Exhibit 4.2
RENTAL SERVICE CORPORATION
REGISTRATION RIGHTS AGREEMENT
November 27, 2006
Deutsche Bank Securities Inc.
Citigroup Global Markets Inc.
GE Capital Markets, Inc.
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Rental Service Corporation, an Arizona corporation, and RSC Holdings
III, LLC, a Delaware limited liability company, (together, the "Issuers"),
propose to issue and sell to Deutsche Bank Securities Inc., Citigroup Global
Markets Inc. and GE Capital Markets, Inc. (collectively, the "Purchasers"), upon
the terms set forth in the two (2) purchase agreements dated as of November 17,
2006 (the "Purchase Agreements"), $620,000,000 aggregate principal amount of
their 9 1/2% Senior Notes Due 2014 (the "Notes"). The Notes will be issued
pursuant to the provisions of an Indenture, dated as of November 27, 2006 (as
supplemented from time to time, the "Indenture"), between the Issuers and Xxxxx
Fargo Bank, National Association, as Trustee (the "Trustee"). Terms used but not
defined in this agreement shall have the meanings assigned to them in the
Purchase Agreements.
As an inducement to the Purchasers to enter into the Purchase
Agreements and in satisfaction of a condition to your obligations thereunder,
the Issuers agree with the Purchasers, for the benefit of the registered holders
of the Notes (including, without limitation, the Purchasers), the Exchange Notes
(as defined below) and the Private Exchange Notes (as defined below)
(collectively, the "Holders"), as follows:
SECTION 1. Registration Exchange Offer. To the extent not prohibited
by any applicable law or interpretation of the staff of the Securities and
Exchange Commission (the "Commission"), the Issuers shall use their commercially
reasonable efforts to file with 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 an
offer (the "Registration Exchange Offer") to the Holders of Transfer Restricted
Notes (as defined in Section 6 hereof) who are not prohibited by any law or
policy of the Commission from participating in the Registration Exchange Offer
to issue and deliver to such Holders, in exchange for the Notes, a like
aggregate principal amount of debt securities (the "Exchange Notes") of the
Issuers issued under the Indenture and identical in all material
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respects to the Notes (except for the transfer restrictions relating to the
Notes) that would be registered under the Securities Act. The Issuers shall use
their commercially reasonable efforts to cause such Exchange Offer Registration
Statement to become effective under the Securities Act within 360 days after the
date of original issue of the Notes and shall keep the Exchange Offer
Registration Statement open for not less than 20 Business Days (or longer, if
required by applicable law) after the date notice of the Registration Exchange
Offer is mailed to the Holders (such period being called the "Exchange Offer
Registration Period").
If the Issuers effect the Registration Exchange Offer, the Issuers
will be entitled to close the Registration Exchange Offer 30 days after the
commencement thereof provided that the Issuers have accepted all the Notes
theretofore validly tendered in accordance with the terms of the Registration
Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Issuers shall promptly commence the Registration
Exchange Offer, it being the objective of such Registration Exchange Offer to
enable each Holder of Transfer Restricted Notes (as defined below) electing to
exchange such Transfer Restricted Notes for Exchange Notes (assuming that such
Holder is not an affiliate of the Issuers within the meaning of the Securities
Act, acquires the Exchange Notes in the ordinary course of such Holder's
business and has no arrangements with any person to participate in the
distribution of the Exchange Notes and is not prohibited by any law or policy of
the Commission from participating in the Registration Exchange Offer) to trade
such Exchange Notes 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. In connection
with such Registration Exchange Offer, the Issuers shall use their commercially
reasonable efforts to consummate the Registration Exchange Offer and shall
comply in all material respects with the applicable requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and other
applicable laws and regulations in connection with the Registration Exchange
Offer.
The Issuers acknowledge 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 Notes acquired for its own account as a result of market-making
activities or other trading activities for Exchange Notes (an "Exchanging
Dealer") is required to deliver a prospectus containing 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 such prospectus in
connection with a sale of any such Exchange Notes received by such Exchanging
Dealer pursuant to the Registration Exchange Offer and (ii) if the Purchasers
are permitted to and elect to sell Exchange Notes acquired in exchange for Notes
constituting any portion of an unsold allotment, they are required to deliver a
prospectus containing the information required by Item 507 or 508 of Regulation
S-K under the Securities Act, as applicable, in connection with such sale.
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The Issuers shall include within the prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the 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 Exchange Act) of Exchange
Notes received by such broker-dealer in the Registration 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 Purchasers based upon advice of
counsel (which may be in-house counsel), represent the prevailing views of the
staff of the Commission.
The Issuers shall use their commercially reasonable 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 the Purchasers and all Exchanging Dealers subject to the
prospectus delivery requirements of the Securities Act and shall make such
prospectuses available to the Purchasers and such Exchanging Dealers for such
period of time after the consummation of the Registration Exchange Offer as such
persons must comply with such requirements in order to resell the Exchange
Notes; provided, however, that such period shall expire upon the earlier of the
90th day after the Exchange Offer has been completed and such time as such
Exchanging Dealers no longer own any Registrable Securities.
The Issuers shall make available for a period of 90 days after the
consummation of the Registration Exchange Offer, a copy of the prospectus, and
any amendment or supplement thereto, forming part of the Exchange Offer
Registration Statement to any broker-dealer for use in connection with any
resale of any Exchange Notes.
If, upon consummation of the Registration Exchange Offer, any
Purchaser holds Notes acquired by it as part of its initial distribution, the
Issuers, simultaneously with the delivery of the Exchange Notes pursuant to the
Registration Exchange Offer, shall issue and deliver to such Purchaser upon the
written request of such Purchaser, in exchange (the "Private Exchange") for the
Notes held by such Purchaser, a like principal amount of debt securities of the
Issuers issued under the Indenture identical in all material respects (including
the existence of restrictions on transfer under the Securities Act and the
securities laws of the several states of the United States) to the Notes (the
"Private Exchange Notes"). The Notes, the Exchange Notes and the Private
Exchange Notes are herein collectively called the "Securities".
In connection with the Registration Exchange Offer, the Issuers 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 Registration Exchange Offer open for not less than 20
Business 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 Registration 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 Notes at any time prior to the
close of business, New York time, on the last business day on which the
Registration Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all applicable
laws.
As soon as practicable after the close of the Registration Exchange
Offer or the Private Exchange, as the case may be, the Issuers shall:
(i) accept for exchange all the Notes validly tendered and not
withdrawn pursuant to the Registration Exchange Offer and the Private
Exchange;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all the Notes so accepted for exchange; and
(iii) issue, and cause the Trustee to authenticate and deliver
promptly to each Holder of the Notes, Exchange Notes or Private Exchange
Notes, as the case may be, equal in principal amount to the Notes of such
Holder so accepted for exchange.
The Indenture will provide that the Exchange Notes 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 Note and Private Exchange Note issued
pursuant to the Registration Exchange Offer and in the Private Exchange will
accrue (i) from the later of (a) the last interest payment date on which
interest was paid on the Notes surrendered in exchange therefor or (b) if the
Note is surrendered for exchange on a date in a period which includes the record
date for an interest payment date to occur on or after the date of such exchange
and as to which interest will be paid, the date of such interest payment date or
(ii) if no interest has been paid on the Notes, from November 27, 2006.
Each Holder participating in the Registration Exchange Offer shall be
required to represent to the Issuers that at the time of the consummation of the
Registration Exchange Offer (i) any Exchange Notes received by such Holder will
be acquired in the ordinary course of business, (ii) such Holder has no
arrangements or understanding with any person to participate
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in the distribution of the Notes or the Exchange Notes 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 Issuers, 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 Notes, (v) if such Holder is a broker-dealer, that
it will receive Exchange Notes for its own account in exchange for Notes 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 Notes and (vi) such
Holder is not acting on behalf of any person who could not truthfully make the
foregoing representations.
Notwithstanding any other provisions hereof, the Issuers 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 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, in light of the circumstances under
which they were made, not misleading and (iii) any prospectus forming part of
any Exchange Offer Registration Statement, and any supplement to such
prospectus, at the time of issuance 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 light of the circumstances
under which they were made, not misleading.
SECTION 2. Shelf Registration. If (i) the Issuers determine that a
Registration Exchange Offer, as contemplated by Section 1 hereof, is not
available or may not be consummated as soon as practicable after the last date
the Registration Exchange Offer is open because it would violate applicable law
or the applicable interpretations of the staff of the Commission, (ii) the
Registration Exchange Offer is not consummated within 390 days of the date of
original issue of the Notes, (iii) the Purchasers so request with respect to the
Notes (or the Private Exchange Notes) not eligible to be exchanged for Exchange
Notes in the Registration Exchange Offer and held by them following consummation
of the Registration Exchange Offer or (iv) any Holder (other than a Purchaser)
shall be, and shall notify the Issuers that such holder is, prohibited by law or
Commission policy from participating in the Exchange Offer or such holder may
not resell the Exchange Notes acquired in the Registration Exchange Offer to the
public without delivering a prospectus and the prospectus contained in the
Exchange Offer Registration Statement is not available for such resales by such
holder (other than in either case (x) due solely to the status of such holder as
an affiliate of the Issuers within the meaning of the Securities Act or (y) due
to such holder's inability to make the representations set forth in the second
to last paragraph of Section 1 hereof) and any such holder so requests, the
Issuers shall, in lieu of (or, in the case of clauses (iii) and (iv), in
addition
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to) conducting the Registration Exchange Offer contemplated by Section 2, take
the following actions:
(a) The Issuers shall use commercially reasonable efforts to prepare
and file, as promptly as practicable, with the Commission and thereafter to
cause to be declared effective no later than 360 days after the date on
which the obligation to file under this Section 2 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 Notes 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, however, that no Holder (other than the
Purchasers) shall be entitled to have any 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 Issuers shall use commercially reasonable 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, until the period referred to in Rule 144(k) under the
Securities Act after the original issue date of the Notes expires (or for
such longer period if extended pursuant to Section 3(j) below) or such
shorter period that will terminate when all the Securities covered by the
Shelf Registration Statement have been sold pursuant thereto.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Issuers shall cause 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) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to 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.
Notwithstanding anything to the contrary in this Agreement, at any time, the
Issuers may delay the filing of any Shelf Registration Statement or delay or
suspend the effectiveness thereof, for a reasonable period of time, but not in
excess of 60 consecutive days or more than three (3) times during any calendar
year (each, a "Shelf Suspension Period"), if the Board of Directors/Member of
the Issuers determines reasonably and in good faith that (x) the filing of any
such Shelf Registration Statement or the continuing effectiveness thereof would
require the disclosure of non-public material information that, in the
reasonable judgment of the Board of Directors/Member of the Issuers, would be
detrimental to the Issuers if so disclosed
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or would otherwise materially adversely affect a financing, acquisition,
disposition, merger or other material transaction or (y) such action is required
by applicable law.
SECTION 3. Registration Procedures. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent applicable, any
Registration Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Issuers shall (i) furnish to the Purchasers, 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 shall not file any such Registration Statement or
amendment thereto or any prospectus or any supplement thereto (including
such documents which, upon filing, would be incorporated or deemed to be
incorporated by reference therein and amendments to such documents other
than documents required to be filed pursuant to the Exchange Act) to which
the Purchasers shall reasonably object, except for any Registration
Statement or amendment thereto or prospectus or supplement thereto (a copy
of which has been previously furnished to the Purchasers and their counsel
(and, in the case of a Shelf Registration Statement, the Holders and their
counsel)) which counsel to the Issuers has advised the Issuers in writing
is required to be filed in order to comply with applicable law; (ii)
include information substantially to the effect set forth (A) in Annex A
hereto on the cover of a prospectus forming part of the Exchange Offer
Registration Statement, (B) in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section, (C) in
Annex C hereto in the "Plan of Distribution" section of the prospectus
forming a part of the Exchange Offer Registration Statement and (D) in
Annex D hereto in the Letter of Transmittal delivered pursuant to the
Registration Exchange Offer; (iii) to the extent required by law or
interpretation of the staff of the Commission, if requested by the
Purchasers, include the information required by Item 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; and (iv) to
the extent required by law or interpretation of the staff of the
Commission, 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) The Issuers shall promptly notify the Purchasers, the Holders and
any Participating Broker-Dealer from whom the Issuers have received prior
written notice stating that it will be a Participating Broker-Dealer in the
Registration Exchange Offer (which notice pursuant to clauses (ii) through
(v) hereof shall be accompanied by an instruction to suspend the use of the
prospectus until the requisite changes have been made), and, if requested
by the Purchasers, the Holders or any such Participating Broker-Dealer
shall confirm to the Issuers such notice in writing:
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(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;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission 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 Issuers or their 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 Issuers to
make changes in the Registration Statement or the prospectus in order
that the Registration Statement or the prospectus does not 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, in light of the circumstances under which they were made, not
misleading; and
(vi) of any determination by the Issuers that a post-effective
amendment to a Registration Statement would be appropriate.
(c) The Issuers shall make all commercially reasonable efforts to
prevent the issuance, and if issued to obtain the withdrawal at the
earliest possible time, of any order suspending the effectiveness of the
Registration Statement and shall provide prompt written notice to the
Purchasers and each Holder of the withdrawal of any such order.
(d) The Issuers shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, at least one
conformed copy of the Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules (without
documents incorporated therein by reference or exhibits thereto, unless a
Holder so requests in writing).
(e) The Issuers shall deliver to the Purchasers, and to any other
Holder that so requests, without charge, at least one conformed copy of the
Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules (without documents
incorporated therein by reference or exhibits thereto, unless the
Purchasers or any such Holder so requests in writing).
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(f) The Issuers shall 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 Issuers consent, 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, and as
contemplated by, the prospectus, or any amendment or supplement thereto,
included in the Shelf Registration Statement.
(g) The Issuers shall deliver to the Purchasers, any Participating
Broker-Dealer or any Exchanging Dealer, without charge, as many copies of
the final prospectus included in the Exchange Offer Registration Statement
and any amendment or supplement thereto as such person may reasonably
request, during the period not exceeding 90 days following the consummation
of the Registration Exchange Offer. The Issuers consent, subject to the
provisions of this Agreement, to the use of the prospectus or any amendment
or supplement thereto by the Purchasers, if necessary, any Participating
Broker-Dealer or Exchanging Dealer and such other persons required to
deliver a prospectus following the Registration Exchange Offer in
connection with the offering and sale of the Exchange Notes covered by the
prospectus, or any amendment or supplement thereto, included in such
Exchange Offer Registration Statement; provided, however, that such persons
shall not be authorized by the Issuers to deliver and shall not deliver any
such prospectus after the expiration of the period referred to in the
immediately preceding sentence, in connection with the resales contemplated
by this paragraph.
(h) Prior to any public offering of the Securities pursuant to any
Registration Statement, the Issuers shall use their commercially reasonable
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 such Holder
to offer and sell in such jurisdictions the Securities covered by such
Registration Statement owned by such Holder; provided, however, that the
Issuers shall not be required to (i) qualify as a foreign corporation in
any jurisdiction wherein they would not otherwise be required to qualify
but for the requirements of this Section 3(h), (ii) consent to general
service of process in any such jurisdiction, (iii) make any changes to
their certificate of incorporation, by-laws or other organizational
documents, or any agreement between them and any of their shareholders or
(iv) take any action which would subject them to general service of process
or to taxation in any jurisdiction where they are not then so subject.
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(i) The Issuers 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 Shelf Registration Statement free
of any restrictive legends and in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the Holders
may request at least two business days prior to closing of any sale of the
Securities pursuant to such Shelf Registration Statement.
(j) If any event contemplated by paragraphs (ii) through (vi) of
Section 3(b) above occurs during the period for which the Issuers are
required to maintain an effective Registration Statement, the Issuers shall
promptly 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 Notes 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. If the
Issuers notify the Purchasers, the Holders of the Securities and any known
Participating Broker-Dealer in accordance with paragraphs (ii) through (vi)
of Section 3(b) above to suspend the use of the prospectus until the
requisite changes to the prospectus have been made, then the Purchasers,
the Holders of the Securities and any such Participating Broker-Dealers
shall suspend use of such prospectus until the Issuers have amended or
supplemented the prospectus to correct such misstatement or omission, 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 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); provided, however,
that the minimum time period before the Issuers shall be entitled to close
the Registration Exchange Offer shall be extended only to the extent
required by the Commission. The Purchasers, each Holder and any
Participating Broker-Dealers agree that upon receipt of any such notice
from the Issuers they will not distribute copies of the prospectus that are
the subject of such notice and will retain such copies in their files.
(k) Not later than the effective date of the applicable Registration
Statement, the Issuers will obtain a CUSIP number for the Exchange Notes or
the Private Exchange Notes, as the case may be, and provide the Trustee
with printed certificates for the Notes, the Exchange Notes or the Private
Exchange Notes, as the case may be, in a form eligible for deposit with The
Depository Trust Company.
(l) The Issuers will comply in all material respects with all rules
and regulations of the Commission to the extent and so long as they are
applicable to the Registration Exchange Offer or the Shelf Registration and
will make generally available to
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their securityholders (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 and Rule 158 thereunder,
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
Issuers' first fiscal quarter commencing after the effective date of the
Registration Statement, which statement shall cover such 12-month period.
(m) The Issuers may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Issuers such
information regarding the Holder and the distribution of the Securities as
the Issuers may from time to time reasonably request for inclusion in the
Shelf Registration Statement, and the Issuers may exclude from such
registration the Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(n) In the case of any Shelf Registration, the Issuers 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 Securities being sold shall reasonably request
in order to facilitate the disposition of the Securities pursuant to such
Shelf Registration.
(o) In the case of any Shelf Registration, the Issuers shall make
available for inspection by a representative of the Holders of Securities
being sold, its counsel and an accountant retained by such Holders, in a
manner designed to permit underwriters to satisfy their due diligence
investigation under the Securities Act, all financial and other records,
pertinent corporate documents and properties of the Issuers customarily
inspected by underwriters in primary underwritten offerings and cause the
officers, directors and employees of the Issuers and their subsidiaries to
supply all information reasonably requested by, and customarily supplied in
connection with primary underwritten offerings to, any such representative,
attorney or accountant in connection with such registration; provided,
however, that any records, information or documents that are designated by
the Issuers as confidential at the time of delivery of such records,
information or documents shall be kept confidential by such persons, unless
(i) such records, information or documents are in the public domain or
otherwise publicly available, (ii) disclosure of such records, information
or documents is required by court or administrative order (subject to the
requirements of such order, and only after such person shall have given the
Issuers prompt prior written notice of such requirement so that the
Issuers, at their expense, may undertake appropriate action to prevent
disclosure of such information or records) or (iii) disclosure of such
records, information or documents, in the written opinion of counsel to
such person, is otherwise required by law (including, without limitation,
pursuant to the requirements of the Securities Act).
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(p) In the case of any Shelf Registration, the Issuers, if requested
by the majority of Holders of Securities covered thereby, shall (i) cause
their 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, and dated, in the case of the initial opinion, the
effective date of such Shelf Registration Statement covering matters
customarily covered in opinions requested in underwritten offerings, (ii)
cause their officers to execute and deliver such documents and certificates
and updates thereof as may be reasonably requested by any underwriters of
the applicable Securities, and which are customarily delivered in
underwritten offerings, to evidence the continued validity of the
representations and warranties of the Issuers made pursuant to, and to
evidence compliance with any customary conditions contained in, an
underwriting agreement and (iii) cause their independent public accountants
to provide to the majority of 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 primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72 (or any successor bulletins).
(q) If a Registration Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Notes by Holders to the Issuers (or to
such other person as directed by the Issuers) in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be, the Issuers shall
xxxx, or cause to be marked, on the Notes so exchanged that such Notes are
being canceled in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be, and in no event shall the Notes be marked as
paid or otherwise satisfied.
(r) 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 (within the meaning of the Conduct Rules of the
National Association of Securities Dealers, Inc. ("NASD")) thereof, as an
underwriter, the Issuers shall use commercially reasonable efforts to
assist such broker-dealer in complying with the requirements of such Rules
and By-Laws, including, without limitation, the Conduct Rules of the NASD.
SECTION 4. Registration Expenses. The Issuers shall jointly and
severally pay or cause to be paid all fees and expenses incident to the
performance of or compliance with this Agreement by the Issuers including,
without limitation, (i) all Commission and, if applicable, any NASD registration
and filing fees, (ii) all fees and expenses incurred in connection with
compliance with state securities or Blue Sky laws (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection with Blue
Sky qualification of any of the Securities), (iii) all expenses of any persons
in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any prospectus, any amendments or
supplements thereto, and all expenses of printing any underwriting
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agreements, securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) all rating agency fees,
and (v) the fees and disbursements of counsel for the Issuers, and in the event
of a Shelf Registration, the reasonable fees and disbursements of one firm of
counsel designated by the Holders of a majority in principal amount of the
Securities covered thereby, and of the independent public accountants of the
Issuers, including the expense of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, but excluding fees
and expenses of counsel to the underwriters and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Securities by a Holder. Notwithstanding the foregoing, the holders of the
Exchange Notes being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such Exchange
Notes and the fees and disbursements of any counsel or other advisors or experts
retained by such holders (severally or jointly), other than the counsel and
experts specifically referred to above.
SECTION 5. Indemnification. (a) The Issuers jointly and severally
agree to indemnify and hold harmless each Holder of the Securities, any
Participating Broker-Dealer and each person, if any, who controls such Holder or
such Participating Broker-Dealer within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, or is under common control
with, or is controlled by, such Holder or such Participating Broker-Dealer, from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
a Registration Statement or prospectus (as amended or supplemented if the
Issuers shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to such Holder or Participating Broker-Dealer furnished to the Issuers in
writing by such Holder or Participating Broker-Dealer expressly for use therein.
(b) Each Holder of the Securities, severally and not jointly, agrees
to indemnify and hold harmless the Issuers, other selling Holders, directors of
the Issuers, the officers of the Issuers and each person, if any, who controls
the Issuers or any selling Holders, within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Issuers to such Holder, but only with reference to
information relating to such Holder furnished to the Issuers in writing by such
Holder expressly for use in a Registration Statement, any preliminary
prospectus, prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant
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to either paragraph (a) or (b) above, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and expenses of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such reasonable fees and expenses shall be reimbursed as they are incurred. If
an indemnified party includes (x) the Purchasers or such controlling persons of
the Purchasers, such firm shall be designated in writing by Deutsche Bank
Securities Inc. or (y) Holders of Securities (other than the Purchasers) or
controlling persons of such Holders, such firm shall be designated in writing by
Holders of a majority in aggregate principal amount of such Securities. In all
other cases, such firm shall be designated by the Issuers. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 90 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding 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 claims
that are the subject matter of such proceeding and for which indemnity could
have been sought hereunder.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 5 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the
-15-
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the indemnifying party or parties on
the one hand and the indemnified party or parties on the other hand or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the indemnifying
party or parties on the one hand and the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Issuers on the one hand
and any such Holder, Participating Broker-Dealer or other party on the other
hand shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Notes (before deducting expenses) received by
the Issuers and the total discounts and commissions received or realized by such
Holder, Participating Broker-Dealer or other party in respect thereof, in each
case as set forth in the Offering Memorandum, bear to the aggregate offering
price of such Securities. 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 Issuers or by such Holder,
Participating Broker-Dealer or other party and the parties relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Holders' respective obligations to contribute
pursuant to this Section 5 are several in proportion to the respective amount of
Notes they have purchased, not joint.
(e) The Issuers and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) of this Section 5. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder of Securities shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities were sold by such Holder pursuant to a Registration Statement
exceeds the amount of any damages that 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.
(f) The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder or Participating Broker-Dealer or any person controlling such
Holder or Participating Broker-Dealer or by or on behalf
-16-
of the Issuers, their officers or directors or any person controlling the
Issuers and (iii) the sale of the Securities. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
SECTION 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 occurs (each such
event in clauses (i) through (iii) below a "Failure to Register"):
(i) if (A) by the 360th day following the date hereof the Exchange
Offer Registration Statement has not been declared effective by the
Commission or (B) by the 360th day following the date on which the
obligation to file a Shelf Registration Statement under Section 2 is
triggered, the Shelf Registration Exchange Offer has not been declared
effective by the Commission;
(ii) if by the 390th day following the date hereof the Registration
Exchange Offer is not consummated; or
(iii) if any Shelf Registration Statement required by Section 2 hereof
is filed and declared effective, and during the period the Issuers are
required to use their commercially reasonable efforts to cause the Shelf
Registration Statement to remain effective, (x) the Issuers shall have
suspended the Shelf Registration Statement pursuant to Section 2 hereof for
more than 60 days in the aggregate in any consecutive twelve-month period
and be continuing to suspend the availability of the Shelf Registration
Statement or (y) the Shelf Registration Statement shall cease to be
effective (other than by action of the Issuers pursuant to the last
paragraph of Section 2 hereof) without being replaced within 90 days by a
shelf registration statement that is filed and declared effective.
Additional Interest will accrue on the Notes, for the period from the
occurrence of a Failure to Register (but only with respect to one Failure to
Register at any particular time) until such time as all Failures to Register
have been cured at a rate per annum equal to 0.25% during the first 90-day
period following the occurrence of such Failure to Register, which rate shall
increase by 0.25% during each subsequent 90-day period, up to a maximum of 0.50%
regardless of the number of Failures to Register that shall have occurred and be
continuing.
(b) A Failure to Register referred to in Section 6(a)(iii) shall be
deemed not to have occurred and be continuing in relation to a Registration
Statement or the related prospectus if (i) such Failure to Register has occurred
solely as a result of (x) the filing of a post-effective amendment to such
Registration Statement to incorporate annual audited financial information with
respect to the Issuers 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) the occurrence of other material events or developments with
respect to the Issuers that
-17-
would need to be described in such Registration Statement or the related
prospectus and (ii) in the case of clause (y), the Issuers are proceeding
promptly and in good faith to amend or supplement such Registration Statement
and related prospectus to describe such events or, in the case of material
developments that the Issuers determine in good faith must remain confidential
for business reasons, the Issuers are proceeding promptly and in good faith to
take such steps as are necessary so that such developments need no longer remain
confidential.
(c) Any amounts of Additional Interest due pursuant to Section
6(a)(i), (a)(ii) or (a)(iii) above will be payable in cash on the regular
interest payment dates with respect to the Notes. The amount of Additional
Interest will be determined by multiplying the applicable Additional Interest
rate by the principal amount of the Notes, 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.
(d) "Transfer Restricted Notes" means each Security until (i) the date
on which such Transfer Restricted Note has been exchanged by a person other than
a broker-dealer for a freely transferable Exchange Note in the Registration
Exchange Offer, (ii) following the exchange by a broker-dealer in the
Registration Exchange Offer of a Transfer Restricted Note for an Exchange Note,
the date on which such Exchange Note 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 Transfer Restricted Note has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (iv) the date on which such Transfer Restricted Note 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.
SECTION 7. Rules 144 and 144A. The Issuers shall use their
commercially reasonable efforts to file the reports required to be filed by them
under the Securities Act and the Exchange Act in a timely manner and, if at any
time the Issuers are not required to file such reports, they will, upon the
reasonable request of any Holder of Transfer Restricted Notes, make publicly
available other information so long as necessary to permit sales of Securities
pursuant to Rules 144 and 144A. The Issuers covenant that they will take such
further action as any Holder of Transfer Restricted Notes may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Transfer Restricted Notes 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 Issuers will provide a copy
of this Agreement to prospective purchasers of Notes identified to the Issuers
by the Purchasers upon request. Upon the reasonable request of any Holder of
Transfer Restricted Notes, the Issuers shall deliver to such Holder a written
statement as to whether they have complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Issuers to register any of their securities pursuant to the Exchange
Act.
-18-
SECTION 8. Underwritten Registrations. If any of the Transfer
Restricted Notes covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering ("Managing Underwriters") will be
selected by the holders of a majority in aggregate principal amount of such
Transfer Restricted Notes and any Additional Notes included in such offering;
provided, however, that the Managing Underwriters shall be reasonably
satisfactory to the Issuers.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Notes on
the basis 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.
SECTION 9. Miscellaneous.
(a) 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 Issuers and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consent.
(b) 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:
(1) if to a Holder of the Securities, at the most current address
given by such Holder to the Issuers in accordance with the provisions of
this Section 9(b), which address initially is, with respect to each Holder,
the address of such Holder to which confirmation of the sale of the Notes
to such Holder was first sent by the Purchasers, with a copy in like manner
to you as follows:
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Finance
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with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
(2) if to the Issuers, at the following address:
Rental Service Corporation
0000 X. Xxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Director of Communications
- and -
Debevoise & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
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.
(c) No Inconsistent Agreements. The Issuers have not, as of the date
hereof, entered into, nor shall they, on or after the date hereof, enter into,
any agreement with respect to their securities that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof.
(d) Successors and Assigns. This Agreement shall be binding upon the
Issuers and their respective successors and assigns.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Execution and delivery of
this agreement by delivery of a facsimile or an electronically recorded copy
(including a.pdf file) bearing a copy of the signature of a
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party shall constitute a valid and binding execution and delivery of this
agreement by such party. Such copies shall constitute enforceable original
documents.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) 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 LAW.
(h) 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.
(i) Securities Held by the Issuers. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Issuers or their 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.
-21-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Issuers a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Purchasers and the Issuers in accordance with its terms.
Very truly yours,
RENTAL SERVICE CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
----------------------------------
Title: Senior Vice President and
Chief Financial Officer
---------------------------------
RSC HOLDINGS III, LLC
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
----------------------------------
Title: Senior Vice President and
Chief Financial Officer
---------------------------------
Registration Rights
-22-
Accepted as of the date hereof
Deutsche Bank Securities Inc.
Citigroup Global Markets Inc.
Acting severally on behalf of
themselves and the several
Purchasers
By: Deutsche Bank Securities Inc.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------
Title: Managing Director
------------------------------
By: /s/ Xxxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxx
-------------------------------
Title: Director
------------------------------
Registration Rights
ANNEX A
Each broker-dealer that receives Exchange Notes 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 Notes. 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 Notes received in exchange for Existing Notes where
such Existing Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Issuers have agreed
that, for a period of 90 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution".
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Notes, where such Notes 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
Notes. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes 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 Notes. 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 Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Issuers have agreed that, for a
period of 90 days after the Expiration Date, they will make this prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until __________, 200[_], all dealers
effecting transactions in the Exchange Notes may be required to deliver a
prospectus.(1)
The Issuers will not receive any proceeds from any sale of Exchange
Notes by broker-dealers. Exchange Notes 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 Notes 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 Notes. Any broker-dealer
that resells Exchange Notes 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 Notes may be deemed to be an "underwriter" within
the meaning of the Securities Act and any profit on any such resale of Exchange
Notes 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 Issuers will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to
----------
(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.
-2-
any broker-dealer that requests such documents in the Letter of Transmittal. The
Issuers have agreed to pay all expenses incident to the Exchange Offer other
than commissions or concessions of any brokers or dealers and transfer taxes.
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
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes 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 Notes;
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.
