EXHIBIT 10.8
CONFORMED COPY
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THIRD AMENDED AND RESTATED SECURITY AGREEMENT
RE: RECEIVABLES, INVENTORY, EQUIPMENT,
AND DOCUMENTS
Dated as of July 1, 1996
By and Between
U.S. RENTALS, INC.
(the "Company")
And
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Collateral Agent
(the "Collateral Agent")
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TABLE OF CONTENTS
Section Heading Page
Parties..................................................................... 1
Recitals.................................................................... 1
Section 1. Grant of Security Interest in the Collateral............ 3
Section 2. Terms Defined in the Credit Agreement................... 6
Section 3. Covenants, Agreements, Representations and Warranties... 6
Section 4. Special Provisions Re: Receivables...................... 12
Section 5. Collection of Receivables............................... 13
Section 6. Special Provisions Re: Inventory........................ 15
Section 7. Power of Attorney....................................... 16
Section 8. Defaults and Remedies................................... 16
Section 9. Application of Proceeds................................. 19
Section 10. Continuing Agreement.................................... 19
Section 11. Miscellaneous........................................... 19
Signature................................................................... 22
Attachments to Security Agreement:
Exhibit 1 -- Form of Account Letter Agreement
Schedule A -- Description of Accounts
Schedule B -- Locations
Schedule C -- Permitted Trade Names
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THIRD AMENDED AND RESTATED SECURITY AGREEMENT
RE: RECEIVABLES, INVENTORY, EQUIPMENT,
AND DOCUMENTS
This Third Amended and Restated Security Agreement (the "Agreement") is
dated as of July 1, 1996, by and between U.S. Rentals, Inc., a California
corporation, with its mailing address at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxxx 00000 (the "Company"), and Bank of America National Trust and Savings
Association, acting as collateral agent hereunder for the Banks and the Agent
(as hereinafter defined) and for the Noteholders hereinafter identified and
defined (in such capacity, and any successor or successors thereto acting in
such capacity, being hereinafter referred to as the "Collateral Agent"), with
its mailing address at 0000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, Attention: Agency Management Services No. 10831.
RECITALS:
A. The Company and Bank of America National Trust and Savings Association
(in its capacity as a lender, "BofA") have heretofore entered into that certain
First Amended and Restated Credit Agreement dated as of August 11, 1995 (as
amended from time to time, the "BofA Credit Agreement"), pursuant to which BofA
has extended credit to the Company on the terms provided therein. The BofA
Credit Agreement may be further amended, restated, superseded or otherwise
modified from time to time in the form of a syndicated credit agreement among
the Company, certain banks, including BofA, from time to time party thereto, and
Bank of America National Trust and Savings Association, as the agent for such
banks (in such capacity, and any successor or successors thereto acting in such
capacity, being hereinafter referred to as the "Agent") (a "Syndicated
Credit Agreement"; such a Syndicated Credit Agreement and the BofA Credit
Agreement are referred to collectively and separately, as applicable, as the
"Credit Agreement"). The banks, including BofA, from time to time party to a
Syndicated Credit Agreement and BofA, as a lender under the BofA Credit
Agreement, are referred to herein as the "Banks."
B. Loans outstanding under the BofA Credit Agreement were secured by that
certain Revised, Amended and Restated Security Agreement (Receivables,
Inventory, Equipment and Documents) dated September 30, 1990 (the "1990 Security
Agreement").
C. Pursuant to the terms of those certain Note Agreements dated as of
August 15, 1995 (as amended from time to time, the "1995 Note Agreements"),
between the Company and the several Purchasers named in Schedule I thereto (the
"1995 Purchasers" and, together with each successive holder from time to time of
the 1995 Senior Notes described below, the "1995 Noteholders"), the Company has
heretofore sold and the 1995 Purchasers have heretofore purchased from the
Company its (1) 6.82% Senior Secured Notes, Series A, Due 1999, in the aggregate
principal amount of $10,000,000, (2) 6.89% Senior Secured Notes, Series B, Due
2000, in the aggregate principal amount of $10,000,000, (3) 7.04% Senior Secured
Notes, Series C, Due 2001, in the aggregate principal amount of
$10,000,000, and (4) 7.13% Senior Secured Notes, Series D, Due 2002, in the
aggregate principal amount of $20,000,000 (collectively, the "1995 Senior
Notes").
D. Loans outstanding under the BofA Credit Agreement and all obligations
of the Company under the 1995 Note Agreements and the 1995 Senior Notes are
secured by that certain Second Amended and Restated Security Agreement
Re: Receivables, Inventory, Equipment and Documents dated August 15, 1995 (the
"1995 Security Agreement") which agreement amended and restated the 1990
Security Agreement.
E. Pursuant to the terms of those certain Note Agreements dated as of
July 1, 1996 (as amended from time to time, the "1996 Note Agreements"; the
1996 Note Agreements together with the 1995 Note Agreements are hereinafter
referred to as the "Note Agreements"), between the Company and the several
Purchasers named in Schedule I thereto (the "1996 Purchasers" and, together with
each successive holder from time to time of the 1996 Senior Notes described
below and with the 1995 Noteholders, the "Noteholders"), the Company has agreed
to sell and the 1996 Purchasers have agreed to purchase from the Company its
(1) 7.62% Senior Secured Notes, Series E, Due 2001, in the aggregate principal
amount of $20,000,000 and (2) 7.76% Senior Secured Notes, Series F, Due 2002, in
the aggregate principal amount of $20,000,000 (collectively, the "1996 Senior
Notes"; the 1996 Senior Notes together with the 1995 Senior Notes are
hereinafter referred to as the "Senior Notes").
F. As a condition to the continuance or maintenance of financial
accommodations to be given to the Company by the Banks and the 1995 Noteholders,
and as a condition precedent to the purchase of the 1996 Senior Notes by the
1996 Purchasers, BofA, the 1995 Noteholders and the 1996 Purchasers have
required that the Company and the Collateral Agent enter into this Agreement
amending and restating the 1995 Security Agreement in order to modify the terms,
conditions and covenants thereof to provide that the obligations of the Company
in respect of the Note Agreements and the Senior Notes constitute secured
obligations thereunder, and as otherwise more particularly set forth herein.
G. Pursuant to the terms of the Intercreditor Agreement dated as of
August 15, 1995, as amended, modified or supplemented from time to time, among
the Banks and the Noteholders, the Collateral Agent has agreed to act as
collateral agent for and on behalf of the Agent, the Banks and the Noteholders.
H. The Company has agreed to execute and deliver this Agreement to the
Collateral Agent as collateral agent for the Agent, the Banks and the
Noteholders.
I. The Company has determined that the execution and delivery of this
Agreement is in furtherance of its corporate purposes and is in its best
interest and that it will derive substantial benefit, whether directly or
indirectly, from the execution of this Agreement, having regard for all relevant
facts and circumstances.
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NOW, THEREFORE, in consideration of the premises and for the purpose of
inducing the purchase and acceptance of the 1996 Senior Notes by the
1996 Purchasers and the continuance and maintenance of financial accommodations
by the Banks pursuant to the Credit Agreement and by the 1995 Noteholders
pursuant to the 1995 Note Agreements, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company does hereby covenant and agree with the Collateral Agent as follows:
Section 1. Grant of Security Interest in the Collateral. (a) The Company
hereby ratifies and confirms its grant of a security interest in, and
acknowledges and agrees that the Collateral Agent has and shall continue to have
for the benefit of the Agent, the Banks and the Noteholders a continuing
security interest in, any and all right, title and interest of the Company,
whether now existing or hereafter acquired or arising, in and to:
(1) Receivables. All Receivables, whether now existing or hereafter
arising, and however evidenced or acquired, in which the Company now has or
hereafter acquires any rights (the term "Receivables" means and includes
accounts, accounts receivable, rents, contract rights, including without
limitation rights under contracts for the purchase of supplies,
instruments, notes, drafts, acceptances, documents, chattel paper, any
right of the Company to payment for goods sold, leased or rented or for
services rendered, whether arising out of the sale, lease or rental of
Inventory (as hereinafter defined) or otherwise and whether or not earned
by performance, and all other forms of obligations owing to the Company,
and all of the Company's rights to any goods and merchandise (including
without limitation any returned or repossessed goods and the right of
stoppage in transit) which is represented by, arises from or is related to
any of the foregoing);
(2) General Intangibles. All general intangibles, whether now owned
or hereafter acquired or arising, or in which the Company now has or
hereafter acquires any rights, including without limitation all causes of
action, goodwill and similar intangibles and all income tax refunds, all
privileges, franchises, immunities, licenses, permits and similar
intangibles, any rights under contracts or agreements to which the Company
is, or may become, a party (including, without limitation, all notes
receivable from affiliates of the Company or any of its Subsidiaries), any
rights to receive any payments in connection with the termination of any
pension plan or employee stock ownership plan or trust established for the
benefit of employees of the Company and all other intangible personal
property (including things in action) not otherwise covered by this
Agreement;
(3) Know-How and Trade Secret Collateral. All know-how, inventions,
processes, methods, information, data and plans, to the extent that the
foregoing constitute trade secrets of the Company, and all licenses or
other similar agreements granted to or by the Company with respect to any
of the foregoing, in any case whether now existing or hereafter created or
developed;
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(4) Inventory. All Inventory, whether now owned or hereafter
acquired, and all documents of title at any time evidencing or representing
any part thereof (the term "Inventory" means and includes all goods (i)
which are held for sale, lease or rental, including without limitation any
and all aerial work platforms, bulldozers, cranes, forklifts, earth moving
equipment, compaction equipment, trucks, portable air compressors, hand
tools, plumbing, landscape and garden equipment and all similar goods held
for sale, lease or rental by the Company or are to be furnished under
contracts of service or consumed in the Company's business, or (ii) which
are raw materials, work-in-process, finished goods (including, without
limitation, supplies and related products), packaging materials and all
other materials and supplies of every nature in each case used or usable in
connection with the acquisition, processing, supply, servicing, storing,
packing, shipping, advertising, selling, leasing, rental or furnishing of
such goods and any constituents or parts thereof, or (iii) which are
returned or repossessed goods);
(5) Equipment. All equipment (exclusive of equipment constituting
Inventory as described in clause (4) above), whether now owned or hereafter
acquired, wherever located, including without limitation, any and all
apparatus, computer equipment, computer software, fittings, fixtures,
furnishings, furniture, hardware improvements, machinery, building signs,
maintenance and repair equipment, office equipment, copiers, security
systems, telephone systems and typewriters as the same are now and will
hereafter be constituted, whether now owned by the Company or hereafter
acquired, together with all appliances, instruments, improvements,
accessories, equipment, parts and appurtenances appertaining or attached
thereto, or from time to time incorporated herein or installed as part
thereof, and all substitutions, renewals and replacements of and additions,
improvements, assessions and accumulations to all thereof which are now
owned or hereafter acquired by the Company;
(6) Accounts, Investments, Monies, etc. (i) All accounts now owned
or hereafter acquired by the Company and, in any event shall include,
without limitation, the accounts described on Schedule A attached hereto
(the "Accounts"); and all funds held in the Accounts and all certificates
and instruments, if any, from time to time representing or evidencing the
Accounts, (ii) all notes, certificates of deposit, deposit accounts, checks
and other instruments from time to time hereafter delivered to or otherwise
possessed by the Company or the Agent, the Banks for or on behalf of the
Company in substitution for or in addition to any or all of the then
existing Collateral (as defined below), (iii) all Investments from time to
time, and all certificates and instruments, if any, from time to time
representing or evidencing such Investments and (iv) all cash, currency,
coins and monies held by the Company or held in any deposit account by the
Company (collectively, "Cash");
(7) Other. Any and all other property or interests in property of
any type whatsoever in the possession of the Company to the extent such
property is not covered by the foregoing and to the extent a security
interest may legally be granted in
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such property or interests in property under the Code (as hereinafter
defined), but excluding in any event all real estate owned by the Company
and fixtures thereon;
(8) Records. Supporting evidence and documents relating to any of
the above described property, including, without limitation, written
applications, credit information, account cards, payment records,
correspondence, delivery and installation certificates, invoice copies,
delivery receipts, notes and other evidences of indebtedness, insurance
certificates and the like, customer lists, together with all books of
account, ledgers and cabinets in which the same are reflected or
maintained, all whether now existing or hereafter arising (collectively,
the "Records");
(9) Additions. All additions to and substitutions and replacements
of any and all of the foregoing, whether now existing or hereafter arising;
(10) Proceeds and Products. All proceeds and products of the
foregoing and all insurance of the foregoing and the proceeds thereof
including, without limitation, the proceeds of any business interruption
insurance or any key man life insurance policy covering the life of any
officer or director of the Company, whether now existing or hereafter
arising; and
(11) Louisiana Collateral. Upon the execution of the Original
Security Agreements between the Company and B of A on November 10, 1986,
the Company and B of A executed separate collateral and security document
applicable to certain property and rights situated in, or governed under
the laws of, the State of Louisiana, including resolutions of the Board of
Directors of the Company, Collateral Chattel Mortgage Notes, Collateral
Chattel Mortgages, Collateral Pledge Agreements, Assignments of Accounts
Receivable, and Notices of Assignments of Accounts Receivable (collectively
the "Louisiana Collateral Documents"), certain of which Louisiana
Collateral Documents were recorded with the offices of the Clerks of the
Court and Recorders of Caddo, Jefferson and Ouachita Parishes, Louisiana.
The State of Louisiana subsequently enacted into law a version of Article 9
of the Uniform Commercial Code (designated Chapter 9 of Title 10 of the
Louisiana Revised Statutes, as amended). The Company, the Agent, the Banks
and the Noteholders intend to continue in effect and perpetuate, in the
name of the Collateral Agent, the collateral and security interest under
Louisiana law with respect to such Collateral which is presently located
in, or is subject to the laws of, the State of Louisiana, uninterrupted
from November 10, 1986. Therefore, the Agent, the Banks, the Noteholders
and the Company agree that this act of Third Amended and Restated Security
Agreement Re: Receivables, Inventory, Equipment and Documents shall apply
to and include all such Collateral as may now or in the future be situated
in, or subject to the law of, the state of Louisiana, to the same extent
and with the same ranking as is otherwise provided for in this act of Third
Amended and Restated Security Agreement Re: Receivables, Inventory,
Equipment and Documents;
all of the foregoing being herein referred to as the "Collateral".
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(b) Obligations Secured. The lien and security interest herein granted
to the Collateral Agent for the benefit of the Agent, the Banks and the
Noteholders is made and given to secure, and shall secure, the prompt payment
and performance in full when due (whether by lapse of time, acceleration or
otherwise) of (i) any and all indebtedness, obligations and liabilities of the
Company to the Agent or the Banks under or in connection with or evidenced by
(x) the Credit Agreement or (y) the notes of the Company issued under the Credit
Agreement or (z) this Agreement, in each case whether now existing or hereafter
arising (and whether arising before or after the filing of a petition in
bankruptcy), due or to become due, direct or indirect, absolute or contingent,
and howsoever evidenced, held or acquired, (ii) all indebtedness, obligations
and liabilities of the Company to the Noteholders under or in connection with or
evidenced by (x) the Note Agreements or (y) the Senior Notes issued by the
Company in connection therewith or (z) this Agreement, in each case whether now
existing or hereafter arising (and whether arising before or after the filing of
a petition in bankruptcy), due or to become due, direct or indirect, absolute or
contingent, and howsoever evidenced, held or acquired, (iii) all indebtedness,
obligations and liabilities of the Company to the Collateral Agent under or in
connection with or evidenced by this Agreement, in each case whether now
existing or hereafter arising (and whether arising before or after the filing of
a petition in bankruptcy), due or to become due, direct or indirect, absolute or
contingent, and howsoever evidenced, held or acquired, and (iv) any and all
expenses and charges, legal or otherwise, suffered or incurred by the Collateral
Agent, the Agent, the Banks and the Noteholders in collecting or enforcing any
of such indebtedness, obligations and liabilities or in realizing on or
protecting or preserving any security therefor, including, without limitation,
the lien and security interest granted hereby (all of the indebtedness,
obligations, liabilities, expenses and charges described in clauses (i), (ii),
(iii) and (iv) above being hereinafter referred to as the "Secured
Obligations").
(c) On the date the Company executes and delivers this Agreement, the
security interests granted hereunder by the Company shall constitute valid
security interests under the Code (as hereinafter defined) securing the Secured
Obligations.
Section 2. Terms Defined in the Credit Agreement. All capitalized terms
used herein without definition shall have the same meanings herein as such terms
have in the Credit Agreement as the Credit is in effect on the date hereof.
Section 3. Covenants, Agreements, Representations and Warranties. The
Company hereby covenants and agrees with, and represents and warrants to, the
Collateral Agent, the Agent, the Banks and the Noteholders that:
(a) Unless and to the extent the Collateral Agent shall otherwise
consent in writing, the Collateral is and will remain in the Accounts or in
the Company's possession or control or deemed to be located under the Code
at the locations listed under Item A on Schedule B in the form attached
hereto, or as Schedule B may hereafter be amended or modified by instrument
in writing delivered to the Collateral Agent (collectively the "Permitted
Collateral Locations"), except for (i) Collateral which in the ordinary
course of the Company's business as presently conducted is in transit
between the Permitted Collateral Locations, (ii) Inventory which in the
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ordinary course of the Company's business as presently conducted is being
shipped to customers of the Company or is in the possession of customers of
the Company pursuant to a lease or rental arrangement between such customer
and the Company, and (iii) Inventory in transit to the Company at a
Permitted Collateral Location from the supplier of such items. The Company
shall not hold Cash in any depository account other than the Accounts and
any other accounts of which the Company has given the Collateral Agent
written notice pursuant to periodic updates made by the Company at the
Collateral Agent's request. Upon the occurrence of an Event of Default
hereunder and upon the request of the Collateral Agent, the Company shall
execute an Account Letter Agreement covering such depository account(s)
substantially in the form of Exhibit 1 attached hereto and such Account
Letter Agreement shall be acknowledged and agreed to by the subject bank;
provided that, on or prior to the effective date hereof, the Company shall
execute and deliver an Account Letter Agreement acknowledged and agreed to
by the Collateral Agent covering the concentration account No. 12331-13468
of the Company maintained with BofA. If for any reason Collateral is at
any time kept or located at locations other than those permitted by the
foregoing, the Collateral Agent shall nevertheless have and retain a
security interest therein. As indicated on Schedule B, the Company owns or
leases and will own or lease all the Permitted Collateral Locations. As of
the date hereof, the Company's chief executive office and chief place of
business is at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000 and
the Company has no other places of business other than those listed on said
Schedule B. The Company will not maintain its chief executive office or
places of business at any location other than those specified pursuant to
the immediately preceding sentence without first providing the Collateral
Agent 60 days' prior written notice of its intent to do so; provided,
however, that such notice shall not be deemed effective until the
Collateral Agent has acknowledged receipt thereof; provided, further, that
the Company will at all times maintain its chief executive office in the
State of California.
(b) The Collateral and every part thereof is and will be free and
clear of all security interests, liens (including without limitation
mechanics', laborers' and statutory liens), attachments, levies and
encumbrances of every kind, nature and description and whether voluntary or
involuntary, except for the security interest of the Collateral Agent
therein and liens permitted under the Credit Agreement and Note Agreements
(collectively the "Permitted Liens"). The Company will warrant and defend
the Collateral against any claims and demands (other than the Permitted
Liens) of all persons at any time claiming the same or any interest in the
Collateral adverse to the Collateral Agent.
(c) The Company will pay promptly when due all taxes, assessments,
and governmental charges and levies upon or against the Collateral in each
case before the same become delinquent and before penalties accrue thereon,
unless (1) the validity, applicability or amount thereof is being contested
in good faith by appropriate actions or proceedings which will prevent the
forfeiture or sale of such Collateral or any material interference with the
use thereof by the Company and (2) the Company shall
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have set aside on its books, reserves deemed by it to be adequate with
respect thereto in accordance with and as required by GAAP.
(d) The Company will not waste or destroy the Collateral or any part
thereof and will not be negligent in the care and use of any Collateral.
The Company will not use, sell, lease, rent or distribute any Collateral in
violation of any statute, ordinance or other governmental requirement. The
Company will perform in all material respects its obligations under any
contract or other agreement constituting a part of the Collateral, it being
understood and agreed that the Collateral Agent, the Agent, the Banks and
the Noteholders have no responsibility to perform such obligations.
(e) Subject to (S)(S)(a), 6(b) and 6(c) hereof and except as
permitted by the Credit Agreement and Note Agreements, the Company will
not, without the Collateral Agent's prior written consent, sell, assign,
mortgage, lease or otherwise dispose of or otherwise permit a Lien to exist
on the Collateral or any interest therein.
(f) The Company will insure the Collateral which is insurable
against such risks and hazards as other companies similarly situated insure
against, and including in any event commercial general and commercial
liability insurance and such other coverage as the Collateral Agent may
reasonably specify, in amounts and under policies written by companies of
recognized national standing which are authorized to do business in the
state in which the Collateral is located, and which are otherwise
acceptable to the Collateral Agent, provided that the Company shall be
permitted to self-insure in a commercially reasonable manner consistent
with its current practices so long as adequate reserves with respect
thereto are maintained. All premiums on third party insurance shall be
paid by the Company and the policies of such insurance (or certificates
therefor) delivered to the Collateral Agent.
All such policies of insurance: (1) shall contain loss payable
clauses to the Collateral Agent as its interest may appear (and, if the
Collateral Agent requests, naming the Collateral Agent, the Agent, the
Banks and the Noteholders as additional insureds therein), (2) in the case
of policies covering loss or damage to the Collateral, shall provide that
losses, if any, shall be payable solely to the Collateral Agent under a
standard loss payable clause satisfactory to the Collateral Agent,
(3) shall provide that the Collateral Agent's, the Agent's, the Banks' and
the Noteholders' interests shall be insured regardless of any breach or
violation by the Company of any warranties, declarations or conditions
contained in such policies, (4) the insurers shall waive any right of
subrogation of the insurers to any set-off or counterclaim or any other
deduction, whether by attachment or otherwise, in respect of any liability
of the Company, (5) such insurance, as to the interest of the Collateral
Agent and/or the Agent, the Banks and the Noteholders, as the case may be,
therein, shall not be invalidated by the use or operation of the Collateral
for purposes which are not permitted by such policies, nor by any
foreclosures or other proceedings relating to the Collateral, nor by change
in title to or ownership of the Collateral, (6) if any premium or
installment is not paid when due, or if such insurance would lapse or be
cancelled, terminated or materially changed for any reason whatsoever, the
insurers
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will promptly notify the Collateral Agent and any such lapse, cancellation,
termination or change shall not be effective as to the Collateral Agent
and/or the Agent, the Banks and the Noteholders, as the case may be, for 30
days after receipt of such notice, and (7) appropriate certification shall
be made to the Collateral Agent by each insurer with respect thereto.
The Company hereby authorizes the Collateral Agent, upon the
occurrence and during the continuation of any Event of Default hereunder,
at the Collateral Agent's option to adjust, compromise and settle any
losses under any insurance afforded, and the Company does hereby
irrevocably constitute the Collateral Agent, its officers, agents and
attorneys, as its attorneys-in-fact, with full power and authority, upon
the occurrence and during the continuation of any Event of Default
hereunder, to effect such adjustment, compromise and/or settlement and to
endorse any drafts drawn by an insurer of the Collateral or any part
thereof and to do everything necessary to carry out such purposes and to
receive and receipt for any unearned premiums due under policies of such
insurance; but unless the Collateral Agent elects to adjust, compromise or
settle losses as aforesaid, such adjustment, compromise and/or settlement
shall be made by the Company, subject to final approval of the Collateral
Agent in the case of losses exceeding $250,000.
(g) The Company will, upon reasonable notice, at all times allow the
Collateral Agent, the Agent, the Banks and the Noteholders, or their
respective representatives, free access to and right of inspection of the
Collateral located on premises under the Company's control; provided,
however, so long as no Event of Default hereunder exists and is continuing,
any such access or inspection shall only be allowed during the Company's
normal business hours. The Company will, upon request of the Collateral
Agent, and then only to the extent it is within the Company's power so to
do, authorize and instruct all bailees and any other parties at any time
holding, storing, shipping, leasing or renting all or any part of the
Collateral to permit the Collateral Agent or its designees to examine and
inspect any of the Collateral then in such party's possession and to verify
from such party's own books and records any information concerning the
Collateral or any part thereof which the Collateral Agent may seek to
verify. The Company shall have the right to accompany the Collateral Agent
on any such examination or inspection. As to any premises not owned by the
Company wherein any of the Collateral is located, the Company shall, upon
the occurrence of an Event of Default hereunder and upon the request of the
Collateral Agent, use its best efforts to cause each owner of such premises
to enter into an agreement in form and substance satisfactory to the
Collateral Agent subordinating any lien such owner may have by contract or
under law with respect to such Collateral to the Lien of this Agreement,
allowing the removal of such Collateral by the Collateral Agent and
otherwise in form and substance reasonably acceptable to the Collateral
Agent.
(h) The Company agrees from time to time to deliver to the
Collateral Agent, the Agent, the Banks and any Noteholder such evidence
(including copies) of the existence and identity of the Collateral and of
its availability as collateral security
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pursuant hereto, as the Collateral Agent, the Agent, the Banks or such
Noteholder may reasonably request.
(i) The Company will comply in all material respects with the terms
and conditions of any leases, easements, right-of-way agreements or other
agreements binding upon the Company or affecting the Collateral in each
case which cover the premises owned, leased or otherwise controlled by the
Company wherein the Collateral is located and any orders, ordinances, laws
or statutes of any city, state or other governmental entity, department or
agency having jurisdiction with respect to such premises or the conduct of
business thereon.
(j) The Company has not invoiced Receivables or otherwise transacted
business, and does not invoice Receivables or otherwise transact business,
under any trade names other than the Company's name set forth in the
introductory paragraph of this Agreement and except for the invoicing of
Receivables on invoices which contain one of the trade names listed on
Schedule C attached hereto and made a part hereof, but which indicate such
trade name to be a division of or trade name for the Company and so
identify the Company by its correct corporate name. The Company will not
change its name, or except as aforesaid, transact business under any trade
name, in each case without first giving the Collateral Agent 30 days' prior
written notice of its intent to do so, provided that in the case of any
acquisition by the Company of any business entity or operation giving rise
to the requirement to give notice to the Collateral Agent of the use of a
new trade name pursuant to the foregoing, such notice shall be given to the
Collateral Agent within 30 days following the date such acquisition is
finalized.
(k) The Company represents that this Agreement creates a valid
security interest in the Collateral securing payment and performance of the
Secured Obligations and that all filings and other action necessary to
perfect such security interest have been taken. The Collateral Agent
agrees to prepare, and the Company agrees to cooperate with the Collateral
Agent to execute and deliver to the Collateral Agent, such further
agreements and assignments or other instruments and to do all such other
things necessary or reasonably appropriate to assure the Collateral Agent
its security interest hereunder, including such financing statement or
statements, continuation statements or amendments thereof or supplements
thereto or other instruments as may from time to time be required in order
to comply with the California Uniform Commercial Code and any successor
statute(s) thereto (the "Code").
All such statements, amendments and supplements prepared by the
Collateral Agent shall be presented to the Company for its signature and
shall be timely filed by the Collateral Agent in all such places as are
necessary to maintain the Collateral Agent's perfected security interest in
the Collateral. The Company agrees to deliver to the Collateral Agent on
August 1, 2000 an opinion of counsel, which opinion may be from internal
counsel, in the State of California and each other state in which
Collateral may be located pursuant to the terms of this Agreement, to the
effect that
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this Agreement continues to create a valid security interest in the
Collateral securing payment and performance of the Secured Obligations
subject to the Permitted Liens and that all filings and other action
necessary to perfect such security interest have been taken. Such opinion
shall also set forth and describe any filings or other actions which may
reasonably be expected to become necessary within the immediately
succeeding twenty-four-month period to maintain perfection of such security
interest. All such filings and actions shall be promptly made by the
Company. The Company hereby agrees that a carbon, photographic or other
reproduction of this Agreement or any such financing statement is
sufficient for filing as a financing statement by the Collateral Agent
without notice thereof to the Company wherever the Collateral Agent in its
sole discretion desires to file the same.
In the event for any reason the law of any jurisdiction other than
California becomes or is applicable to the Collateral or any part thereof,
or to any of the Secured Obligations, the Company agrees to execute and
deliver all such instruments and to do all such other things as the
Collateral Agent in its sole discretion reasonably deems necessary or
appropriate to preserve, protect and enforce the security interest of the
Collateral Agent as set forth herein under the law of such other
jurisdiction to at least the same extent as such security interest would be
protected under the Code. If any Collateral is in the possession or
control of any of the Company's agents or processors and the Collateral
Agent so requests, the Company agrees to notify such agents or processors
in writing of the Collateral Agent's security interest therein and, upon
the occurrence and continuance of an Event of Default hereunder and at the
Collateral Agent's request, instruct all agents and processors in
possession of Collateral to hold all such Collateral for the Collateral
Agent's account and subject to the Collateral Agent's instructions. The
Company agrees to xxxx its books and records to reflect the security
interest of the Collateral Agent in the Collateral.
(l) On failure of the Company to perform any of the covenants and
agreements herein contained, the Collateral Agent may, at its option,
perform the same and in so doing may expend such sums as the Collateral
Agent may reasonably deem advisable in the performance thereof, including
without limitation the payment of any insurance premiums, the payment of
any taxes, liens and encumbrances, expenditures made in defending against
any adverse claim and all other expenditures which the Collateral Agent may
be compelled to make by operation of law or which the Collateral Agent may
make by agreement or otherwise for the protection of the security hereof.
All such sums and amounts so expended shall be repayable by the Company
immediately without notice or demand, shall constitute so much additional
Secured Obligations and shall bear interest from the date said amounts are
expended at the rate per annum (computed on the basis of a 360-day year for
the actual number of days elapsed) determined by adding 2% to the rate per
annum from time to time announced by Bank of America National Trust and
Savings Association in San Francisco, California, as its prime commercial
rate with any change in such rate per annum as so determined by reason of a
change in such prime commercial rate to be effective on the date of such
change in said prime commercial rate (such rate per annum as so determined
being hereinafter referred to as the "Default Rate"). No such
-11-
performance of any covenant or agreement by the Collateral Agent on behalf
of the Company, and no such advancement or expenditure therefor, shall
relieve the Company of any default under the terms of this Agreement. The
Collateral Agent, in making any payment hereby authorized may do so
according to any xxxx, statement or estimate procured from the appropriate
public office or holder of the claim to be discharged without inquiry into
the accuracy of such xxxx, statement or estimate or into the validity of
any tax assessment, sale, forfeiture, tax lien or title or claim. The
Collateral Agent, in performing any act hereunder, shall be the sole judge
in reasonably determining whether the Company is required to perform the
same under the terms of this Agreement.
(m) Immediately upon the Company's receipt thereof, the Company
shall cause to be delivered to the Collateral Agent all chattel paper and
instruments relating to the Inventory (other than motor vehicle title
documents and other chattel paper evidencing title to equipment) which the
Company now owns or may at any time or times hereafter acquire, with
appropriate endorsement and assignment in favor of the Collateral Agent,
with full recourse to the Company. Upon the request of the Collateral
Agent, the Company shall cause to be delivered to the Collateral Agent all
such motor vehicle title documents and other chattel paper evidencing title
to equipment with appropriate endorsement and assignment in favor of the
Collateral Agent, with full recourse to the Company.
(n) The Company shall respond promptly to all reasonable requests of
the Collateral Agent for information concerning the conduct of all lawsuits
brought by the Company (or in which the Company participates) against any
other Person.
Section 4. Special Provisions Re: Receivables. (a) As of the time any
Receivable becomes subject to the security interest provided for hereby, the
Company shall be deemed to have warranted as to each and all of such Receivables
that each Receivable and all papers and documents relating thereto are genuine
and in all respects what they purport to be; that each Receivable is valid and
subsisting and, if such Receivable is an account receivable, arises out of a
bona fide sale, lease or rental of goods by the Company to, or in the process of
being delivered to, or out of and for services theretofore actually rendered by
the Company to, the account debtor named therein; that no such Receivable is
evidenced by any instrument or chattel paper unless such instrument or chattel
paper is promptly endorsed by the Company and delivered to the Collateral Agent
(other than chattel paper consisting of rental agreements and other ordinary
course agreements relating to the lease, rental or sale of goods which shall
only be delivered to the Collateral Agent after the occurrence of an Event of
Default hereunder and upon the request of the Collateral Agent); that no surety
bond was required or given in connection with said Receivable or the contracts
or purchase orders out of which the same arose; and that if said Receivable is
scheduled, listed or referred to on any Borrowing Base Certificate as an
Eligible Receivable, that said Receivable qualifies as an Eligible Receivable as
of the date covered by such Borrowing Base Certificate.
(b) The Company shall keep all of its books and records relating to the
Receivables only at its chief executive office and places of business as
specified pursuant to (S)3(a).
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(c) Unless and until an Event of Default hereunder occurs and is
continuing and the Collateral Agent notifies the Company otherwise, any goods
sold by the Company which are returned by a customer or account debtor or
otherwise recovered may be resold by the Company in the ordinary course of its
business in accordance with (S)6(b) hereof; upon the occurrence and during the
continuation of any Event of Default hereunder if the Company is so instructed
by the Collateral Agent, such goods shall be set aside and held by the Company
as trustee for the Collateral Agent, the Agent, the Banks and the Noteholders
and shall remain part of the Collateral Agent's Collateral. Unless and until an
Event of Default hereunder occurs and is continuing and the Collateral Agent
notifies the Company otherwise, the Company may settle and adjust disputes and
claims with its customers and account debtors, handle returns and recoveries and
grant discounts, credits and allowances in the ordinary course of business and
otherwise for amounts and on terms which the Company in good faith considers
advisable. However, upon the occurrence and during the continuation of any
Event of Default hereunder and if so instructed by the Collateral Agent, the
Company shall notify the Collateral Agent promptly of all returns and recoveries
and on request deliver the goods to the Collateral Agent. Upon the occurrence
and during the continuation of any Event of Default hereunder and if so
instructed by the Collateral Agent, the Company shall also notify the Collateral
Agent promptly of all disputes and claims and settle or adjust them at no
expense to the Collateral Agent, the Agent, the Banks or the Noteholders, but no
discount, credit or allowance other than on normal trade terms in the ordinary
course of business shall be granted to any customer or account debtor and no
returns of goods shall be accepted by the Company without the Collateral Agent's
consent. The Collateral Agent may, at all times upon the occurrence and during
the continuation of any Event of Default hereunder, settle or adjust disputes
and claims directly with customers or account debtors for amounts and upon terms
which the Collateral Agent considers advisable.
Section 5. Collection of Receivables. (a) Until an Event of Default
hereunder has occurred and is continuing and the Collateral Agent instructs the
Company otherwise, the Company shall make collection of all Receivables and may
use the same to carry on its business in the ordinary course as presently
conducted and otherwise subject to the terms thereof.
(b) Upon the occurrence and during the continuation of any Event of
Default hereunder, whether or not the Collateral Agent has exercised any or all
of its rights under other provisions of this (S)5, upon the request of the
Collateral Agent:
(1) all instruments and chattel paper at any time constituting part
of the Receivables (including any postdated checks) shall, upon receipt by
the Company, be immediately endorsed to and deposited with the Collateral
Agent; and/or
(2) the Company shall instruct all account debtors to remit all
payments in respect of Receivables to a lockbox or lockboxes under the sole
custody and control of the Collateral Agent to be maintained at post
offices selected by the Collateral Agent.
(c) Upon the occurrence and during the continuation of any Event of
Default hereunder, whether or not the Collateral Agent has exercised any or all
of its rights under
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other provisions of this (S)5, the Collateral Agent or its designee may notify
the Company's customers or account debtors at any time without prior notice to
the Company that Receivables have been assigned to the Collateral Agent or of
the Collateral Agent's security interest therein and either in its own name, or
the Company's or both, demand, collect (including without limitation through a
lockbox analogous to that described in (S)5(b)(2)), receive, receipt for, xxx
for, compound and give acquittance for any or all amounts due or to become due
on Receivables, and in the Collateral Agent's discretion file any claim or take
any other action or proceeding which the Collateral Agent may deem necessary or
appropriate to protect and realize upon the security interest of the Collateral
Agent in the Receivables.
(d) Any proceeds of Receivables or other Collateral transmitted to or
otherwise received by the Collateral Agent pursuant to any of the provisions of
(S)(S)5(b) or (c) shall be handled and administered by the Collateral Agent in
and through a remittance account or accounts maintained by the Collateral Agent
at a commercial bank or banks selected by the Collateral Agent (collectively the
"Depository Banks" and individually a "Depository Bank") and the Company
acknowledges that the maintenance of such remittance accounts by the Collateral
Agent is solely for the Collateral Agent's own convenience and that the Company
does not have any right, title or interest in such remittance accounts or any
amounts at any time standing to the credit thereof and shall be subject to the
right of the Collateral Agent therein as set forth in this Agreement. The
Collateral Agent may apply all or any part of any proceeds of Receivables or
other Collateral received by it from any source to the payment of the Secured
Obligations then due and payable in such amounts and in such manner and order as
set forth in the Intercreditor Agreement. The Collateral Agent need not apply or
give credit for any item included in proceeds of Receivables or other Collateral
until the Depository Bank has received final payment therefor at its office in
cash or final solvent credits current at the site of deposit acceptable to the
Collateral Agent and such Depository Bank as such. However, if the Collateral
Agent does permit credit to be given for any item prior to a Depository Bank
receiving final payment therefor and such Depository Bank fails to receive such
final payment or an item is charged back to the Collateral Agent or any
Depository Bank for any reason, the Collateral Agent may at its election in
either instance charge the amount of such item back against any such remittance
accounts, together with interest thereon at the Default Rate. Concurrently with
each transmission of any proceeds of Receivables or other Collateral to any
remittance account, the Company shall furnish the Collateral Agent with a report
in such form as the Collateral Agent shall require identifying the particular
Receivable or other Collateral from which the same arises or relates. The
Company hereby indemnifies the Collateral Agent, the Agent, the Banks and the
Noteholders from and against all liabilities, damages, losses, actions, claims,
judgments, costs, expenses, charges and reasonable attorneys' fees suffered or
incurred by such persons because of the maintenance of the foregoing
arrangement, except for such liabilities, damages, losses, actions, claims,
judgments, costs, expenses, charges and fees which result solely and directly
from the gross negligence or willful misconduct of the person seeking to be
indemnified. The Collateral Agent, the Agent, the Banks and the Noteholders
shall have no liability or responsibility to the Company for a Depository Bank
accepting any check, draft or other order for payment of money bearing the
legend
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"payment in full" or words of similar import or any other restrictive legend or
endorsement whatsoever or be responsible for determining the correctness of any
remittance.
Section 6. Special Provisions Re: Inventory. (a) The Company at its own
cost and expense will maintain, keep and preserve the Inventory and Records in
good condition.
(b) The Company may, unless and until an Event of Default hereunder
occurs and is continuing and the Collateral Agent instructs the Company
otherwise, without further consent or approval of the Collateral Agent, use,
consume, sell, lease and rent the Inventory in the ordinary course of its
business, but a sale in the ordinary course of business shall not include any
transfer or sale in satisfaction, partial or complete, of a debt owing by the
Company.
(c) As of the time any Inventory becomes subject to the security interest
provided for hereby, the Company shall be deemed to have warranted as to any and
all of such Inventory that all warranties of the Company set forth in this
Agreement are true and correct with respect to such Inventory; such Inventory is
located at a location set forth in or pursuant to (S)3(a) hereof other than
Inventory of the kind referred to in clauses (i), (ii) and (iii) of (S)3(a)
hereof; and if such inventory is scheduled, listed or referred to in any
Borrowing Base Certificate, such Inventory qualifies as Eligible Inventory as of
the date covered by such Borrowing Base Certificate.
(d) The Company shall at the request of the Collateral Agent provide the
Collateral Agent from time to time as specified by the Collateral Agent with a
report of a physical listing and the location of all Inventory, provided that
unless an Event of Default shall have occurred and be continuing, the Company
shall not be required to provide such a report to the Collateral Agent more
frequently than once in any calendar year. The Company shall at all times
hereafter maintain a perpetual inventory for all items of Inventory, keeping
correct and accurate records itemizing and describing the kind, type, quality
and quantity of Inventory, the Company's cost therefor and daily withdrawals
therefrom and additions thereto, all of which records shall be available during
the Company's usual business hours at the request of the Collateral Agent.
Immediately upon the occurrence of an Event of Default, and at such other times
prior to the occurrence of an Event of Default as the Collateral Agent shall
request, the Company shall conduct a physical count of the inventory and
promptly following such physical inventory shall supply the Collateral Agent
with a report in a form and with such specificity as may be reasonably
satisfactory to the Collateral Agent concerning such physical count of the
Inventory. The Company shall furnish such other reports and information
concerning Inventory as the Collateral Agent may reasonably request.
(e) If any of the Inventory is at any time evidenced by a document of
title, then, upon the request of the Collateral Agent, such document shall be
promptly delivered by the Company to the Collateral Agent.
(f) The Collateral Agent shall not be responsible for: (i) the
safekeeping of the Inventory; (ii) any loss or damage to the Inventory;
(iii) any diminution in the value of the
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Inventory; or (iv) any act or default of any carrier, warehouseman, bailee,
forwarding agency, lessee from or customer of the Company leasing or renting
Inventory, or any other Person. As among the Company and the Collateral Agent,
all risk of loss, damage, destruction or diminution in value of the Inventory
shall be borne by the Company. No Inventory shall be at any time or times
hereafter stored with a bailee, warehouseman, consignee or similar third party
(excluding Inventory leased or rented to a third party in the ordinary course of
business) without the Collateral Agent's prior written consent. The Company
shall not sell any Inventory to any customer on approval, or any other basis
which entitles the customer to return or may obligate the Company to repurchase
such Inventory, except in the ordinary course of its business as presently
conducted, it being understood that in its ordinary course of business as
presently conducted the Company does, in fact, sell Inventory on approval and
lease and rent Inventory to third parties with the option to purchase.
Section 7. Power of Attorney. In addition to any other powers of attorney
contained herein, the Company appoints the Collateral Agent, its nominee, or any
other Person whom the Collateral Agent may designate as the Company's attorney
in fact, with full power upon the occurrence and during the continuance of an
Event of Default hereunder, to sign the Company's name on verifications of
accounts and to send requests for verification of Receivables to customers or
account debtors, to endorse the Company's name on any checks, notes,
acceptances, money orders, drafts or other forms of payment or security that may
come into the Collateral Agent's possession, to sign the Company's name on any
invoice or xxxx of lading relating to any Receivables, on claims to enforce
collection of any Receivables, on notices to and drafts against customers, on
schedules and assignments of Receivables, on notices of assignment and on
public records, to notify the post office authorities to change the address for
delivery of the Company's mail to an address designated by the Collateral Agent,
to receive, open and dispose of all mail addressed to the Company and to do all
things necessary to carry out this Agreement. The Company hereby ratifies and
approves all acts of any such attorney and agrees that neither the Collateral
Agent nor any such attorney will be liable for any acts or omissions nor for any
error of judgment or mistake of fact or law other than their gross negligence
or willful misconduct. The foregoing power of attorney, being coupled with an
interest, is irrevocable so long as the Agreement remains in effect. The
Collateral Agent may file one or more financing statements disclosing its
security interest in any or all of the Collateral without the Company's
signature appearing thereon. The Company also hereby grants the Collateral Agent
a power of attorney to execute any such financing statement, or amendments and
supplements to financing statements, on behalf of the Company without notice
thereof to the Company, which power of attorney is coupled with an interest and
is irrevocable until the Secured Obligations have been fully satisfied and the
commitment of the Banks and any Noteholder to extend credit to the Company has
terminated.
Section 8. Defaults and Remedies. (a) The occurrence of any of the
following events, or the existence of any of the following conditions, shall
constitute an "Event of Default" hereunder:
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(1) the occurrence of any event or the existence of any condition
which is specified as an Event of Default under either the Credit Agreement
or the Note Agreements; or
(2) any representation or warranty made by the Company herein, or in
any written statement or certificate furnished by it pursuant hereto, or in
connection with this Agreement shall be untrue in any material respect as
of the date of the issuance or making thereof; or
(3) default by the Company in the observance or performance of any
provision, covenant or agreement contained in (S)3(b), (f), (g), and (k)
hereof; or
(4) default in the observance or performance by the Company of any
other provision of this Agreement which is not remedied within 30 days
after the earlier of (i) the day on which a Responsible Officer of the
Company first obtains knowledge of such default, or (ii) the day on which
written notice thereof is given to the Company by the Collateral Agent.
(b) With respect to all of the Collateral other than Cash, upon the
occurrence and during the continuation of any Event of Default hereunder, the
Collateral Agent shall have, in addition to all other rights provided herein or
by law, the rights and remedies of a secured party under the Code (regardless of
whether the Code is the law of the jurisdiction where the rights or remedies are
asserted and regardless of whether the Code applies to the affected Collateral),
and further the Collateral Agent may, without demand and without advertisement,
notice, hearing or process of law, all of which the Company hereby waives, at
any time or times, sell and deliver any or all Collateral (other than Cash) held
by or for it at public or private sale, for cash, upon credit or otherwise, at
such prices and upon such terms as the Collateral Agent deems advisable, in its
sole discretion, provided that said disposition complies with any and all
mandatory legal requirements. In addition to all other sums due the Collateral
Agent, any Bank or any Noteholder hereunder, the Company shall pay the
Collateral Agent, any Bank and any Noteholder all costs and expenses incurred by
the Collateral Agent, such Bank or such Noteholder, including a reasonable
allowance for attorneys' fees and court costs, in obtaining, liquidating or
enforcing payment of Collateral or Secured Obligations or in the prosecution or
defense of any action or proceeding by or against the Collateral Agent, such
Bank, such Noteholder or the Company concerning any matter arising out of or
connected with this Agreement or the Collateral or Secured Obligations,
including without limitation any of the foregoing arising in, arising under or
related to a case under the United States Bankruptcy Code (or any successor
statute). Any requirement of reasonable notice shall be met if such notice is
personally served on or mailed, postage prepaid, to the Company in accordance
with (S)11(b) hereof at least 10 days before the time of sale or other event
giving rise to the requirement of such notice; however, no notification need be
given to the Company if the Company has signed, after an Event of Default
hereunder has occurred, a statement renouncing any right to notification of sale
or other intended disposition. The Collateral Agent shall not be obligated to
make any sale or other disposition of the Collateral regardless of notice having
been given. The Collateral Agent, any bank or any noteholder may be the
purchaser at any such sale. To the extent
-17-
permitted by applicable law, the Company hereby waives all of its rights of
redemption from any such sale. Subject to the provisions of applicable law, the
Collateral Agent may postpone or cause the postponement of the sale of all or
any portion of the Collateral by announcement at the time and place of such
sale, and such sale may, without further notice, be made at the time and place
to which the sale was postponed or the Collateral Agent may further postpone
such sale by announcement made at such time and place.
(c) With respect to all of the Collateral other than Cash, without in any
way limiting the foregoing, the Collateral Agent shall, upon the occurrence and
during the continuation of any Event of Default hereunder, have the right, in
addition to all other rights provided herein or by law, to take physical
possession of any and all of the Collateral (other than Cash) and anything found
therein, the right for that purpose to enter without legal process any premises
where such Collateral may be found (provided such entry be done lawfully), and
the right to maintain such possession on the Company's premises (the Company
hereby agreeing to lease such premises without cost or expense to the Collateral
Agent or its designee if the Collateral Agent so requests) or to remove the
Collateral (other than Cash) or any part thereof to such other places as the
Collateral Agent may desire. Upon the occurrence and during the continuation of
any Event of Default hereunder, the Company shall, upon the Collateral Agent's
demand, assemble the Collateral (other than Cash) and make it available to the
Collateral Agent at a place designated by the Collateral Agent. If the
Collateral Agent exercises its right to take possession of the Collateral (other
than Cash), the Company shall also at its expense perform any and all other
steps reasonably requested by the Collateral Agent to preserve and protect the
security interest hereby granted in such Collateral, such as placing and
maintaining signs indicating the security interest of the Collateral Agent,
appointing overseers for such Collateral and maintaining inventory records.
(d) With respect to Cash, upon the occurrence and during the continuation
of any Event of Default hereunder, the Collateral Agent shall have, in addition
to all other rights provided herein or by law, the rights and remedies of a
secured party under the Code (regardless of whether the Code is the law of the
jurisdiction where the rights or remedies are asserted and regardless of whether
the Code applies to the affected Collateral), the right (1) to exercise
exclusive control over any proceeds of Collateral in its possession or held at
any Depository Bank or in any lockbox established pursuant to (S)5(b) hereof and
(2) to exercise any and all rights with respect to deposit accounts of the
Company and Cash (including without limitation those maintained with the
Collateral Agent, any Bank or any Noteholder), including without limitation the
right to collect, withdraw and receive all amounts due or to become due or
payable under each such deposit account, and shall have the right to apply such
amounts in reduction of the Secured Obligations as contemplated by (S)9 hereof.
(e) Failure by the Collateral Agent to exercise any right, remedy or
option under this Agreement or any other agreement between the Company and the
Collateral Agent or provided by law, or delay by the Collateral Agent in
exercising the same, shall not operate as a waiver; no waiver hereunder shall be
effective unless it is in writing, signed by the party against whom such waiver
is sought to be enforced and then only to the extent specifically
-18-
stated. Neither the Collateral Agent nor any party acting as attorney for the
Collateral Agent shall be liable hereunder for any acts or omissions or for any
error of judgment or mistake of fact or law other than their gross negligence or
willful misconduct. The rights and remedies of the Collateral Agent, the Agent,
the Banks and the Noteholders under this Agreement shall be cumulative and not
exclusive of any other right or remedy which the Collateral Agent, the Agent,
the Banks or the Noteholders may have.
Section 9. Application of Proceeds. The proceeds and avails of the
Collateral at any time received by the Collateral Agent upon the occurrence and
during the continuation of any Event of Default hereunder shall, when received
by the Collateral Agent in cash or its equivalent, be applied by the Collateral
Agent in reduction of the Secured Obligations as set forth in the Intercreditor
Agreement. The Company shall remain liable to the Collateral Agent, the Agent,
the Banks and the Noteholders for any deficiency. Any surplus remaining after
the full payment and satisfaction of the Secured Obligations shall be returned
to the Company or to whomsoever the Collateral Agent reasonably determines is
lawfully entitled thereto.
Section 10. Continuing Agreement. This Agreement shall be a continuing
agreement in every respect and shall remain in full force and effect until all
of the Secured Obligations, principal, premium, if any, and interest, and all
other amounts then due and payable under any of the Credit Agreement, Note
Agreements and the Senior Notes have been fully paid and satisfied in cash and
any commitment of the Banks to extend any credit to the Company under the Credit
Agreement shall have terminated. Upon such termination of this Agreement, the
Collateral Agent shall, upon the request and at the expense of the Company,
forthwith release all its liens and security interests hereunder.
Section 11. Miscellaneous. (a) This Agreement and the provisions hereof
may be changed, discharged or terminated only by an instrument in writing signed
by the Company and the Collateral Agent (upon the direction of the Majority
Benefited Parties, as such term is defined in the Intercreditor Agreement). This
Agreement shall create a continuing security interest in the Collateral and
shall be binding upon the Company, its successors and assigns and shall inure,
together with the rights and remedies of the Collateral Agent, the Agent, the
Banks and the Noteholders hereunder, to the benefit of the Collateral Agent, the
Agent, the Banks and the Noteholders and their respective successors and assigns
which are permitted under the Note Agreements, the Credit Agreement and the
Intercreditor Agreement; provided, however, that the Company may not assign its
rights or delegate its duties hereunder without the Collateral Agent's prior
written consent. The Company hereby releases the Collateral Agent from any
liability for any act or omission relating to the Collateral or this Agreement,
except the Collateral Agent's gross negligence or willful misconduct.
(b) Except as otherwise specified herein, all notices hereunder shall be
in writing (including telecopy) and shall be given to the relevant party at its
address or telecopier number set forth below, or such other address or
telecopier number as such party may hereafter specify by notice to the other
given by United States certified or registered mail, by overnight air courier,
by telecopy or by other telecommunication device capable of
-19-
creating a written record of such notice and its receipt. Notices given by
telecopy shall be confirmed in writing within 24 hours by overnight air courier
at the address for the relevant party provided below. Notices hereunder shall be
addressed:
To the Company at:
U.S. Rentals, Inc.
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
To the Collateral Agent at:
Bank of America National Trust and Savings Association
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Agency Management Services No. 10831
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
To the Agent and the Banks at their respective addresses and telecopy
numbers set forth in the Credit Agreement
To the Noteholders at their respective addresses for notices set forth
in the Note Agreements
Each such notice, request or other communication shall be effective upon
receipt.
(c) In the event that any provision hereof shall be deemed to be invalid
by reason of the operation of any law or by reason of the interpretation placed
thereon by any court, this Agreement shall be construed as not containing such
provision, but only as to such jurisdictions where such law or interpretation is
operative, and the invalidity of such provision shall not affect the validity of
any remaining provision hereof, and any and all other provisions hereof which
are otherwise lawful and valid shall remain in full force and effect.
(d) This Agreement shall be deemed to have been made in the State of
California and shall be governed by and construed in accordance with the laws of
the State of California, without regard to principles of conflicts of laws. All
terms which are used in this Agreement which are defined in the Code shall have
the same meanings herein as said terms do in the Code unless this Agreement
shall otherwise specifically provide. The headings in this instrument are for
convenience of reference only and shall not limit or otherwise affect the
meaning of any provision hereof.
-20-
(e) In acting under or by virtue of this Agreement, the Collateral Agent
shall be entitled to all the rights, authority, privileges and immunities
provided in the Intercreditor Agreement and all the provisions of said
Intercreditor Agreement are incorporated by reference herein with the same force
and effect as if set forth herein in their entirety. The Collateral Agent shall
not take action under this Agreement unless permitted or required to do so under
the terms of the Intercreditor Agreement. The Collateral Agent hereby disclaims
any representation or warranty to the Agent, the Banks and the Noteholders
concerning the perfection of the security interest granted hereunder or in the
value of any of the Collateral.
(f) EACH OF THE COMPANY AND THE COLLATERAL AGENT HEREBY, TO THE FULLEST
EXTENT PERMITTED BY LAW, WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE DOCUMENTS OR INSTRUMENTS EXECUTED
IN CONNECTION HEREWITH.
(g) This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each constituting an
original, but all together one and the same instrument.
-21-
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed as of the date first above written.
U.S. RENTALS, INC.
By /s/ Xxxx X. XxXxxxxx
-------------------------------
Name: Xxxx X. XxXxxxxx
Title: Vice President and
Chief Financial Officer
-22-
Accepted and agreed to by the Collateral Agent as of the date first above
written.
Bank of America National Trust and
Savings Association, as Collateral Agent
for the Noteholders, the Agent and the
Banks
By /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
-23-
FORM OF ACCOUNT LETTER AGREEMENT
________________, 199__
[Name and Address of Bank]
Re: U.S. Rentals, Inc.
Ladies and Gentlemen:
We, U.S. Rentals, Inc. (the "Company"), hereby notify you that, effective
immediately, we have transferred exclusive ownership and control of our
accounts, numbered __________________ maintained with you together with any
other accounts which we may hereafter open with you (collectively, the
"Accounts") to Bank of America National Trust and Savings Association, as
Collateral Agent (the "Collateral Agent") for the holders of the Senior
Obligations (as such term is defined in the hereinafter described Security
Agreement), located at 0000 Xxxxxx Xxxxxx, 13th Floor, Agency Management
Services Xx. 00000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000.
We hereby irrevocably instruct you to make all payments to be made by you
out of or in connection with the Accounts in accordance with the instructions of
the Collateral Agent. In this regard, we wish to note that the Collateral Agent
in the accompanying Acknowledgment and Authorization has authorized you to
continue to accept instructions from the Company until you shall have received a
Notice of Revocation from the Collateral Agent in the form attached hereto as
Annex A (a "Notice of Revocation"). It is understood and agreed that you shall
have no obligation to investigate the authority of the Collateral Agent to
execute a Notice of Revocation or to verify the circumstances underlying its
delivery. Furthermore, we agree to hold you harmless for any actions taken by
you in reliance on a Notice of Revocation. No revocation of this letter
agreement by the Company shall be valid without the written consent of the
Collateral Agent.
We also hereby notify you that the Collateral Agent shall be irrevocably
entitled to exercise any and all rights in respect of or in connection with the
Accounts, including, without limitation, the right to specify when payments are
to be made out of or in connection with the Accounts.
All funds deposited into the Accounts will not be subject to deductions,
setoff, banker's lien or any other right in favor of any other person other than
the Collateral Agent, except that you may setoff against the Accounts the face
amount of any check deposited in and credited to such Accounts which is
subsequently returned for any reason. Your compensation for providing the
services contemplated herein shall be as mutually agreed between you and us from
time to time and we will continue to pay such compensation, and you agree not to
terminate the Accounts without giving the Collateral Agent at least 60 days'
prior written notice.
EXHIBIT 1
(to Security Agreement)
Please agree to the terms of, and acknowledge receipt of, this letter by
signing in the space provided below on two of the enclosed copies of this letter
and returning both copies to: _________________________.
Very truly yours,
U.S. RENTALS, INC.
By ___________________________
Its
Acknowledged and agreed to
as of this _____ day of
_____________, _______, by:
[NAME OF BANK]
By ________________________________
Its
-2-
FORM OF NOTICE OF REVOCATION
[Date]
[Name and Address of Bank]
Re: U.S. Rentals, Inc.
Ladies and Gentlemen:
Reference is hereby made to (i) that certain Account Letter Agreement dated
____________, 199__ (the "Account Letter Agreement") addressed to you from U.S.
Rentals, Inc. (the "Company") and (ii) Section 8(d) of the Third Amended and
Restated Security Agreement Re: Receivables, Inventory, Equipment, and Documents
dated as of July 1, 1996 (as amended or restated from time to time, the
"Security Agreement") by and between the Company and Bank of America National
Trust and Savings Association, as Collateral Agent (the "Collateral Agent") for
the holders of the Secured Obligations (as such term is defined in the Security
Agreement).
Pursuant to the terms of the Account Letter Agreement, the Collateral Agent
hereby notifies you that (i) an Event of Default under the Security Agreement
has occurred and is continuing; and (ii) all authority granted to the Company to
direct the payment of funds from the accounts covered by and more particularly
described in the Account Letter Agreement (collectively, the "Accounts")
pursuant to the Acknowledgment and Authorization from the Collateral Agent to
you, which was acknowledged and agreed to by you on _________, 199__, has been
revoked. From and after the date hereof, the Collateral Agent will be
exercising exclusive control over the Accounts and you are instructed to
discontinue accepting instructions from the Company for the payment of funds
from said Accounts. All further instructions regarding the Accounts will be
delivered by the Collateral Agent.
Very truly yours,
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Collateral
Agent
By ____________________________________
Its
ANNEX A
(to Account Letter Agreement)
ACKNOWLEDGMENT AND AUTHORIZATION
Bank of America National Trust and Savings Association, as Collateral Agent
(the "Collateral Agent") for the holders of the Secured Obligations (as such
term is defined in the hereinafter described Security Agreement), hereby
acknowledges the transfer to it of exclusive ownership and control of the
"Accounts" (as defined in, and pursuant to the terms of the foregoing letter
(the "Letter Agreement")) executed by U.S. Rentals, Inc. (the "Company") and
acknowledged by [Name of Bank] (the "Bank"). Pursuant to the second paragraph
of the Letter Agreement, the Collateral Agent hereby authorizes the Bank to
continue to accept instructions from the Company for the payment of funds from
said Accounts until the Collateral Agent notifies the Bank in writing to the
contrary, which notice shall (a) reference (S)8(d) of the Third Amended and
Restated Security Agreement Re: Receivables, Inventory, Equipment, and Documents
dated as of July 1, 1996 by and between the Company and the Collateral Agent (as
amended or restated from time to time, the "Security Agreement") and (b) state
that an Event of Default under the Security Agreement has occurred and is
continuing. Any such written notice shall be effective on the business day
received by Bank if received before 4:00 P.M. (__________ time) and if not
received by such time, on the next succeeding business day. The Collateral
Agent agrees to reimburse Bank for all costs and expenses incurred by Bank in
connection with the performance of the terms of the Letter Agreement after the
date on which the Collateral Agent gives Bank the written notice described in
the preceding sentence to the extent such costs and expenses are not reimbursed
by the Company.
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Collateral
Agent
By ____________________________________
Its
Acknowledged and agreed to
as of this _____ day of
______________, 199___ by:
[NAME OF BANK]
By _________________________________
Its
SCHEDULE A
DESCRIPTION OF ACCOUNTS
Location Bank
-------- ----
Home Office and Bank of America
CA Profit Centers Corporate Service Center
Department #5693
0000 Xxxxxxx Xxxx. 0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxx Xxxxxxx # 00000-00000
Xxxxxxxxxx XXX Account # 12336-11070
AP Controlled Documents
ZBA Account # 12334-11071
Group Insurance Account # 12332-11072
1st Union National Bank Account # 00000-00000
---------------------------------------------------------------------------
Corporate Xxxx xx Xxxxxxx
0000 Xx Xxxxxxx 000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
General Account # 145-0000000
Payroll Account # 145-0000000
USR Leasing Company Bank of America
Corporate Service Center
Same as above
Account # 12333-11807
---------------------------------------------------------------------------
Xxx Xxxxxx Gallery Bank of America
0000 Xxxxxxx Xxx. XX Xxx 00000
Xxx Xxxxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
(000) 000-0000
Account # 01346-09285
SCHEDULE A
DESCRIPTION OF ACCOUNTS
===============================================================================
PC# LOCATION BANK ACCOUNT #
===============================================================================
#7 3266 X. Xxxxxxxxxx St. Bank of America 81751-11893
Phoenix Xxxxxxx, XX 00000 0000 X. 00xx Xx.
0007 (5) (000) 000-0000 Xxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000
#12 0000 X. Xxxxxxx Xxxx. FIB of Nevada 147-0177022
Las Vegas Xxx Xxxxx, XX 00000 Spring Mountain Branch
0012 (5) (000) 000-0000 X.X. Xxx 00000
Xxx Xxxxx, XX 00000
(000) 000-0000
#17 0000 Xxxxxxxx Xxxxx Xxxxxxxx National Bank 000-000-0
Xx Xxxx Xx Xxxx, XX 00000 Main Branch
0017 (4) (000) 000-0000 X.X. Xxx 000000
Xx Xxxx, XX 00000-0000
(000) 000-0000
#27 0000 Xxxxx Xxxxxxxx Xxxx xx Xxxxxxx 00000-00000
Xxxxxx Xxxxxx, XX 00000 0000 X. Xxxxxxxx
0027 (3) (000) 000-0000 Xxxxxx, XX 00000
(000) 000-0000
#28 000 Xxxxxxxx Xx. FIB of Nevada 144-9180571
Sparks Xxxxxx, XX 00000 McCarran Boulevard Office
0028 (1) (000) 000-0000 X.X. Xxx 00000
Xxxx, XX 00000-0000
(000) 000-0000
(000) 000-0000
#31 000 X. Xxxxxxx Xxxxxxx Xxxxx Xxxxxxxx Xxxx 00-0000-0
Kenner Kenner, LA 70062 X.X. Xxx 000
0000 (5) (000) 000-0000 Xxxxxxxx, XX 00000-0000
(000) 000-0000
#32 00000 Xxxxx Xxxx Xx. Xxxx xx Xxxxxxx, Xxxxx 00000-00000
San Antonio Xxx Xxxxxxx, XX 00000 15142 San Xxxxx
0032 (3) (000) 000-0000 Xxx Xxxxxxx, XX 00000
(000) 000-0000
#33 000 Xxxxxxxxxxx Xx. Regions Bank 00-0000-0000
Monroe Xxxxxx, XX 00000 P.O. Box 7232
0033 (1) (000) 000-0000 Xxxxxx, XX 00000-0000
(000) 000-0000
#34 0000 Xxxxxxx Xxx. Hibernia National Bank 0000000
Shreveport Xxxxxxxxxx, XX 00000 P.O. Box 61540
0034 (9) (000) 000-0000 Xxx Xxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000
SCHEDULE A
DESCRIPTION OF ACCOUNTS
===============================================================================
PC# LOCATION BANK ACCOUNT #
===============================================================================
#35 0000 X. Xxxxxxxx Xxxxx Xxxxx Bank 132910
Beaumont Xxxxxxxx, XX 00000 3200 Avenue A
0035 (6) (000) 000-0000 Xxxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000
#00 000 Xxxxx Xxxx Xxxx Xxx, Xxxxxxxxx Xxxxxx 75-00259002
Xxxxx Xxxx Xxxxx Xxxx, XX 00000 P.O. Box 2266
0036 (4) (000) 000-0000 Xxxxxx, XX 00000-0000
(000) 000-0000
(000) 000-0000
(000) 000-0000
#37 0000 Xxxxxxxxx Xxxx Xxxx xx Xxxxxxx Xxxxx 00000-00000
Xxxx Xxxxx Xxxx Xxxxx, XX 00000 0000 Xxxxxx Xxxx
0037 (2) (000) 000-0000 Xxxxxxxxx, XX 00000-0000
(000) 000-0000
#38 0000 Xxxxx Xxxx 00 Xxxx xx Xxxxxxx Xxxxx 00000-00000
Irving Xxxxxx, XX 00000 000 Xxxx Xxxxxx Xxxxxxxxx
0038 (0) (000) 000-0000 Xxxxxx, XX 00000-0000
(000) 000-0000
#39 00000 XX Xxxxxxx 000 Sterling Bank 001-0000000
Jersey Xxxxxxx, XX 00000 X.X. Xxx 00000
Village (000) 000-0000 Xxxxxxx, XX 00000-0000
0039 (8) (000) 000-0000
(000) 000-0000 Statements
#40 0000 Xxxxxxxxx Xxxx xx Xxxxxxx Xxxxx 00000-00000
Bellaire Xxxxxxx, XX 00000 0000 Xxxxxxxxx
0040 (6) (000) 000-0000 Xxxxxxxx, XX 00000-0000
(000) 000-0000
#41 0000 Xxxxxxx Xxx. NationsBank of Texas 000-000000-0
Xxxxx Xxxxx, XX 00000 P.O. Box 831547
0041 (4) (000) 000-0000 Xxxxxx, XX 00000-0000
(000) 000-0000
#42 0000 Xxx Xxxxx Xxxxxx Int'l Bank of Commerce 0000000-01
Laredo Xxxxxx, XX 00000 0000 Xxx Xxxxxxxx Xxx.
0042 (2) (000) 000-0000 Xxxxxx, XX 00000
(000) 000-0000
#52 0000 X. Xxxx Xxx Xx. First Interstate Bank 163-0000000
Xxxxxx City Xxxxxx Xxxx, XX 00000 0000 Xxxxxxx 00 Xxxx
0000 (1) (000) 000-0000 X.X. Xxx 0000
Xxxxxx Xxxx, XX 00000-0000
(000) 000-0000
SCHEDULE A
DESCRIPTION OF ACCOUNTS
===============================================================================
PC# LOCATION BANK ACCOUNT #
===============================================================================
#53 729 West Idaho FIB of Nevada 027-0043380
Elko Xxxx, XX 00000 X.X. Xxx 000
0000 (9) (000) 000-0000 Xxxx, XX 00000
(000) 000-0000
(000) 000-0000
#64 0000 Xxxxxxxxxx Xxxx. X.X. Xxxx xx Xxxxxxx 00000-00000
Albuquerque Xxxxxxxxxxx, XX 00000 5101 Menaul NE
0064 (6) (000) 000-0000 X.X. Xxx 00000
Xxxxxxxxxxx, XX 00000
(000) 000-0000
#65 0000 X. 0xx Xx. Xxxxx Commerce Bank 095-00000000
Odessa Xxxxxx, XX 00000 000 X. Xxxxx Xxxxxx
0065 (3) (000) 000-0000 Xxxxxx, XX 00000
(000) 000-0000
#69 0000 Xxxxxxxxxx 00 Xxxxxxxxxxxx National Bank 000000
Xxxxxx Xxxx Xxxxxx Xxxx, XX 00000 P.O. Box 8010
0069 (5) (000) 000-0000 Xxxxxx Xxxx, XX 00000
(000) 000-0000
#84 X.X. Xxx 00000 Texas Commerce Bank 018-00000000
Houston Xxxxxxx, XX 00000 X.X. Xxx 0000
Credit (000) 000-0000 Xxxxxxx, XX 00000
0084 (4) (000) 000-0000
#101 0000 Xxxxx Xxxx Xx. Bank of America 24513-905
Boise Xxxxx, XX 00000 000 Xxxxx Xxxx Xx.
0101 (6) (000) 000-0000 Xxxxx, XX 00000
(000) 000-0000
#102 00 XxXxxx Xxxxxxx Xxxx xx Xxxxxxx - Xxxxxx 000000000
Xxx Xxx, XX 00000 000 Xxxxxx Xxxxxx
0102 (4) (000) 000-0000 Xxx, XX 00000
(702) 289-4425
(000) 000-0000 Fax
#000 0000 X. Xxxxxxxxx Xxxx 323 Southside Bank 0000000
Tyler Xxxxx, XX 00000 0000 X. Xxxxxx Xxxxxxx
0111 (5) (000) 000-0000 Xxxxx, XX 00000
(000) 000-0000
#112 0000 Xxxxx Xxxx Xxxx xx Xxxxxxx Xxxxx 00000-00000
Keller Xxxxxx, XX 00000 P.O. Box 619031
0112 (3) (000) 000-0000 Xxxxxx, XX 00000-0000
(000) 000-0000
SCHEDULE A
DESCRIPTION OF ACCOUNTS
===============================================================================
PC# LOCATION BANK ACCOUNT #
===============================================================================
#131 0000 Xxxxx Xxxx Xxxxxx Bank IV 331000031456
Wichita Xxxxxxx, XX 00000 500 X. Xxxx
0131 (3) (000) 000-0000 Xxxxxxx, XX 00000
(000) 000-0000
#132 000 X. Xxxxxxxx/ Bank IV 331000031463
Salina 1116 Xxxxxx 000 X. Xxxx
0000 (1) Xxxxxx, XX 00000 Xxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
#133 2795 XxXxxxxxx Bank of Fayetteville 80016227
Fayetteville Xxxxxxxxxxxx, XX 00000 P.O. Box 1728
0133 (9) (000) 000-0000 Xxxxxxxxxxxx, XX 00000
(000) 000-0000
#134 0000 Xxxxx 0xx Xxxxxx Farmers and Merchants Bank 001007-555-0
Rogers Xxxxxx, XX 00000 4th and Chestnut
0134 (7) (000) 000-0000 Xxxxxx, XX 00000
(000) 000-0000
#135 0000 Xxxx Xxxxxxxxxx 40 Bank of Oklahoma 819024546
Oklahoma Xxxxxxxx Xxxx, XX 00000 Windsor Hills
City (405) 232-0004 0000 X. Xxxxxxxx
0000 (0) Xxxxxxxx Xxxx, XX 00000
(000) 000-0000
(000) 000-0000
SCHEDULE B
--------------------------- --------------------------------------------------------------- ---------------------------------
P.C. LOCATION MANAGER TELEPHONE XXXXXX XXXXXXX XXXX XX XXX
----------------------------------------------------------------------------------------------------------------------------------
* 02 Downey Xxxxx Xxxxx 310-861-0978 0000 X. Xxxxxxxxx Xxxx. Xxxxxx XX 00000
* 03 Long Beach Xxxxx Xxxxxxxx 310-422-1283 0000 Xxxxxx Xxxxxx Xxxx Xxxxx XX 00000
04 San Xxxx Xx Xxxxx 000-000-0000 0000 Xxxx Xxxx Xxx. Xxx Xxxx XX 00000
05 Modesto-Yosemite Xxxx Xxxxxx 000-000-0000 0000 Xxxxxxxx Xxxx. Xxxxxxx XX 00000
07 Phoenix Xxx Xxxxx 602-273-7401 0000 X. Xxxxxxxxxx Xx. Xxxxxxx XX 00000
* 00 Xxxxxx Xxxx Xxxx Xxx 818-340-5881 0000 Xxxxxx Xxxxxx Xxxxxx Xxxx XX 00000
09 Montclair Xxxxx Xxxxxx 909-624-9615 00000 Xxxxx Xxxxx Xxx. Xxxxxxxxx XX 00000
10 Victorville Xxxxxx Xxxx 619-245-3458 00000 "X" Xxxxxx Xxxxxxxxxxx XX 00000
11 Ventura Xxxx Xxxxxxx 805-644-7319 0000 Xxxxxx Xxxxxx Xxxxxxx XX 00000
12 Las Vegas Xxx Xxxxxx 702-871-5575 0000 Xx. Xxxxxxx Xxxx. Xxx Xxxxx XX 00000
* 13 Fontana Xxxx Xxxxxxxx 909-829-4881 00000 Xxxxxx Xxxx. Xxxxxxx XX 00000
14 Xxxxxxxxxx Xxxxxx Carousos 916-487-7887 0000 Xxxx Xxxx Xxxx. Xxxxxxxxxx XX 00000
15 Fullerton Xxxx Xxxxxxx 714-871-5712 0000 X. Xxxxx Xxxxxxx Xxxxxxxxx XX 00000
16 Sacramento-North Xxxx Xxxxxxxx 000-000-0000 0000 Xxxxxxxxxx Xxxx. Xxxxxxxxxx XX 00000
* 17 El Paso Xxxxxx Xxxxxxxxxx 915-598-1264 0000 Xxxxxxxx Xxxxx Xx Xxxx XX 00000
18 Sacramento Xxx Xxxx 916-451-7277 0000 Xxxxx Xxxxxx Xxxxxxxxxx XX 00000
19 Modesto Xxxx Xxxxxx 209-521-6250 0000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000
20 Fresno Xxxx Xxxx 000-000-0000 0000 X. Xxxxxxx Xxx. Xxxxxx XX 00000
* 00 Xxxxxxxxxx Xxxxx Xxxx Xxxxxx 714-842-7765 0000 Xxxxxx Xxxxxx Xxxxxxxxxx Xxxxx XX 00000
22 Fresno-Blackstone Xxxxxx Xxxxxx 209-222-3091 0000 X. Xxxxxxxxxx Xxxxxx XX 00000
23 Turlock Xxx Xxxxxx 209-632-7561 0000 X. Xxxxxx Xxxxx Xxxxxxx XX 00000
24 Stockton Xxxx Xxxxxxx 000-000-0000 0000 Xxxxxxx Xxx Xxxxxxxx XX 00000
* 25 Merced Xxx Xxxxx 209-383-2984 0000 Xxxx 00xx Xxxxxx Xxxxxx XX 00000
26 Lodi Xxxx Xxxxxx 209-334-2850 000 X. Xxxxxxxxx Xxxx Xxxx XX 00000
* 27 Tucson Xxxxx Evic 602-296-7611 0000 Xxxxx Xxxxxxxx Xxxxxx XX 00000
28 Sparks Xxxxx Xxxxxx 000-000-0000 000 Xxxxxxxx Xxxx Xxxxxx XX 00000
* 00 Xxxxxxx Xxxxx Xxxxx 916-624-0641 0000 Xxxxxxx Xxxxxx Xxxxxxx XX 00000
30 Xxxxxxx & Xxxxx Xxxxxxx Xxxx 310-437-0921 0000 X. Xxxxxxx Xxxxxx Xxxx Xxxxx XX 00000
* 31 Kenner Xxxxx Xxxxxx 000-000-0000 000 X. Xxxxxxx Xxxxxxx Xxxxxx XX 00000
* 32 San Antonio Xxxxx Xxxxxx 210-494-5288 00000 Xxxxx Xxxx Xxxx Xxx Xxxxxxx XX 00000
* 33 Monroe Xxxxx Xxxxxx 000-000-0000 000 Xxxxxx Xxxxxx Xxxx Xxxxx Xxxxxx XX 00000
34 Shreveport Xxxx Xxxxxxx 318-635-6404 0000 Xxxxxxx Xxxxxx Xxxxxxxxxx XX 00000
* 35 Beaumont Xxxxx Xxxxx 409-842-5614 0000 X. Xxxxxxxx Xxxxx Xxxxxxxx XX 00000
* 00 Xxxxx Xxxx Xxxxx Xxxxx 000-000-0000 000 Xxxxx Xxxx Xxxxx Xxxx XX 00000
* 37 Fort Worth Xxxx Xxxxxxx 817-483-6411 0000 Xxxxxxxxx Xxx. Xxxx Xxxxx XX 00000
* 38 Xxxxxx Xxxxx Xxxxxxx 214-579-7506 0000 Xxxxx Xxxx 00 Xxxxxx XX 00000
* 39 Jersey Village Xxxxx Xxxxxxx 713-466-7040 00000 XX Xxxxxxx 000 Xxxxxxx XX 00000
40 Xxxxxxxx Xxxx McInemy 713-666-0731 0000 Xxxxxxxxx Xxxxxxx XX 00000
* 41 Plano Xxxx Xxxxxxxxx 214-423-8996 0000 Xxxxxxx Xxxxxx Xxxxx XX 00000
* 42 Laredo Xxxxxxx Xxxxxxxx 210-724-7368 0000 Xxx Xxxxx Xxxxxx XX 00000
43 Kearny Mesa Xxxx Xxxxxx 619-565-7122 0000 Xxxxxx Xxxxx Xxx Xxxxx XX 00000
* 44 Chula Vista Xxxx Xxxxx 619-422-1106 000 "X" Xxxxxx Xxxxx Xxxxx XX 00000
45 Napa Xxxxx Xxxxxxxxx 707-255-1066 0000 Xxxxx Xxxxxx Xxxx XX 00000
47 Sunnyvale Xxx Xxxxx 408-736-7560 000 X. Xxxxxx Xxxxxx Xxxxxxxxx XX 00000
49 Oakland Xxxx Xxxxxx 510-562-3000 000 00xx Xxx. Xxxxxxx XX 00000
* 50 Corona Xxxx Xxxxx 000-000-0000 000 Xxxxx Xxxxxx Xxxxxx XX 00000
00 Xxxxxxx Xxxx Xxxxx Xxxxxxxx 818-962-4468 00000 Xxxxx Xxxxxxx Xxxxxxx Xxxx XX 00000
52 Xxxxxx City Xxxxxx Xxxxxxx 702-884-4745 0000 X. Xxxx Xxx Xxxx Xxxxxx Xxxx XX 00000
53 Xxxx Xxxx Romeo 702-738-3565 000 Xxxx Xxxxx Xxxx XX 00000
00 Xxxxxxxxx Xxxx XxXxx Xxxxxxx 619-328-6573 00000 Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxxx XX 00000
* 55 Ridgecrest Xxxxxx Xxxxxxxx 619-446-7628 0000 Xxxxxxxx Xxxx Xxxxxxxxxx XX 00000
56 Vista XX Xxxxxxxx 619-726-7200 000 Xxxx Xxxxx Xxx Xxxxx XX 00000
57 Redding Xxxx Xxxxxxx 916-221-8851 0000 Xxxxxxxxxx Xxxxx Xxxxxxx XX 00000
* 00 Xxxxx Xxxx Xxxxxxx 916-894-7799 0000 Xxxx Xxxxxx Xxxxx XX 00000
59 Santa Xxxx Del Xxxxxx 707-585-7621 0000 Xxxxx Xxxxxxxx Xxx. Xxxxx Xxxx XX 00000
60 Xxxxxx Grande Xxxxxx Xxxxx 805-489-3113 0000 Xx Xxxxxx Xxxx Xxxxxx Xxxxxx XX 00000
61 Lancaster Xxxxx Xxxxxxxx 805-948-2654 00000 Xxxxxx Xxxxxxx Xxxxxxxxx XX 00000
62 Indio Xxxx Xxxxx 000-000-0000 00000 Xxxx Xxxxxx Xxxxx XX 00000
* 63 Gilroy Raz Xxxxxxx 408-848-2510 0000 Xxxxxxxx Xxxxxx Xxxxxx XX 00000
64 Albuquerque Xxxxx Xxxxxx 505-884-6565 0000 Xxxxxxxxxx Xxxx. X.X. Xxxxxxxxxxx XX 00000
* 65 Odessa Xxx Xxxxxx 915-332-1211 0000 X. Xxxxxxxxx Xxxxxx XX 00000
67 San Xxxx Capistrano Xxx Xxxxx 000-000-0000 00000 Xxxxx Xxxxxxxx Xxx Xxxx Xxxxxxxxxx XX 00000
* 68 Madera Xxxx Xxxxx 209-673-5831 000 Xxxxxx Xxxxxx Xxxxxx XX 00000
* 69 Little Rock Xxxxx Xxxxxx 501-565-5200 0000 Xxxxxxxxxx 00 Xxxxxx Xxxx XX 00000
* 101 Boise Xxx Xxxxxx 208-322-6225 0000 Xxxxx Xxxx Xx. Xxxxx XX 00000
102 Xxx Xxxx Hallmark 000-000-0000 H33 Xxx 00000 Xxx XX 00000
104 Antioch Xxx Xxxxx 510-757-5422 0000 Xxxxxx Xxxxx Xxxxxxx XX 00000
* 111 Tyler Xxxx Xxxxxx 000-000-0000 0000 X. Xxxxxxxxx Xxxx 000 Xxxxx XX 00000
112 Keller Xxxx Xxxx 000-000-0000 0000 Xxxxx Xxxx Xxxxxx XX 00000
131 Wichita Xxx Xxxxx 316-943-4237 0000 Xxxxx Xxxx Xxxxxx Xxxxxxx XX 00000
132 Salina Xxx Xxxxx 000-000-0000 0000 Xxxxxx Xxxxxx XX 00000
* 000 Xxxxxxxxxxxx Xxx Xxxxxx 000-000-0000 0000 XxXxxxxxx Xxxxxxxxxxxx XX 00000
134 Rogers Xxx Xxxxx 501-636-5055 0000 Xxxxx 0xx Xxxxxx Xxxxxx XX 00000
135 Oklahoma City Xxxx Xxxxxxxx 000-000-0000 0000 Xxxx Xxxxxxxxxx 00 Xxxxxxxx Xxxx XX 00000
136 Contractors-L.B. Xxxxx Xxxxxxxx 310-432-2954 0000 Xxxx Xxxxxxx Xxxxx Xxx Xxxx Xxxxx XX 00000
137 Contractors-Gardena Xxxxx Xxxxxxxx 310-527-9858 00000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx XX 00000
----------------
*=OWNED
SCHEDULE C
PERMITTED TRADE NAMES
U.S. Rentals, Inc.
[LOGO OF U.S. RENTALS] (Registered)
Xxxxxxx Xxxxx Rentals (DBA)
California Equipment Rentals (DBA)
Xxxxx Equipment Rental & Sales (DBA)
U.S. Hi-Reach (DBA)
Contractors Equipment Rental (DBA)
