EXHIBIT 10(d)
$450,000,000
UNITED RENTALS (NORTH AMERICA), INC.
10 3/4% Senior Notes Due 2008
REGISTRATION RIGHTS AGREEMENT
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April 20, 2001
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
Banc of America Securities LLC
Deutsche Banc Xxxx. Xxxxx Inc.
Chase Securities Inc.
Fleet Securities, Inc.
Credit Lyonnais Securities (USA) Inc.
First Union Securities, Inc.
Scotia Capital (USA) Inc.
c/o Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
United Rentals (North America), Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the initial purchasers, for whom
Credit Suisse First Boston Corporation, Xxxxxxx, Xxxxx & Co. and Xxxxxxx Xxxxx
Xxxxxx Inc. are joint book-running managers (collectively, the "Initial
Purchasers"), upon the terms set forth in a purchase agreement of even date
herewith (the "Purchase Agreement"), $450,000,000 aggregate principal amount of
its 10 3/4% Senior Notes due 2008 (the "Notes") to be guaranteed (the
"Guaranties") by the entities listed herein (the "Guarantors"). The Notes and
the Guaranties are together referred to as the "Initial Securities". The Initial
Securities will be issued pursuant to an Indenture, dated as of April 20, 2001
(the "Indenture"), among the Company, the Guarantors named therein and The Bank
of New York, as trustee (the "Trustee"). As an inducement to the Initial
Purchasers to enter into the Purchase Agreement, the Company agrees with the
Initial Purchasers, for the benefit of the Initial Purchasers and the holders of
the Securities (as defined below) (collectively the "Holders"), as follows:
1. Registered Exchange Offer. Unless not permitted by applicable law, the
Company shall prepare and, not later than 90 days (such 90th day being a "Filing
Deadline") after the date on which the Initial Purchasers purchase the Initial
Securities pursuant to the Purchase Agreement (the "Closing Date"), file with
the Securities and Exchange Commission (the "Commission") a registration
statement (the "Exchange Offer Registration Statement") on an appropriate form
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to a proposed offer (the "Registered Exchange Offer") to the Holders of
Transfer Restricted Securities (as defined in Section 6 hereof), who are not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer, to issue and deliver to such Holders, in exchange for
the Initial Securities, a like aggregate principal amount of debt securities of
the Company issued under the Indenture, identical in all material respects to
the Initial Securities and registered under the Securities Act (the "Exchange
Securities"). The Company shall use its best efforts to (i) cause such Exchange
Offer Registration Statement to become effective under the
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Securities Act within 150 days after the Closing Date (such 150th day being an
"Effectiveness Deadline") and (ii) keep the Exchange Offer Registration
Statement effective for not less than 30 days (or longer, if required by
applicable law) after the date notice of the Registered Exchange Offer is mailed
to the Holders (such period being called the "Exchange Offer Registration
Period").
If the Company commences the Registered Exchange Offer, the Company will be
required to consummate the Registered Exchange Offer no later than 180 days
after the Closing Date (such 180th day being the "Consummation Deadline").
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall, as soon as practicable, commence the
Registered Exchange Offer, it being the objective of such Registered Exchange
Offer to enable each Holder of Transfer Restricted Securities electing to
exchange the Initial Securities for Exchange Securities (assuming that such
Holder is not an affiliate of the Company within the meaning of the Securities
Act, acquires the Exchange Securities in the ordinary course of such Xxxxxx's
business and has no arrangements with any person to participate in the
distribution of the Exchange Securities and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer) to
trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States.
The Company acknowledges that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Initial Securities, acquired for its own account as a
result of market making activities or other trading activities, for Exchange
Securities (an "Exchanging Dealer"), is required to deliver a prospectus
containing the information set forth in (a) Annex A hereto on the cover, (b)
Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of
the Exchange Offer" section, and (c) Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell
Securities (as defined below) acquired in exchange for Initial Securities
constituting any portion of an unsold allotment, is required to deliver a
prospectus containing the information required by Items 507 or 508 of Regulation
S-K under the Securities Act, as applicable, in connection with such sale.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the prospectus
contained therein, in order to permit such prospectus to be lawfully delivered
by all persons subject to the prospectus delivery requirements of the Securities
Act for a period of time commencing on the day the Registered Exchange Offer is
consummated and continuing for 90 days (or such shorter period during which
Exchanging Dealers and other persons, if any, are required by law to deliver
such prospectus); provided, however, that such period may be extended pursuant
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to Section 3(j) below.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
such Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "Private Exchange") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Company
issued under the Indenture and identical in all material respects to the Initial
Securities (the "Private Exchange Securities"). The Initial Securities, the
Exchange Securities and the Private Exchange Securities are herein collectively
called the "Securities".
In connection with the Registered Exchange Offer, the Company shall:
(a) 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;
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(b) keep the Registered Exchange Offer open for not less than 30 days
(or longer, if required by applicable law) after the date notice thereof is
mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York,
which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last business day on which
the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer or
the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not
withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(y) deliver, or cause to be delivered, to the Trustee for cancelation
all the Initial Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each
Holder of the Initial Securities, Exchange Securities or Private Exchange
Securities, as the case may be, equal in principal amount to the Initial
Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be subject
to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no interest has been
paid on the Initial Securities, from the date of original issue of the Initial
Securities (the "Original Issue Date").
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule
405 of the Securities Act, of the Company or if it is an affiliate, such Holder
will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (iv) if such Holder is not a broker-
dealer, that it is not engaged in, and does not intend to engage in, the
distribution of the Exchange Securities and (v) if such Holder is a broker-
dealer, that it will receive Exchange Securities for its own account in exchange
for Initial Securities that were acquired as a result of market-making
activities or other trading activities and that it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will ensure that
(i) any Exchange Offer Registration Statement and any amendment thereto and any
prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration Statement and any amendment
thereto does not, when it
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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
Exchange Offer Registration Statement, and any supplement to such prospectus,
does not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
is not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Registered Exchange Offer is not consummated by the
180th day after the Closing Date, (iii) any Initial Purchaser so requests with
respect to the Initial Securities (or the Private Exchange Securities) not
eligible to be exchanged for Exchange Securities in the Registered Exchange
Offer and held by it following consummation of the Registered Exchange Offer or
(iv) any Holder (other than an Exchanging Dealer) is not eligible to participate
in the Registered Exchange Offer or, in the case of any Holder (other than an
Exchanging Dealer) that participates in the Registered Exchange Offer, such
Holder does not receive freely tradeable Exchange Securities on the date of the
exchange and any such Holder so requests, the Company shall take the following
actions (the date on which any of the conditions described in the foregoing
clauses (i) through (iv) occur, including in the case of clauses (iii) or (iv)
the receipt of the required notice, being a "Trigger Date"):
(a) The Company shall, on or prior to 90 days after the Trigger
Date (such 90th day being a "Filing Deadline"), use its best efforts to
file with the Commission and thereafter use its best efforts to cause to be
declared effective no later than 150 days after the Trigger Date (such
150th day being an "Effectiveness Deadline") a registration statement (the
"Shelf Registration Statement" and, together with the Exchange Offer
Registration Statement, a "Registration Statement") on an appropriate form
under the Securities Act relating to the offer and sale of the Transfer
Restricted Securities by the Holders thereof from time to time in
accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act (hereinafter,
the "Shelf Registration"); 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,
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however, that no Holder (other than an Initial Purchaser) shall be entitled
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to have the Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all the
provisions of this Agreement applicable to such Holder.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
relevant Securities for a period of two years (or for such longer period if
extended pursuant to Section 3(j) below) from the date of its effectiveness
or such shorter period that will terminate when all the Securities covered
by the Shelf Registration Statement (i) have been sold pursuant thereto or
(ii) are no longer restricted securities (as defined in Rule 144 under the
Securities Act, or any successor rule thereof) (such period being the
"Shelf Registration Period"). The Company shall be deemed not to have used
its best efforts to keep the Shelf Registration Statement effective during
the requisite period if it voluntarily takes any action that would result
in Holders of Securities covered thereby not being able to offer and sell
such Securities during that period, unless such action is required by
applicable law.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company use its best efforts to ensure that the Shelf
Registration Statement and the related prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement, amendment or supplement, (i) comply in all material respects
with the applicable requirements of the Securities Act and the rules and
regulations thereunder; (ii) the
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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 does not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any Registered
Exchange Offer contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior
to the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that an Initial Purchaser
(with respect to any portion of an unsold allotment from the original
offering) is participating in the Registered Exchange Offer or the Shelf
Registration Statement, the Company shall use its best efforts to reflect
in each such document, when so filed with the Commission, such comments as
such Initial Purchaser reasonably may propose; (ii) include the information
set forth in Annex A hereto on the cover, in Annex B hereto in the
"Exchange Offer Procedures" section and the "Purpose of the Exchange Offer"
section and in Annex C hereto in the "Plan of Distribution" section of the
prospectus forming a part of the Exchange Offer Registration Statement and
include the information set forth in Annex D hereto in the Letter of
Transmittal delivered pursuant to the Registered Exchange Offer; (iii) if
requested by an Initial Purchaser, include the information required by
Items 507 or 508 of Regulation S-K under the Securities Act, as applicable,
in the prospectus forming a part of the Exchange Offer Registration
Statement; (iv) include within the prospectus contained in the Exchange
Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, which shall contain a
summary statement of the positions taken or policies made by the staff of
the Commission with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
Exchange Securities received by such broker-dealer in the Registered
Exchange Offer (a "Participating Broker-Dealer"), whether such positions or
policies have been publicly disseminated by the staff of the Commission or
such positions or policies, in the reasonable judgment of the Initial
Purchasers based upon advice of counsel (which may be in-house counsel),
represent the prevailing views of the staff of the Commission; and (v) in
the case of a Shelf Registration Statement, include the names of the
Holders who propose to sell Securities pursuant to the Shelf Registration
Statement as selling securityholders.
(b) After the Registration Statement has been declared effective,
the Company shall give written notice to the Initial Purchasers, the
Holders of the Securities and any Participating Broker-Dealer from whom the
Company has received prior written notice that it will be a Participating
Broker-Dealer in the Registered Exchange Offer of the occurrence of any of
the following that occurs after the Registration Statement has been
declared effective (which notice pursuant to clauses (ii)-(v) hereof shall
be accompanied by an instruction to suspend the use of the prospectus until
the requisite changes have been made):
(i) when the Registration Statement or any amendment
thereto has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has 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
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Sections 13 and 15 of the Exchange Act;
(ii) of any request by the Commission or any state securities
authority for amendments or supplements to the Registration
Statement or the prospectus included therein or for additional
information;
(iii) of the issuance by the Commission or any state
securities authority of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings
for that purpose;
(iv) of the receipt by the Company or its legal counsel of
any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(v) of the happening of any event that requires the Company
to make changes in the Registration Statement or the prospectus in
order that the Registration Statement or the prospectus do not
contain an untrue statement of a material fact nor omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the prospectus, in light of the
circumstances under which they were made) not misleading; and
(vi) of any determination by the Company that a post-
effective amendment to a Registration Statement would be
appropriate.
(c) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, at least one
copy of the Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder
so requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer and each
Initial Purchaser, and to any other Holder who so requests, without charge,
at least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if any Initial Purchaser or any such Holder requests, all
exhibits thereto (including those incorporated by reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus (including
each preliminary prospectus) included in the Shelf Registration Statement
and any amendment or supplement thereto as such person may reasonably
request. The Company consents, subject to the provisions of this Agreement,
to the use of the prospectus or any amendment or supplement thereto by each
of the selling Holders of the Securities in connection with the offering
and sale of the Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
(g) The Company shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement and any amendment or supplement
thereto as such persons may reasonably request. The Company consents,
subject to the provisions of this Agreement, to
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the use of the prospectus or any amendment or supplement thereto by any
Initial Purchaser, if necessary, any Participating Broker-Dealer and such
other persons required to deliver a prospectus following the Registered
Exchange Offer in connection with the offering and sale of the Exchange
Securities covered by the prospectus, or any amendment or supplement
thereto, included in such Exchange Offer Registration Statement.
(h) Prior to any public offering of the Securities pursuant to any
Registration Statement the Company shall use its reasonable best efforts to
register or qualify or cooperate with the Holders of the Securities
included therein and their respective counsel in connection with the
registration or qualification of the Securities for offer and sale under
the securities or "blue sky" laws of such states of the United States as
any Holder of the Securities reasonably requests in writing and do any and
all other acts or things necessary or advisable to enable the offer and
sale in such jurisdictions of the Securities covered by such Registration
Statement; provided, however, that the Company shall not be required to (i)
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qualify generally to do business in any jurisdiction where it is not then
so qualified or (ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction where it is not then
so subject.
(i) The Company shall cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates representing
the Securities to be sold pursuant to any Registration Statement free of
any restrictive legends and in such denominations and registered in such
names as the Holders may request a reasonable period of time prior to sales
of the Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above during the period for which the Company
is required to maintain an effective Registration Statement, the Company
shall use its best efforts to prepare and file a post-effective amendment
to the Registration Statement or a supplement to the related prospectus and
any other required document so that, as thereafter delivered to Holders of
the Securities or purchasers of Securities, the prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
The Company hereby agrees to notify the Initial Purchasers, the Holders of
the Securities and any known Participating Broker-Dealer in accordance with
paragraphs (ii) through (v) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made,
then the Initial Purchasers, the Holders of the Securities and any such
Participating Broker-Dealers shall suspend use of such prospectus, and the
period of effectiveness of the Shelf Registration Statement provided for in
Section 2(b) above and the Exchange Offer Registration Statement provided
for in Section 1 above shall each be extended by the number of days from
and including the date of the giving of such notice to and including the
date when the Initial Purchasers, the Holders of the Securities and any
known Participating Broker-Dealer shall have received such amended or
supplemented prospectus pursuant to this Section 3(j).
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Initial
Securities, the Exchange Securities or the Private Exchange Securities, as
the case may be, and provide the applicable trustee with printed
certificates for the Initial Securities, the Exchange Securities or the
Private Exchange Securities, as the case may be, in a form eligible for
deposit with The Depository Trust Company.
(l) The Company will use its best efforts to comply with all rules
and regulations of the Commission to the extent and so long as they are
applicable to the Registered Exchange Offer or the Shelf Registration and
will make generally available to its security holders (or otherwise provide
in accordance with Section 11(a) of the Securities Act) an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act,
no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the
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Company's first fiscal quarter commencing after the effective date of the
Registration Statement, which statement shall cover such 12-month period.
(m) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended, in a timely manner and containing
such changes, if any, as shall be necessary for such qualification. In the
event that such qualification would require the appointment of a new
trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(n) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Securities as
the Company may from time to time reasonably require for inclusion in the
Shelf Registration Statement, and the Company may exclude from such
registration the Securities of any Holder that unreasonably fails to
furnish such information within a reasonable time after receiving such
request.
(o) Subject to Section 8(c), the Company shall enter into such
customary agreements (including, if requested, an underwriting agreement in
customary form) and take all such other action, if any, as the Holders of a
majority of the aggregate principal amount of Securities covered by such
Registration Statement (the "Majority Holders") shall reasonably request
in order to facilitate the disposition of the Securities pursuant to any
Shelf Registration.
(p) 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 counsel selected by the
Majority Holders ("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.
(q) Subject to Section 8(c), in the case of any Shelf Registration,
the Company, if requested by counsel to the Majority Holders of the
Securities covered thereby, shall cause (i) its counsel to deliver an
opinion and updates thereof relating to the Securities in customary form
addressed to such Holders and the managing underwriters, if any, thereof
and dated, in the case of the initial opinion, the effective date of such
Shelf Registration Statement in form, substance and scope customarily
covered in opinions delivered in connection with shelf registrations;
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
Securities (such additional opinions to be agreed upon by the underwriters
and the Company, such agreement not to be unreasonably withheld), (ii) its
officers to execute and deliver all customary documents and certificates
and updates thereof requested by any underwriters of the applicable
Securities and (iii) its independent public accountants [and the
independent public accountants
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with respect to any other entity for which financial information is
provided in the Shelf Registration Statement] to provide to the selling
Holders of the applicable Securities and any underwriter therefor a comfort
letter in customary form and covering matters of the type customarily
covered in comfort letters in connection with shelf registrations;
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
Securities (such letters to be agreed upon by the underwriters and such
accountants, such agreement not to be unreasonably withheld); subject to
receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested by any
Initial Purchaser or any known Participating Broker-Dealer that is subject
to the prospectus delivery requirements of the Securities Act, and if a
Registration Statement is required to be filed under the Securities Act,
the Company shall cause (i) its counsel to deliver to such Initial
Purchaser or such Participating Broker-Dealer a signed opinion in the form
set forth in Section 6(d ) of the Purchase Agreement with such changes as
are customary in connection with the preparation of a Registration
Statement and (ii) its independent public accountants and the independent
public accountants with respect to any other entity for which financial
information is provided in the Registration Statement to deliver to such
Initial Purchaser or such Participating Broker-Dealer a comfort letter, in
customary form, meeting the requirements as to the substance thereof as set
forth in Section 6(a) and (b) of the Purchase Agreement, with appropriate
date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Initial Securities by Holders to the
Company (or to such other Person as directed by the Company) in exchange
for the Exchange Securities or the Private Exchange Securities, as the case
may be, the Company shall mark, or caused to be marked, on the Initial
Securities so exchanged that such Initial Securities are being canceled in
exchange for the Exchange Securities or the Private Exchange Securities, as
the case may be; in no event shall the Initial Securities be marked as paid
or otherwise satisfied.
(t) The Company will use its best efforts to (a) if the Initial
Securities have been rated prior to the initial sale of such Initial
Securities, confirm such ratings will apply to the Securities covered by a
Registration Statement, or (b) if the Initial Securities were not
previously rated, cause the Securities covered by a Registration Statement
to be rated with the appropriate rating agencies, if so requested by the
Majority Holders, or by the managing underwriters, if any.
(u) In the event that any broker-dealer registered under the Exchange
Act shall underwrite any Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules (the "Rules") of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the Company will
assist such broker-dealer in complying with the requirements of such Rules,
including, without limitation, by (i) if such Rules, including Rule 2720,
shall so require, engaging a "qualified independent underwriter" (as
defined in Rule 2720) to participate in the preparation of the Registration
Statement relating to such Securities, to exercise usual standards of due
diligence in respect thereto and, if any portion of the offering
contemplated by such Registration Statement is an underwritten offering or
is made through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section 5
hereof and (iii) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the requirements of
the Rules.
10
(v) The Company shall use its best efforts to take all other steps
necessary to effect the registration of the Securities covered by a
Registration Statement contemplated hereby.
4. Registration Expenses. Subject to Section 8(c), all expenses
incident to the Company's performance of and compliance with this Agreement
will be borne by the Company, regardless of whether a Registration
Statement is ever filed or becomes effective, including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing
certificates for the Securities to be issued in the Registered
Exchange Offer and the Private Exchange and printing of
Prospectuses), messenger and delivery services and telephone;
(iv) all rating agency fees;
(v) all fees and disbursements of counsel for the
Company;
(vi) all application and filing fees in connection with
listing the Exchange Securities on a national securities
exchange or automated quotation system pursuant to the
requirements hereof; and
(vii) all fees and disbursements of independent
certified public accountants of the Company (including the
expenses of any special audit and comfort letters required by or
incident to such performance).
(viii) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws,
(ix) all premiums and other costs of policies of insurance
maintained by the Company against liabilities arising out of the
public offering of the Transfer Restricted Securities being
registered (x) all 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 Securities or Transfer Restricted Securities in an
underwritten offering, (xi) 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 Securities or Transfer Restricted Securities being
registered shall pay all agency or brokerage fees and
commissions and underwriting discounts and commissions
attributable to the sale of Transfer Restricted Securities 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 and Section 3 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 Purchasers), in which event the aforementioned
registration expenses shall include the reasonable fees and
disbursements of such counsel up to a maximum of $80,000.
The Company will bear its internal expenses (including, without limitation,
all salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of
11
any annual audit and the fees and expenses of any person, including special
experts, retained by the Company.
5. Indemnification. (a) Each of the Company and the Guarantors
named in the Schedule hereto agree to indemnify and hold harmless the Initial
Purchasers, each Holder of the Securities, any Participating Broker-Dealer, each
underwriter who participates in an offering of Transfer Restricted Securities
and each person, if any, who controls such Initial Purchaser, Holder,
Participating Broker-Dealer or underwriter within the meaning of the Securities
Act or the Exchange Act (each Initial Purchaser, Holder, any Participating
Broker-Dealer, underwriter and such controlling persons are referred to
collectively as the "Indemnified Parties") from and against any losses, claims,
damages or liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities or
actions relating to purchases and sales of the Securities) to which each
Indemnified Party may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement or in any amendment or
supplement thereto, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in prospectus
or in any amendment or supplement thereto or in any preliminary prospectus
relating to a Shelf Registration, or arise out of, or are based upon, the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and shall reimburse,
as incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
-------- -------
(i) the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information pertaining to such Initial
Purchaser, Holder, Participating Broker-Dealer or underwriter and furnished to
the Company by or on behalf of such Initial Purchaser, Holder, Participating
Broker-Dealer or underwriter specifically for inclusion therein and (ii) with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus relating to a Shelf Registration
Statement shall not inure to the benefit of any Initial Purchaser, Holder,
Participating Broker-Dealer or underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased the Securities concerned,
to the extent that a prospectus relating to such Securities was required to be
delivered by such Initial Purchaser, Holder, Participating Broker-Dealer or
underwriter under the Securities Act in connection with such purchase and any
such loss, claim, damage or liability of such Initial Purchaser, Holder,
Participating Broker-Dealer or underwriter results from the fact that there was
not sent or given to such person, at or prior to the written confirmation of the
sale of such Securities to such person, a copy of the final prospectus if the
Company had previously furnished copies thereof to such Initial Purchaser,
Holder, Participating Broker-Dealer or underwriter; provided further, however,
-------- ------- -------
that this indemnity agreement will be in addition to any liability which the
Company may otherwise have to such Indemnified Party.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company, the Initial Purchasers, each
underwriter who participates in an offering of Transfer Restricted Securities
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 within the meaning
of the Securities Act or the Exchange Act from and against any losses, claims,
damages or liabilities or
12
any actions in respect thereof, to which the Company or any such controlling
person may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement or in any amendment or
supplement thereto, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in prospectus
or in any amendment or supplement thereto or in any preliminary prospectus
relating to a Shelf Registration, or arise out of, or are based upon, the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or omission or alleged untrue statement
or omission was made in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company by or on behalf of such
Holder specifically for inclusion therein; and, subject to the limitation set
forth immediately preceding this clause, shall reimburse, as incurred, the
Company for any legal or other expenses reasonably incurred by the Company or
any such controlling person in connection with investigating or defending any
loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Holder may otherwise
have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this Section
5 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 5,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 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. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action, and 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. 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, which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations.
13
The relative fault of the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Initial Purchaser,
Holder, Participating Broker-Dealer or underwriter or such other indemnified
party, as the case may be, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 5(d), the Holders of the
Securities shall not be required to contribute any amount in excess of the
amount by which the net proceeds received by such Holders from the sale of the
Securities pursuant to a Registration Statement exceeds the amount of damages
which such Holders have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this paragraph (d),
each person, if any, who controls such indemnified party within the meaning of
the Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act shall have
the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the sale
of the Securities pursuant to a Registration Statement and shall remain in full
force and effect, regardless of any termination or cancelation of this Agreement
or any investigation made by or on behalf of any indemnified party.
6. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "Additional Interest") with respect to the Securities shall be
assessed as follows if any of the following events occur (each such event in
clauses (i) through (iv) below being herein called a "Registration Default"):
(i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing
Deadline;
(ii) any Registration Statement required by this Agreement is not
declared effective by the Commission on or prior to the
applicable Effectiveness Deadline;
(iii) the Registered Exchange Offer has not been consummated on or
prior to the Consummation Deadline; or
(iv) any Registration Statement required by this Agreement has been
declared effective by the Commission but, thereafter during the
period during which the Company is required to maintain the
effectiveness thereof, (A) such Registration Statement
thereafter ceases to be effective or (B) such Registration
Statement or the related prospectus ceases to be usable in
connection with resales of Transfer Restricted Securities, for
a period of 60 days, whether or not consecutive, because either
(1) any event occurs as a result of which the related
prospectus forming part of such Registration Statement would
include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein in the light of the circumstances under which they were
made not misleading, or (2) it shall be necessary to
14
amend such Registration Statement or supplement the related
prospectus, to comply with the Securities Act or the
Exchange Act or the respective rules thereunder.
Each of the foregoing will constitute a Registration Default whatever the
reason for any such event and whether it is voluntary or involuntary or is
beyond the control of the Company or pursuant to operation of law or as a result
of any action or inaction by the Commission .
Additional Interest shall accrue on the Specified Securities over
and above the interest set forth in the title of the Securities from and
including the date on which any such Registration Default shall occur to but
excluding the date on which all such Registration Defaults have been cured, at a
rate of 0.25% per annum (the "Additional Interest Rate") for the first 90-day
period immediately following the occurrence of such Registration Default. The
Additional Interest Rate shall increase by an additional 0.25% per annum with
respect to each subsequent 90-day period until all Registration Defaults have
been cured, up to a maximum Additional Interest Rate of 1.0% per annum.
(b) A Registration Default referred to in Section 6(a)(iv) hereof
shall be deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement, or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related prospectus or (y) other material events, with respect
to the Company that would need to be described in such Shelf Registration
Statement or the related prospectus and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related prospectus to describe such events;
provided, however, that in any case if such Registration Default occurs for a
-------- -------
period of 60 days, whether or not consecutive, Additional Interest shall be
payable in accordance with the above paragraph from the day such Registration
Default occurs until such Registration Default is cured.
(c) Notwithstanding the foregoing, any Registration Default
specified in clause (i), (ii) or (iii) of the preceding section (a) 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.
(d) Any amounts of Additional Interest due pursuant to Section
6(a) will be payable in cash on the regular interest payment dates with respect
to the Securities. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest Rate by the principal amount of
the Securities and further multiplied by a fraction, the numerator of which is
the number of days such Additional Interest Rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months), and the denominator of which is 360.
(e) Following the cure of all Registration Defaults the accrual
of additional interest on the Specified Securities 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) or (iv) 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 Registration Default.
15
The Company shall pay the additional interest due on the
Securities 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 Securities, 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 Securities entitled to receive the interest payment to be made on such
date as set forth in the Indenture.
Additional interest pursuant to this Section 6 constitutes
liquidated damages with respect to Registration Defaults and shall be the
exclusive monetary remedy available to the Holders and/or the Initial Purchasers
with respect to any Registration Default.
(f) "Specified Securities" means the securities (not including
the Exchange Securities); provided, however, that, if the Registration Default
-------- -------
relates solely to a Shelf Registration Statement, then (i) if such Shelf
Registration Statement is required to cover both Securities and Exchange
Securities, the "Specified Securities" shall mean both the Securities and
Exchange Securities and (ii) if such Shelf Registration Statement is required to
cover only Exchange Securities, the "Specified Securities" shall mean only the
Exchange Securities; provided further, however, that if the Registration Default
-------- ------- -------
relates to an Exchange Offer Registration Statement that is unavailable for use
during the Participating Broker-Dealer Prospectus Period, the "Specified
Securities" shall mean the Exchange Securities.
(g) "Transfer Restricted Securities" means each Initial Security
until (i) the date on which such Security has been exchanged by a person other
than a broker-dealer for a freely transferable Exchange Security in the
Registered Exchange Offer, (ii) following the exchange by a broker-dealer in the
Registered Exchange Offer of an Initial Security for an Exchange Security, the
date on which such Exchange Security is sold to a purchaser who receives from
such 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 Security has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement, (iv) the date
on which such Security is distributed to the public pursuant to Rule 144 under
the Securities Act or is saleable pursuant to Rule 144(k) under the Securities
Act, (v) the date on which such Security shall have been otherwise transferred
by the Holder thereof and a new Security not bearing a legend restricting
further transfer shall have been delivered by the Issuer and subsequent
disposition of such Security shall not require registration or qualification
under the 1933 Act or any similar state law then in force , or (vi) such
Security ceases to be outstanding.
7. Rules 144 and 144A. The Company shall use its best efforts
to file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder of Securities,
make publicly available other information so long as necessary to permit sales
of their securities pursuant to Rules 144 and 144A. The Company covenants that
it will take such further action as any Holder of Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company will provide a copy of this
Agreement to prospective purchasers of Initial Securities identified to the
Company by the Initial Purchasers upon request. Upon the request of any Holder
of Initial Securities, the Company shall deliver to such Holder a written
statement as to whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities pursuant to the Exchange Act.
16
8. Underwritten Registrations. (a) If any of the Transfer
Restricted Securities 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 administer the offering ("Managing Underwriters") will be
selected by the Majority Holders of such Transfer Restricted Securities to be
included in such offering.
(b) No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
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 Securities 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 1, and (iv) the Company shall not be
required to pay more than an aggregate of $200,000 of registration-related
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.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under Section 1 and 2
hereof may result in material irreparable injury to the Initial Purchasers or
the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce the Company's obligations under
Sections 1 and 2 hereof. The Company further agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after
the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders 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 securities
under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, except by the Company and the
written consent of the Majority Holders affected by such amendment,
modification, supplement, waiver or consents.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, first-class
mail, facsimile transmission, or air courier which guarantees overnight
delivery:
17
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Initial Purchasers;
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
with a copy to:
Xxxxxxx, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxx
(3) if to the Company, at its address as follows:
United Rentals, Inc.
Five Greenwich Office Park
Greenwich, Ct 06830
Attention: Chief Financial Officer
with a copy to:
Xxxx, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxxxxx & Xxxxxx, LLP
00 X. 00xx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(e) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(f) Successors and Assigns. This Agreement shall be binding upon
the Company and its successors and assigns.
(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
18
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 WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
(j) Severability. If 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.
(k) Securities Held by the Company. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
is required hereunder, Securities held by the Company or its affiliates (other
than subsequent Holders of Securities if such subsequent Holders are deemed to
be affiliates solely by reason of their holdings of such Securities) shall not
be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers and the Company and the Guarantors in
accordance with its terms.
Very truly yours,
United Rentals (North America), Inc.
by
_________________________
Name:
Title:
FOR THE GUARANTORS LISTED ON
SCHEDULE A
by: _________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President and
Secretary
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
Credit Suisse First Boston Corporation
Xxxxxxx Xxxxx & Co.
Xxxxxxx Xxxxx Xxxxxx Inc.
By: Credit Suisse First Boston Corporation
by
_____________________________________
Name:
Title:
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that it will allow Participating Broker-Dealers and any other persons, if any,
with similar prospectus delivery requirements to use the prospectus contained in
the Exchange Offer Registration Statement in connection with the resale of such
Exchange Securities, for a period commencing on the day the Exchange Offer is
consummated and continuing for 90 days (or such shorter period during which
Participating Broker-Dealers are required by law to deliver such prospectus);
provided, however, that if for any day during such period the Company restricts
the use of such prospectus, such period shall be extended on a day-for-day
basis. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Initial Securities, where such Initial Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. See "Plan of
Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange
Securities. This Prospectus, as it may be amended or supplemented from time
to time, may be used by a broker-dealer in connection with resales of
Exchange Securities received in exchange for Initial Securities where such
Initial Securities were acquired as a result of market-making activities or
other trading activities. The Company has agreed that it will allow
Participating Broker-Dealers and any other persons, if any, with similar
prospectus delivery requirements to use the prospectus contained in the
Exchange Offer Registration Statement in connection with the resale of such
Exchange Securities, for a period commencing on the day the Exchange Offer
is consummated and continuing for 90 days (or such shorter period during
which Participating Broker-Dealers are required by law to deliver such
prospectus); provided, however, that if for any day during such period the
Company restricts the use of such prospectus, such period shall be extended
on a day-for-day basis. In addition, until , 200 , all dealers effecting
transactions in the Exchange Securities may be required to deliver a
prospectus./1/
The Company will not receive any proceeds from any sale of
Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be
sold from time to time in one or more transactions in the over-the-counter
market, in negotiated transactions, through the writing of options on the
Exchange Securities or a combination of such methods of resale, at market
prices prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it
for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and
any profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states
that, by acknowledging that it will deliver and by delivering a prospectus,
a broker-dealer will not be deemed to admit that it is an "underwriter"
within the meaning of the Securities Act.
For a period of 90 days after the Expiration Date the
Company will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that
requests such documents in the Letter of Transmittal. The Company has
agreed to pay all expenses incident to the Exchange Offer other than
commissions or concessions of any brokers or dealers and will indemnify the
Holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
____________________
/1/ In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus. This sentence
may be deleted if such delivery requirements do not apply under Rule 174 of the
Securities Act.
ANNEX D
[_] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:_______________________________
Address:____________________________
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 Securities. If the undersigned is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Initial Securities that
were acquired as a result of market-making activities or other trading
activities, it acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Securities; 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 Securities Act.
1
SCHEDULE A
Guarantor Place of Formation
--------- ------------------
Advance Barricades and Signing, Inc. Florida
All Cities Trailer Exchange, Inc. California
Arrow Equipment Company Illinois
Bakersfield Compaction Equipment California
BNR Equipment Inc. New York
Coast Line Marking, Inc. Florida
Dealers Service Corporation New Jersey
Equipment Leasing Services, Inc. Massachusetts
Flasher Co. of Kansas, Inc. Kansas
Flasher Company of Oklahoma, Inc. Oklahoma
Frontenac Equipment, Inc. Missouri
Highway Supply Company, Inc. New Mexico
Jadco Signing, Inc. Florida
Liddell Management Co., Inc. Massachusetts
Xxxx X. Xxxxxxx, Inc. d/b/a Xxxxxxx Equipment Company Minnesota
Xxxx X. Xxxxxxx, Inc. d/b/a Xxxxxxx Equipment Company Minnesota
Rentals Unlimited, Incorporated Rhode Island
Rocky Mountain Safety Service, Inc. Wyoming
Xxxx Enterprises, Inc. California
Shoring & Supply Company, Inc. Kansas
Thoesen Equipment Inc. Illinois
Traffic Markings South, Inc. Georgia
Traffic Safety Services, Inc. North Dakota
Tri-Mac, Corporation, d/b/a Tri-Xxxx Barricade Company Indiana
United Rentals, Inc. Delaware
United Rentals Gulf, Inc. Delaware
United Equipment Rentals Gulf, L.P. Texas
2
Guarantor Place of Formation
--------- ------------------
A.S.C. Pavement Markings, Inc. Texas
Highway Safety Service Company Texas
Lectric Safety Lites Co. Texas
Paige Barricades, Inc. Texas
United Rentals Highway Technologies, Inc. Massachusetts
United Rentals Highway Technologies Gulf, Inc. Delaware
United Rentals Highway Technologies, L.P. Texas
United Rentals Northwest, Inc. Oregon
United Rentals Southeast, Inc. Delaware
United Rentals Southeast, L.P. Xxxxxxx
Xxxxxxxxx Rents, Incorporated California
Warning Safety Lights, Inc. Florida
Warning Safety Lights of Georgia, Inc. Florida
West-Co Rental & Sales Colorado
WLI Industries, Inc. Illinois
Safe-T-Flare Services, Inc. Missouri
Warning Lites of Indiana, Inc. Indiana
Warning Lites of Iowa, Inc. Iowa
Work Zone, Inc. Louisiana
Work Zone Safety, Inc. Colorado
Xxxxxxxxxx Enterprises, Inc. Arizona
Highway Rentals, Inc. Nevada
Xxxxx Systems, Inc. California
