EXHIBIT 10(vv)
NOTES REGISTRATION RIGHTS AGREEMENT
THIS NOTES REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
---------
entered into as of December 15, 1998, by and among UNITED RENTALS (NORTH
AMERICA), INC., a Delaware corporation (the "Company"), the subsidiaries named
-------
in the Schedule hereto (the "Guarantors") and GOLDMAN, SACHS & CO. (the "Initial
---------- -------
Purchaser").
- ---------
This Agreement is made pursuant to the Purchase Agreement dated December 8,
1998 between the Company and the Initial Purchaser (the "Purchase Agreement"),
------------------
with respect to the issue and sale by the Company and the purchase by the
Initial Purchaser of $300,000,000 aggregate principal amount of the Company's
9 1/4% Senior Subordinated Notes due 2009, Series A in respect of which the
Guarantors have provided guarantees (together with such guarantees, the
"Notes"). In order to induce the Initial Purchaser to enter into the Purchase
-----
Agreement, the Company has agreed to provide to the Initial Purchaser and its
direct and indirect transferees and assigns the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
-----------
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
--------
time to time, and the rules and regulations of the SEC promulgated
thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
--------
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Broker Prospectus Period" shall have the meaning set forth in
------------------------
Section 3(f)(C).
"Broker Shelf Registration Statement" shall have the meaning set
-----------------------------------
forth in Section 3(f)(E).
"Depositary" shall mean The Depository Trust Company, or any other
----------
depositary appointed by the Company; provided, however, that any such
depositary must have an address in the Borough of Manhattan, in the City of
New York.
"Exchange Notes" shall mean 9 1/4% Senior Subordinated Notes due
--------------
2009, Series B of the Company, including the guarantees thereof, containing
terms identical to the respective Notes (except that (i) interest on the
Exchange Notes shall accrue from the last date on which interest was paid
on the Notes or, if no such interest has been paid, from December 15, 1998,
(ii) the transfer restrictions thereon shall be eliminated and
(iii) certain provisions relating to payment of additional interest shall
be eliminated) to be issued under the Indenture and offered to Holders in
exchange for Transfer Restricted Notes pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Company of
--------------
Exchange Notes for Transfer Restricted Notes pursuant to Section 2(a) and
the other provisions of this Agreement.
"Exchange Offer Registration" shall mean a registration under the
---------------------------
1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
-------------------------------------
registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a).
---------------
"Holders" shall mean the Initial Purchaser, for so long as it owns
-------
any Transfer Restricted Notes, and its successors, assigns and direct and
indirect transferees who become registered owners of Transfer Restricted
Notes under the Indenture.
"Holders' Counsel" shall mean an external United States counsel and
----------------
external local counsel designated by the underwriters (or if an offering is
not underwritten, by the Majority Holders) to represent them in connection
with a Shelf Registration Statement or Broker Shelf Registration Statement.
"Indenture" shall mean the Indenture relating to the Notes dated as
---------
of December 15, 1998, among the Company, the subsidiaries of the Company
listed therein and, State Street Bank and Trust Company, as trustee (the
"Trustee"), and as the same may be amended from time to time in accordance
-------
with the terms thereof.
"Initial Purchaser" shall have the meaning set forth in the preamble
-----------------
of this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
----------------
aggregate principal amount of Transfer Restricted Notes outstanding;
provided that (a) whenever the consent or approval of Holders of a
specified percentage of Transfer Restricted Notes is required hereunder,
Transfer Restricted Notes held by the Company or any of its affiliates (as
such term is defined in Rule 405 under the 1933 Act) shall be disregarded
in determining whether such consent or approval was given by the Holders of
such required percentage or amount and (b) whenever the consent or approval
of the Majority Holders is required in relation to the filing of a Broker
Shelf Registration Statement, Holders (other than
2
Participating Broker Dealers holding Notes registered thereunder) shall be
disregarded in determining whether such consent or approval was given by
Holders of such required percentage or amount.
"Original Issue Date" shall mean the date of original issuance of the
-------------------
Notes.
"Participating Broker-Dealer" shall have the meaning set forth in
---------------------------
Section 3(f).
"Person" shall mean any individual, corporation, limited liability
------
company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
----------
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Transfer Restricted Notes covered by a Shelf Registration
Statement or a Broker Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by
reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
------------------
of this Agreement.
"Registration Default" shall have the meaning set forth in Section
--------------------
2(e).
"Registration Expenses" shall mean any and all expenses incident to
---------------------
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. ("NASD") registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state or
other securities or blue sky laws and compliance with the rules of the NASD
(including, without limitation, in the case of an underwritten offering the
reasonable fees and disbursements of Holders' Counsel in connection with
state or other securities or blue sky qualification of any of the Exchange
Notes or Transfer Restricted Notes), (iii) all expenses (including without
limitation all word processing, duplicating and printing expenses,
messenger and delivery expenses) of any Persons in preparing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales
agreements, certificates representing the Exchange Notes and other
documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and expenses incurred
in connection with the listing, if any, of any of the Transfer Restricted
Notes on any securities exchange or exchanges, (vi) all fees and
disbursements relating to the qualification of the Indenture under
applicable securities laws, (vii) the reasonable fees and disbursements of
counsel for the Company and of the independent public accountants of the
Company and of any other experts retained by the Company,
3
including the expenses of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, (viii) premiums
and other costs of policies of insurance maintained by the Company against
liabilities arising out of the public offering of the Transfer Restricted
Notes being registered, (ix) the fees and expenses of a "qualified
independent underwriter" as defined by Conduct Rule 2720 of the NASD, if
required by the NASD rules, in connection with the offering of the Exchange
Notes or Transfer Restricted Notes in an underwritten offering, (x) the
reasonable fees and expenses of the Trustee, including its counsel, and any
escrow agent or custodian. Notwithstanding the foregoing, the holders of
the Exchange Notes or Transfer Restricted Notes being registered shall pay
all agency or brokerage fees and commissions and underwriting discounts and
commissions attributable to the sale of such Exchange Notes or Transfer
Restricted Notes and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly)
(excluding advisors or other experts retained by the Company, as
aforesaid); provided, however, that in the case of a Shelf Registration
Statement under Section 2(b) hereof or a Broker Shelf Registration
Statement under Section 3(f) hereof, the Majority Holders may, in each
case, if they so elect, select Holders' Counsel to represent them (which
may be counsel to the Initial Purchaser), in which event Registration
Expenses shall include the reasonable fees and disbursements of such
counsel up to a maximum of $80,000 (including fees paid pursuant to clause
(ii) above).
"Registration Statement" shall mean any registration statement of the
----------------------
Company which covers any of the Exchange Notes or Transfer Restricted Notes
pursuant to the provisions of this Agreement, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
---
"Shelf Registration" shall mean a registration effected pursuant to
------------------
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
----------------------------
statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Transfer Restricted Notes on an
appropriate form under Rule 415 under the 1933 Act, or any similar rule
that may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Transfer Restricted Notes" shall mean each Note until (i) the date
-------------------------
on which such Note has been exchanged by a person (other than a
Participating Broker-Dealer) for an Exchange Note in the Exchange Offer,
(ii) following the exchange by a Participating
4
Broker-Dealer in the Exchange Offer of a Note for an Exchange Note, the
date on which such Exchange Note is sold to a purchaser who receives from
such Participating Broker-Dealer on or prior to the date of such sale a
copy of the Prospectus contained in the Exchange Offer Registration
Statement,(iii) the date on which such Note has been effectively registered
under the 1933 Act and disposed of in accordance with the Shelf
Registration Statement or the Broker Shelf Registration Statement, (iv) the
date on which such Note is eligible for distribution to the public pursuant
to Rule 144(k) under the 1933 Act (or any similar provision then in force,
but not Rule 144A under the 1933 Act), (v) the date on which such Note
shall have been otherwise transferred by the Holder thereof and a new Note
not bearing a legend restricting further transfer shall have been delivered
by the Company and subsequent disposition of such Note shall not require
registration or qualification under the 1933 Act or any similar state law
then in force or (vi) such Note ceases to be outstanding.
"Trustee" shall mean the Trustee under the Indenture.
-------
2. Registration Under the 1933 Act. (a) Exchange Offer Registration.
------------------------------- ---------------------------
To the extent not prohibited by any applicable law or applicable interpretation
of the staff of the SEC, the Company shall (A) file an Exchange Offer
Registration Statement with the SEC within 90 days after the Original Issue Date
covering the offer by the Company to the Holders to exchange Exchange Notes for
all of their Transfer Restricted Notes, (B) use its best efforts to cause such
Exchange Offer Registration Statement to be declared effective under the 1933
Act within 150 days after the Original Issue Date, (C) commence the Exchange
Offer promptly after the Exchange Offer Registration Statement is declared
effective by the SEC and keep the Exchange Offer open for acceptance for the
Exchange Period, (D) use its best efforts to issue, promptly after the end of
the Exchange Period, Exchange Notes in exchange for all Transfer Restricted
Notes that have been properly tendered for exchange during the Exchange Period
and (E) use its best efforts to maintain the effectiveness of the Exchange Offer
Registration Statement during the Exchange Period and thereafter until such time
as the Company has issued Exchange Notes in exchange for all Transfer Restricted
Notes that have been properly tendered for exchange during the Exchange Period.
Upon the effectiveness of the Exchange Offer Registration Statement, the Company
shall promptly commence the Exchange Offer, it being the objective of such
Exchange Offer to enable each Holder (other than Participating Broker-Dealers)
eligible and electing to exchange Transfer Restricted Notes for Exchange Notes
(assuming that such Holder is not an affiliate of the Company within the meaning
of Rule 405 under the 1933 Act, acquires the Exchange Notes in the ordinary
course of such Holder's business and has no arrangements or understandings with
any person to participate in the Exchange Offer for the purpose of distributing
the Exchange Notes) to trade such Exchange Notes from and after their receipt
without any limitations or restrictions under the 1933 Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States. For the purposes of this Agreement, the
Exchange Offer will be deemed consummated if the Company makes the Exchange
Offer, the Exchange Offer remains open for a period (the "Exchange Period") of
20 business days after the date notice thereof is
5
mailed to the Holders (or such longer period as may be required by law), and the
Company issues Exchange Notes in respect of all Notes that are properly tendered
during the Exchange Period.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) keep the Exchange Offer open for the Exchange Period;
(iii) use the services of the Depositary for the Exchange Offer with
respect to Notes evidenced by global certificates;
(iv) permit Holders to withdraw tendered Transfer Restricted Notes at
any time prior to the close of business, New York City time, on the last
business day on which the Exchange Offer shall remain open, by sending to
the institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Transfer Restricted Notes delivered for exchange, and a statement
that such Holder is withdrawing its election to have such Notes exchanged;
and
(v) otherwise comply with all applicable laws relating to the Exchange
Offer.
Promptly after the close of the Exchange Offer, the Company shall use
its best efforts to:
(i) accept for exchange Transfer Restricted Notes duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and the letter of
transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Transfer Restricted Notes so accepted for exchange by the
Company; and
(iii) cause the Trustee promptly to authenticate and deliver Exchange
Notes to each Holder of Transfer Restricted Notes equal in principal amount
to the principal amount of the Transfer Restricted Notes of such Holder so
accepted for exchange.
The Exchange Offer shall not be subject to any conditions, other than
(i) that the Exchange Offer, or the making of any exchange by a Holder, does not
violate applicable law or any applicable interpretation of the staff of the SEC
and (ii) the tendering of Transfer Restricted Notes in accordance with the
Exchange Offer. Each Holder of Transfer Restricted Notes who wishes to exchange
such Transfer Restricted Notes for Exchange Notes in the Exchange Offer shall
have represented that (i) it is not an affiliate (as defined in Rule 405 under
the 1933 Act) of
6
the Company, (ii) any Exchange Notes to be received by it were acquired in the
ordinary course of its business and, (iii) it has no arrangement with any person
to participate in the distribution (within the meaning of the 1933 Act) of the
Exchange Notes (except that a Participating Broker Dealer shall not be required
to make the representation provided by this clause (iii)). In addition each such
Holder shall be required to make such other representations as may be reasonably
necessary under applicable SEC rules, regulations or interpretations to render
the use of Form S-4 or another appropriate form under the 1933 Act available. To
the extent permitted by law and ascertainable by the Company, the Company shall
inform the Initial Purchaser of the names and addresses of the Holders to whom
the Exchange Offer is made, and the Initial Purchaser shall have the right to
contact such Holders and otherwise facilitate the tender of Transfer Restricted
Notes in the Exchange Offer. Notwithstanding anything to the contrary contained
herein, it is understood and agreed that no Holder may exchange in the Exchange
Offer any Transfer Restricted Notes, to the extent such Holder is not permitted
to do so by applicable law or SEC policy.
(b) Shelf Registration. If (i) the Company is not permitted to file
------------------
the Exchange Offer Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or SEC policy;
(ii) for any other reason, the Exchange Offer is not consummated (as defined in
Section 2(a)) within 180 days after the Original Issue Date; (iii) any Holder of
Notes notifies the Company prior to the 20th day following consummation of the
Exchange Offer that (a) due to a change in law or SEC policy such Holder is not
entitled to participate in the Exchange Offer, (b) due to a change in law or SEC
policy such Holder may not resell the Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and the prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder or (c) such Holder is a broker-dealer
and owns Notes acquired directly from the Company or an affiliate of the
Company; or (iv) the Holders of a majority in aggregate principal amount of the
Notes are not eligible to participate in the Exchange Offer and to receive
Exchange Notes that they may resell to the public without restriction under the
1933 Act and without restriction under applicable blue sky or state securities
laws, the Company shall, at its cost:
(A) use its best efforts to file with the SEC, on or prior to the
90/th/ day following the occurrence of any event specified in clauses (i)
through (iv) above, a Shelf Registration Statement relating to the offer
and sale of the Transfer Restricted Notes by the Holders from time to time
in accordance with the methods of distribution elected by the Majority
Holders of such Transfer Restricted Notes and set forth in such Shelf
Registration Statement, and use its best efforts to cause such Shelf
Registration Statement to be declared effective under the Securities Act
within 150 days after such filing obligation arises, provided that if the
obligation to file the Shelf Registration Statement arises because the
Exchange Offer has not been consummated within 180 days after the Original
Issue Date, then the Company will use its best efforts to file the Shelf
Registration Statement on or prior to the 30th day after such filing
obligation arises, provided further that, with respect to Exchange Notes
received by a broker-dealer in exchange for any securities that were
acquired by such broker-dealer as a result of market
7
making or other trading activities, the Company may, if permitted by
current interpretations by the SEC's staff, file a post-effective amendment
to the Exchange Offer Registration Statement containing the information
required by Regulation S-K Items 507 and/or 508, as applicable, in
satisfaction of its obligations under this paragraph (A) solely with
respect to broker-dealers who acquired their Notes as a result of market
making or other trading activities, and any such Exchange Offer
Registration Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf Registration
Statement. In the event that the Company is required to file a Shelf
Registration Statement, upon notice from any Holder not eligible to
participate in the Exchange Offer pursuant to clause (iii) above or
pursuant to clause (iv) above, the Company shall file and use its best
efforts to have declared effective by the SEC both an Exchange Offer
Registration Statement pursuant to Section 2(a) with respect to all
Transfer Restricted Notes that are eligible to participate in the Exchange
Offer and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement) with
respect to offers and sales of Transfer Restricted Notes held by such
Holder after completion of the Exchange Offer;
(B) use its best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years after its
effective date (or until one year after the effective date of the Shelf
Registration Statement if such Shelf Registration Statement is filed
pursuant to clause (iv) above) or such shorter period which will terminate
when all of the Transfer Restricted Notes covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement; and
(C) notwithstanding any other provisions hereof, use its best efforts
to ensure that (i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming a part thereof and any supplement
thereto complies in all material respects with the 1933 Act and the rules
and regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, and (iii) any Prospectus forming part of any Shelf Registration
Statement, and any supplement to such Prospectus (as amended or
supplemented from time to time), does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement if reasonably requested by the Majority Holders
with respect to information relating to the Holders and otherwise as required by
Section 3(b) below, to use its best efforts to cause any such amendment to
become effective and such Shelf Registration to become usable as soon as
reasonably practicable thereafter and to furnish to the Holders of
8
Transfer Restricted Notes copies of any such supplement or amendment promptly
after its being used or filed with the SEC.
(c) Expenses. Subject to Section 4(c) hereof, the Company shall pay
--------
all Registration Expenses in connection with the registration pursuant to
Section 2(a) and 2(b) and any registration of a Broker Shelf Registration
Statement pursuant to Section 3(f)(E). In the case of any Shelf Registration
Statement or Broker Shelf Registration Statement, the Majority Holders may, in
each case, if they so elect, select Holders' Counsel to represent them (which
may be counsel to the Initial Purchaser), in which event Registration Expenses
shall include the reasonable fees and disbursements of such counsel up to a
maximum of $80,000. Each Holder shall pay all expenses of its counsel other
than as set forth in the preceding sentence, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Transfer Restricted Notes pursuant to the Shelf Registration
Statement or Broker Shelf Registration Statement.
(d) Effective Registration Statement. (i) The Company will be deemed
--------------------------------
not to have used its best efforts to cause a Registration Statement to become,
or to remain, effective during the requisite periods set forth herein if the
Company takes any action that could reasonably be expected to result in any such
Registration Statement not being declared effective or in the Holders of
Transfer Restricted Notes covered thereby not being able to exchange or offer
and sell such Transfer Restricted Notes during that period unless (A) such
action is required by applicable law or (B) such action is taken by the Company
in good faith and for valid business reasons (but not including avoidance of the
Company's obligations hereunder), including a material corporate transaction, so
long as the Company promptly complies with the requirements of Section 3(k)
hereof, if applicable.
(ii) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof, a Shelf Registration Statement pursuant to Section 2(b) or a Broker
Shelf Registration Statement pursuant to Section 3(f)(E) hereof will not be
deemed to have become effective unless it has been declared effective by the
SEC; provided, however, that if, after it has been declared effective, the
offering of Transfer Restricted Notes pursuant to a Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
will be deemed not to have been effective during the period of such
interference, until the offering of Transfer Restricted Notes pursuant to such
Registration Statement may legally resume.
(iii) Subject to and without limiting the Company's obligations to pay
additional interest as provided in Section 2(e) and subject to Section 2(d)
hereof, the Company may suspend the availability of a Shelf Registration
Statement or Broker Shelf Registration Statement or, only during the Broker
Prospectus Period, an Exchange Offer Registration Statement, and the use of the
related Prospectus, as provided in Section 3(e)(v) and the penultimate paragraph
of Section 3 hereof, if any event shall occur as a result of which it shall be
necessary, in the good faith determination of the Company, to amend the Shelf
Registration Statement or Broker Shelf Registration Statement or Exchange Offer
Registration Statement or
9
amend or supplement any prospectus or prospectus supplement thereunder in order
that each such document not include any untrue statement of fact or omit to
state a material fact necessary to make the statements therein not misleading in
light of the circumstances under which they were made. If the Company shall so
suspend the availability of a Shelf Registration Statement or Broker Shelf
Registration Statement or Exchange Offer Registration Statement as aforesaid or
if the Company shall give any notice to suspend the disposition of Transfer
Restricted Notes pursuant to a Shelf Registration Statement or Broker Shelf
Registration Statement or the disposition of Exchange Notes by Participating
Broker-Dealers pursuant to the Exchange Offer Registration Statement as a result
of the happening of any event or the discovery of any facts, each of the kind
described in Section 3(e)(v) hereof, the Company shall be deemed to have used
its best efforts to keep such Registration Statement effective during such
period of suspension; provided that the Company shall use its best efforts to
file and have declared effective (if an amendment) as soon as practicable an
amendment or supplement to such Registration Statement and shall extend the
period during which such Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice to and including the date when
the Holders shall have received copies of the supplemented or amended Prospectus
necessary to resume such dispositions. The Company may delay the filing of any
such amendment or supplement pursuant to this paragraph if the Company in good
faith has a valid business reason for such delay; provided, however, that any
delay pursuant to this sentence shall not exceed 60 days in any period of 365
days. Notwithstanding the foregoing, if, pursuant to this paragraph, a Shelf
Registration Statement or Broker Shelf Registration Statement or Exchange Offer
Registration Statement is suspended or otherwise not usable in connection with
resales of Notes covered thereby (or, in the case of the Exchange Offer
Registration Statement, resales of Exchange Notes by Participating Broker-
Dealers) for a period exceeding 60 days in the aggregate, whether or not
consecutive, a Registration Default shall be deemed to have occurred under
paragraph (iv) or (v), as the case may be, of the definition thereof in Section
2(e) hereof (whether or not any other Registration Default has occurred), and in
all such events, the Company will be required to pay additional interest as
provided in Section 2(e) hereof.
(e) Accrual and Payment of Additional Interest. For purposes of this
------------------------------------------
Section 2(e), the "Specified Notes" means the Notes (not including the Exchange
Notes); provided, however, that the Specified Notes mean the Exchange Notes with
-------- -------
respect to (a) any Registration Default that arises pursuant to clause (i) or
(ii) of the definition of such term and relates solely to the Broker Shelf
Registration Statement and (b) any Registration Default that arises solely
pursuant to clauses (v) or (vi) of the definition of such term. In the event
that a Registration Default exists, then the Company shall pay additional
interest on the Specified Notes (in addition to the interest otherwise due on
the Notes) in cash on each Interest Payment Date (as defined in the Indenture)
in an amount equal to one-quarter of one percent (0.25%) per annum of the
principal amount of the Specified Notes, with respect to the first 90-day period
(or portion thereof) following such Registration Default. The amount of such
additional interest will increase by an additional one-quarter of one percent
(0.25%) to a maximum of one percent (1.0%) per annum for each subsequent 90-day
period (or portion thereof) until each such Registration Default has been cured.
A "Registration Default" will exist (subject to the following
10
sentence) if (i) the Company fails to file any of the registration statements
required by this Agreement on or prior to the date specified for such filing,
(ii) any of such registration statements is not declared effective by the SEC on
or prior to the date specified for such effectiveness, (iii) the Exchange Offer
is required to be consummated under this Agreement and is not consummated within
180 days after the Original Issue Date, (iv) the Shelf Registration Statement is
declared effective but thereafter, during the period for which the Company is
required to maintain the effectiveness of such registration statement, it ceases
to be effective or usable in connection with the resale of the Notes covered by
such registration statement for a period of 60 days, whether or not consecutive,
(v) the Exchange Offer Registration Statement is declared effective but
thereafter, during the Broker Prospectus Period, it ceases to be effective (or
the Company restricts the use of the prospectus included therein) for a period
of 60 days, whether or not consecutive, or (vi) the Broker Shelf Registration
Statement is declared effective but thereafter, during the period for which the
Company is required to maintain the effectiveness of such registration
statement, it ceases to be effective or usable in connection with the resale of
the Exchange Notes covered by such registration statement for a period of 60
days, whether or not consecutive. Notwithstanding the foregoing, (a) any
Registration Default specified in clause (i), (ii) or (iii) of the preceding
sentence that relates to the Exchange Offer Registration Statement or the
Exchange Offer shall be deemed cured at such time as the Shelf Registration
Statement is declared effective by the SEC and (b) any Registration Default
specified in clause (v) of the preceding sentence shall be deemed cured at such
time as the Broker Shelf Registration Statement is declared effective by the
SEC. Following the cure of all Registration Defaults the accrual of additional
interest on the Specified Notes will cease and the interest rate will revert to
the original rate; provided, however, that if, after any such additional
interest ceases to accrue, a different event specified in clause (i), (ii),
(iii), (iv), (v) or (vi) of the definition of Registration Default above occurs,
such additional interest shall begin to accrue again pursuant to the foregoing
provisions.
The Company shall notify the Trustee within five business days after
the occurrence of each event specified in clause (i), (ii), (iii), (iv), (v) or
(vi) of the definition of Registration Default above. The Company shall pay the
additional interest due on the Specified Notes by depositing with the Trustee,
in trust, for the benefit of the Holders thereof, by 12:00 noon, New York City
time, on or before the applicable semi-annual Interest Payment Date for the
Specified Notes, immediately available funds in sums sufficient to pay the
additional interest then due. The additional interest amount due shall be
payable on each Interest Payment Date to the record Holder of Specified Notes
entitled to receive the interest payment to be made on such date as set forth in
the Indenture. Additional interest pursuant to this Section 2(e) constitutes
liquidated damages with respect to Registration Defaults and shall be the
exclusive monetary remedy available to the Holders and/or the Initial Purchaser
with respect to any Registration Default.
(f) Specific Enforcement. Without limiting the remedies available to
--------------------
the Initial Purchaser and the Holders, the Company acknowledges that any failure
by it to comply with its obligations under Sections 2(a), 2(b) or 3(f) hereof
may result in material irreparable injury to the Initial Purchaser or the
Holders for which there is no adequate remedy at law, that it
11
will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Initial Purchaser or any Holder may obtain
such relief as may be required to specifically enforce the Company's obligations
under Sections 2(a), 2(b) or 3(f).
3. Registration Procedures. In connection with the obligations of
-----------------------
the Company with respect to the Registration Statements pursuant to Sections
2(a) and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement, within the
time period specified in Section 2, on the appropriate form under the 1933
Act, which form (i) shall be selected by the Company, (ii) shall, in the
case of a Shelf Registration, be available for the sale of the Transfer
Restricted Notes by the selling Holders thereof and (iii) shall comply as
to form in all material respects with the requirements of the applicable
form and include or incorporate by reference all financial statements
required by the SEC to be filed therewith and use its best efforts to cause
such Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under
applicable law to keep such Registration Statement effective for the
applicable period; cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the 1933 Act; and in the case of a Shelf Registration Statement
or Broker Shelf Registration Statement comply with the provisions of the
1933 Act with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Transfer Restricted Notes, at least five business days prior to filing,
that a Shelf Registration Statement with respect to the Transfer Restricted
Notes is being filed and advising such Holders that the distribution of
Transfer Restricted Notes will be made in accordance with the method
elected by the Majority Holders; provided that this clause (i) shall not
apply with respect to regular filings of any document or report under the
Exchange Act, at any time following the effectiveness of the applicable
Registration Statement hereunder, where such filing is made as part of the
Company's periodic disclosure obligations under Sections 13 and 15 of the
Exchange Act; and (ii) furnish to each Holder of Transfer Restricted Notes,
to counsel for the Initial Purchaser, to counsel for the Holders and to
each underwriter of an underwritten offering of Transfer Restricted Notes,
if any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder or underwriter may reasonably request,
including financial statements and schedules and, if the Holder so
requests, all exhibits (including those incorporated by reference) in order
to facilitate the public sale or other disposition of the Transfer
Restricted Notes; and (iii) subject to the penultimate paragraph of this
Section 3, hereby consent to the use of
12
the Prospectus, including each preliminary Prospectus, or any amendment or
supplement thereto by each of the selling Holders of Transfer Restricted
Notes in connection with the offering and sale of the Transfer Restricted
Notes covered by the Prospectus or any amendment or supplement thereto;
(d) use its reasonable best efforts to register or qualify the
Transfer Restricted Notes under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder of Transfer Restricted Notes
covered by a Registration Statement and each underwriter of an underwritten
offering of Transfer Restricted Notes shall reasonably request by the time
the Registration Statement is declared effective by the SEC, to cooperate
with the Holders in connection with any filings required to be made with
the NASD and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder to consummate the disposition
in each such jurisdiction of such Transfer Restricted Notes owned by such
Holder; provided, however, that the Company shall not be required to (i)
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d) or (ii) take any action which would subject it to general
service of process or taxation in any such jurisdiction if it is not then
so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Transfer Restricted Notes and counsel for such Holders promptly and, if
requested by such Holder or counsel, confirm such advice in writing
promptly (i) when a Registration Statement has become effective and when
any post-effective amendments and supplements thereto become effective,
provided that this clause (i) shall not apply with respect to regular
filings of any document or report under the Exchange Act, at any time
following the effectiveness of the applicable Registration Statement
hereunder, where such filing is made as part of the Company's periodic
disclosure obligations under Sections 13 and 15 of the Exchange Act; (ii)
of any request by the SEC or any state securities authority for post-
effective amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement
has become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Transfer Restricted
Notes for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event or the
discovery of any facts during the period a Shelf Registration Statement is
effective (including as contemplated in Section 2(d)(iii) hereof) which
makes any statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which requires the making of
any changes in such Registration Statement or Prospectus in order to make
the statements therein not misleading and (vi) of any determination by the
Company that a post-effective amendment to a Registration Statement would
be appropriate;
13
(f) (A) in the case of the Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who have exchanged their Transfer
Restricted Notes for Exchange Notes for the resale of such Exchange Notes,
(ii) furnish to each broker-dealer who desires to participate in the
Exchange Offer, without charge, as many copies of each Prospectus included
in the Exchange Offer Registration Statement, including any preliminary
Prospectus, and any amendment or supplement thereto, as such broker-dealer
may reasonably request, (iii) include in the Exchange Offer Registration
Statement a statement that any broker-dealer who holds Transfer Restricted
Notes acquired for its own account as a result of market-making activities
or other trading activities (a "Participating Broker-Dealer"), and who
---------------------------
receives Exchange Notes for Transfer Restricted Notes pursuant to the
Exchange Offer, may be a statutory underwriter and must deliver a
prospectus meeting the requirements of the 1933 Act in connection with any
resale of such Exchange Notes, (iv) subject to Section 2(d)(iii) and the
penultimate paragraph of Section 3, hereby consent to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or any
amendment or supplement thereto, by any broker-dealer in connection with
the sale or transfer of the Exchange Notes covered by the Prospectus or any
amendment or supplement thereto, and (v) include in the transmittal letter
or similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer the following provision:
"If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Notes. If the undersigned is a broker-dealer
that will receive Exchange Notes for its own account in exchange for
Transfer Restricted Notes, it represents that the Transfer Restricted
Notes to be exchanged for Exchange Notes were acquired by it as a
result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such
Exchange Notes pursuant to the Exchange Offer; however, by so
acknowledging and by delivering a prospectus, the undersigned will not
be deemed to admit that it is an "underwriter" within the meaning of
the 1933 Act;"
(B) to the extent any Participating Broker-Dealer participates in the
Exchange Offer, the Company shall use its best efforts to cause to be
delivered at the request of an entity representing the Participating
Broker-Dealers (which entity shall be the Initial Purchaser, unless it
elects not to act as such representative) a "cold comfort" letter with
respect to the Prospectus in the form existing on the last date for which
exchanges are accepted pursuant to the Exchange Offer and with respect to
each subsequent amendment or supplement, if any, effected during the period
specified in clause (C) below; and
(C) to the extent any Participating Broker-Dealer participates in the
Exchange Offer, the Company shall use its best efforts to maintain the
effectiveness of the
14
Exchange Offer Registration Statement and to make available a prospectus
meeting the requirements of the 1933 Act to any Participating Broker-Dealer
for use in connection with any resale of any Exchange Notes acquired in the
Exchange Offer (subject to the penultimate paragraph of Section 3). The
obligation of the Company to maintain the effectiveness of the Exchange
Offer Registration Statement and make such prospectus available will
commence on the day that the Exchange Offer is consummated and continue in
effect for a 30-day period (the "Broker Prospectus Period"); provided,
however, that, if for any day during such period the Company restricts the
use of such Exchange Offer Registration Statement or prospectus, the Broker
Prospectus Period shall be extended on a day-for-day basis;
(D) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement as would
otherwise be contemplated by Section 3(b) hereof, or take any other action
as a result of this Section 3(f), for any period following expiration of
the Broker Prospectus Period (as such period may be extended hereunder) and
Participating Broker-Dealers shall not be authorized by the Company to, and
shall not, deliver such Prospectus after such period in connection with
resales contemplated by this Section 3; and
(E) If at the end of the Broker Prospectus Period any Participating
Broker-Dealer that received Exchange Notes pursuant to the Exchange Offer
continues to hold any such Exchange Notes, the Company will, if any such
Participating Broker-Dealer so requests within 60 days after the end of the
Broker Prospectus Period, file with the SEC a shelf registration statement
(a "Broker Shelf Registration Statement") to cover the resale of such
Exchange Notes by Participating Broker-Dealers; provided, however, that (i)
the Company may in lieu of filing such registration statement extend the
Broker Prospectus Period by 60 days and (ii) the Company will not be
required to file such registration statement until such time as the Company
becomes eligible to use a Form S-3 for such registration statement. The
Company will use its best efforts to satisfy the eligibility requirements
for the use of Form S-3 for a registration statement under the 1933 Act as
soon as reasonably practicable. If the Company is obligated to file a
Broker Shelf Registration Statement, the Company will (i) file the Broker
Shelf Registration Statement within 30 days following the date on which the
Company first becomes eligible to use a Form S-3 for such registration
statement (or, if later, within 30 days of the date the request for such
registration statement is first made in accordance with this clause (E))
and (ii) use its best efforts to have the Broker Shelf Registration
Statement declared effective by the SEC on or prior to the 90th day
following the date on which the Company first becomes eligible to use a
Form S-3 for such registration statement (or, if later, the 90th day
following the date the request for such registration statement is first
made in accordance with this clause (E)). The Company will be required to
use its best efforts to keep the Broker Shelf Registration Statement
continuously effective, supplemented and amended for a 60-day period;
provided, however, that, if on any day during such period such registration
statement is not usable in connection with the resale of the Exchange Notes
covered thereby, such period shall be extended on a day-for-day basis. In
15
connection with the Broker Shelf Registration Statement, the Company shall,
in addition to its other obligations hereunder, comply with the obligations
contained in Section 2(b)(C), the ultimate paragraph of Section 2(b),
Sections 2(c) and (d) and Sections 3, 4 and 5 hereof with respect to the
Broker Shelf Registration Statement as if references to Shelf Registration,
Shelf Registration Statement and Holders (or Majority Holders) therein were
also a reference to the Broker Shelf Registration Statement, the
registration pursuant to this clause (E) and the Participating Broker-
Dealers (or a majority thereof), respectively.
(g) (A) in the case of an Exchange Offer, furnish counsel for the
Initial Purchaser and (B) in the case of a Shelf Registration, furnish
Holders' Counsel with copies of any request by the SEC or any state
securities authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(h) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide immediate notice to each Holder of the
withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each Holder of
Transfer Restricted Notes, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto,
unless requested);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Transfer Restricted Notes to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted Notes to be
sold and not bearing any restrictive legends; and cause such Transfer
Restricted Notes to be in such denominations (consistent with the
provisions of the Indenture) in a form eligible for deposit with the
Depositary and registered in such names as the selling Holders or the
underwriters, if any, may reasonably request in writing at least one
business day prior to the closing of any sale of Transfer Restricted Notes;
(k) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Section
3(e)(v) hereof, use their best efforts to prepare a supplement or post-
effective amendment to a Registration Statement or the related Prospectus
or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Transfer Restricted Notes, such Prospectus will not contain at the time of
such delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company
agrees to notify each Holder to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event, and each Holder
hereby agrees to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or
omission. At such time as such public
16
disclosure is otherwise made or the Company determines that such disclosure
is not necessary, in each case to correct any misstatement of a material
fact or to include any omitted material fact, the Company agrees promptly
to notify each Holder of such determination and to furnish each Holder such
numbers of copies of the Prospectus, as amended or supplemented, as such
Holder may reasonably request;
(l) obtain CUSIP numbers for all Exchange Notes, or Transfer
Restricted Notes, as the case may be, not later than the effective date of
a Registration Statement, and provide the Trustee with printed certificates
for the Exchange Notes in a form eligible for deposit with the Depositary;
(m) (i) cause the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended (the "TIA"), in connection with the registration of
---
the Exchange Notes, or Transfer Restricted Notes, as the case may be, (ii)
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and (iii) execute, and use its best
efforts to cause the Trustee to execute, all documents as may be required
to effect such changes, and all other forms and documents required to be
filed with the SEC to enable the Indenture to be so qualified in a timely
manner;
(n) subject to Section 4(c), in the case of a Shelf Registration, take
the following actions and take all other customary and appropriate actions
(including those reasonably requested by the holders of a majority in
principal amount of the Transfer Restricted Notes being sold) in order to
expedite or facilitate the disposition of such Transfer Restricted Notes
and in such connection:
(i) If requested by Holders' Counsel, make such representations
and warranties to the Holders of such Transfer Restricted Notes in
form, substance and scope as are customarily made in connection with
shelf registrations of the type contemplated by this Agreement (such
representations and warranties to be agreed upon by the Holders'
Counsel and the Company, such agreement not to be unreasonably
withheld); provided, however, that in the case of an underwritten
offering the Company shall make such representations and warranties to
the Holders of such Transfer Restricted Notes and the underwriters in
form, substance and scope as are customarily made by issuers in
connection with primary underwritten offerings of debt securities
comparable to the Notes (such representations and warranties to be
agreed upon by the Holders' Counsel, the underwriters and the Company,
such agreement not to be unreasonably withheld);
(ii) If requested by Holders' Counsel, obtain (at all times such
opinions are customarily obtained) opinions of counsel to the Company
and updates thereof addressed to each selling Holder covering the
matters in form, substance and scope customarily covered in opinions
delivered in connection with shelf registrations of the type
contemplated by this Agreement (such opinions to be
17
agreed upon by Holders' Counsel and the Company, such agreement not to
be unreasonably withheld); provided, however, that in the case of an
underwritten offering such opinions shall also be addressed to the
underwriters and also cover the matters customarily covered in
opinions delivered by issuers in connection with primary underwritten
offerings of debt securities comparable to the Notes (such additional
opinions to be agreed upon by the underwriters and the Company, such
agreement not to be unreasonably withheld);
(iii) If requested by Holders' Counsel, obtain (at all times
such letters are customarily obtained) "cold comfort" letters and
updates thereof from the independent certified public accountants to
the Company and to any other entity for which financial statements or
other financial information or schedules are included in the
Registration Statement, each addressed to the selling Holders of
Transfer Restricted Notes, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters delivered to selling security holders in connection with shelf
registrations of the type contemplated by this Agreement (such letters
to be agreed upon by Holders' Counsel and such accountants, such
agreement not to be unreasonably withheld); provided, however, that in
the case of an underwritten offering such letters shall also be
addressed to the underwriters and cover the matters customarily
covered in "comfort letters" delivered by issuers in connection with
primary underwritten offerings of debt securities comparable to the
Notes (such letters to be agreed upon by the underwriters and such
accountants, such agreement not to be unreasonably withheld);
(iv) if requested by the Majority Holders, enter into a
securities sales agreement with the Holders and an agent of the
Holders providing for, among other things, the appointment of such
agent for the selling Holders for the purpose of soliciting purchases
of Transfer Restricted Notes, which agreement shall be in form,
substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into in the case of
an underwritten offering, cause the same to set forth indemnification
provisions and procedures substantially equivalent to the
indemnification provisions and procedures set forth in Section 5
hereof with respect to the underwriters and all other parties to be
indemnified pursuant to Section 5 hereof;
(vi) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings; and
(vii) in the case of an underwritten offering, enter into
customary agreements required in connection therewith (including a
customary underwriting agreement).
18
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto) and
(ii) each closing under any underwriting or similar agreement as and to the
extent required thereunder. In the case of any underwritten offering, the
Company shall provide written notice to the Holders of all Transfer
Restricted Notes of such underwritten offering at least 30 days prior to
the filing of a prospectus supplement for such underwritten offering. Such
notice shall (x) offer each such Holder the right to participate in such
underwritten offering, (y) specify a date, which shall be no earlier than
10 days following the date of such notice, by which such Holder must inform
the Company of its intent to participate in such underwritten offering and
(z) include the instructions such Holder must follow in order to
participate in such underwritten offering;
(o) For a reasonable period prior to the filing of a Shelf
Registration Statement and prior to the execution of any underwriting or
similar agreement make available for inspection by Holders' Counsel and any
underwriters participating in an underwritten offering pursuant to a Shelf
Registration Statement and not more than one accounting firm retained by
the Majority Holders or underwriters, all financial and other records,
pertinent corporate documents and properties of the Company reasonably
requested by any such Persons, and cause the respective officers,
directors, employees, and any other agents of the Company to supply all
information reasonably requested by any such Persons, in connection with a
Registration Statement; provided that any such records, documents,
properties and such information that is designated in writing by the
Company, in good faith, as confidential at the time of delivery of such
records, documents, properties or information shall be kept confidential by
any such Persons and shall be used only in connection with such
Registration Statement, unless disclosure thereof is made in connection
with a court proceeding or required by law, or such information has become
available (not in violation of this agreement) to the public generally or
through a third party without an accompanying obligation of
confidentiality, and the Company shall be entitled to request that such
Persons sign a confidentiality agreement to the foregoing effect;
(p) (i) in the case of an Exchange Offer, a reasonable time prior to
the filing of any Exchange Offer Registration Statement, any Prospectus
forming a part thereof, any amendment to an Exchange Offer Registration
Statement or amendment or supplement to a Prospectus, provide copies of
such document to the Initial Purchaser, and make such changes in any such
document prior to the filing thereof as the Initial Purchaser or their
counsel may reasonably request and is agreed to by the Company (such
agreement not to be unreasonably withheld); (ii) in the case of a Shelf
Registration, a reasonable time prior to filing any Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to such
Shelf Registration Statement or amendment or supplement to such Prospectus,
other than amendments comprising regular filings of any document or report
under the Exchange Act, at any time following the effectiveness of the
applicable Registration Statement hereunder, where such filing is made as
part of the Company's periodic disclosure obligations under Sections 13 and
15 of the Exchange Act, provide
19
copies of such document to Holders' Counsel, to the Initial Purchaser, and
to the underwriter or underwriters of an underwritten offering of Transfer
Restricted Notes, if any, and make such changes in any such document prior
to the filing thereof as counsel to the Initial Purchaser, Holders' Counsel
or any underwriter may request and is agreed to by the Company (such
agreement not to be unreasonably withheld); and (iii) cause the
representatives of the Company to be available for discussion of such
document as shall be reasonably requested by Holders' Counsel, the Initial
Purchaser on behalf of such Holders or any underwriter, and shall not at
any time make any filing of any such document of which Holders' Counsel,
the Initial Purchaser or any underwriter shall not have previously been
advised and furnished a copy or to which such Holders, the Initial
Purchaser on behalf of such Holders, their counsel or any underwriter shall
reasonably object within a reasonable time period;
(q) in the case of a Shelf Registration, use its best efforts to cause
all Transfer Restricted Notes to be listed on any securities exchange on
which similar debt securities issued by the Company are then listed if
requested by the Majority Holders or by the underwriter or underwriters of
an underwritten offering of Transfer Restricted Notes, if any;
(r) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC and make available to its security holders, as
soon as reasonably practicable (but not until the end of the first full
fiscal quarter following effectiveness), an earnings statement covering at
least 12 months which shall satisfy the provisions of Section 11(a) of the
1933 Act and Rule 158 thereunder; and
(s) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter and its counsel.
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Transfer Restricted Notes to furnish to the Company such information
regarding such Holder (and if such Holder is not the beneficial owner, the
beneficial owner) and the proposed distribution by such Holder (and if such
Holder is not the beneficial owner, the beneficial owner) of such Transfer
Restricted Notes as the Company may from time to time reasonably request in
writing.
In the case of a Shelf Registration Statement or the filing of a
Broker Shelf Registration Statement or, during the Broker Prospectus Period
only, in the case of an Exchange Offer Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company of the happening of any
event or the discovery of any facts, each of the kind described in Section
3(e)(ii)-(vii) hereof, such Holder will forthwith discontinue disposition of
Transfer Restricted Notes pursuant to such Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(k) hereof, and, if so directed by the Company, such
Holder will deliver to the Company (at the Company's expense) all copies in its
possession, other than permanent file copies then in such Holder's possession,
of
20
the Prospectus covering such Transfer Restricted Notes current at the time of
receipt of such notice. Each Holder agrees to keep confidential the cause of any
such notice of suspension or other information provided to them by the Company
with respect thereto or any other event which would materially adversely affect
the Company.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
-
substance satisfactory to such Holder, to the effect that the holding by such
Holder of such securities is not to be construed as a recommendation by such
Holder of the investment quality of the Company's securities covered thereby and
that such holding does not imply that such Holder will assist in meeting any
future financial requirements of the Company, or (ii) in the event that such
--
reference to such Holder by name or otherwise is not required by the Securities
Act or any similar federal statute then in force, the deletion of the reference
to such Holder.
4. Underwritten Registrations. (a) If any of the Transfer
--------------------------
Restricted Notes covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will manage the offering will be selected by the Majority
Holders of such Transfer Restricted Notes included in such offering, provided
such banker or manager is acceptable to the Company, acting reasonably.
(b) No Holder of Transfer Restricted Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Transfer Restricted Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
(c) Notwithstanding anything to the contrary contained herein, (i)
the Company shall not be required to cooperate with an underwritten offering
unless a request for an underwritten offering is made by holders of 33-1/3% of
Transfer Restricted Notes outstanding, (ii) the Company shall not be obligated
to cooperate with more than one underwritten offering pursuant to this
Agreement, (iii) upon receipt of a request to prepare and file an amendment or
supplement to a Registration Statement and Prospectus in connection with an
underwritten offering, the Company may delay the filing of any such amendment or
supplement for up to 120 days if the Company in good faith has a valid business
reason for such delay provided that nothing in this clause (iii) limits the
Company's obligations under Section 2(d)(iii), and (iv) the Company shall not be
required to pay more than an aggregate of $200,000 of Registration Expenses, in
addition to internal expenses of the Company (including, without limitation,
salaries of officers and employees performing legal and accounting duties) in
connection with any such underwritten offering.
5. Indemnification and Contribution. (a) Each of the Company and
--------------------------------
the Guarantors, jointly and severally, agrees to indemnify and hold harmless the
Initial Purchaser,
21
each Holder, including Participating Broker-Dealers, each underwriter who
participates in an offering of Transfer Restricted Notes, their respective
affiliates, and their respective directors, officers, employees, agents and each
Person, if any, who controls any of such parties within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
(or any amendment thereto) pursuant to which Exchange Notes or Transfer
Restricted Notes were registered under the 1933 Act, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever, in each case, based upon any such untrue statement or omission,
or any such alleged untrue statement or omission; provided that (subject to
Section 5(d) below) any such settlement is effected with the written
consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred (including
the reasonable fees and disbursements of one counsel chosen by any
indemnified party), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
court or governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) of this Section 5(a);
provided, however, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent (i) arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Initial Purchaser, any Holder, including Participating Broker-Dealers, or any
underwriter expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) or (B)
resulting from the use of the Prospectus during a period when the use of the
Prospectus has been suspended in accordance with Section 2(d)(iii), Section
3(e)(v) and the penultimate paragraph of Section 3 hereof, provided, in each
case, that Holders received prior notice of such suspension.
22
(b) In the case of a Shelf Registration or Broker Shelf Registration
Statement, each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, the Initial Purchaser, each underwriter who participates
in an offering of Transfer Restricted Notes and the other selling Holders and
each of their respective directors and officers (including each officer of the
Company who signed the Registration Statement) and each Person, if any, who
controls the Company, the Initial Purchaser, any underwriter or any other
selling Holder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 5(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
Holder expressly for use in the Registration Statement (or any amendment
thereto), or the Prospectus (or any amendment or supplement thereto); provided,
however, that no such Holder shall be liable for any claims hereunder in excess
of the amount of net proceeds received by such Holder from the sale of Transfer
Restricted Notes pursuant to such Shelf Registration Statement.
(c) In case any action shall be commenced involving any Person in
respect of which indemnity may be sought pursuant to either paragraph (a) or (b)
above, such Person (the "indemnified party") shall give notice as promptly as
-----------------
reasonably practicable to each Person against whom such indemnity may be sought
(the "indemnifying party"), but failure to so notify an indemnifying party shall
------------------
not relieve such indemnifying party from any liability hereunder to the extent
it is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 5(a) above, counsel to the indemnified parties shall (subject to the
following sentence) be selected by Goldman, Sachs & Co., and, in the case of
parties indemnified pursuant to Section 5(b) above, counsel to the indemnified
parties shall be selected by the Company. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof with counsel
satisfactory to such indemnified party; provided, that if the defendants in any
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be one or
more legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnifying party shall not have the right to direct the defense of such action
on behalf of such indemnified party or parties and such indemnified party or
parties shall have the right to select separate counsel to defend such action on
behalf of such indemnified party or parties. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) separate from their own counsel for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances; after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will
23
not be liable to such indemnified party under this Section 5 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the provisos to the preceding sentence (it being understood,
however, that in connection with such action the indemnifying party shall not be
liable for the expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations or circumstances,
designated by Goldman, Sachs & Co. in the case of paragraph (a) of this Section
5, representing the indemnified parties under such paragraph (a) who are parties
to such action or actions) or (ii) the indemnifying party does not promptly
retain counsel satisfactory to the indemnified party or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. The indemnifying party will not be liable for
the costs and expenses of any settlement of such action effected by such
indemnified party without the consent of the indemnifying party.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding, by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 5 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 5(a)(ii) hereof effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in any of the indemnity
provisions set forth in this Section 5 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, in such proportion as is appropriate to reflect the relative fault of
such indemnifying party or parties on the one hand, and such indemnified party
or parties on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party or parties on the one hand, and such indemnified party or
parties on the other hand shall be
24
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by such indemnifying party
or parties or such indemnified party or parties and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company, the Guarantors, the Initial Purchaser
and the Holders of the Transfer Restricted Notes agree that it would not be just
and equitable if contribution pursuant to this Section 5 were determined by pro
rata allocation (even if the Holders were treated as one entity, for such
purpose) or by another method of allocation which does not take account of the
equitable considerations referred to above in Section 5. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 5 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5, each Person, if any, who
controls the Initial Purchaser or Holder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Initial Purchaser or Holder, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each Person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. Notwithstanding the provisions of this Section
5(e), no Holder shall be required to contribute any amount in excess of the
amount by which the net proceeds received by such Holder from the sale of
Transfer Restricted Notes exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
6. Miscellaneous. (a) Rule 144 and Rule 144A. For so long as the
------------- ----------------------
Company is subject to the reporting requirements of Section 13 or 15(d) of the
1934 Act, the Company covenants that it will file the reports required to be
filed by it under Section 13(a) or 15(d) of the 1934 Act and the rules and
regulations adopted by the SEC thereunder, and that if it ceases to be so
required to file such reports, it will upon the request of any Holder of
Transfer Restricted Notes (i) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver
such information to a prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act and take such further action as any
Holder of Transfer Restricted Notes may reasonably request, and (iii) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Transfer
Restricted Notes without registration under the 1933 Act within the limitation
of the exemptions provided by (x) Rule 144 under the 1933 Act, as such Rule may
be amended from time to time, (y) Rule 144A under the 1933 Act, as such Rule may
be amended from time to time, or (z) any similar rules or regulations hereafter
adopted by the SEC. Upon the written request of any Holder of Transfer
Restricted Notes, the Company
25
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into nor
--------------------------
will it on or after the date of this Agreement enter into any agreement which is
inconsistent with the rights granted to the Holders of Transfer Restricted Notes
in this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding Transfer
Restricted Notes affected by such amendment, modification, supplement, waiver or
departure; provided, however, that no amendment, modification, supplement or
waiver or consent to any departure from the provisions of Section 5 hereof shall
be effective as against any Holder of Transfer Restricted Notes unless consented
to in writing by such Holder.
(d) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, telecopier, or any courier guaranteeing overnight delivery (i) if to
a Holder (other than an Initial Purchaser), at the most current address set
forth on the records of the Registrar under the Indenture, (ii) if to an Initial
Purchaser, at the most current address given by such Initial Purchaser to the
Company by means of a notice given in accordance with the provisions of this
Section 6(d), which address initially is the address set forth in the Purchase
Agreement; and (iii) if to the Company, initially at the address set forth in
the Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 6(d).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged, if telecopied; and on the next business day if timely delivered
to an air courier guaranteeing overnight delivery.
(e) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Notes in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Transfer Restricted
Notes, in any manner, whether by operation of law or otherwise, such Transfer
Restricted Notes shall be held subject to all of the terms of this Agreement,
and by taking and holding such Transfer Restricted Notes, such Person shall be
conclusively deemed to have agreed to be bound by and to perform
26
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiary. The Holders shall be third party
-----------------------
beneficiaries to the agreements made hereunder between the Company on the one
hand, and the Initial Purchaser, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Entire Agreement. This Agreement embodies the entire agreement
----------------
and understanding between the Company and each other party hereto relating to
the subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter.
(k) Severability. In the event that any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
[signature page follows]
27
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
UNITED RENTALS (NORTH AMERICA), INC.
By ________________________________
Name: Michael J. Nolan
Title: Chief Financial Officer
GUARANTORS:
A&A TOOL RENTALS & SALES, INC.
ACG, INC.
ADCO EQUIPMENT, INC.
ARROW EQUIPMENT COMPANY
AUSTINO'S LIFTRUCKS, INC.
BNR EQUIPMENT, INC.
CORAN ENTERPRISES, INCORPORATED
DEALERS SERVICE COMPANY
GRAND VALLEY EQUIPMENT CO.
HIGH REACH CO., INC.
INDEPENDENT SCISSOR LIFTS, INC.
JBK, INC.
KUBOTA OF GRAND RAPIDS, INC.
LIFT, INC.
MADISON EQUIPMENT SALES AND RENTAL, INC.
MARK EQUIPMENT, INC.
MERCER EQUIPMENT COMPANY
MISCO RENTS, INC.
MISSION VALLEY RENTALS, INC.
PALMER EQUIPMENT COMPANY, INC.
PAUL E. CARLSON, INC.
POWERS RENTALS & SALES, INC.
RENTALS TOOLS & EQUIPMENT CO. INTERNATIONAL, INC.
RENTALS UNLIMITED, INCORPORATED
ROSEDALE EQUIPMENT RENTAL, INC.
SPACE MAKER SYSTEMS OF VA., INC.
UNITED EQUIPMENT RENTAL OF HOUSTON, INC.
UNITED RENTALS, INC.
UNITED RENTALS AERIAL EQUIPMENT, INC.
UNITED RENTALS OF COLORADO, INC.
UNITED RENTALS OF KENTUCKY, INC.
28
UNITED RENTALS OF NEVADA, INC.
UNITED RENTALS OF NEW YORK, INC.
UNITED RENTALS OF SOUTHERN CALIFORNIA, INC.
UNITED RENTALS OF UTAH, INC.
UNITED RENTALS NORTHWEST, INC.
U.S. RENTALS, INC.
WYNNE SYSTEMS, INC.
By: _____________________________________
Name: Michael J. Nolan
Title: Vice President and Secretary
29
Confirmed and accepted as of
the date first above written:
GOLDMAN, SACHS & CO.
By: _______________________________
Authorized Signatory
30
Schedule C
----------
UNITED RENTALS (NORTH AMERICA), INC.
Except as otherwise indicated, 100% of the voting stock of each of the
Subsidiaries listed below is owned by its parent.
- -------------------------------------------------------------------
STATE OF
NAME OF SUBSIDIARY INCORPORATION
- -------------------------------------------------------------------
A&A Tool Rentals & Sales, Inc. California
- -------------------------------------------------------------------
ACG, Inc. Indiana
- -------------------------------------------------------------------
Adco Equipment, Inc. California
- -------------------------------------------------------------------
Arrow Equipment Corporation Illinois
- -------------------------------------------------------------------
Austino's Liftrucks, Inc. New Jersey
- -------------------------------------------------------------------
BNR Equipment, Inc. New York
- -------------------------------------------------------------------
Coran Enterprises, Incorporated (d/b/a A-1Rents) California
- -------------------------------------------------------------------
Dealers Service Company New Jersey
- -------------------------------------------------------------------
Grand Valley Equipment Co. Michigan
- -------------------------------------------------------------------
High Reach Co., Inc. Pennsylvania
- -------------------------------------------------------------------
Independent Scissor Lifts, Inc. California
- -------------------------------------------------------------------
JBK, Inc. Ohio
- -------------------------------------------------------------------
Kubota of Grand Rapids, Inc. Michigan
- -------------------------------------------------------------------
Lift, Inc. Maryland
- -------------------------------------------------------------------
Madison Equipment Sales and Rental, Inc. Alabama
- -------------------------------------------------------------------
Mark Equipment, Inc. Alabama
- -------------------------------------------------------------------
Mercer Equipment Company North Carolina
- -------------------------------------------------------------------
Misco Rents, Inc. Indiana
- -------------------------------------------------------------------
Mission Valley Rentals, Inc. California
- -------------------------------------------------------------------
Palmer Equipment Company, Inc. Michigan
- -------------------------------------------------------------------
Paul E. Carlson, Inc. Minnesota
- -------------------------------------------------------------------
Powers Rentals & Sales, Inc. California
- -------------------------------------------------------------------
Rentals Tools & Equipment Co. International, Inc. Maryland
- -------------------------------------------------------------------
Rentals Unlimited, Incorporated Rhode Island
- -------------------------------------------------------------------
Rosedale Equipment Rental, Inc. California
- -------------------------------------------------------------------
Space Maker Systems of Va., Inc. Virginia
- -------------------------------------------------------------------
United Equipment Rental of Houston, Inc. Texas
(formerly J&J Rentals Services Inc.)
- -------------------------------------------------------------------
United Rentals, Inc. Washington
- -------------------------------------------------------------------
United Rentals Aerial Equipment, Inc. (formerly Delaware
United Rentals of New Jersey, Inc.)
- -------------------------------------------------------------------
United Rentals of Colorado, Inc.
- -------------------------------------------------------------------
31
- -------------------------------------------------------------------
STATE OF
NAME OF SUBSIDIARY INCORPORATION
- -------------------------------------------------------------------
(formerly Santa Fe Supply & Rental, Inc.) Colorado
- -------------------------------------------------------------------
United Rentals of Kentucky, Inc. Kentucky
- -------------------------------------------------------------------
United Rentals of Nevada, Inc. (formerly Nevada Nevada
High Reach, Inc.)
- -------------------------------------------------------------------
United Rentals of New York, Inc. New York
- -------------------------------------------------------------------
United Rentals of Southern California, Inc. California
(d/b/a Able Equipment) (formerly Rental
Equipment, Inc.)
- -------------------------------------------------------------------
United Rentals of Utah, Inc. Utah
- -------------------------------------------------------------------
United Rentals Northwest, Inc. (formerly High Oregon
Reach, Inc.)
- -------------------------------------------------------------------
U.S. Rentals, Inc. Delaware
- -------------------------------------------------------------------
Wynne Systems, Inc. California
- -------------------------------------------------------------------
- -------------------------------------------------------------------
- -------------------------------------------------------------------
32
NOTES REGISTRATION RIGHTS AGREEMENT
Dated as of December 15, 1998
among
United Rentals (North America), Inc.
Company
and
The Subsidiaries Named in the Schedule hereto
Guarantors
and
Goldman, Sachs & Co.,
Initial Purchaser
33
Table of Contents
-----------------
Page
----
1. Definitions
1933 Act................................................... 1
1934 Act................................................... 1
Broker Prospectus Period................................... 1
Broker Shelf Registration Statement........................ 1
Depositary................................................. 1
Exchange Notes............................................. 1
Exchange Offer............................................. 2
Exchange Offer Registration................................ 2
Exchange Offer Registration Statement...................... 2
Exchange Period............................................ 2
Holders.................................................... 2
Holders' Counsel........................................... 2
Indenture.................................................. 2
Initial Purchaser.......................................... 2
Majority Holders........................................... 2
Original Issue Date........................................ 3
Participating Broker-Dealer................................ 3
Person..................................................... 3
Prospectus................................................. 3
Purchase Agreement......................................... 3
Registration Default....................................... 3
Registration Expenses...................................... 3
Registration Statement..................................... 4
SEC........................................................ 4
Shelf Registration......................................... 4
Shelf Registration Statement............................... 4
Transfer Restricted Notes.................................. 5
Trustee.................................................... 5
2. Registration Under the 1933 Act.................................. 5
(a) Exchange Offer Registration......................... 5
(b) Shelf Registration.................................. 7
(c) Expenses............................................ 9
(d) Effective Registration Statement.................... 9
(e) Accrual and Payment of Additional Interest.......... 11
(f) Specific Enforcement................................ 12
3. Registration Procedures.......................................... 12
4. Underwritten Registrations....................................... 21
34
5. Indemnification and Contribution................................. 22
6. Miscellaneous.................................................... 26
(a) Rule 144 and Rule 144A.............................. 26
(b) No Inconsistent Agreements.......................... 26
(c) Amendments and Waivers.............................. 26
(d) Notices............................................. 27
(e) Successors and Assigns.............................. 27
(f) Third Party Beneficiary............................. 27
(g) Counterparts........................................ 27
(h) Headings............................................ 28
(i) GOVERNING LAW....................................... 28
(j) Entire Agreement.................................... 28
(k) Severability........................................ 28
35