AMENDED AND RESTATED CANADIAN SUBSIDIARY GUARANTEE

 

Guarantee dated as of March 26, 2002, amended and restated as of June 28, 2005, made by WILLIAMS SCOTSMAN OF CANADA, INC., a corporation incorporated and existing under the laws of the Province of Ontario, to and in favour of the Secured Creditors.

 

WHEREAS:

 

(a)            Williams Scotsman International, Inc. (formerly known as Scotsman Holdings, Inc. ) (“ Holdings ”) and Williams Scotsman, Inc. (the “ Borrower ”), are parties to a certain Credit Agreement, dated as of March 26, 2002, with the lenders party thereto, Deutsche Bank Trust Company Americas (“DBTCA”), as administrative agent, and certain other Persons, as amended by a First Amendment, dated as of February 27, 2003, a Second Amendment, dated as of August 11, 2003, a Third Amendment, dated as of December 22, 2003, a Fourth Amendment, dated as of September 24, 2004 and a Fifth Amendment, dated as of April 15, 2005 (as so amended, the “ Existing Credit Agreement ”);

 

(b)            the Guarantor is the wholly-owned subsidiary (as construed in accordance with the Business Corporations Act (Ontario)) of the Borrower;

 

(c)            it was a condition precedent to the making of loans to, and the issuance of, and participation in, letters of credit for the account of the Borrower under the Existing Credit Agreement that the Guarantor shall have executed and delivered the Canadian Subsidiary Guarantee, dated as of March 26, 2002 (as amended, modified or supplemented through, but not including, the Effective Date, the “ Original Canadian Subsidiary Guarantee ”);

 

(d)            Bank of America, N.A. (“ BofA ”) and DBTCA have purchased from the other lenders party to the Existing Credit Agreement all of such lenders’ right, title and interest in and to the Existing Credit Agreement and the documents and instruments executed and delivered in connection therewith (with certain exceptions), all pursuant to a certain Assignment and Assumption Agreement (the “ Bank Assignment Agreement ”), dated as of the Effective Date, among BofA, DBTCA, the other lenders party to the Existing Credit Agreement, the administrative agent and collateral agent under the Existing Credit Agreement, the Borrower and Holdings;

 

 

(e)            Holdings, the Borrower, the financial institutions from time to time party thereto (the “ Lenders ”), BofA , as Administrative Agent (together with any successor administrative agent , the “ Administrative Agent ”), DBTCA , as Syndication Agent , Citicorp USA, Inc., Wells Fargo Bank, N.A. and Lehman Commercial Paper Inc., as Co-Documentation Agents , and Banc of America Securities LLC and Deutsche Bank Securities Inc., as Co- Lead Arrangers and Joint Book Runners , desire to amend and restate the Existing Credit Agreement in its entirety and have entered into an Amended and Restated Credit Agreement, dated as of the Effective Date, (as further amended, modified, extended, renewed, replaced, restated or supplemented from time to time, and including any agreement or agreements extending the maturity of, or refinancing or restructuring (including, but not limited to, the inclusion of additional borrowers or guarantors thereunder or any increase in the amount borrowed) all or any portion of, the indebtedness under such agreement or any successor agreement or agreements, whether or not with the same agent, trustee, representative, lenders or holders, the “ Amended and Restated Credit Agreement ”), providing for the amendment and restatement of the Existing Credit Agreement and the making of Loans and the issuance of, and participation in, Letters of Credit for the account of the Borrower as contemplated therein (the Lenders, each Issuing Lender, the Administrative Agent and its affiliates, the Collateral Agent and each other Agent (as defined in the Amended and Restated Credit Agreement) are herein called the “ Bank Creditors ”);

 

(f)             the Borrower may from time to time be party to one or more interest rate agreements (including, without limitation, interest rate swaps, caps, floors, collars, and similar agreements) (collectively, the “ Interest Rate Agreements ”) with BofA , any Lender , any affiliate thereof or a syndicate of financial institutions organized by BofA or an affiliate of BofA (even if BofA or any such Lender ceases to be a Lender under the Amended and Restated Credit Agreement for any reason), and any institution that participates, and in each case their subsequent assigns, in such Interest Rate Agreement (collectively, the “ Interest Rate Creditors ”, and the Interest Rate Creditors together with the Bank Creditors, collectively, the “ Secured Creditors ”);

 

(g)            it is a condition to the effectiveness of the amendment and restatement of the Existing Credit Agreement as contemplated by the Amended and Restated Credit Agreement and to the making of Loans to the Borrower and the issuance of, and participation in, Letters of Credit for the account of the Borrower under the Amended and Restated Credit

 

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Agreement that the Guarantor shall have executed and delivered this Guarantee; and

 

(h)            the Guarantor will obtain benefits from the aforesaid amendment and restatement of the Existing Credit Agreement and from the incurrence of Loans by the Borrower and the issuance of Letters of Credit for the account of the Borrower under the Amended and Restated Credit Agreement and the Borrower’s entering into Interest Rate Agreements and, accordingly, desires to execute this Guarantee in order to satisfy the conditions described in the preceding paragraph and to induce the Lenders to make Loans to the Borrower and participate in Letters of Credit to induce the Issuing Lender to issue Letters of Credit for the account of the Borrower and to induce the Interest Rate Creditors to enter into Interest Rate Agreements with the Borrower;

 

(i)             the Guarantor has, contemporaneously herewith, executed and delivered to the Collateral Agent for the benefit of and as agent of the Secured Creditors, the Guarantor Security Documents as continuing collateral security for the obligations of the Guarantor under this Guarantee.

 

NOW THEREFORE , in consideration of the foregoing and other benefits accruing to the Guarantor, the receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby makes the following representations and warranties to the Secured Creditors and hereby covenants and agrees with each Secured Creditor as follows:

 

ARTICLE 1
DEFINITIONS

 

Section 1.1             Defined Terms.

 

As used in this Guarantee and the recitals hereto, the following terms have the following meanings:

 

“ Administrative Agent ” means BofA acting as administrative agent for the Lenders under the Amended and Restated Credit Agreement and any successor appointed pursuant to the Amended and Restated Credit Agreement, and its permitted assigns.

 

“ Amended and Restated Credit Agreement ” means the amended and restated credit agreement dated as of the Effective Date among Holdings, the Borrower, the Lenders, the Administrative Agent, Deutsche Bank Trust Company Americas, as syndication agent, Citicorp USA, Inc., Wells Fargo

 

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Bank, N.A. and Lehman Commercial Paper Inc., as co-documentation agents, and Banc of America Securities LLC and Deutsche Bank Securities Inc., as co-lead arrangers and joint book runners, as the same may from time to time be amended, modified, extended, renewed, restated, or supplemented and including any agreement extending the maturity of (including the inclusion of additional borrowers thereunder or any increase in the amount borrowed) all or any portion of the indebtedness under such agreement. !

 

“ Amended and Restated Credit Agreement Obligations ” has the meaning ascribed thereto in Section 2.1(1)(a).

 

“ Bank Creditors ” means, collectively, the Lenders, the Collateral Agent, the Issuing Lender, the Syndication Agent, the Co-Documentation Agent, the Administrative Agent and the Co-Lead Arrangers and Joint Book Runners.

 

“ Borrower ” means Williams Scotsman, Inc., a corporation incorporated and existing under the laws of the State of Maryland, and its successors and permitted assigns.

 

“BofA” means Bank of America, N.A. and any successor thereto.

 

“Business Day” means any day excluding Saturday, Sunday and any day which shall be in the City of New York a legal holiday or a day in which banking institutions are authorized by law or other governmental actions to close.

 

“ Class ” has the meaning ascribed thereto in Section 5.5.

 

“ Co-Documentation Agent ” means, collectively, Citicorp USA, Inc., Wells Fargo Bank, N.A. and Lehman Commercial Paper Inc. acting as co-documentation agents under the Amended and Restated Credit Agreement and any successors appointed pursuant to the Amended and Restated Credit Agreement, and their respective permitted assigns .

 

“ Co-Lead Arrangers and Joint Book Runners ” means Banc of America Securities LLC and Deutsche Bank Securities Inc., as the co-lead arrangers and joint book runners, and their respective successors and permitted assigns.

 

“ Collateral Agent ” means BofA acting as collateral agent for the Secured Creditors, and any successor thereto appointed pursuant to the Amended and Restated Credit Agreement, and its permitted assigns.

 

“ Credit Documents ” means, collectively, the Amended and Restated Credit Agreement and all other Credit Documents (as such term is defined in the Amended and Restated Credit Agreement).

 

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“Credit Parties” means, collectively, Holdings, the Borrower and the Subsidiary Guarantors.

 

“ Effective Date ” means June 28, 2005.

 

“ Event of Default ” means any Event of Default under, and as defined in, the Amended and Restated Credit Agreement and shall in any event include any payment default on any of the Guaranteed Obligations after the expiration of any applicable grace period.

 

“ Guarantee ” means this guarantee as amended, modified or supplemented from time to time.

 

“ Guaranteed Obligations ” means, collectively, the Amended and Restated Credit Agreement Obligations and the Interest Rate Obligations.

 

“ Guarantor ” means Williams Scotsman of Canada, Inc., a corporation incorporated and existing under the laws of the Province of Ontario, and its successors and permitted assigns.

 

“ Guarantor Security Documents ” means the amended and restated security agreement of even date herewith made by the Guarantor in favour of the Collateral Agent and any other security granted to the Collateral Agent or any Secured Creditor as security for the obligations of the Guarantor under this Guarantee and the other Credit Documents to which it is a party.

 

“Holdings” means Williams Scotsman International, Inc. and its successors.

 

“ Insolvency Legislation ” means any law relating to bankruptcy, insolvency, reorganization or relief of debtors including the Companies’ Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada), Title 11 of the United States Code entitled “Bankruptcy” or any comparable or similar legislation in effect in any applicable jurisdiction.

 

“ Intercorporate Indebtedness ” has the meaning ascribed thereto in Section 3.5(1).

 

“ Interest Rate Agreement ” means any interest rate agreement (including interest rate swaps, caps, floors, collars and similar agreements) between the Borrower and any Interest Rate Creditor.

 

“ Interest Rate Creditors ” means, collectively, any Lender or a syndicate of financial institutions organized by BofA or an affiliate of BofA (even if BofA or any such Lender subsequently ceases to be a Lender under the Amended and Restated Credit Agreement for any reason) and any institution that

 

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participates, and in each case their subsequent assigns, in any Interest Rate Agreement with the Borrower. 

 

“ Interest Rate Obligations ” has the meaning ascribed thereto in Section 2.1(1)(b).

 

“ Issuing Lender ” has the meaning ascribed thereto in the Amended and Restated Credit Agreement.

 

“ Lenders ” means, collectively, the financial institutions listed from time to time on Schedule I to the Amended and Restated Credit Agreement, as lenders, as well as any Person which becomes a Lender pursuant to Section 11.6 of the Amended and Restated Credit Agreement, and their respective successors and assigns.

 

“ Material Adverse Effect ” means a material adverse effect on (i) the business, operations, property, assets, liabilities or condition (financial or otherwise) of the Borrower or of Holdings, the Borrower and their respective Subsidiaries taken as a whole, (ii) the value of Collateral or the amount which the Administrative Agent, the Collateral Agent and the Lenders would be likely to receive (after giving consideration to delays in payment and costs of enforcement) in the liquidation of such Collateral, (iii) the rights and remedies of any Agent, the Issuing Lender or the Lenders under any Credit Document, or (iv) on the ability of any Credit Party to perform its obligations under the Credit Documents.

 

“ Original Currency ” has the meaning ascribed thereto in Section 3.17(1).

 

“ Other Currency ” has the meaning ascribed thereto in Section 3.17(1).

 

“ Other Taxes ” has the meaning ascribed thereto in Section 3.16(2).

 

“ Required Lenders ” has the meaning ascribed thereto in the Amended and Restated Credit Agreement.

 

“ Requisite Creditors ” has the meaning ascribed thereto in Section 5.5.

 

“Revolving Credit Termination Date” has the meaning ascribed thereto in the Amended and Restated Credit Agreement.

 

“ Secured Creditors ” means, collectively, the Bank Creditors and the Interest Rate Creditors.

 

“ Shares ” has the meaning ascribed thereto in Section 4.1(a).

 

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“Subsidiary Guarantors” has the meaning ascribed thereto in the Amended and Restated Credit Agreement.

 

“ Syndication Agent ” means DBTCA acting as syndication agent for the Lenders under the Amended and Restated Credit Agreement and any successor appointed pursuant to the Amended and Restated Credit Agreement, and its permitted assigns.

 

“ Taxes ” has the meaning ascribed thereto in Section 3.16(1).

 

“ Termination Date ” means the date upon which the Total Commitments under the Amended and Restated Credit Agreement have been terminated and all Interest Rate Agreements entered into with any Interest Rate Creditor have been terminated, no Note under the Amended and Restated Credit Agreement is outstanding and all Loans thereunder have been repaid in full, all Letters of Credit issued under the Amended and Restated Credit Agreement have been terminated (or cash collateralized in a manner satisfactory to the Administrative Agent) and all Guaranteed Obligations then due and payable have been paid in full.

 

Section 1.2             Terms Incorporated by Reference. 

 

Capitalized terms not defined in this Guarantee shall have the meanings given to them in the Amended and Restated Credit Agreement.

 

Section 1.3             Statutes.

 

Unless specified otherwise, reference in this Guarantee to a statute refers to that statute as it may be amended, or to any restated or successor legislation of comparable effect.

 

Section 1.4             Certain Phrases, etc. 

 

In this Guarantee (i) (y) the words “including” and “includes” mean “including (or includes) without limitation” and (z) the phrase “the aggregate of” , “the total of” , “the sum of” , or a phrase of similar meaning means “the aggregate (or total or sum), without duplication, of” , and (ii) in the computation of periods of time from a specified date to a later specified date, unless otherwise expressly stated, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding” .

 

Section 1.5             Gender and Number. 

 

Any reference in this Guarantee to gender shall include all genders and words importing the singular number only shall include the plural and vice versa.

 

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Section 1.6             Headings, etc. 

 

The division of this Guarantee into Articles and Sections and the insertion of headings are for convenient reference only and are not to affect the interpretation of this Guarantee.

 

ARTICLE 2
GUARANTEE

 

Section 2.1             Guarantee. 

 

(1)            The Guarantor irrevocably and unconditionally guarantees: 

 

(a)            to the Bank Creditors the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of (i) the principal of and interest on the Notes issued by, and the Loans made to, the Borrower under the Amended and Restated Credit Agreement, (ii) all reimbursement obligations and unpaid drawings with respect to Letters of Credit issued under the Amended and Restated Credit Agreement and (iii) all other obligations (including obligations which, but for any automatic stay under any applicable Insolvency Legislation, would become due) and liabilities owing by the Borrower to the Bank Creditors under the Amended and Restated Credit Agreement and the other Credit Documents (including indemnities, Fees and interest thereon) whether now existing or hereafter incurred under, arising out of or in connection with the Amended and Restated Credit Agreement or any other Credit Document and the due performance and compliance with the terms of the Credit Documents by the Borrower (all such principal, interest, liabilities and obligations under this paragraph (a), except to the extent consisting of obligations or liabilities with respect to Interest Rate Agreements, being herein collectively called, the “ Amended and Restated Credit Agreement Obligations ”); and

 

(b)            to each Interest Rate Creditor the full and prompt payment when due (whether at the stated maturity, by acceleration or otherwise) of all obligations (including obligations which, but for any automatic stay under any applicable Insolvency legislation, would become due) and liabilities owing by the Borrower under any Interest Rate Agreement, whether now in existence or hereafter arising, and the due performance and compliance by the Borrower with all terms, conditions and agreements contained therein (all such obligations and liabilities, the “ Interest Rate Obligations ”).

 

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The Guarantor promises to pay, on demand, all reasonable out-of-pocket costs and expenses (including reasonable fees and disbursements of counsel) incurred by or on behalf of the Secured Creditors and the Collateral Agent in enforcing any of their respective rights under this Guarantee and by the Collateral Agent in connection with any amendment, waiver or consent relating thereto. 

 

(2)            Additionally, the Guarantor unconditionally and irrevocably guarantees the payment of any and all Guaranteed Obligations of the Borrower to the Secured Creditors whether or not due or payable by the Borrower upon the occurrence in respect of the Borrower of any of the events specified in Section 9.1(e) of the Amended and Restated Credit Agreement, and unconditionally and irrevocably, promises to pay such Guaranteed Obligations to the Secured Creditors, or order, on demand, in lawful money of the United States.

 

Section 2.2             Absolute Liability.

 

(1)            The Guarantor guarantees that the Guaranteed Obligations will be paid to the Collateral Agent and the Secured Creditors strictly in accordance with their terms and conditions, that the Guarantor shall be liable as principal debtor and not solely as surety with respect to the payment of the Guaranteed Obligations and that the liability of the Guarantor under this Guarantee shall be absolute and unconditional irrespective of:

 

(a)            the lack of validity or enforceability of any terms of any of the other Credit Documents or the Interest Rate Agreements;

 

(b)            any contest by the Borrower or any other Person as to the amount of the Guaranteed Obligations, the validity or enforceability of any terms of the Credit Documents or the Interest Rate Agreements or the perfection or priority of any security granted to the Collateral Agent or the Secured Creditors;

 

(c)            any defence, counter-claim or right of set-off available to the Borrower;

 

(d)            any change in the time or times for, or place of or manner of payment of the Guaranteed Obligations or any consent, waiver, renewal, extension or other indulgences which the Secured Creditors or the Collateral Agent may grant to the Borrower or any other Person or any amendment or supplement to, or alteration or renewal of, or restatement or modification of (including any increase in the amounts available thereunder or the inclusion of additional borrowers thereunder), or other action or inaction under, any of the Credit Documents or the Interest Rate Agreements or the Guaranteed Obligations and this Guarantee shall apply to the Guaranteed

 

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Obligations as so changed, indulged, amended, supplemented, altered, renewed, restated, modified or increased;

 

(e)            any dealings with the security which the Secured Creditors or the Collateral Agent hold or may hold pursuant to the terms and conditions of the Credit Document or the Interest Rate Agreements, including the taking, giving up or exchange of securities, their variation or realization, the accepting of compositions and the granting of releases and discharges;

 

(f)             any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to the Borrower, the Guarantor or any other Person or any action taken with respect to this Guarantee by any trustee or receiver, or by any court, in any such proceeding, whether or not the Guarantor shall have notice or knowledge of any of the foregoing;

 

(g)            the assignment of all or any part of the benefits of this Guarantee;

 

(h)            any invalidity, non-perfection or unenforceability of any security held by the Secured Creditors or the Collateral Agent or any irregularity, default or defect in the manner or procedure by which the Collateral Agent and the Secured Creditors deals with or realizes on such security; and

 

(i)             any other circumstances which might otherwise constitute a defence available to, or a discharge of, the Guarantor, the Borrower or any other Person in respect of the Guaranteed Obligations or this Guarantee, except indefeasible payment in full o