Exhibit 10(tt)
EXECUTION COPY
INCREMENTAL ASSUMPTION
AGREEMENT
Dated as of October 16,
2008
INCREMENTAL ASSUMPTION
AGREEMENT among United
Rentals, Inc., a Delaware corporation (“ Holdings
”), United Rentals (North America), Inc., a Delaware
corporation (the “ Company ”), each Subsidiary
listed on the signature pages hereto under the caption “U.S.
Subsidiary Borrowers” (the “ U.S. Subsidiary
Borrowers ” and, together with the Company, the “
U.S. Borrowers ”), United Rentals of Canada, Inc., a
company formed under the federal laws of Canada (“ URC
”), United Rentals Alberta Holding, LP (“ URA
” and, together with URC, the “ Canadian
Borrowers ”), United Rentals Financing Limited
Partnership, a Delaware partnership (the “ Specified Loan
Borrower ”, and together with the U.S. Borrowers and the
Canadian Borrowers, the “ Borrowers ”) and the
other Subsidiaries listed on the signature pages hereto under the
caption “Guarantors” (the “ Guarantors
”), the banks, financial institutions and other institutional
lenders party hereto and Bank of America, N.A., as agent (the
“ Agent ”) for the Lenders.
PRELIMINARY
STATEMENTS:
(1) The Borrowers, the Guarantors,
the Agent and the other agents and lenders named therein have
entered into a Credit Agreement dated as of June 9,2008 (as
amended, supplemented or otherwise modified through the date
hereof, the “ Credit Agreement ”). Capitalized
terms not otherwise defined in this Agreement have the same
meanings as specified in the Credit Agreement.
(2) The Borrowers, the Increasing
Lenders (as hereinafter defined) and the Agent have agreed to enter
into this Agreement in order to effectuate a Commitment Increase
(this “ Commitment Increase ”) in accordance
with Section 2.8 of the Credit Agreement.
SECTION 1. Commitment
Increase . Pursuant to Section 2.8 of the Credit
Agreement:
(a) Subject to the satisfaction of
the conditions precedent set forth in Section 2, on the
Effective Date (as hereinafter defined), each Lender listed on the
signature pages hereof as an “Increasing Lender” (each,
an “ Increasing Lender ”) shall increase its
existing U.S. Revolving Credit Commitment to the amount set forth
opposite such Lender’s name on Schedule 1
hereto.
(b) As of the Effective Date and
immediately after giving effect to this Commitment Increase, the
Maximum Revolver Amount shall be $1,285,000,000.
SECTION 2. Conditions to
Effectiveness . This Agreement shall become effective as of the
later date (the “ Effective Date ”) of the date
specified in the Notice of Requested Commitment Increase in respect
of this Commitment Increase and the date on which the following
items have been received by the Agent:
(a) Counterparts of this Agreement
executed by the Obigors, the Agent, the Increasing Lenders or, as
to any of the Increasing Lenders, advice satisfactory to the Agent
that such Lender has executed this Agreement;
(b) A certificate signed by a duly
authorized officer of the Borrowers’ Agent stating
that:
(i) The representations and
warranties contained in each of the Loan Documents and this
Agreement are correct on and as of the Effective Date as though
made on and as of such date, other than any such representations or
warranties that, by their terms, refer to a date other than the
Effective Date; and
(ii) No Default or Event of Default
shall exist both before and after giving effect to this Commitment
Increase;
(c) (i) Opinions of counsel for the
U.S. Obligors (including Canadian counsel to United Rentals of Nova
Scotia (No. 1) and United Rentals of Nova Scotia (No. 2))
reasonably satisfactory to the Agent, addressing among other things
the due authorization, execution and delivery of this Agreement,
the enforceability of the Loan Documents, after giving effect to
this Agreement, and the continuing validity of the security
interests in the U.S. Collateral created pursuant to the Loan
Documents and the perfection thereof; (ii) a certificate as to
the good standing or status of each U.S. Obligor as of a recent
date, from such Secretary of State or other Governmental Authority;
(iii) a certificate of the Secretary or Assistant Secretary or
Officer of each U.S. Obligor dated the Effective Date and
certifying (A) that the certificate or articles of
incorporation/amalgamation/amendment or memoranda of association
(or similar Organization Documents) of such U.S. Obligor and the
by-laws (or similar Organization Documents) of such U.S. Obligor
have not been amended since such Organization Documents were
delivered to the Agent on the Closing Date (or such later date that
any U.S. Obligor’s Organization Documents were delivered to
the Agent pursuant to Section 8.25 of the Credit Agreement
(each such later date, an “ Additional Obligor Date
”)) and the Organization Documents delivered on the Closing
Date (or applicable Additional Obligor Date, as the case may be)
are in effect on the Effective Date and at all times since a date
prior to the date of the resolutions described in clause
(B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the board of directors
(or the equivalent governing body) of such U.S. Obligor authorizing
the authorization, execution and delivery of this Agreement, the
performance of the Loan Documents, after giving effect to this
Agreement and, in the case of the Borrowers, the borrowings
thereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) as
to the incumbency and specimen signature of each officer executing
any Loan Document or any other document delivered in connection
herewith on behalf of such Obligor; and (iv) a certificate of
another officer as to the incumbency and specimen signature of the
Secretary or Assistant Secretary executing the certificate pursuant
to clause (iii) above.
(d) Evidence that concurrently with
the effectiveness of this Commitment Increase, in accordance with
Section 2.8(b) of the Credit Agreement, (i) the U.S.
Lenders shall have made advances among themselves so that after
giving effect to this Commitment Increase, the U.S. Revolving Loans
will be held by the U.S. Lenders on a pro rata basis in accordance
with such U.S. Lenders’ Pro Rata Share (after giving effect
to the applicable Commitment Increase) and (ii) the U.S.
Borrowers shall have paid to the applicable U.S. Lenders any
amounts payable in respect thereof in accordance with
Section 5.4 (with any reduction in U.S. Revolving Loans of any
U.S. Lender pursuant to Section 2.8(b) of the Credit Agreement
being deemed a prepayment for purposes of Section 5.4 of the
Credit Agreement).
(e) Evidence that the Borrowers
shall have paid any and all fees and expenses owing to the Agent
and the Lenders in respect of this Commitment Increase.
2
SECTION 3. Reference to and
Effect on the Credit Agreement; Confirmation of Guarantors .
(a) On and after the effectiveness of this Agreement, each
reference in the Credit Agreement to “this Agreement”,
“hereunder”, “hereof” or words of like
import referring to the Credit Agreement, and each reference in
each of the other Loan Documents to “the Credit
Agreement”, “thereunder”, “thereof”
or words of like import referring to the Credit Agreement, shall
mean and be a reference to the Credit Agreement, after giving
effect to this Agreement.
(b) Each Loan Document, after giving
effect to this Agreement, is and shall continue to be in full force
and effect and is hereby in all respects ratified and confirmed.
Without limiting the generality of the foregoing, the U.S. Security
Documents and all of the Collateral described therein do and shall
continue to secure the payment of all Obligations of the Obligors
under the Loan Documents and the Canadian Security Documents and
all of the Collateral described therein do and shall continue to
secure the payment of all Canadian Obligations of the Canadian
Obligors under the Loan Documents.
(c) The execution, delivery and
effectiveness of this Agreement shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy
of any Lender or the Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan
Documents.
SECTION 4. Costs, Expenses .
The Borrower agrees to pay on demand all costs, fees and expenses
of the Agent in connection with the preparation, execution,
delivery and administration, modification and amendment of this
Agreement and th
