Exhibit 10(q)
THIS NOTE, AND ANY COMMON STOCK THAT MAY BE ISSUED UPON ITS CONVERSION, HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS IT HAS BEEN REGISTERED UNDER THE ACT AND SUCH LAWS OR AN
EXEMPTION UNDER THE ACT AND SUCH LAWS IS AVAILABLE FOR ITS TRANSFER OR OTHER
DISPOSITION.
UNITED RENTALS, INC.
CONVERTIBLE NOTE
$300,000 October 24, 1997
UNITED RENTALS, INC., a Delaware corporation (the "Company"), for value
received, hereby promises to pay to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee or permitted
assigns, the principal amount of $300,000 and to pay interest (computed on the
basis of a 360 day year consisting of twelve 30 day months) on the principal
amount from time to time remaining unpaid hereon, at a rate per annum equal to
7% from the date hereof and on any interest payment that is not made when due.
This note shall be payable in 20 equal quarterly payments of principal and
interest beginning January 23, 1998 and ending October 23, 2002, in the amount
of $17,907.37 each. This note may not be prepaid except with the written
consent of the holder. Both the principal hereof and interest hereon are
payable in immediately available funds in coin or currency of the United States
of America which at the time of payment shall be legal tender for the payment of
public and private debts at such place as the holder hereof may from time to
time designate in writing delivered to the Company; provided, however, that such
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payment may be made by a Company check deposited in the United States mail on
the due date set forth above for such payment, postage prepaid, registered or
certified mail and addressed to the holder hereof as set forth in the Company's
records.
This Note is one of the Convertible Notes (collectively, the "Notes") of
the Company in the aggregate principal amount of up to $300,000 issued or to be
issued by the Company and dated as of the date hereof.
The holder of this Note shall be entitled to receive payment in full of all
interest accruing hereon subsequent to the filing of a petition or the taking of
any other action commencing a bankruptcy, reorganization, arrangement or other
similar proceeding or which would accrue but for such proceeding or action.
The Company further covenants and agrees as follows:
1. Certain Definitions. For the purposes of this Note:
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"Common Stock" means the common stock, par value $.01 per share, of the
Company.
"Event of Default" has the meaning set forth in Section 4 of this Note.
"GAAP" means generally accepted accounting principles.
"Officer's Certificate" means a certificate signed by the Company's
President or its Chief Financial Officer on behalf of the Company, stating that
the Company has made or has caused to be made such investigations as are
necessary in order to permit such officer on behalf of the Company to verify the
accuracy of the information set forth in such certificate. Each such officer
signing such a certificate shall include in such certificate a statement that,
to the best of such officer's knowledge, such certificate does not misstate any
material fact and does not omit to state any fact necessary to make the
certificate not misleading.
"Person" means any individual, firm, corporation, partnership or other
entity, and shall include any successor (by merger or otherwise) of such entity.
"Subsidiary" means any corporation or other entity of which securities
having a majority of the ordinary voting power in electing the board of
directors or other managers of such corporation or other entity are, at the time
as of which any determination is being made, owned or the management of which is
otherwise controlled by the Company, either directly or through one or more
intermediaries.
2. Informational Requirements. The Company shall deliver to the holder
--------------------------
of this Note (so long as any portion of this Note remains outstanding):
(a) within 120 days after the end of each fiscal year, or later if such
financial statements may not be released under applicable Securities and
Exchange Commission regulations, consolidated statements of earnings,
shareholders' equity and cash flows of the Company and each Subsidiary for such
fiscal year, and consolidated balance sheets of the Company and each Subsidiary
as of the end of such fiscal year, setting forth in each case comparisons to the
preceding fiscal year, all prepared in accordance with GAAP consistently
applied, and accompanied by an opinion, containing no exceptions or
qualifications, of an independent certified accounting firm of recognized
national standing. If the Company becomes a subsidiary of another company whose
securities are listed with the Securities and Exchange Commission, the
obligation to provide financial statements described herein may be fulfilled by
providing such financial statements of the Company's parent.
(b) within 20 business days after the occurrence of any default under this
Note, an Officer's Certificate specifying the default and what actions the
Company and its Subsidiaries have taken or propose to take with respect thereto.
3. Affirmative Covenants. So long as any portion of this Note remains
---------------------
outstanding, unless the holders of a majority of the outstanding principal
amount of the Notes then outstanding deliver their prior written consent waiving
any of the following covenants, the Company shall, and shall cause each
Subsidiary to:
(a) at all times cause to be done all things necessary to maintain,
preserve and renew its corporate existence and all material qualifications,
licenses, authorizations and permits necessary to the conduct of its respective
business;
(b) pay and discharge when payable all taxes, assessments and governmental
charges imposed upon it or its business or properties or upon the income or
profits therefrom (in each case before the same become delinquent and before
penalties accrue thereon) and all claims for labor, materials or supplies which
if unpaid would by law become a lien upon any of its respective properties,
unless and to the extent that the same are being contested in good faith and by
appropriate proceedings and adequate reserves (as determined in accordance with
GAAP, consistently applied) have been established on its books with respect
thereto;
(c) comply in all material respects with all applicable laws, rules and
regulations of all governmental authorities whether now in effect or hereafter
enacted or promulgated, unless and to the extent that the same are being
contested in good faith and by appropriate proceedings and adequate reserves (as
determined in accordance with GAAP, consistently applied) have been established
on its books with respect thereto;
(d) maintain proper books of record and account which fairly present its
financial condition and results of its operations and properly reflect all
transactions to which the Company or any Subsidiary is or has been a party.
4. Events of Default - Effect.
--------------------------
(a) For purposes of this Note, an Event of Default shall be deemed to
have occurred if:
(i) the Company fails to pay when due any principal payment on
this Note;
(ii) the Company fails to pay when due any interest payment on this
Note or any other Note and such failure continues unremedied for a period
of ten days after notice to the Company that such payment is due;
(iii) unless waived by the holders of a majority of the outstanding
principal amount of the Notes then outstanding, the Company fails to
perform or observe any other material covenant or other material provision
contained in this Note and, if such failure is capable of being cured,
such failure shall continue for a period of thirty days after notice of
such failure to the Company; or
(iv) the Company or any Subsidiary makes an assignment for the
benefit of creditors;
or the Company or any Subsidiary shall generally not, or shall be unable
to, or shall admit in writing its inability to, pay its debts generally as
they become due; or an order, judgment or decree is entered adjudicating
the Company or any Subsidiary bankrupt or insolvent; or any order for
relief with respect to the Company or any Subsidiary is entered under the
Federal Bankruptcy Code; or the Company or any Subsidiary petitions or
applies to any tribunal for the appointment of a custodian, trustee,
receiver or liquidator of the Company or of any Subsidiary, or of any
substantial part of the assets of the Company or of any Subsidiary, or
commences any proceeding with respect to the Company or any Subsidiary
(other than a proceeding for the voluntary liquidation and dissolution of
any Subsidiary) under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law of any
jurisdiction; or any such petition or application is filed, or any such
proceeding is commenced, against the Company or any Subsidiary and either
(A) the Company or any such Subsidiary by any act indicates its approval
thereof, consent thereto or acquiescence therein or (B) such petition,
application or proceeding is not dismissed within 60 days.
(b) If an Event of Default of the type described in Section 4(a)(iv)
above has occurred, the entire outstanding principal amount of this Note shall
be immediately due and payable without notice, demand or presentment, and if any
other Event of Default (other than an Event of Default of the type described in
Section 4(a)(iv) above) has occurred, the holder of this Note, as its sole
remedy, may declare all or any portion of the outstanding principal amount of
this Note due and payable, whereupon the same shall be immediately due and
payable.
5. Conversion. The holder of this Note shall have the following
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conversion rights:
(a) Subject to the terms and conditions of this Section 5, the holder
of this Note shall have the right, at such holder's option, to convert the
outstanding principal amount of this Note or any portion thereof which is
$50,000 or more into shares of Common Stock, at a price per share equal to 120%
of the initial public offering price of the Common Stock in a firm underwriting
of such stock, or in case an adjustment in such price has taken place pursuant
to the provisions of this Section 5, then at the price as last adjusted (such
price or adjusted price being referred to herein as the "Conversion Price").
Such rights of conversion shall be exercised by the holder hereof by giving
written notice that such holder elects to convert the stated portion of the
principal amount of this Note into Common Stock and by surrender of this Note
accompanied by a written instrument(s) of transfer duly executed by the holder
hereof to the Company, at the Company's principal office (or such other office
or agency of the Company as the Company may designate by notice in writing to
the holder of this Note) at any time during its usual business hours. For
convenience, the conversion of any portion of the principal of this Note into
Common Stock is hereinafter sometimes referred to as the "conversion" of this
Note. The holder of this Note may exercise this conversion right no earlier
than the later of (a) 30 days after completion of the Company's initial public
offering of Common Stock or (b) the date fixed by the managing underwriter of
such offering as of the date when such conversion may occur, which may not be
later than 180 days after completion of the offering.
(b) Promptly after the receipt of the written notice referred to in
Section 5(a) and surrender of this Note for conversion, the Company shall issue
and deliver, or cause to be issued and delivered, a certificate or certificates
for the number of whole shares of Common Stock issuable upon the conversion.
Such conversion shall be deemed to have been effected and the Conversion Price
shall be determined as of the close of business on the date on which such
written notice shall have been received by the Company and the Note shall have
been surrendered for conversion as aforesaid, and at such time the person or
persons in whose name or names any certificate or certificates for shares of
Common Stock shall be issuable upon such conversion shall be deemed to have
become at such time the holder or holders of record of the shares represented
thereby. In the event that only a portion of this Note is converted, the
Company shall execute and deliver to the holder of this Note, at the expense of
the Company, a new Note, in the same form as this Note, in principal amount
equal to the unconverted portion of this Note.
(c) No fractional shares shall be issued upon conversion into Common
Stock and no payment or adjustment shall be made upon any conversion on account
of any cash dividends (having a record date prior to the effective date of
conversion) on the Common Stock issued upon such conversion. At the time of
each conversion, the Company shall pay in cash an amount equal to all interest
which is accrued and unpaid on the portion of this Note surrendered for
conversion, such interest to be paid through the date upon which such conversion
is deemed to take place as provided in Section 5(b) above. If any fractional
share of Common Stock would, except for the provisions of the first sentence of
this Section 5(c), be delivered upon such conversion, the Company, in lieu of
delivering such fractional share, shall pay to the holder an amount in cash
equal to the fraction represented by such share multiplied by
the initial public offering price of the Common Stock.
(d) Whenever the Company shall (i) declare or pay a dividend or make a
distribution on shares of Common Stock in shares of Common Stock or in any other
shares of capital stock of the Company or in other securities of the Company,
(ii) subdivide, split or reclassify the outstanding shares of Common Stock into
a greater number of shares of Common Stock or (iii) combine or reclassify the
outstanding shares of Common Stock into a smaller number of shares of Common
Stock, the Conversion Price in effect at the time of the record date for such
dividend or distribution or on the effective date of such subdivision, split,
combination or reclassification, shall be proportionately adjusted so that the
holder of this Note shall upon conversion into shares of Common Stock after such
time, be entitled to receive the number of shares of Common Stock or other
securities of the Company which such holder would have been entitled to receive
immediately after such time, had this Note been converted into shares of Common
Stock immediately prior to such time. Such adjustment shall be made
successively each time any event described in this Section 5 shall occur.
(e) In case of any reclassification, capital reorganization or change
by the Company of the outstanding shares of Common Stock (other than a change in
par value, or from par value to no par value, or from no par value to par value,
or as a result of a subdivision, combination or reclassification of the
outstanding shares of Common Stock into a greater or lesser number of shares of
Common Stock (which is treated in paragraph (d) above), but including any change
of such shares into one or more other classes or series of shares of capital
stock), or in case of any consolidation of the Company with, or merger of the
Company with or into, another Person (other than a consolidation or merger in
which the Company is the continuing entity and which does not result in any
reclassification or change of the Company's outstanding shares), or in case of
any sale or other conveyance to another Person of the property of the Company as
an entirety or substantially as an entirety, the Company or such successor or
purchasing Person shall provide, as a condition to such transaction, that the
holder of this Note shall acquire, upon conversion of, or in exchange for, this
Note the kind and amount of shares and other securities and property (including
cash and evidences of indebtedness) which would have been received by such
holder upon such reclassification, reorganization, change, consolidation,
merger, or sale or conveyance of assets if such holder had converted this Note
into shares of Common Stock immediately prior thereto. Such other Person, which
shall thereafter be deemed to be the Company for purposes of this Section 5(e),
shall provide for similar future adjustments as nearly equivalent as may be
practicable to the adjustments provided herein. Such adjustment shall be made
successively each time any event described above in this Section 5(e) shall
occur.
(f) In the event the Company at any time after the date of the origin
al issuance of this Note shall distribute shares of stock or other securities of
other Persons, evidences of indebtedness issued by the Company or other property
(other than cash), to the holders of its Common Stock by way of dividend or
otherwise, in either case other than in connection with a capital
reorganization, consolidation, merger or sale or other conveyance of all or
substantially all of the Company's assets (each of which transactions is
provided for by the foregoing Section 5(e)), then, in each such case, the holder
of this Note, upon conversion of this Note into shares of Common Stock as
provided hereby, shall be entitled to receive, and the Company shall reserve for
issuance to such holder upon such conversion, the amount in cash or the shares
of stock or other securities, evidences of indebtedness, or other property which
it would have been entitled to receive if it had so converted and become the
holder of record of the shares of Common Stock issued upon such conversion
immediately prior to the record date fixed for the determination of the
stockholders entitled to receive such dividend or distribution. The foregoing
adjustments shall be made successively whenever any event listed above in this
Section 5(f) shall occur.
(g) Upon the occurrence of any event requiring an adjustment of the
Conversion Price, then and in each such case the Company shall give prompt
written notice thereof to the holder of this Note, which notice shall state the
Conversion Price resulting from such adjustment, setting forth in reasonable
detail the method upon which such calculation is based and stating that such
adjustment calculation has been reviewed and approved by the Company's
independent certified public accountants.
(h) In case at any time:
(i) the Company shall declare any dividend upon its Common Stock
payable in cash, stock, property or any security (whether of the Company or
otherwise) or make any other distribution to the holders of its Common
Stock;
(ii) the Company shall offer for subscription pro rata to the
--- ----
holders of its Common Stock any additional shares of stock of any class or
other rights;
(iii) there shall be any capital reorganization or reclassification of
the capital stock of the Company, or a consolidation or merger of the
Company with or into, or a sale of all or substantially all its assets to,
another entity or entities; or
(iv) there shall be a voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then, in any one or more of said cases, the Company shall give (A) at least 45
days prior written notice of the date on which the books of the Company shall
close or a record shall be taken for such dividend, distribution or subscription
rights or for determining rights to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation or
winding up and (B) in the case of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding up or
underwritten public offering, at least 45 days prior written notice of the date
when the same shall take place. Such notice in accordance with the foregoing
clause (A) shall also specify, in the case of any such dividend, distribution or
subscription rights, the date on which the holders of Common Stock shall be
entitled thereto and such notice in accordance with the foregoing clause (B)
shall also specify the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation or winding up or the precise details of such
underwritten public offering, as the case may be.
(i) The Company shall at all times reserve and keep available out of
its authorized and unissued Common Stock solely for the purpose of issuance upon
the conversion of the Notes, as provided in the Notes, free from any pre-emptive
rights (if any), such number of shares of Common Stock as shall then be issuable
upon the conversion of all outstanding Notes. The Company covenants that all
shares of Common Stock which shall be so issued shall be duly and validly issued
and fully paid and nonassessable and free from all taxes, liens and charges with
respect to the issue thereof, and, without limiting the generality of the
foregoing, the Company covenants that it shall from time to time take all such
action as may be requisite to assure that the par value per share of the Common
Stock is at all times equal to or less than the Conversion Price in effect at
the time. The Company shall take all such action as may be necessary to assure
that all such shares of Common Stock may be so issued without violation of any
applicable law or regulation, or of any requirement of any national securities
exchange upon which the Common Stock (or any series thereof) or any other class
of stock or series thereof of the Company may be listed. Without limiting the
generality of the foregoing, the Company shall obtain and keep in force such
permits or other authorizations as may be required by law, and shall comply with
all requirements as to registration or qualification in order to enable the
Company lawfully to issue and deliver to the holders of the Notes such number of
shares of its Common Stock as shall from time to time be sufficient to effect
the conversion of all Notes then outstanding. Notwithstanding the preceding
sentence, however, the Company shall be under no obligation to register the
issuance of Common Stock upon conversion of any Note under the Securities Act of
1933, and shall be entitled to place a restrictive legend on any certificate
representing shares of Common Stock so issued noting restrictions imposed on any
transfer of such Common Stock both under the securities laws and under the
Company's Certificate of Incorporation. The Company may require, as a condition
to the issuance of any Common Stock upon conversion of a Note, that the holder
of the Note deliver a subscription agreement to the Company acknowledging the
effect of such restrictions on the holder's right to transfer the Common Stock.
The Company shall not take any action which results in any adjustment of the
Conversion Price if the total number of shares of Common Stock which have been
issued at or prior to the time such action was taken and those which are
issuable after such action upon conversion of the Notes and exercise of all
options and conversion of all convertible securities of the Company would exceed
the total number of shares of Common Stock authorized by the Company's
Certificate of Incorporation.
(j) The issuance of certificates for shares of Common Stock upon
conversion of this Note shall be made without charge to the holder for any
issuance, stock transfer or documentary stamp tax in respect thereof.
(k) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least one percent in
such price; provided, however, that any such adjustment which is not required to
be made shall be carried forward and taken into account in any subsequent
adjustment.
6. Notices. All notices required or permitted to be given hereunder
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shall be in writing and may be delivered by hand, by facsimile, by nationally
recognized private courier, or by United States mail. Notices delivered by
mail shall be deemed given, served and received three days after being deposited
in the United States mail, postage prepaid, registered or certified mail.
Notices delivered by hand by facsimile, or by nationally recognized private
carrier, shall be deemed given, served and received on the day of receipt. All
notices shall be addressed as follows:
If to the Company:
Addressed to: United Rentals, Inc.
Four Greenwich Office Park
Greenwich, CT 06830
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
(▇▇▇)▇▇▇-▇▇▇▇
Telecopier: (▇▇▇)▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
and a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telecopier: (▇▇▇)▇▇▇-▇▇▇▇
If to the Note Holders:
Addressed to
the addresses shown on the Company's books.
and/or to such other addresses as may be designated by notice given in
accordance with the provisions of this Section 6.
7. Assignment. This Note, and any Common Stock which may be issued upon
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conversion of this Note, may not be sold, assigned or otherwise transferred by
the holder or any subsequent holder except in compliance with the Act and any
applicable state securities laws. Neither this transaction, nor any other
transaction involving this Note or the Company shall occur if the effect would
be to prevent the Company or any other entity from performing its obligations
under this Note or would materially affect the value of the Notes unless the
surviving or acquiring entity agrees to perform the obligations of the Company
under this Note in a manner that is the economic equivalent to the performance
of the Company required hereunder.
8. Other Matters.
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No delay or omission on the part of the holder hereof in the exercise of
any right or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy preclude any other or further
exercise thereof or the exercise of any other right or remedy.
The Company agrees to pay on demand all costs and expenses, including,
without limitation, reasonable attorney's fees and expert witness fees, incurred
by the holder hereof in endeavoring to enforce the rights of such
holder hereunder; provided, however, that the Company shall not be obligated to
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pay such costs and expenses incurred by the holder hereof in wrongfully
accelerating payment or otherwise wrongfully seeking to enforce its rights
hereunder.
Except as expressly provided in Section 4(b), the Company hereby waives
demand, presentment and protest and notices thereof as well as notice of non-
payment.
In the event any payment by or on behalf of the Company to the holder is
held to constitute a preference under the bankruptcy laws now or hereafter
constituted, or any other applicable federal or state bankruptcy, insolvency or
other
similar law, and by reason thereof the holder is required to refund such
payment or pay the amount thereof to any party, such payment by or on behalf of
the Company to the holder shall not constitute a release of the Company from any
liability hereunder to the extent of such payment, but the Company agrees to pay
the amount of such payment, together with interest thereon, to the holder upon
demand.
9. Subordination.
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(a) The indebtedness evidenced by this Note shall at all times be
wholly subordinate and junior in right of payment to any and all Superior
Indebtedness (as defined below) in the manner and with the force and effect
hereafter set forth:
(i) In the event of any liquidation, dissolution or winding up of
the Company, or of any execution sale, receivership, insolvency,
bankruptcy, reorganization or other similar proceeding relative to the
Company or its property, all principal and interest owing on all
Superior Indebtedness shall first be paid in full before any payment
is made upon the indebtedness evidenced by this Note; and in any such
event any payment or distribution of any kind or character, whether in
cash, property or securities (other than in securities or other
evidences of indebtedness, the payment of which is subordinated to the
payment of all Superior Indebtedness which may at the time be
outstanding) which shall be made upon or in respect of this Note shall
be paid over to the holders of such Superior Indebtedness, pro rata,
for application in payment thereof until such Superior Indebtedness
shall have been paid or satisfied in full.
(ii) (A) During the continuance of any default in any agreement
pursuant to which any Superior Indebtedness is issued which arises
from the failure to pay when due (whether by acceleration or
otherwise) any principal of, premium, if any, interest on, fees or
other amounts in respect of such Superior Indebtedness (a "Superior
Payment Default"), no payment of principal, premium or interest shall
be made on this Note if either (I) notice in writing of such default
has been given to the Company by any holder or holders of any Superior
Indebtedness or (II) judicial proceedings shall be pending in respect
of such default.
(B) During the continuance of any event of default or
unmatured event of default in any agreement pursuant to which any
Superior Indebtedness is issued other than a Superior Payment Default
(a "Superior Non-Payment Default") as to which the Company has
received notice in writing from any holder or holders of Superior
Indebtedness, no payment of principal, premium or interest shall be
made on this Note for a period (each, a "Payment Blockage Period")
commencing on the date of receipt by the Company of such notice and
terminating on the earliest to occur of the following dates: (V) the
date of acceleration of the Superior Indebtedness, (W) 180 days after
the Company's receipt of such written notice, (X) the date such
Superior Non-Payment Default shall have been cured or waived, or shall
have ceased to exist, (Y) the date the Superior Indebtedness shall
have been discharged or paid in full in cash, or (Z) the date such
Payment Blockage Period shall have been terminated by written notice
to the Company form the holder or holders of Superior Indebtedness
initiating such Payment Blockage Period; after which, in the case of
clauses (W), (X), (Y) and (Z), the Company shall resume making
payments in respect of the subordinated notes, unless clause (ii)(A)
above is then applicable.
(iii) If this Note is declared or becomes due and payable because
of the occurrence of any default thereunder or under the agreement or
instrument under which it is issued or otherwise than at the option of
the Company, under circumstances when clause (i) shall not be
applicable, the holder of this Note shall not be entitled to payments
until one hundred twenty (120) days after such event and then only if
such payment is permitted under clauses (i) and (ii).
(b) The holder of this Note undertakes and agrees for the benefit of
each holder of Superior Indebtedness to execute, verify, deliver and file any
proof of claim, consent, assignment or other instrument which any holder of
Superior Indebtedness any at any time require in order to prove and realize upon
any right or claim pertaining to this Note and to effectuate the full benefit of
the subordination contained herein; and upon failure of the holder of this Note
so to do any such holder of Superior Indebtedness shall be deemed to be
irrevocably appointed the agent and attorney-in-fact of the holder of such note
to execute, verify, deliver and file any such proof of claim, consent,
assignment or other instrument.
(c) No right of any holder of any Superior Indebtedness to enforce
subordination as herein provided shall at any time or in any way be affected or
impaired by any failure to act on the part of the Company or any holder of
Superior Indebtedness, or by any non-compliance by the Company with any term,
provision or covenant of this Note or the agreement under which it is issued,
regardless of any knowledge thereof that any such holder of Superior
Indebtedness may have or be otherwise charged with.
(d) "Superior Indebtedness" means (I) all obligations of the Company
under or in connection with the Credit Agreement, dated as of October 8, 1997
among the Company, various financial institutions and Bank of America National
Trust and Savings Association, as Agent (as amended, restated, amended and
restated, otherwise modified or refinanced from time to time, the "Credit
Agreement"), whether for principal, interest (including any interest that would
accrue but for the filing of a petition initiating any bankruptcy, insolvency or
like proceeding, whether or not such interest is an allowed claim enforceable
against the debtor), fees, expenses or otherwise and (II) all obligations of the
Company under or in connection with any interest rate swap agreement or similar
hedging arrangement (as amended or otherwise modified from time to time) with
any financial institution which is a party to the Credit Agreement.
This Note shall be governed by and construed in accordance with the laws of
the State of Utah.
UNITED RENTALS, INC.
By_____________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice Chairman
