 5th Street

Prescott

AZ

Mobile Mini, Inc.

CTC Enterprises (USA Towing)

637 Abbott Street

Salinas

CA

Mobile Mini, Inc.

21 North Washington Street

6408 Collamer Road

East Syracuse

NY

Mobile Mini, Inc.

Edwin and Patricia Boyer

6731 Linwood Avenue

Shreveport

LA

Mobile Mini, Inc.

CRC Machinery Inc.

6915 North Camino Martin

Tucson

AZ

Mobile Mini, Inc.

DHF Properties, LLC

7121 Statesville Road

Charlotte

NC

Mobile Mini, Inc.

J & R Properties, LLC

7126 Bryhawke Circle

North Charleston

SC

Mobile Mini, Inc.

Rodenbury Investments Ltd

73 Browns Line

Toronto

ON

Mobile Mini, Inc.

Bald Eagel Erectors, Inc (formerly Diamond Dirt LLC)

7309 Lake Drive

Lino Lakes

MN

Mobile Mini, Inc.

Eavy & Fannie Hopkins

735 Fox Industrial Road

Lexington

KY

Mobile Mini, Inc.

Alan Shufelberger

7400 Highway 273

Redding

CA

Mobile Mini, Inc.

Joe & Lisa Carroll

7579 West Tennessee St

Tallahassee

FL

Mobile Mini, Inc.

SSMA, LLC

7750 Wellingford Drive

Manassas

VA

Mobile Mini, Inc.

Zulmira Morais Family Partnership, L.P.

7751 Wellingford Drive

Manassas

VA

Mobile Mini, Inc.

Puertos Los Caballeros LLC

7934 Bearden Drive

Corpus Christi

TX

Mobile Mini, Inc.

Sea Side Storage

8109 Highway 77

Sinton

TX

Mobile Mini, Inc.

Hensler Family Trust

8160 Junipero St

Sacramento

CA

Mobile Mini, Inc.

Weber Holdings - Buckeye, LLC

871 Buckeye Park Road

Columbus

OH

Mobile Mini, Inc.

Terhaar & Cronley Property Company

8791 Paul Starr Drive

Pensacola

FL

Mobile Mini, Inc.

ConGlobal Industries Real Estate, Inc.

8825 Moncrief/Dinsmore Road

Jacksonville

FL

Mobile Mini, Inc.

Joe D. Enterprises LTD

899 Lincoln Ave

Bohemia

NY

Mobile Mini, Inc.

RayMar Realty, LLC

911 South Street,

Suffield

CT

Mobile Mini, Inc.

L.W. Miller, LLC

94 North 400 West

North Salt Lake

UT

Mobile Mini, Inc.

95 Hopkins Street, LLC

95 Hopkins Street

Buffalo

NY

Mobile Mini, Inc.

High Rustler (formerly Terminal)

95 North 700 West, Ste E

North Salt Lake

UT

Mobile Mini, Inc.

Allen Stephenson

9800 West Expressway 83

Harlingen

TX

 

 

Lessee

Lessor

Property Address

City

State

Mobile Mini, Inc.

Charles E. Guest

981 Steen Road

Bridgeville

PA

Mobile Mini, Inc.

Clay County Port, Inc. dba Reynolds Industrial Park

989 Worthington Ave

Green Cove Springs

FL

Mobile Mini, Inc.

JKD Properties, LLC

991 McEntire Lane NW

Decatur

AL

Mobile Mini, Inc.

FAAN, LTD

Great Lakes Way

Hinckley

OH

Mobile Mini UK Limited

Bowesfield Investment Limited

28 Falcon Court

Stockton-On-Trees

UK

Mobile Mini UK Limited

CT Engineering (Scotland) Limited

3 Hornock Road

Coatbridge, Lanarkshire

UK

Mobile Mini UK Limited

Feabrex Limited

Albion Parade

Gravesend

UK

Mobile Mini UK Limited

Bees Finance Corporation Limited

Bakers Wharf

Marchwood

Uk

Mobile Mini UK Limited

Robert and Florence Edgar and WM Pensions Trustees Services Limited

Barras Lane Industrial Estate

Dalston, Cumbria

UK

Mobile Mini UK Limited

Hilderstone Hall (Investments) Limited

Brickyard Road

Aldridge, West Midlands

UK

Mobile Mini UK Limited

Shell Chemicals U.K. Limited

Carrington Business Park

Carrington, Manchester

UK

Mobile Mini UK Limited

Humberside Sea & Land Services, Spurn House, Immingham Dock, Immingham

Lancaster Approach

North Killingholme, Humberside

UK

Mobile Mini UK Limited

D.C.T. Developments Limited

Moss Bank House

Newmillerdam, Wakefield

UK

Mobile Mini UK Limited

Clerical Medical Investment Group Limited

North Road

Bridgend

UK

Mobile Mini UK Limited

Saint Gobain Pipelines Plc

Off Littlewell Lane

Ilkeston

UK

Mobile Mini UK Limited

Shirewell Developments Limited

Old British Coal Transport Depot

Houghton-Le-Spring

UK

Mobile Mini UK Limited

St. Modwen Developments Limited

Plot 1. Former Ford Site

South Ockendon

UK

Mobile Mini UK Limited

Valedown Limited

Stagg Lane Triumph Trading Park

Liverpool, Merseyside

UK

Mobile Mini UK Limited

PD Teesport

Teesport Commerce Park

South Bank, Middlesbrough

UK

Mobile Mini UK Limited

The Bristol Port Company

Units 03/04 Greensplott Road

Chitteningham Trading Estate, Avonmouth

UK

Mobile Mini UK Limited

Firmin Coates Limited

Woodham Industrial Park

Woodham, Aylesbury, Bucks

UK

Mobile Mini Canada ULC

City of Calgary (formerly ENMAX Power Corp.)

4000 11 Street SE

Calgary

AB

Mobile Mini Canada ULC

Big Red Express Ltd

47 Technology Way SE

Calgary

AB

Mobile Mini Canada ULC

1351725 Alberta Ltd.

7717 84th Street SE

Calgary

AB

Water Movers, Inc.

Kome Enterprises LLC

1040 West 2100 South

Salt Lake City

UT

Water Movers, Inc.

Over 85 LLC

1760 South Pearl Street

Salt Lake City

UT

Water Movers, Inc.

AMJ Investments LLC

1800 S 3rd Street

St. Louis

MO

Water Movers, Inc.

GJK,, LLC

250 West 53rd North Street

Park City

KS

 

 

Lessee

Lessor

Property Address

City

State

Water Movers, Inc.

Charles Huff

2615 North Eastgate Ave

Springfield

MO

Water Movers, Inc.

Betsy and John P Joyce

2809 North Cassie's Place

Safford

AZ

Water Movers, Inc.

Randum Properties LLC

30 North 56th Street

Phoenix

AZ

Water Movers, Inc.

Randum Properties LLC

311 West Utah Avenue

Las Vegas

NV

Water Movers, Inc.

Cogent Inc. d.b.a. Less Matthews Equipment Inc.

318 Broadway

Kansas City

MO

Evergreen Tank Solutions Inc.

Resources Enterprises Inc

12912 Highway 191

Midland

TX

Evergreen Tank Solutions Inc.

Pecos Industrial Park, LLC

1389 Oilfield Road

Pecos

TX

Evergreen Tank Solutions Inc.

Moreaux Properties Inc.

1551 Airport Drive

Shreveport

LA

Evergreen Tank Solutions Inc.

Cole Camino LTD

16441 Space Center Blvd Ste D-2

Houston

TX

Evergreen Tank Solutions Inc.

Solid Rock Commercial Properties

1833 Suntide Road

Corpus Christi

TX

Evergreen Tank Solutions Inc.

Brimstone Rental

191 Production Drive

Sulphur

LA

Evergreen Tank Solutions Inc.

Sprint Industrial Services

2101 Lee Drive

Baytown

TX

Evergreen Tank Solutions Inc.

David A Pfiel

2460 FM 3084

Port Lavaca

TX

Evergreen Tank Solutions Inc.

Sunset Drive LLC

25896 S Sunset Drive

Monee

IL

Evergreen Tank Solutions Inc.

Jim Farris

2800 Decker Drive

Baytown

TX

Evergreen Tank Solutions Inc.

E-1 of Shreveport LLC

313 Highway 80

Haughton

LA

Evergreen Tank Solutions Inc.

Borries Holdings, LLC

3900 Highway 30

St Gabriel

LA

Evergreen Tank Solutions Inc.

Bill Godsey

407 Woodlawn

Kilgore

TX

Evergreen Tank Solutions Inc.

Richard Horton

4192 Crosstowne Court

Evans

GA

Evergreen Tank Solutions Inc.

Champion Rentals / James E Horsley

425 W Plantation

Clute

TX

Evergreen Tank Solutions Inc.

347 Partners, LTD.

5475 N Twin City Highway

Nederland

TX

Evergreen Tank Solutions Inc.

MPK LLC

56801-10 Industrial Pkwy N

Mobile

AL

Evergreen Tank Solutions Inc.

James Route Jr. LLC

8324 Route 414

Liberty

PA

Evergreen Tank Solutions Inc.

Mitcheltree Bros. Lumber & Logging

8417 Mercer Street

Pulaski

PA

Evergreen Tank Solutions Inc.

Ronnie & Thomas Pickens (dba Valley Feed Serv.)

991 McEntire NW

Decatur

AL

 

 

 

 

 

Operating Leases:

 

Lessee

Lessor

Property Covered

Lease Type

Mobile Mini, Inc.

Bank of America Note# 40894-11500-021

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-022

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-025

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-026

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-034

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-035

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-036

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-037

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-038

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-039

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-040

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-042

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-043

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-044

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-045

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-046

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-047

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-048

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-049

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-050

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-051

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini, Inc.

Bank of America Note# 40894-11500-052

Trucks, Tractors, and miscellaneous vehicle accessories

Operating Lease

Mobile Mini UK Limited

BOS secondary

Truck

Operating Lease

Mobile Mini UK Limited

Capital Asset finance

Copier

Operating Lease

Mobile Mini UK Limited

GE Capital Equipment Solutions

Forklifts

Operating Lease

Mobile Mini UK Limited

ING Lease (UK) limited

Other

Operating Lease

Mobile Mini UK Limited

Lex Vehicle Leasing

Cars and vans

Operating Lease

Mobile Mini UK Limited

Neopost Finance Limited

Other

Operating Lease

Mobile Mini UK Limited

Pitney Bowes Finance PLC

Other

Operating Lease

Mobile Mini UK Limited

Siemens

Other

Operating Lease

Mobile Mini UK Limited

Technocopy

Copier

Operating Lease

 

 

 

 

 

 

 

Schedule 8.23

ERISA Plans

Mobile Mini, Inc. and its Subsidiaries have no pension plans; Mobile Mini, Inc. has the following Plans for its employees and employees of its Subsidiaries:

·

Mobile Mini, Inc. Profit Sharing Plan and Trust, Plan Number 001

·

Mobile Mini, Inc. Benefit Plan, Plan Number 501

No Subsidiary maintains a separate benefit plan for its employees.

 

 

 

Schedule 8.24

Business Relationships

None.

 

 

 

 

Schedule 8.30

Continuing Indebtedness

 

Borrower

Lender

Debt Instrument

Amount ($) As of 12/15/2015

Maturity

Mobile Mini, Inc

Various

7.875% Senior Notes (200,000,000)

200,000,000

12/1/2020

Various

Various

Purchase Money Liens and Leases permitted by Section 10.05(d) of the Credit Agreement

38,683,384

Various

 

 

 

 

Schedule 8.31

Insurance

Mobile Mini, Inc.:

See attached Schedule of Insurance.

Mobile Mini UK Limited:

See attached UK Schedule of Insurance.

 

 

 

 

 

SCHEDULE OF INSURANCE

24-Nov-15

CLIENT NAME:  MOBILE MINI, INC.

 

Type of Ins.

Exp. Date

Policy No.

Insurance Co.

Broker

Premium (USD)

Limits Ded

Coverage/Deductible

Auto

10/1/2016

[***]

Hartford

Sterling & Sterling

[***]

[***]

o   Combined Single Limit

 

 

 

 

 

 

[***]

o   Medical Pay - Per Person

Policy Code:

[***]

 

 

 

 

[***]

o   Deductible Includes ALAE

 

 

 

 

 

 

 

o   PHYSICAL DAMAGE

 

 

 

 

 

 

[***]

o   Medical Payments - Per Person

 

 

 

 

 

 

[***]

o   APD SIR including ALAE

 

 

 

 

 

 

 

 

Comments

Policy

[***]

[***]

 

 

 

 

 

 

 

 

Auto -

Canada -

Liability

10/1/2016

[***]

Hartford

Sterling & Sterling

[***]

[***]

o   Combined Single Limit - Per Ontaria & Per Alberta

 

 

 

 

 

 

 

o   Physical Damage

Policy Code:

[***]

 

 

 

 

[***]

o   APD SIR Includes ALAE

 

 

 

 

 

 

[***]

       Liability Deductible

 

 

 

 

 

 

 

 

Comments

Policy

 

 

 

 

 

 

 

[***]

 

 

 

 

 

 

 

 

Boiler &

Machinery

11/10/2016

[***]

C N A

AmWins

[***]

[***]

o   TIV

 

 

 

 

 

 

[***]

o   Property Damage

Policy Code:

[***]

 

 

 

 

[***]

o   BI/EE & Ordinary Payroll

 

 

 

 

 

 

[***]

o   Expediting Expense

 

 

 

 

 

 

[***]

o   Hazardous Substances

 

 

 

 

 

 

[***]

o   Electronic Data & Media (PD & BI)

 

 

 

 

 

 

[***]

o   Ordiance or Law

 

 

 

 

 

 

[***]

o   Contingent BI - Direct Suppliers Only

 

 

 

 

 

 

[***]

o   Limited Coverage for Fungus, Dry Rot, Wet Rot or Bacteria

 

 

 

 

 

 

[***]

o   Utility Interruption

 

 

 

 

 

 

[***]

o   Consequential Loss

 

 

 

 

 

 

[***]

o   Ammonia Contamination

 

 

 

 

 

 

[***]

o   Water Damage

 

 

 

 

 

 

[***]

o   Extended Period of Restoration

 

 

 

 

 

 

[***]

o   Newly Acquired Locations - PD & BI

 

 

 

 

 

 

 

o   DEDUCTIBLES

 

 

 

 

 

 

[***]

o   Equipment Breakdwon

 

 

 

 

 

 

[***]

o   BI / EE

 

 

 

 

 

 

[***]

o   Contingent BI

 

 

 

 

 

 

[***]

o   Service Interruption

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

SCHEDULE OF INSURANCE

24-Nov-15

CLIENT NAME:  MOBILE MINI, INC.

 

Type of Ins.

Exp. Date

Policy No.

Insurance Co.

Broker

Premium (USD)

Limits Ded

Coverage/Deductible

 

 

 

 

 

 

 

 

Comments

Binder

Includes ETS

Crime

10/1/2016

[***]

Travelers

Willis

[***]

[***]

o   Employee Theft

 

 

 

 

 

 

[***]

o   ERISA Theft

Policy Code:

[***]

 

 

 

 

[***]

o   Forgery & Alteration

 

 

 

 

 

 

[***]

o   On Premises Theft

 

 

 

 

 

 

[***]

o   In Transit Theft

 

 

 

 

 

 

[***]

o   Money Orders & Counterfeit

 

 

 

 

 

 

[***]

o   Computer Fraud

 

 

 

 

 

 

[***]

o   Computer Program & EDR

 

 

 

 

 

 

[***]

o   Funds Transfer Fraud

 

 

 

 

 

 

[***]

o   Personal Accounts Protection

 

 

 

 

 

 

[***]

o   Claim Expense

 

 

 

 

 

 

 

o   DEDUCTIBLES

 

 

 

 

 

 

[***]

o   ERISA

 

 

 

 

 

 

[***]

o   Claim Expense

 

 

 

 

 

 

[***]

o   Money Orders & Counterfeit Money

 

 

 

 

 

 

[***]

o   Data Restoration Expense

 

 

 

 

 

 

[***]

o   Personal Accounts Forgery or Alteration

 

 

 

 

 

 

[***]

o   All Other Perils

 

 

 

 

 

 

 

 

Comments

Binder

 

 

 

 

 

 

Cyber Liability

10/1/201

[***]

Travelers

Willis

[***]

[***]

o   Policy Aggregate

 

 

 

 

 

 

[***]

o   Network and Information Security

Policy Code:

[***]

 

 

 

 

[***]

o   Regulatory Defense Expenses

 

 

 

 

 

 

[***]

o   Crisis Management Event Expenses

 

 

 

 

 

 

[***]

o   Security Breench Notification Expenses

 

 

 

 

 

 

[***]

o   E-Commerce Extortion

 

 

 

 

 

 

[***]

o   Business Interruption and Additional Expenses

 

 

 

 

 

 

 

o   RETENTION

 

 

 

 

 

 

[***]

o   Each Claim Agreement A & B

 

 

 

 

 

 

[***]

o   Each Regulatory Claim - Agreement C

 

 

 

 

 

 

 

 

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

SCHEDULE OF INSURANCE

24-Nov-15

CLIENT NAME:  MOBILE MINI, INC.

 

Type of Ins.

Exp. Date

Policy No.

Insurance Co.

Broker

Premium (USD)

Limits Ded

Coverage/Deductible

Comments

Policy

Effective 1/9/15 - 9-Month Policy

D&O

8/1/2016

[***]

Berkley

Woodruff-

Sawyer

[***]

[***]

o   Per Claim

 

 

 

 

 

 

[***]

o   Aggregate

Policy Code:

[***]

 

 

 

 

[***]

o   Shareholder Derivative Demand - Inv. Costs

 

 

 

 

 

 

[***]

o   Coverage A - Insured Persons Retention

 

 

 

 

 

 

[***]

o   Coverage B - Corp. Indemnification Other than Security Claims

 

 

 

 

 

 

[***]

o   Coverage B - Corporate Indemnification Securities Claims

 

 

 

 

 

 

[***]

o   Coverage C - Corporate Securities Claims

 

 

 

 

 

 

 

 

Comments

Binder

 

 

 

 

 

 

D&O - Excess

Side A DIC

8/1/2016

[***]

AIG

ARC Excess & Surplus

[***]

[***]

o   Side A DIC X $25,000,000

Policy Code:

[***]

 

 

 

 

[***]

o   Continuity Date

 

 

 

 

 

 

 

 

Comments

Binder

 

 

 

 

 

 

D&O/E&O -

XS 1st Layer

8/1/2016

[***]

Chubb

ARC Excess & Surplus

[***]

[***]

o   Excess $10,000,000

Policy Code:

[***]

 

 

 

 

[***]

o   Continuity Date

 

 

 

 

 

 

 

 

Comments

Binder

 

 

 

 

 

 

D&O/E&O -

XS 2nd Layer

8/1/2016

[***]

QBE

ARC Excess & Surplus

[***]

[***]

o   Excess $20,000,000

Policy Code:

[***]

 

 

 

 

[***]

o   Continuity Date

 

 

 

 

 

 

 

 

Comments

Binder

 

 

 

 

 

 

Fiduciary

10/1/2016

[***]

US Specialty

AMWINS

Brokerage of NJ

[***]

[***]

o   Fiduciary Liability - Aggregate

Policy Code:

[***]

 

 

 

 

 

o   Retention

 

 

 

 

 

 

[***]

o   Deductible

 

 

 

 

 

 

 

o   Retro Date - 8/1/04

 

 

 

 

 

 

 

 

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

SCHEDULE OF INSURANCE

24-Nov-15

CLIENT NAME:  MOBILE MINI, INC.

 

Type of Ins.

Exp. Date

Policy No.

Insurance Co.

Broker

Premium (USD)

Limits Ded

Coverage/Deductible

Comments

Policy

Premium Includes TRIA

Extended Rep. Period - 1 year 75% per AmWins

General Liability

10/1/2016

[***]

Ironshore

Sterling & Sterling

[***]

[***]

o   Per Occurrence

 

 

 

 

 

 

[***]

o   Products/Completed Operations

Policy Code:

[***]

 

 

 

 

[***]

o   General Aggregate - Per Location

 

 

 

 

 

 

[***]

o   SIR including ALAE Exp

 

 

 

 

 

 

[***]

o   SIR Aggregate

 

 

 

 

 

 

[***]

o   Employee Benefits

 

 

 

 

 

 

[***]

o   Personal & Advertising

 

 

 

 

 

 

[***]

o   Fire Damage

 

 

 

 

 

 

[***]

o   Medical Payments

 

 

 

 

 

 

[***]

o   Pollution Legal Liability – Claims Made

 

 

 

 

 

 

[***]

o   Pollution Legal Liability Deductible

 

 

 

 

 

 

[***]

o   Contractors Pollution Legal Liability

 

 

 

 

 

 

[***]

o   Pollution Legal Cargo Transportation

 

 

 

 

 

 

[***]

o   Product Withdrawal Expense

 

 

 

 

 

 

[***]

o   Product Withdrawal Expense Deductible

 

 

 

 

 

 

 

 

Comments

Binder

 

 

 

 

 

 

 

[***]

General Liability – CANADA

10/1/2016

 

Ironshore

Sterling & Sterling

[***]

[***]

o   Per Occurrence

 

 

 

 

 

 

[***]

o   Products/Completed Operations

Policy Code:

[***]

 

 

 

 

[***]

o   General Aggregate - Per Location

 

 

 

 

 

 

[***]

o   SIR including ALAE Exp

 

 

 

 

 

 

[***]

o   Employee Benefits

 

 

 

 

 

 

[***]

o   Personal & Advertising

 

 

 

 

 

 

[***]

o   Fire Damage

 

 

 

 

 

 

[***]

o   Medical Payments

 

 

 

 

 

 

[***]

o   Pollution Legal Liability – Claims Made

 

 

 

 

 

 

[***]

o   Pollution Legal Liability Deductible

 

 

 

 

 

 

[***]

o   Contractors Pollution Legal Liability

 

 

 

 

 

 

[***]

o   Pollution Legal Cargo Transportation

 

 

 

 

 

 

[***]

o   Product Withdrawal Expense

 

 

 

 

 

 

[***]

o   Product Withdrawal Expense Deductible

 

 

 

 

 

 

 

 

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

SCHEDULE OF INSURANCE

24-Nov-15

CLIENT NAME:  MOBILE MINI, INC.

 

Type of Ins.

Exp. Date

Policy No.

Insurance Co.

Broker

Premium (USD)

Limits Ded

Coverage/Deductible

Comments

Policy

 

 

 

 

 

 

International Package

10/1/2016

Binder

Chartis

Willis

[***]

 

o   GENERAL LIABILITY

 

 

 

 

 

 

[***]

o   Program Aggregate

Policy Code:

[***]

 

 

 

 

[***]

o   General Aggregate

 

 

 

 

 

 

[***]

o   Products/Completed Operations

 

 

 

 

 

 

[***]

o   Each Occurrence

 

 

 

 

 

 

[***]

o   Damage to Premises Rented to You

 

 

 

 

 

 

[***]

o   Medical Expense

 

 

 

 

 

 

[***]

o   Employee Benefits - 1,000 Deductible

 

 

 

 

 

 

 

o   NON-OWNED & HIRED AUTO & OWNED

 

 

 

 

 

 

[***]

o   Any One Accident

 

 

 

 

 

 

[***]

o   Medical Expense

 

 

 

 

 

 

 

o   VOLUNTARY COMP & EL

 

 

 

 

 

 

[***]

o   Employer's Liability

 

 

 

 

 

 

[***]

o   Repatriation

 

 

 

 

 

 

 

o   Includes US, Canadian, 3rd Country National and Local Hire

 

 

 

 

 

 

 

o   FOREIGN TRAVEL ACCIDENT & SICKNESS

 

 

 

 

 

 

[***]

o   AD&D

 

 

 

 

 

 

[***]

o   Aggregate

 

 

 

 

 

 

[***]

o   Medical Expense - $500 Deductible

 

 

 

 

 

 

[***]

o   Medical Evacuation

 

 

 

 

 

 

[***]

o   Emergency Family Travel

 

 

 

 

 

 

[***]

o   Repatriation of Remains Each Person

 

 

 

 

 

 

[***]

o   Repatriation of Remains Aggregate

 

 

 

 

 

 

 

o   KIDNAP & RANSOM

 

 

 

 

 

 

[***]

o   Each Event

 

 

 

 

 

 

[***]

o   Ransom Monies

 

 

 

 

 

 

[***]

o   In Transit / Delivery

 

 

 

 

 

 

[***]

o   Expenses

 

 

 

 

 

 

[***]

o   Consultant Expenses

 

 

 

 

 

 

[***]

o   Judgements, Settlements, Defense

 

 

 

 

 

 

[***]

o   Death or Dismemberment Per Person

 

 

 

 

 

 

[***]

o   Death or Dismemberment Each Event

 

 

 

 

 

 

[***]

o   Aggregate - K&R

 

 

 

 

 

 

[***]

o   Deductible

 

 

 

 

 

 

 

 

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

SCHEDULE OF INSURANCE

24-Nov-15

CLIENT NAME:  MOBILE MINI, INC.

 

Type of Ins.

Exp. Date

Policy No.

Insurance Co.

Broker

Premium (USD)

Limits Ded

Coverage/Deductible

Comments

POLICY

 

 

 

 

 

 

Motor Truck Cargo

10/1/2016

[***]

 

Chubb

Willis

[***]

[***]

o   Cargo Legal Liability

 

 

 

 

 

 

[***]

o   Deductible

Policy Code:

[***]

 

 

 

 

[***]

o   Earned Freight

 

 

 

 

 

 

[***]

o   Pollutant Clean-up or Removal

 

 

 

 

 

 

 

 

Comments

POLICY

 

 

 

 

 

 

 

Includes Motor Cargo Carrier End. For AZ

Property

11/10/2016

[***]

Alterra

AmWins

[***]

[***]

o   Catastrophe

 

 

 

 

 

 

[***]

o   Building Property - as scheduled

Policy Code:

[***]

 

 

 

 

[***]

o   Business Personal Property - as scheduled

 

 

 

 

 

 

[***]

o   Debris Removal - Additional Expense

 

 

 

 

 

 

[***]

o   Emergency Removal

 

 

 

 

 

 

[***]

o   Off Premises Utility - Service Interruption – 24 Hour Waiting Period

 

 

 

 

 

 

[***]

o   Brands or Label Expenses

 

 

 

 

 

 

[***]

o   Expediting Expenses

 

 

 

 

 

 

[***]

o   Fire Department Service Charges

 

 

 

 

 

 

[***]

o   Ordinance or Law

 

 

 

 

 

 

[***]

o   Increased Cost to Repair or Demolish and clear site

 

 

 

 

 

 

[***]

o   Personal Effects

 

 

 

 

 

 

[***]

o   Pollutant Cleanup and Removal

 

 

 

 

 

 

[***]

o   Recharge of Fire Extinguishing Equipment

 

 

 

 

 

 

[***]

o   Sewer Backup and Water below the Surface

 

 

 

 

 

 

[***]

o   Trees, Shrubs and Plants

 

 

 

 

 

 

[***]

o   Underground Pipes, Pilings, Bridges, and Roadways

 

 

 

 

 

 

[***]

o   Accounts Receivable

 

 

 

 

 

 

[***]

o   Virus and Hacking Coverage - Any One Occurrence

 

 

 

 

 

 

[***]

o   Virus and Hacking Coverage - Any 12 Month Period

 

 

 

 

 

 

[***]

o   Fine Arts

 

 

 

 

 

 

[***]

o   Property on Exhibition

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

SCHEDULE OF INSURANCE

24-Nov-15

CLIENT NAME:  MOBILE MINI, INC.

 

Type of Ins.

Exp. Date

Policy No.

Insurance Co.

Broker

Premium (USD)

Limits Ded

Coverage/Deductible

 

 

 

 

 

 

[***]

o   Property in Transit

 

 

 

 

 

 

[***]

o   Sales Representative Samples

 

 

 

 

 

 

[***]

o   Software Storage

 

 

 

 

 

 

[***]

o   Valuable Papers

 

 

 

 

 

 

[***]

o   Newly Built or Acquired Buildings

 

 

 

 

 

 

[***]

o   Personal Property - Acquired Locations

 

 

 

 

 

 

[***]

o   Locations Not Described

 

 

 

 

 

 

[***]

o   Income Coverage

 

 

 

 

 

 

[***]

o   Interruption by Civil Authority

 

 

 

 

 

 

[***]

o   Flood - Aggregate and Per Occurrence

 

 

 

 

 

 

[***]

o   Earthquake - Aggregate and Per Occurrence

 

 

 

 

 

 

[***]

o   Property Leased and Rented to Others

 

 

 

 

 

 

[***]

o   Overhead Transmission

 

 

 

 

 

 

[***]

o   Leasehold Interest

 

 

 

 

 

 

[***]

o   Ingress/Egress

 

 

 

 

 

 

 

o   DEDUCTIBLES

 

 

 

 

 

 

[***]

o   Deductible EXCEPT

 

 

 

 

 

 

[***]

o   Theft

 

 

 

 

 

 

[***]

 

 

 

o   Named Windstorm

 

 

 

 

 

 

[***]

o   Catastrophic Business Interruption

 

 

 

 

 

 

[***]

o   Business Interruption

 

 

 

 

 

 

[***]

o   Earthquake Except

 

 

 

 

 

 

[***]

 

 

 

o   Earth Movement in Alaska, California, Hawaii and Puerto Rico

 

 

 

 

 

 

[***]

 

 

 

o   Earth Movement in New Madrid and Puget Sound Seismic Zones

 

 

 

 

 

 

[***]

o   Flood Except

 

 

 

 

 

 

[***]

o   Special Flood Hazard Areas, Areas of 100 Year Flooding as Defined by FEMA

 

 

 

 

 

 

 

 

Comments

POLICY

 

 

 

 

 

 

 

Valuation is replacement cost except storage units 7 yrs old or older, which shall be ACV.

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

SCHEDULE OF INSURANCE

24-Nov-15

CLIENT NAME:  MOBILE MINI, INC.

 

Type of Ins.

Exp. Date

Policy No.

Insurance Co.

Broker

Premium (USD)

Limits Ded

Coverage/Deductible

Property - Excess 1st Layer

11/10/2016

 

Westchester

Surplus Lines

Insurance

Company

AmWins

[***]

[***]

o   Excess of $5,000,000 - Per Occurrence

Policy Code:

[***]

 

 

 

 

[***]

o   TIV

 

 

 

 

 

 

 

 

Comments

Binder

 

 

 

 

 

 

Property - Excess 2nd Layer

11/10/2016

[***]

Scottsdale

Insurance

Company

AmWins

[***]

[***]

o   Excess $10,000,000 – Per Occurrence

 

 

 

 

 

 

[***]

o   TIV

Policy Code:

[***]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comments

Binder

 

 

 

 

 

 

Umbrella

10/1/2016

[***]

Ironshore

Sterling & Sterling

[***]

[***]

o   Each OCC

 

 

 

 

 

 

[***]

o   Aggregate

Policy Code:

[***]

 

 

 

 

[***]

o   Product/Comp OP Aaggregate

 

 

 

 

 

 

[***]

o   S.I.R.

 

 

 

 

 

 

 

 

Comments

Binder

Excess of GL/PL & WC online

[***]

Excess – Auto 1st Layer

10/1/2016

[***]

Berkshire

Sterling & Sterling

[***]

[***]

o   Excess $2,000,000

 

 

 

 

 

 

 

 

Policy Code:

[***]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comments

Policy

[***]

Excess – Auto 2nd Layer

10/1/2016

[***]

Endurance

Sterling & Sterling

[***]

[***]

o   Excess $5,000,000

 

 

 

 

 

 

 

o   

Policy Code:

[***]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comments

Binder

 

 

 

 

 

 

Excess – Auto 3rd Layer

10/1/2016

[***]

Ohio Casualty

Sterling & Sterling

[***]

[***]

o   Excess $8,000,000

 

 

 

 

 

 

 

 

Policy Code:

[***]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comments

Policy

 

 

 

 

 

 

Workers Compensation – Deductible

10/1/2016

[***]

Hartford

Sterling & Sterling

[***]

[***]

o   Bodily Injury Per Person

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

SCHEDULE OF INSURANCE

24-Nov-15

CLIENT NAME:  MOBILE MINI, INC.

 

Type of Ins.

Exp. Date

Policy No.

Insurance Co.

Broker

Premium (USD)

Limits Ded

Coverage/Deductible

 

 

 

 

 

 

[***]

o   Bodily Injury Per Accident

Policy Code:

[***]

 

 

 

 

[***]

o   Bodily Injury Policy Limit

 

 

 

 

 

 

[***]

o   Deductible

 

 

 

 

 

 

[***]

o   Maximum Loss Content (Shared with GL & Auto Liability)

 

 

 

 

 

 

 

 

Comments

Policy

Premium includes Taxes, Fees and Surcharges

[***]

Worker’s Compensation – Retro

10/1/2016

[***]

Hartford

Sterling & Sterling

[***]

[***]

o   Bodily Injury Per Person

 

 

 

 

 

 

[***]

o   Bodily Injury Per Accident

Policy Code:

[***]

 

 

 

 

[***]

o   Bodily Injury Policy Limit

 

 

 

 

 

 

[***]

o   Repatriation - Each Employee

 

 

 

 

 

 

 

 

Comments

Policy

Payroll

[***]

 

Total Premium for SubClient -

 

[***]

 

 

 

 

 

 

 

 

 

 

 

 

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

SCHEDULE OF INSURANCE

24-Nov-15

CLIENT NAME:  MOBILE MINI, INC.

 

Type of Ins.

Exp. Date

Policy No.

Insurance Co.

Broker

Premium (£)

Limits Ded

Coverage/Deductible

Computer

5/1/2016

[***]

 

Chubb

Bartlett

[***]

[***]

o   Premises Based Equipment

 

 

 

 

 

 

[***]

o   Portable Equipment

Policy Code:

[***]

 

 

 

 

[***]

o   Increased Cost of Working

 

 

 

 

 

 

[***]

o   Reinstatement of Data

 

 

 

 

 

 

[***]

o   Computer Breakdown

 

 

 

 

 

 

[***]

o   Deductible

 

 

 

 

 

 

 

 

Comments

BINDER

 

 

 

 

 

 

Contractors Combined

5/1/2016

[***]

 

 

RSA

Bartlett

[***]

 

o   LOSS OR DAMAGE TO MACHINERY

 

 

 

 

 

 

[***]

o   Per Occurrence & Aggregate

Policy Code:

[***]

 

 

 

 

 

o   LEGAL LIABILITY FOR HIRED MACHINERY

 

 

 

 

 

 

[***]

o   Per Occurrence & Aggregate

 

 

 

 

 

 

[***]

o   Deductible

 

 

 

 

 

 

 

 

Comments

BINDER

 

 

 

 

 

 

Employers Liability

5/1/2016

[***]

Aviva

Bartlett

[***]

[***]

 

o   Any One Occurrence

 

 

 

 

 

 

[***]

o   Legal Expenses

Policy Code:

[***]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comments

BINDER

 

 

 

 

 

 

Engineering Inspection

5/1/2016

[***]

HSB Engineering Insurance Limited

Bartlett

[***]

 

o   Inspection Service as required and issuance of reports to comply with statutory requirements

 

 

 

 

 

 

[***]

o   Own Surrounding Property

Policy Code:

[***]

 

 

 

 

[***]

o   Sudden & Unforeseen Damage

 

 

 

 

 

 

[***]

o   Fragmentation

 

 

 

 

 

 

[***]

o   Deductible / Excess

 

 

 

 

 

 

 

 

Comments

BINDER

 

 

 

 

 

 

Marine Transit

5/1/2016

[***]

 

RSA

Bartlett

[***]

[***]

o   Any One Vessel and /or Aircraft

 

 

 

 

 

 

[***]

o   Any One Road or Rail Conveyance

Policy Code:

[***]

 

 

 

 

[***]

o   Postal Sending

 

 

 

 

 

 

[***]

o   Deductible

 

 

 

 

 

 

 

 

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

SCHEDULE OF INSURANCE

24-Nov-15

CLIENT NAME:  MOBILE MINI, INC.

 

Type of Ins.

Exp. Date

Policy No.

Insurance Co.

Broker

Premium (£)

Limits Ded

Coverage/Deductible

Comments

BINDER

 

 

 

 

 

 

Motor Fleet

5/1/2016

[***]

Aviva

Bartlett

[***]

[***]

o   Own Loss or Damage Limit Aggregate - Per Any One Event

Policy Code:

[***]

 

 

 

 

[***]

o   3rd Party BI Limit

 

 

 

 

 

 

[***]

o   3rd Party Property Damage Limit – Commercial Vehicles

 

 

 

 

 

 

[***]

o   3rd Party Property Damage - Commercial Vehicles

 

 

 

 

 

 

 

o   DEDUCTIBLES

 

 

 

 

 

 

[***]

o   Each Claim

 

 

 

 

 

 

 

 

Comments

BINDER

 

 

 

 

 

 

Personal Accident & Travel

5/1/2016

[***]

 

 

ACE

Bartlett

[***]

[***]

o   Personal Liability

 

 

 

 

 

 

[***]

o   Personal Accident

Policy Code:

[***]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comments

BINDER

 

 

 

 

 

 

Property / Commercial Combined

5/1/2016

[***]

RSA

Bartlett

[***]

[***]

o   Buildings Including Tenants Improvements

 

 

 

 

 

 

[***]

o   Stock, materials in trade and goods held in trust

Policy Code:

[***]

 

 

 

 

[***]

o   Containers used for on site storage

 

 

 

 

 

 

[***]

o   Machinery, plant & fixtures and fittings

 

 

 

 

 

 

[***]

o   Teesport Commerce Park - rent receivable

 

 

 

 

 

 

[***]

o   Increased Cost of Working

 

 

 

 

 

 

[***]

o   Deductible

Comments

BINDER

 

 

 

 

 

 

Public & Products Liability

10/1/2013

[***]

AIG UK Ltd.

Willis

[***]

[***]

o   Limit

 

 

 

 

 

 

 

 

Policy Code:

[***]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Comments

Policy not placed by UIC

Warehouse Keepers

5/1/2016

[***]

RSA

Bartlett

[***]

[***]

o   Per Occurrence

 

 

 

 

 

 

[***]

o   Deductible

Policy Code:

[***]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

SCHEDULE OF INSURANCE

24-Nov-15

CLIENT NAME:  MOBILE MINI, INC.

 

Type of Ins.

Exp. Date

Policy No.

Insurance Co.

Broker

Premium (£)

Limits Ded

Coverage/Deductible

Comments

BINDER

 

 

 

 

 

 

 

Total Premium for SubClient – Mobile Mini, UK Ltd.

[***]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

Name of UK Charger

Policy Term

Policy Type

Policy No.

Insurance Company

Amount Insured

Deductible

Mobile Mini UK Limited

01/05/15 - 30/04/16

COMMERCIAL COMBINED

[***]

Royal & Sun Alliance Insurance Plc

[***] buildings incl tenant's improvements

[***] stock, materials in trade and goods held in trust

[***] containers used for on site storage

[***] machinery, plant, fixtures, sittings anf all other components (excluding stock and computers)

[***] increased costs of working (property damage)

[***] rent payable

Business interuptian: [***] data reinstatement, [***] denial of access, [***] diseases, murder, suicide, defective sanitation, [***] public utilities[***]customers, [***] suppliers, [***] fines and damages

[***]

Mobile Mini UK Limited

01/05/15 - 30/04/16

CONTRACTORS COMBINED

[***]

Royal & Sun Alliance Insurance Plc

[***] contract works

[***] own plant

[***] hire in plant

[***]

Mobile Mini UK Limited

01/05/15 - 30/04/16

MARINE/AIR CARGO

[***]

Royal & Sun Alliance Engineering

Any one road/rail conveyance [***]

Any one vessel, aircraft, conveyance [***]

Any one location (in the ordinary course of transit) [***]

Any one own or employee's vehicle [***]

Any one postal sending [***]

Any one vehicle in respect of tools, samples and equipment [***]

[***]

Mobile Mini UK Limited

01/05/15 - 30/04/16

WAREHOUSE KEEPERS LIABILITY

[***]

Royal & Sun Alliance Insurance Plc

[***] RHA conditions of carriage

[***] CMR contract conditions

[***]

Mobile Mini UK Limited

01/05/15 - 30/04/16

COMPUTER

[***]

Chubb Insurance Company of Europe SE

[***] static computer equipment

[***] portable computer equipment

[***] reinstatement of data

[***] increased costs of working

[***] computer breakdown

 

Mobile Mini UK Limited

01/05/15 - 30/04/16

PERSONAL INJURY & TRAVEL

[***]

ACE European Group Ltd

Permanent total disablement benefit [***]

Travel cover

[***]

Mobile Mini UK Limited

01/06/15 - 30/04/16

EMPLOYERS LIABILITY

[***]

Aviva Insurance Limited

[***] employers liability

 

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

Name of UK Charger

Policy Term

Policy Type

Policy No.

Insurance Company

Amount Insured

Deductible

Mobile Mini UK Limited

01/06/15 - 30/04/16

MOTOR

[***]

Aviva Insurance Limited

Comprehensive cover

Actual market value on respect of any one insured vehicle and [***] in the aggregate in respect of any one event

Third party property damage - provivate cars [***]; commercial vehicles [***]

Theft of keys [***]

[***]

Mobile Mini UK Limited

01/10/15 - 01/10/16

PUBLIC AND PRODUCTS LIABILITY

[***]

AIG Europe Limited (UK)

The sterling equivalent of [***] combined single limit in respect of all events happening during any period in insurance

 

Mobile Mini UK Limited

01/10/15 - 01/10/16

GLOBAL FOREIGN LIABILITY INCLUDING PUBLIC AND PRODUCTS LIABILITY

[***]

Insurance Co. of the State of Pennsylvania

[***] master control aggregate limit

[***] general aggregate

[***] products/compleetd operations aggregate limit

[***] personal advertising injury limit

[***] each occurrence limit

[***] damage to premises rented to you

 

Mobile Mini UK Limited

01/10/15 - 01/10/16

UMBRELLA LIABILITY

[***]

Ironshore Specialty Insurance Company

[***] each occurrence

[***] aggregate

 

Mobile Mini UK Limited

01/05/15 - 30/04/16

ENGINEERING INSPECTION

[***]

Allianz Insurance Plc

[***] sudden and unforeseen damage

[***] own surrounding property

[***]

 

 

 

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

Schedule 8.32

Plans; Existing Indebtedness Agreements

Plans:

Mobile Mini, Inc. has the following Plans for its employees and employees of its Subsidiaries:

·

Mobile Mini, Inc. Profit Sharing Plan and Trust, Plan Number 001

·

Mobile Mini, Inc. Benefit Plan, Plan Number 501

Existing Indebtedness Agreements:

Existing Indebtedness Agreements in respect of the Indebtedness listed on Schedule 8.30.

 

 

 

 

Schedule 9.22

Post-Closing Matters

1. No later than five (5) Business Days following the Effective Date, the Credit Parties shall cause to be delivered to the Collateral Agent certificates and instruments representing or evidencing the Equity Interests listed below, which, in the case of an instrument or certificate in registered form, shall be duly indorsed to the Collateral Agent or in blank by an effective endorsement, if required, together with an undated stock power or other instrument of transfer, each in form and substance reasonably satisfactory to the Administrative Agent:

 

Pledgor/Obligor

Subsidiary

Type of Ownership

Ownership

Mobile Mini, Inc.

Mobile Mini Canada ULC

1,000 common shares

50%

Mobile Mini, Inc.

Mobile Mini Canada ULC

1,000 common shares

50%

 

which, for the avoidance of doubt, shall be held by the Collateral Agent subject to the limitations in Section 9.13(e) .

2. No later than fifteen (15) Business Days following the Effective Date, the Credit Parties shall cause to be delivered to the Collateral Agent certificates and instruments representing or evidencing the Equity Interests and the Pledged Note (as defined in the US Pledge Agreement) listed below, which, in the case of an instrument or certificate in registered form, shall be duly indorsed to the Collateral Agent or in blank by an effective endorsement, if required, together with an undated stock power, note power or other instrument of transfer, each in form and substance reasonably satisfactory to the Administrative Agent:

Equity Interests:

 

Pledgor/Obligor

Subsidiary

Type of Ownership

Ownership

Mobile Mini, Inc.

Mobile Mini Canada ULC

1,300 common shares

65%

Mobile Mini Canada ULC

700 common shares

35%

MSG Investments, Inc.

Mobile Mini Finance, LLC

Membership Interests (certificated)

100%

 

Pledged Note:

 

(a)

Promissory Note, dated December 10, 2014, between Mobile Mini, Inc. and Evergreen Tank Solutions, Inc.

which, in the case of the Equity Interests, for the avoidance of doubt, shall be held by the Collateral Agent subject to the limitations in Section 9.13(e) .

 

 

3. No later than fifteen (15) days following the Effective Date, the Credit Parties shall cause the following Lien to be permanently terminated in its entirety through the filing of an appropriate UCC-3 termination statement and the taking of any other appropriate actions:  

 


DEBTOR

JURISDICTION

SECURED PARTY

LIEN TYPE

FILING INFO

DESCRIPTION

SBOX Storage, LLC

4727 Poplar Ave., Ste 204

Memphis, TN 38117

Delaware Secretary of State

Paragon National Bank

5400 Poplar Avenue

Memphis, TN 38119

UCC

File No.:20114574904

Date:11/7/11

All assets

 

4. No later than sixty (60) days following the Effective Date, the Credit Parties shall cause to be delivered to the Administrative Agent a fully executed Cash Management Control Agreement with respect to each of the deposit accounts listed on Schedule 10.07 or Schedule 10.18 to the extent a Cash Management Control Agreement is required with respect to each such deposit account by the Credit Documents; provided that, for any such deposit account subject to a Cash Management Control Agreement in favor of the Collateral Agent that is in existence on the Effective Date, the Credit Parties may instead cause the financial institution party to such Cash Management Control Agreement to deliver to the Administrative Agent an affirmation agreement, in form and substance reasonably satisfactory to the Administrative Agent, stating that the applicable Cash Management Control Agreement is in full force and effect and, if reasonably requested by the Administrative Agent, an amendment to such Cash Management Control Agreement, in form and substance reasonably satisfactory to the Administrative Agent.

5. The Credit Parties shall use commercially reasonable efforts to cause to be delivered to the Administrative Agent, no later than thirty (30) days following the Effective Date, insurance endorsements with respect to their insurance policy #12 CSE S39403 with Hartford Insurance and their insurance policy #002521600 with Ironshore Indemnity Inc., in form and substance satisfactory to the Administrative Agent.

6. No later than sixt y (60) days following the Effective Date, the Credit Parties shall cause the following registration pursuant to the Personal Property Security Act (Alberta) (“ PPSA ”) to be permanently terminated in its entirety:

 

(a)

PPSA registration #05050524379 designated as a land charge made against Industrial Trailer Rentals Ltd., Industrial Trailer Sales & Equipment, Rent Me-Storage Systems and Rent-Me Storage Systems Inc. (predecessor corporations of Mobile Mini Canada ULC), as debtors, in favour of Alberta Treasury Branches, as secured party.

7. As of the Effective Date, each Credit Party that owns a Real Property listed on Schedule 6.13 shall have duly authorized, executed, had notarized, and delivered a modification to the Mortgage in favor of the Administrative Agent previously recorded against such Real Property, in form and substance reasonably acceptable to the Administrative Agent (a “ Mortgage Modification ”) and the related opinion of counsel required under Section 6.03(e) .  In connection with the delivery of each such Mortgage Modification, within five (5) Business Days of the Effective Date, US Company will, and will cause each other Credit Party to, in each case unless waived by the Administrative Agent, deliver mortgage modification and date down endorsements to the related Mortgage Policy, issued by a title insurer reasonably satisfactory to the Administrative Agent, in form and substance and in an amount reasonably satisfactory to the Administrative Agent, insuring that the Mortgage, as modified by the Mortgage Modification, is a valid and enforceable First Priority Lien on the respective property other than Permitted Encumbrances; and in conjunction therewith, such Credit Party shall have previously provided to the Administrative Agent and/or the title insurer issuing the endorsements a current title commitment from the title insurance company for such Real Property (together with copies of all underlying documents), an owner’s affidavit with respect to such Real Property, a gap indemnity with respect to the endorsements to be issued by the title insurer, and any other documentation reasonably requested or required by the title insurer to issue the endorsements.

8. No later than five (5) Business Days following the Effective Date, the Credit Parties shall deliver an updated version of Schedule I to that certain Pre-Closing UCC Diligence Certificate, dated as of the Effective Date, by and among the parties thereto, which such Schedule I shall include the applicable assets of the UK Credit Parties as of the Effective Date.

 

 

 

 

 

Schedule 10.02

Liens

 


DEBTOR

JURISDICTION

SECURED PARTY

LIEN TYPE

FILING INFO

COLLATERAL DESCRIPTION

Mobile Storage Group, Inc.

7590 North Glenoaks Blvd.

Burbank, CA

Delaware Secretary of State

De Lage Landen Financial Services, Inc.

1111 Old Eagle School Rd

Wayne, PA 19087

UCC

File No.: 20064379681

Date:      12/14/06

Cont.:     20114504232

Date:      11/23/11

Equipment

Mobile Storage Group, Inc.

700 N. Brand Blvd 10 th flr

Glendale, CA 91203

 

Delaware Secretary of State

National City Commercial Capital Company, LLC

995 Dalton Ave.

Cincinnati, OH 45203

UCC

File No.: 2008 0373892

Filed:     1-31-08

Cont.:     20125000486

Date:      12/21/12

Equipment

Mobile Storage Group, Inc.

7590 North Glenoaks Blvd.

Burbank, CA 91504

 

Delaware Secretary of State

National City Commercial Capital Company, LLC

995 Dalton Ave.

Cincinnati, OH 45203

UCC

File No.: 2008 0727279

Filed:      2-28-08

Cont.:      20130238890

Date:      1/17/13

Equipment

Mobile Mini I, Inc.

 

Dallas County, Texas

 

Le Son Quang

Civil Case

Litigation

Case No.: CC-06-02622-D

Filed:      2/27/06

Le Son Quang vs. Mobile Mini 1 Inc.

Case type:  Damages (Collision)

Mobile Mini, LLC

7420 South Kyrene Road, Suite 101

Tempe. AZ 85283

 

California

Employment Development Department

PO Box 826880

Sacramento, CA 94280

State Tax Lien

File No.: 11-7283246549

Date:      8/25/11

Term.:    11-72907181

Date:      11/7/11

$2,306.07

Mobile Mini, Inc.

7420 South Kyrene Road, Suite 101

Tempe, AZ 85283

 

Delaware Secretary of State

National City Commercial Capital Corporation

995 Dalton Ave

Cincinnati, OH 45203

UCC

File No.: 20061644293

Date:      5-15-06

Cont.:      2011 2473068

Filed:      4-20-11

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

 

Delaware Secretary of State

National City Commercial Capital Corporation

995 Dalton Ave

Cincinnati, OH 45203

UCC

File No.: 61874197

Date:      6-2-06

Cont.:     20111758674

Date:      5/10/11

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

 

Delaware Secretary of State

Banc of America Leasing & Capital, LLC

2059 Northlake Parkway

4 South

Tucker, GA 30084

UCC

File No.: 20073646097

Filed:     9-27-07

Cont.:     20122609321

Date:     7/06/12

Equipment

 

 


DEBTOR

JURISDICTION

SECURED PARTY

LIEN TYPE

FILING INFO

COLLATERAL DESCRIPTION

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

 

Delaware Secretary of State

Banc of America Leasing & Capital, LLC

2059 Northlake Parkway

4 South

Tucker, GA 30084

UCC

Fie No.: 2008 1055530

Filed:    3-26-08

Cont.:    20130708124

Date:    2/22/13

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

 

Delaware Secretary of State

Banc of America Leasing & Capital, LLC

2059 Northlake Parkway

4 South

Tucker, GA 30084

UCC

File No.: 2008 1594967

Filed:     5-8-08

Amend:  2008 2230819

Filed:      6-30-08

Cont.:     20131051029

Date:      3/19/13

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

 

Delaware Secretary of State

Banc of America Leasing & Capital, LLC

2059 Northlake Parkway

4 South

Tucker, GA 30084

UCC

File No.: 2008 2230793

Filed:      6-30-08

Cont.:     20131479485

Date:      4/17/13

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

 

Delaware Secretary of State

Banc of America Leasing & Capital, LLC

2059 Northlake Parkway

4 South

Tucker, GA 30084

UCC

File No.: 2008 2447157

Filed:     7-16-08

Amend:  2008 3303870

Filed:      9-30-08

Cont.:     20131864769

Date:      5/15/13

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

 

Delaware Secretary of State

Banc of America Leasing & Capital, LLC

2059 Northlake Parkway

4 South

Tucker, GA 30084

 

UCC

File No.: 2008 3554449

Filed:     10-22-08

Amend:  2008 4252027

Filed:     12-22-08

Cont.:     20133139939

Date:      8/12/13

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

 

Delaware Secretary of State

Banc of America Leasing & Capital, LLC

2059 Northlake Parkway

4 South

Tucker, GA 30084

UCC

File No.: 2011 3782888

Filed:     10-3-11

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

 

Delaware Secretary of State

Bank of the West

Assigned to:

Bank of Cape Cod

232 Main Street

Hyannis. MA 02601

UCC

File No.: 2011 4009406

Filed:     10-18-11

Assign:   2011 4012939

Filed:     10-18-11

Amend: 2012 0382749

Filed:    1-31-12

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

Delaware Secretary of State

Banc of America Leasing & Capital, LLC

2059 Northlake Parkway, 3 North

Tucker, GA  30084

UCC

File No. 20123739523

Date:     9/27/12

Equipment

 

 


DEBTOR

JURISDICTION

SECURED PARTY

LIEN TYPE

FILING INFO

COLLATERAL DESCRIPTION

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

Delaware Secretary of State

Banc of America Leasing & Capital, LLC

2059 Northlake Parkway, 3 North

Tucker, GA  30084

UCC

File No. 20123985357

Date:    10/16/12

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

Delaware Secretary of State

Banc of America Leasing & Capital, LLC

2059 Northlake Parkway, 3 North

Tucker, GA  30084

UCC

File No. 20125068814

Date:     12/27/12

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

Delaware Secretary of State

Insight Direct USA, Inc.

10201 Centurion Parkway North, Suite 100

Jacksonville, FL  32256

UCC

File No. 20135034716

Date:     12/19/13

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

Delaware Secretary of State

Insight Global Finance

10201 Centurion Parkway North, Suite 100

Jacksonville, FL  32256

UCC

File No. 20140802165

Date:     3/3/14

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

Delaware Secretary of State

Insight Global Finance

10201 Centurion Parkway North, Suite 100

Jacksonville, FL  32256

UCC

File No. 20141049329

Date:     3/12/14

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

Delaware Secretary of State

Banc of America Leasing & Capital, LLC

2059 Northlake Parkway, 3 North

Tucker, GA  30084

UCC

File No. 20141125137

Date:     3/21/14

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

Delaware Secretary of State

Banc of America Leasing & Capital, LLC

2059 Northlake Parkway, 3 North

Tucker, GA  30084

UCC

File No. 20142471100

Date:     6/23/14

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

 

Delaware Secretary of State

Suntrust Equipment Finance & Leasing Corp.

300 East Joppa Road, Suite 700

Towson, MD  21286

UCC

File No. 20143042157

Date:     7/30/14

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

 

Delaware Secretary of State

Suntrust Equipment Finance & Leasing Corp.

300 East Joppa Road, Suite 700

Towson, MD  21286

UCC

File No. 20143042165

Date:     7/30/14

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

 

Delaware Secretary of State

Suntrust Equipment Finance & Leasing Corp.

300 East Joppa Road, Suite 700

Towson, MD 21286

UCC

File No. 20143390085

Date:     8/22/14

Equipment

Mobile Mini, Inc.

7420 Kyrene Rd., Ste 101

Tempe, AZ 85283

 

Delaware Secretary of State

Suntrust Equipment Finance & Leasing Corp.

300 East Joppa Road, Suite 700

Towson, MD  21286

UCC

File No. 20143445764

Date:     8/27/14

Equipment

 

 


DEBTOR

JURISDICTION

SECURED PARTY

LIEN TYPE

FILING INFO

COLLATERAL DESCRIPTION

Mobile Mini, Inc.

7420 South Kyrene Road, Suite 101

Tempe, AZ  85283

Delaware Secretary of State

Suntrust Equipment Finance & Leasing Corp.

300 East Joppa Road, Suite 700

Towson, MD  21286

UCC

File No. 20143745395

Date:     9/18/14

Equipment

Mobile Mini, Inc.

7420 South Kyrene Road, Suite 101

Tempe, AZ  85283

Delaware Secretary of State

Insight Direct USA, Inc.

10201 Centurion Parkway North, Suite 100

Jacksonville, FL  32256

UCC

File No. 20144245098

Date:     10/21/14

Equipment

Mobile Mini, Inc.

7420 South Kyrene Road, Suite 101

Tempe, AZ  85283

Delaware Secretary of State

Insight Direct USA, Inc.

10201 Centurion Parkway North, Suite 100

Jacksonville, FL  32256

UCC

File No. 20144481594

Date:     11/6/14

Equipment

Mobile Mini, Inc.

7420 South Kyrene Road, Suite 101

Tempe, AZ  85283

Delaware Secretary of State

Banc of America Leasing & Capital, LLC

2059 Northlake Parkway, 3 North

Tucker, GA  30084

UCC

File No. 20144802815
Date:     11/26/14

Equipment

Mobile Mini, Inc.

7420 South Kyrene Road, Suite 101

Tempe, AZ  85283

Delaware Secretary of State

Suntrust Equipment Finance & Leasing Corp.

300 East Joppa Road, Suite 700

Towson, MD  21286

UCC

File No. 20145108543

Date:     12/16/14

Equipment

Mobile Mini, Inc.

7420 South Kyrene Road, Suite 101

Tempe, AZ  85283

Delaware Secretary of State

Banc of America Leasing & Capital, LLC

2059 Northlake Parkway, 3 North

Tucker, GA  30084

UCC

File No. 20151167617
Date:     3/19/15

Equipment

Mobile Mini, Inc.

7420 South Kyrene Road, Suite 101

Tempe, AZ  85283

Delaware Secretary of State

Insight Direct USA, Inc.

10201 Centurion Parkway North, Suite 100

Jacksonville, FL  32256

UCC

File No. 20151482909

Date:     4/7/15

Equipment

Mobile Mini, Inc.

7420 South Kyrene Road, Suite 101

Tempe, AZ  85283

Delaware Secretary of State

Banc of America Leasing & Capital, LLC

2059 Northlake Parkway, 3 North

Tucker, GA  30084

UCC

File No. 20152521754

Date:     6/12/15

Equipment

Mobile Mini, Inc.

7420 South Kyrene Road, Suite 101

Tempe, AZ  85283

Delaware Secretary of State

Banc of America Leasing & Capital, LLC

2059 Northlake Parkway, 3 North

Tucker, GA  30084

UCC

File No. 20154501374

Date:     10/5/15

Equipment

Evergreen Tank Solutions, Inc.

16441 Space Center Blvd., Suite D2

Houston, TX 77058

Delaware Secretary of State

Banc of California, N.A.

18500 Von Karman Ave., Ste 1100

Irvine, CA 92612

UCC

File No.: 2014 4595781

Date:      11/13/14

Equipment

Evergreen Tank Solutions, Inc.

8417 Mercer St.

Palaski, PA 16143

Delaware Secretary of State

Mintaka Financial, LLC

PO Box 2149

Gig Harbor, WA 98335

UCC

File no.:2014 4613733

Date:  11/14/14

Equipment

Evergreen Tank Solutions, Inc.

16441 Space Center Blvd., Suite D-2

Houston, TX 77058

Delaware Secretary of State

De Lage Landen Financial Services, Inc.

UCC

File No.: 2014 4719720

Date:      11/21/14

 

Equipment

 

 


DEBTOR

JURISDICTION

SECURED PARTY

LIEN TYPE

FILING INFO

COLLATERAL DESCRIPTION

Water Movers, Inc.

P.O. Box 825

Eloy, AZ 85231

Arizona Secretary of State

Internal Revenue Service

Tax Lien

File No.: 1-7983-2

Date:      7/16/85

$4,681.91

Water Movers, Inc.

P.O. Box 825

Eloy, AZ 85231

Arizona Secretary of State

Internal Revenue Service

Tax Lien

File No.: 1-7984-2

Date:      7/16/85

$7,400.03

Water Movers, Inc.

P.O. Box 825

Eloy, AZ 85231

Arizona Secretary of State

Internal Revenue Service

Tax Lien

File No.: 1-7985-2

Date:      7/16/85

$8,463.74

SBOX Storage, LLC

4727 Poplar Ave., Ste 204

Memphis, TN 38117

Delaware Secretary of State

Paragon National Bank

5400 Poplar Avenue

Memphis, TN 38119

UCC

File No.: 20114574904

Date:      11/7/11

All assets 1

 

Intellectual Property Liens – None.

Real Estate Liens – None.

 

 

 

 

1  

To be terminated post-closing.

 

 

Schedule 10.05

Indebtedness

None.

 

 

 

 

 

Schedule 10.07

Deposits with Financial Institutions

 

Collection Accounts

Grantor

Type of Account

Account Number

Average Daily Balance (if zero balance account, please so indicate)

Name of Financial Institution

 

Mobile Mini, Inc.

Master Depository Lockbox

[***]

[***]

J.P. Morgan Chase

 

Mobile Mini, Inc.

Master Operating

[***]

[***]

Bank of America

 

Mobile Mini UK Limited

Collection

[***]

[***]

Natwest Bank (Royal Bank of Scotland Plc)

 

Evergreen Tank Solutions, Inc.

Master Operating

[***]

[***]

Capital One

 

Water Movers, Inc.

Master Operating

[***]

[***]

Capital One

 

 

Concentration Accounts

Grantor

Type of Account

Account Number

Average Daily Balance (if zero balance account, please so indicate)

Name of Financial Institution

 

Mobile Mini, Inc.

Blocked Depository

[***]

[***]

Bank of America

 

Mobile Mini, Inc.

Blocked Depository

[***]

[***]

Fifth Third Bank

 

Mobile Mini, Inc.

Blocked Depository

[***]

[***]

Bank of the West

 

Mobile Mini Canada ULC

Blocked Depository

[***]

[***]

HSBC

 

Evergreen Tank Solutions, Inc.

Lockbox

[***]

[***]

Capital One

 

Water Movers, Inc.

Lockbox

[***]

[***]

Capital One

 

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 

Disbursement Accounts

Grantor

Type of Account

Account Number

Average Daily Balance (if zero balance account, please so indicate)

Name of Financial Institution

 

Mobile Mini, Inc.

A/P Disbursement

[***]

[***]

Bank of America

 

Mobile Mini, Inc.

Control Disbursement

[***]

[***]

Bank of America

 

Mobile Mini UK Limited

Disbursement

[***]

[***]

HSBC

 

Mobile Mini Canada ULC

A/P Disbursement

[***]

[***]

HSBC

 

Evergreen Tank Solutions, Inc.

A/P Disbursement

[***]

[***]

Capital One

 

Water Movers, Inc.

A/P Disbursement

[***]

[***]

Capital One

 

Evergreen Tank Solutions, Inc.

Merchant

[***]

[***]

Capital One

 

Water Movers, Inc.

Merchant

[***]

[***]

Capital One

 

 

Designated Petty Cash Accounts

Grantor

Type of Account

Account Number

Average Daily Balance (if zero balance account, please so indicate)

Name of Financial Institution

 

Mobile Mini, Inc.

General Acct. FEES only

[***]

[***]

J.P. Morgan Chase

 

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 

Designated Payroll Accounts :

Grantor

Type of Account

Account Number

Average Daily Balance (if zero balance account, please so indicate)

Name of Financial Institution

 

Mobile Mini, Inc.

Payroll – AZ

[***]

[***]

J.P. Morgan Chase

 

Mobile Mini, Inc.

Payroll - TX

[***]

[***]

J.P. Morgan Chase

 

Mobile Mini, Inc.

Payroll - FSA

[***]

[***]

J.P. Morgan Chase

 

Mobile Mini, Inc.

Payroll - CA

[***]

[***]

Bank of America

 

Mobile Mini Canada ULC

Payroll – CAD

[***]

[***]

HSBC

 

 

Other :

Grantor

Type of Account

Account Number

Average Daily Balance (if zero balance account, please so indicate)

Name of Financial Institution

 

Mobile Mini, Inc.

United Healthcare

[***]

[***]

Bank of America

 

Mobile Mini, Inc.

Metlife

[***]

[***]

J.P. Morgan Chase

 

 

 

 

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

Schedule 10.08

Transactions with Affiliates

1.

Mobile Mini, Inc. has entered into indemnification agreements with their directors and certain of their executive officers containing provisions that require them, among other things, to indemnify their directors and certain of their executive officers against certain liabilities that may arise by reason of their status or service as directors or executive officers and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified.

2.

With the ETS Acquisition, Mobile Mini, Inc. acquired its subsidiary, Water Movers, Inc., an Arizona corporation, which had previously entered into two real property lease agreements with an entity partly owned by Michael L. Watts, Chairman of the Mobile Mini, Inc.’s Board of Directors. These lease agreements began in 2013, prior to the acquisition, and expire in 2023. Aggregate rental payments under these lease agreements are currently $17,660 per month, or $211,920 per year.

 

 

Schedule 10.12

Operating Leases

US:

 

Lessee

Lessor

Property Covered

Monthly Payment

Vin Number

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

Trucks, Tractors, Trailers, Forklifts and miscellaneous vehicle accessories

2,419.38

[***]

 

 

 

 

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

10,297.90

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

1,290.23

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

5,975.70

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

2,912.14

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

27,134.13

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

5,976.84

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

5,646.66

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

13,912.63

[***]

 

 

 

 

[***]

 

 

 

 

[***]

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

423.64

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

14,474.88

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

7,434.64

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

1,154.12

[***]

 

 

 

 

[***]

 

 

 

 

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

1,737.03

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

Mobile Mini, Inc

Banc of America Leasing &

Capital LLC Note [***]

 

15,321.56

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

31,898.78

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

5,189.84

[***]

 

 

 

 

[***]

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

 

 

 

 

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

10,599.13

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

10,599.13

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

 

 

 

 

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

433.39

[***]

Mobile Mini, Inc

Banc of America Leasing & Capital LLC Note [***]

 

2,363.48

[***]

 

 

 

 

[***]

 

 

UK:

 

Branch

Vehicle Registration

Vehicle Description

Type

Owner

Monthly Cost

700

[***]

Audi A3 Diesel Sportback 2.0 Tdi Sport 5-dr

Car

Lex

414.00

700

[***]

Ford Ranger Diesel Pick Up Double Cab Limited 2.2 Tdci 150 4wd

Car

Lex

581.00

700

[***]

Seat Leon Diesel Hatchback 2.0 Tdi Cr 184 Fr 5dr Technology

Car

Lex

453.00

700

[***]

Ford Ranger Pickup Double Cab XLT 2.2

Car

Lex

581.00

700

[***]

FORD RANGER DIESEL Pick Up Super XLT 2.2 TDCi 150 4WD

Car

Lex

571.00

700

[***]

Audi A3 Diesel Sportback 1.6 Tdi Se 5dr

Car

Lex

512.00

700

[***]

Audi A3 Diesel Sportback 1.6 Tdi Se 5dr

Car

Lex

400.00

702

[***]

Mazda 6 2.2D Se Nav

Car

Lex

528.00

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

702

[***]

Ford Transit 350 Lwb Diesel Fwd High Roof Van Tdci 100ps

Van

Lex

342.00

702

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 115ps

Van

Lex

376.00

703

[***]

Mitsubishi L200 Lwb Lb Diesel Double Cab Di-D 4work 4wd 134bhp [2010]

Car

Lex

361.00

703

[***]

Ford Kuga Diesel Estate 2.0 Tdci 163 Titanium 5dr

Car

Lex

470.00

703

[***]

Insignia Diesel Hatchback 2.0 Cdti [140] Ecoflex Design 5dr [Start Stop]

Car

Lex

493.00

703

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 115ps

Van

Lex

380.00

703

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 100ps Euro 5

Van

Lex

354.00

703

[***]

Ford Transit Connect 220 Swb Diesel Low Roof Van Tdci 90ps

Van

Lex

263.00

705

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 100ps Euro 5

Van

Lex

366.00

705

[***]

Ford Transit 350 Lwb Diesel Rwd Dropside Tdci 125ps 'One Stop'

Van

Lex

380.00

705

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 115ps

Van

Lex

376.00

705

[***]

Ford Transit Connect 220 Swb Diesel Low Roof Van Tdci 90ps

Van

Lex

261.00

706

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 100ps Euro 5

Van

Lex

377.00

706

[***]

Ford Transit Connect 220 Swb Diesel L1 Low Roof Van Tdci 95ps

Van

Lex

252.00

706

[***]

Ford Transit 350 L3 Diesel Fwd H2 Van Tdci 100ps

Van

Lex

387.00

707

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 100ps Euro 5

Van

Lex

388.00

707

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 115ps

Van

Lex

382.00

707

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 115ps

Van

Lex

376.00

708

[***]

Citroen Grand C4 Picasso 1.6 E-Hdi 115 Exclusive+

Car

Lex

482.00

708

[***]

Vauxhall Astra Diesel Hatchback 1.6 Cdti 16v Ecoflex Tech line

Car

Lex

392.00

708

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 115ps

Van

Lex

380.00

708

[***]

Ford Transit 350 L3 Diesel Fwd H2 Van Tdci 100ps

Van

Lex

439.00

710

[***]

Ford Mondeo 1.6 Tdci Eco Titanium X Business Edition

Car

Lex

560.00

710

[***]

Mercedes A class A180 Cdi

Car

Lex

424.00

710

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 115ps

Van

Lex

376.00

710

[***]

Ford Transit 350 L4 Diesel Rwd Chassis Cab Tdci 100ps

Van

Lex

386.00

711

[***]

Toyota Avensis Diesel Saloon 2.0 D-4d Icon Business Edition 4dr

Car

Lex

402.00

711

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 100ps Euro 5

Van

Lex

351.00

713

[***]

Nissan Qashqai+2 Diesel Hatchback 1.5 Dci [110] Tekna 5dr

Car

Lex

453.00

713

[***]

Ford Transit 350 L4 Diesel Rwd Chassis Cab Tdci 100ps

Van

Lex

381.00

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

713

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 115ps

Van

Lex

385.00

714

[***]

Vauxhall Insignia Sports Tourer 2.0 CDTi ecoflex nav

Car

Lex

553.00

714

[***]

Ford Transit 350 Lwb Diesel Rwd Dropside Tdci 125ps 'One Stop'

Van

Lex

426.00

714

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 115ps

Van

Lex

385.00

715

[***]

Ford Transit Connect 220 Swb Diesel Low Roof Van Tdci 90ps

Van

Lex

279.00

715

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 100ps Euro 5

Van

Lex

322.00

716

[***]

Vauxhall Insignia Sports Tourer 2.0 CDTi ecoflex nav

Car

Lex

428.00

716

[***]

Ford Kuga Diesel Estate 2.0 Tdci Zetec 5dr 2wd

Car

Lex

414.00

716

[***]

Ford Transit Connect 220 Swb Diesel Low Roof Van Tdci 90ps

Van

Lex

263.00

716

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 115ps

Van

Lex

370.00

717

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 115ps

Van

Lex

376.00

717

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 100ps Euro 5

Van

Lex

354.00

718

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 115ps

Van

Lex

385.00

718

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 100ps Euro 5

Van

Lex

339.00

719

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 100ps Euro 5

Van

Lex

397.00

719

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 115ps

Van

Lex

376.00

722

[***]

Ford Transit 350 Lwb Diesel Rwd Medium Roof Van Tdci 115ps

Van

Lex

376.00

722

[***]

Ford Transit Connect 220 Swb Diesel Low Roof Van Tdci 90ps

Van

Lex

263.00

 

 

 

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

Schedule 10.18

Deposit Accounts

 

Collection Accounts

Grantor

Type of Account

Account Number

Average Daily Balance (if zero balance account, please so indicate)

Name of Financial Institution

 

Mobile Mini, Inc.

Master Depository Lockbox

[***]

[***]

J.P. Morgan Chase

 

Mobile Mini, Inc.

Master Operating

[***]

[***]

Bank of America

 

Mobile Mini UK Limited

Collection

[***]

[***]

Natwest Bank (Royal Bank of Scotland Plc)

 

Evergreen Tank Solutions, Inc.

Master Operating

[***]

[***]

Capital One

 

Water Movers, Inc.

Master Operating

[***]

[***]

Capital One

 

 

 

 

 

 

 

 

 

Concentration Accounts

Grantor

Type of Account

Account Number

Average Daily Balance (if zero balance account, please so indicate)

Name of Financial Institution

 

Mobile Mini, Inc.

Blocked Depository

[***]

[***]

Bank of America

 

Mobile Mini, Inc.

Blocked Depository

[***]

[***]

Fifth Third Bank

 

Mobile Mini, Inc.

Blocked Depository

[***]

[***]

Bank of the West

 

Mobile Mini Canada ULC

Blocked Depository

[***]

[***]

HSBC

 

Evergreen Tank Solutions, Inc.

Lockbox

[***]

[***]

Capital One

 

Water Movers, Inc.

Lockbox

[***]

[***]

Capital One

 

 

 

 

 

 

 

 

 

Disbursement Accounts

Grantor

Type of Account

Account Number

Average Daily Balance (if zero balance account, please so indicate)

Name of Financial Institution

 

Mobile Mini, Inc.

A/P Disbursement

[***]

[***]

Bank of America

 

Mobile Mini, Inc.

Control Disbursement

[***]

[***]

Bank of America

 

Mobile Mini UK Limited

Disbursement

[***]

[***]

HSBC

 

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

Mobile Mini Canada ULC

A/P Disbursement

[***]

[***]

HSBC

 

Evergreen Tank Solutions, Inc.

A/P Disbursement

[***]

[***]

Capital One

 

Water Movers, Inc.

A/P Disbursement

[***]

[***]

Capital One

 

Evergreen Tank Solutions, Inc.

Merchant

[***]

[***]

Capital One

 

Water Movers, Inc.

Merchant

[***]

[***]

Capital One

 

 

 

 

 

 

 

 

 

Designated Petty Cash Accounts

Grantor

Type of Account

Account Number

Average Daily Balance (if zero balance account, please so indicate)

Name of Financial Institution

 

Mobile Mini, Inc.

General Acct. FEES only

[***]

[***]

J.P. Morgan Chase

 

 

 

 

 

 

 

 

 

Designated Payroll Accounts :

Grantor

Type of Account

Account Number

Average Daily Balance (if zero balance account, please so indicate)

Name of Financial Institution

 

Mobile Mini, Inc.

Payroll – AZ

[***]

[***]

J.P. Morgan Chase

 

Mobile Mini, Inc.

Payroll - TX

[***]

[***]

J.P. Morgan Chase

 

Mobile Mini, Inc.

Payroll - FSA

[***]

[***]

J.P. Morgan Chase

 

Mobile Mini, Inc.

Payroll - CA

[***]

[***]

Bank of America

 

Mobile Mini Canada ULC

Payroll – CAD

[***]

[***]

HSBC

 

 

Other :

Grantor

Type of Account

Account Number

Average Daily Balance (if zero balance account, please so indicate)

Name of Financial Institution

 

Mobile Mini, Inc.

United Healthcare

[***]

[***]

Bank of America

 

Mobile Mini, Inc.

Metlife

[***]

[***]

J.P. Morgan Chase

 

 

 

 

[***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.

 

Schedule 13.03

Lender Addresses

Deutsche Bank AG New York Branch

60 Wall Street, MS NYC60-4305

New York, NY  1005

Michael Shannon

Tel:  (212) 250-8508

Email:   michael.shannon@db.com

 

Bank of America, N.A.

231 S. Lasalle Street

Chicago, IL  60604

Jason Riley

Tel:  262-207-3305

Email:   jason.riley@baml.com

 

Bank of America, N.A., Canada Branch

200 Front Street West, Suite 2700

Toronto, Ontario, M5V 3L2

Teresa Tsui

Tel:  416-369-2788

Email:   Teresa.tsui@baml.com

 

JPMorgan Chase Bank, N.A.

3 Park Plaza, 9th Floor

Irvine, CA  92614

Jeannette Behm

Tel:  949-471-9888

Email:   Jeanette.M.Behm@chase.com

 

JPMorgan Chase Bank N.A., Toronto Branch

10 S. Dearborn Flr. 07

Chicago, IL  60603

Patricia Barcelona-Schuldt

Tel:  312-385-7015

Email:   Patricia.m.barcelona@jpmchase.com

 

Bank of the West

4400 MacArthur Blvd.

Newport Beach, CA  92660

Cecile Segovia

Tel:  949-797-1961

Email:   Cecile.Segovia@bankofthewest.com

 

Barclays Bank PLC

745 Seventh Avenue

New York, NY  10019

Nicholas Versandi

Tel:  212-526-9799

Email:   Nicholas.versandi@barcap.com

 

Compass Bank

2850 East Camelback Road, Suite 140

Phoenix, AZ  85016-4311

Nancy Zezza

Tel:  602-778-0782

Email:   nancy.zezza@bbvacompass.com

 

 

 

ING Capital LLC

200 Galleria Parkway, Suite 950

Atlanta, GA 30339

 

MUFG Union Bank, N.A.

445 S. Figueroa Street

Los Angeles, CA  90071

Gina West

Tel:  213-236-6530

Email:   gina.west@unionbank.com

 

Union Bank, Canada Branch

445 S. Figueroa Street, 10th Floor

Los Angeles, CA  90071

Gina West

Tel:  213-236-6530

Email:   gina.west@unionbank.com

 

Wells Fargo Bank, National Association

2450 Colorado Avenue Suite 3000W

Santa Monica, CA  90404

Kevin Cox

Tel:  310-453-7397

Email:   Kevin.m.cox@wellsfargo.com

 

Wells Fargo Capital Finance Corporation Canada

40 King Street West Suite 2500

Toronto, ON M5H 3Y2, Canada

Kathryn Scharre

Tel:  310-453-7294

 

Wells Fargo Bank, National Association (London Branch)

[On file with the Administrative Agent]

 

Bank of Montreal Chicago Branch

111 West Monroe, 20E

Chicago, IL 60603

 

Bank of Montreal Toronto Branch

BMO Financial Group / CCLO

234 Simcoe Street, 3rd floor

Toronto ON, M5T 1T4

 

Bank of Montreal London Branch

BMO Financial Group / CCLO

234 Simcoe Street, 3rd floor

Toronto ON, M5T 1T4

 

City National Bank

555 S. Flower, 24th Floor

Los Angeles, CA  90071

Robert Yasuda

Tel:  213-673-8810

Email:   Robert.yasuda@cnb.com

 

 

 

Citizens Business Capital, f/k/a RBS Citizens Business Capital, a division of Citizens Asset Finance, Inc., f/k/a RBS Asset Finance, Inc., a subsidiary of Citizens Bank, N.A., f/k/a RBS Citizens, N.A.

100 Galleria Parkway, Suite 1100

Atlanta, Georgia   30339

Patrick Aarons

Tel:  770-988-2980

Email:   Patrick.aarons@rbscitizens.com

 

Siemens Financial Services, Inc.

170 Wood Avenue South

Iselin, NJ  08830

John Finore

Tel:  732-590-6644

Email:   john.finore@siemens.com

 

U.S. Bank National Association

800 Nicollet Mall, BC-MN-H04B,

Minneapolis, MN 55402

Primary Credit Contact:

 

Rod Swenson

 

 

Tel:  612-303-7353

 

 

Email: Rod.swenson@usbank.com

 

Primary Operations Contact:

 

Krishna Dasgupta

 

 

Tel:  612-303-3046

 

 

Email: Abf.participation@usbank.com

 

U.S. Bank National Association, Canada Branch

[On file with the Administrative Agent]

 

Branch Banking and Trust Company

8117 Preston Rd

Dallas, TX 75225

Primary Credit Contact:

 

Sarah Bryson

 

 

Tel:  214-234-7731

 

 

Email: SMBryson@BBandT.com

 

Primary Operations Contact:

 

Beth Cook

 

 

Tel:  336-733-2726

 

 

Email: Beth.Cook@BBandT.com

 

The Northern Trust Company

50 South LaSalle Street, M-27

Chicago, IL  60603

John Lascody

Tel:  312-444-2376

Email:   Jl98@ntrs.com

 

Exhibit 21

Subsidiaries of Mobile Mini, Inc.

As of December 31, 2015

 

Name of Subsidiary

 

Jurisdiction of
Incorporation/
Formation

 

Parent

 

Percent
Ownership

Mobile Storage Group, Inc.

 

Delaware

 

Mobile Mini, Inc.

 

100%

Mobile Mini I, Inc.

 

Arizona

 

Mobile Mini, Inc.

 

100%

Mobile Mini Dealer, Inc.

 

Arizona

 

Mobile Mini, Inc.

 

100%

Mobile Mini, LLC

 

California

 

Mobile Mini, Inc.

 

100%

Mobile Mini, LLC

 

Delaware

 

Mobile Mini, Inc.

 

100%

A Royal Wolf Portable Storage, Inc.

 

California

 

Mobile Mini, Inc.

 

100%

Mobile Mini UK Holdings Limited

 

England and Wales

 

Mobile Mini, Inc.

 

100%

Mobile Mini Canada ULC

 

British Columbia

 

Mobile Mini, Inc.

 

100%

A Better Mobile Storage Company

 

California

 

Mobile Storage Group, Inc.

 

100%

MSG Investments, Inc.

 

California

 

Mobile Storage Group, Inc.

 

100%

Mobile Mini Finance, LLC

 

Delaware

 

MSG Investments, Inc.

 

100%

Mobile Storage UK Finance Limited Partnership

 

England and Wales

 

Mobile Mini Finance, LLC.

 

99%

 

 

 

 

Mobile Storage Group, Inc.

 

1%

MSG MMI (Texas) L.P.

 

Texas

 

Mobile Storage Group, Inc.

 

99%

 

 

 

 

Mobile Mini Finance, LLC

 

1%

Temporary Mobile Storage, Inc.

 

California

 

A Royal Wolf Portable Storage, Inc.

 

100%

Ravenstock MSG Limited

 

England and Wales

 

Mobile Mini UK Holdings Ltd.

 

100%

Mobile Mini UK Limited

 

England and Wales

 

Mobile Mini UK Holdings Ltd.

 

99.8%

 

 

 

 

Ravenstock MSG Ltd.

 

0.2%

Mobile Storage (U.K.) Limited

 

England and Wales

 

Ravenstock MSG Ltd.

 

100%

Ravenstock Tam (Hire) Limited

 

England and Wales

 

Ravenstock MSG Ltd.

 

100%

Sbox Storage, LLC

 

Delaware

 

Mobile Mini, Inc.

 

100%

Gulf Tanks Holdings, Inc.

 

Delaware

 

Mobile Mini, Inc.

 

100%

Evergreen Tank Solutions, Inc.

 

Delaware

 

Gulf Tank Holdings, Inc.

 

100%

Water Movers, Inc.

 

Arizona

 

Evergreen Tank Solutions, Inc.

 

100%

Water Movers Contracting, LLC

 

Arizona

 

Water Movers, Inc.

 

100%

 

 

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

The Board of Directors

Mobile Mini, Inc.

We consent to the incorporation by reference in the registration statement Nos. 333-41495, 333-86495, 333-43954, 333-65566, 333-107333, 333-136595, 333-162871, 333-188513, and 333-194053 on Form S-8 of Mobile Mini, Inc. of our report dated February 5, 2016, with respect to the consolidated balance sheets of Mobile Mini, Inc. and subsidiaries as of December 31, 2015 and 2014, and the related consolidated statements of income, comprehensive income (loss), stockholders’ equity, and cash flows for each of the years in the three-year period ended December 31, 2015, and the effectiveness of internal control over financial reporting as of December 31, 2015, which report appears in the December 31, 2015 Annual Report on Form 10 K of Mobile Mini, Inc.

 

 

/s/ KPMG LLP

 

 

Phoenix, Arizona

 

 

 

February 5, 2016

 

 

 

Exhibit 23.2

CONSENT OF INDEPENDENT VALUATION FIRM

We consent to the inclusion in Mobile Mini, Inc.’s Annual Report on Form 10-K for the period ended December 31, 2015 of references to our Valuation Reports relating to the estimation of the net orderly liquidation value of the company’s rental fleet appraised as of September 30, 2015 and to references to our firm’s name therein.

 

Gordon Brothers-AccuVal

 

/s/ William R. Corwin

William R. Corwin, ASA, CEA

Director, Machinery & Equipment

 

Exhibit 31.1

CERTIFICATION

I, Erik Olsson, certify that:

1. I have reviewed this Annual Report on Form 10-K of Mobile Mini, Inc.;

2. Based on my knowledge, this Annual Report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this Annual Report;

3. Based on my knowledge, the financial statements, and other financial information included in this Annual Report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this Annual Report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this Annual Report is being prepared;

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this Annual Report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this Annual Report based on such evaluation; and

d) Disclosed in this Annual Report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: February 5, 2016

 

/s/ Erik Olsson

 

 

Erik Olsson

 

 

Chief Executive Officer

 

 

Exhibit 31.2

CERTIFICATION

I, Mark E. Funk, certify that:

1. I have reviewed this Annual Report on Form 10-K of Mobile Mini, Inc.;

2. Based on my knowledge, this Annual Report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this Annual Report;

3. Based on my knowledge, the financial statements, and other financial information included in this Annual Report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this Annual Report;

4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this Annual Report is being prepared;

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this Annual Report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this Annual Report based on such evaluation; and

d) Disclosed in this Annual Report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: February 5, 2016

 

/s/ Mark E. Funk

 

 

Mark E. Funk

 

 

Chief Financial Officer

 

 

 

Exhibit 32.1

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report of Mobile Mini, Inc. (the “Company”) on Form 10-K for the year ended December 31, 2015, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), we, Erik Olsson, Chief Executive Officer of the Company, and Mark E. Funk, Chief Financial Officer of the Company, each certify, to the best of his knowledge, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Date: February 5, 2016

/s/ Erik Olsson

 

Erik Olsson

 

Chief Executive Officer

 

Date: February 5, 2016

/s/ Mark E. Funk

 

Mark E. Funk

 

Chief Financial Officer

 

This certification accompanies this Annual Report on Form 10-K pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by such Act, be deemed filed by Mobile Mini, Inc. for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Such certification will not be deemed to be incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except to the extent that Mobile Mini, Inc. specifically incorporates it by reference.

A signed original of this written statement required by Section 906 of the Sarbanes-Oxley Act of 2002 has been provided to Mobile Mini, Inc. and will be retained by Mobile Mini, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.