EXHIBIT 4.2
-----------
XXXXXXXX SCOTSMAN, INC.
REGISTRATION RIGHTS AGREEMENT
August 18, 2003
Deutsche Bank Securities Inc.
Banc of America Securities LLC
CIBC World Markets Corp.
Fleet Securities, Inc.
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxxx Scotsman, Inc., a Maryland corporation (the "Issuer"),
proposes to issue and sell to Deutsche Bank Securities Inc., Banc of America
Securities LLC, CIBC World Markets Corp. and Fleet Securities, Inc.
(collectively, the "Purchasers"), upon the terms set forth in two purchase
agreements dated as of August 13, 2003 (collectively, the "Purchase Agreement"),
$150 million principal amount of its 10% Senior Secured Notes Due 2008 (the
"Notes"). The Notes will be guaranteed (the "Guarantees") on a senior secured
basis by Evergreen Mobile Company ("EMC"), Space Master International, Inc.
("SMI"), Truck & Trailer Sales, Inc. ("TTS") and Xxxxxxxx Scotsman of Canada,
Inc. ("WSC") and guaranteed on a subordinated secured basis (the "Subordinated
Guarantee") by Willscot Equipment, LLC ("Willscot" and together with EMC, SMI,
TTS and WSC, the "Guarantors"). The Notes will be issued pursuant to the
provisions of an Indenture, dated as of August 18, 2003 (as supplemented from
time to time, the "Indenture"), between the Issuer, as issuer, the Guarantors
and U.S. Bank National Association, as Trustee (the "Trustee").
As an inducement to the Purchasers to enter into the Purchase Agreement
and in satisfaction of a condition to your obligations thereunder, the Issuer
and the Guarantors each 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. The Issuer and the Guarantors
shall use their respective commercially reasonable efforts to prepare and file
within 60 days after the date of original issue of the Notes with the Securities
and Exchange Commission (the "Commission"), a registration statement (the
"Exchange Offer Registration Statement") on an appropriate form under the
Securities Act of 1933, as amended
-2-
(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 Issuer issued under the Indenture and
identical in all material respects to the Notes (except for the transfer
restrictions relating to the Notes) that would be registered under the
Securities Act. The Issuer and the Guarantors shall use their respective
commercially reasonable efforts to cause such Exchange Offer Registration
Statement to become effective under the Securities Act within 150 days after the
date of original issue of the Notes and shall keep the Exchange Offer
Registration Statement effective for not less than 30 days (or longer, if
required by applicable law) after the date notice of the Registration Exchange
Offer is mailed to the Holders (such period being called the "Exchange Offer
Registration Period").
If the Issuer and the Guarantors effect the Registration Exchange
Offer, the Issuer and the Guarantors will be entitled to close the Registration
Exchange Offer 30 days after the commencement thereof provided that the Issuer
and the Guarantors 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 Issuer and the Guarantors 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 Issuer 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 Issuer and the
Guarantors shall use their respective 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 Issuer and the Guarantors each 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
-3-
"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.
The Issuer and the Guarantors 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 Issuer and the Guarantors shall use their respective 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 not exceed
120 days (unless extended pursuant to Section 3(j) below); and PROVIDED,
FURTHER, that such persons shall not be authorized by the Issuer or the
Guarantors to deliver and shall not deliver any such prospectus after the
expiration of such period in connection with the resales contemplated by this
paragraph.
The Issuer and the Guarantors 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 Issuer and
the Guarantors, 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 Issuer issued under the Indenture and guaranteed by the Guarantors
pursuant to the Guarantee and the Subordinated Guarantee and
-4-
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 Issuer and the
Guarantors 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;
(b) keep the Registration Exchange Offer open for not less than 30
days (or longer, if required by applicable law) after the date notice
thereof is mailed to the Holders;
(c) utilize the services of a depositary for the 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 Issuer and the Guarantors
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 sur-
-5-
rendered 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 the date of original issue of the Notes.
Each Holder participating in the Registration Exchange Offer shall be
required to represent to the Issuer and the Guarantors 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 will have no arrangements or understanding with any person to participate
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 Issuer or any Guarantor 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 and (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.
Notwithstanding any other provisions hereof, the Issuer and the
Guarantors 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 Issuer and the Guarantors
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 190 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 an Exchanging Dealer) is not eligible to participate in the
Registration Exchange Offer or,
-6-
in the case of any Holder (other than an Exchanging Dealer) that participates in
the Registration Exchange Offer, such Holder does not receive freely tradeable
Exchange Notes on the date of the exchange for validly tendered (and not
withdrawn) Notes (and such Holder so notifies the Issuer within 30 days of the
consummation of the Registration Exchange Offer), the Issuer and the Guarantors
shall take the following actions:
(a) The Issuer and the Guarantors shall use all commercially
reasonable efforts to prepare and file, as promptly as practicable, with
the Commission and thereafter to cause to be declared effective 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 Issuer and the Guarantors shall use all 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 Issuer and the Guarantors 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.
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 Issuer and the Guarantors 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
-7-
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 Issuer and the Guarantors has advised the
Issuer and the Guarantors 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 Issuer and the Guarantors shall notify the Purchasers, the
Holders and any Participating Broker-Dealer from whom the Issuer or any of
the Guarantors has 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) promptly, and, if requested by the Purchasers, the
Holders or any such Participating Broker-Dealer, confirm such notice in
writing:
(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;
-8-
(iv) of the receipt by the Issuer or any of the Guarantors
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
Issuer or any of the Guarantors 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
nor 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 Issuer or any of the
Guarantors that a post-effective amendment to a Registration Statement
would be appropriate.
(c) The Issuer and the Guarantors 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 Issuer and the Guarantors 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 Issuer and the Guarantors 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).
(f) The Issuer and the Guarantors 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 Issuer and
each Guarantor consents, subject to the provisions of this Agreement, to
the use of the prospectus or any amendment or supplement thereto by each of
the selling Holders of the Securities in connection with the offering and
sale of the Securities covered by, and as contemplated by, the prospectus,
or any amendment or supplement thereto, included in the Shelf Registration
Statement.
-9-
(g) The Issuer and the Guarantors 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 120 days
following the consummation of the Registration Exchange Offer. The Issuer
and each Guarantor 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 Issuer
or any Guarantor 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 Issuer and the Guarantors shall use their
respective 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 neither the Issuer nor any Guarantor shall be
required to (i) qualify generally or as a foreign corporation to do
business in any jurisdiction where it is not then so qualified or (ii) take
any action which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so subject.
(i) The Issuer and the Guarantors 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 Issuer or any
Guarantor is required to maintain an effective Registration Statement, the
Issuer and the Guarantors 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
-10-
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 Issuer or
any Guarantor notifies 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 Issuer or
such Guarantor has 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 Issuer or
any Guarantor 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 Issuer 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 Issuer and the Guarantors will obtain a CUSIP
number for the Transfer Restricted Notes, 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 Issuer and the Guarantors 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 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, 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 Issuer's first fiscal quarter commencing after
the effective date of the Registration Statement, which statement shall
cover such 12-month period.
(m) The Issuer and the Guarantors may require each Holder of
Securities to be sold pursuant to the Shelf Registration Statement to
furnish to the Issuer and the Guarantors such information regarding the
Holder and the distribution of the Securities as the Issuer may from time
to time reasonably request for inclusion
-11-
in the Shelf Registration Statement, and the Issuer and the Guarantors 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 Issuer and the
Guarantors 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 Issuer and the
Guarantors 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 Issuer
and the Guarantors customarily inspected by underwriters in primary
underwritten offerings and cause the officers, directors and employees of
the Issuer and its subsidiaries (including the Guarantors) 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 Issuer or
any Guarantor 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 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).
(p) In the case of any Shelf Registration, the Issuer and the
Guarantors, if requested by any Holder of Securities covered thereby, shall
each (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 Issuer and the Guarantors 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 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
-12-
appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(q) If a Registration Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Notes by Holders to the Issuer and the
Guarantors (or to such other person as directed by the Issuer or any
Guarantor) in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be, the Issuer 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) The Issuer and the Guarantors will use their respective
commercially reasonable efforts to cause the Securities covered by a Shelf
Registration Statement to be rated by two nationally recognized statistical
rating organizations (as such term is defined in Rule 436(g)(2) under the
Securities Act) if so requested by Holders of a majority in aggregate
principal amount of Securities covered by such Shelf Registration
Statement, or by the managing underwriters, if any.
(s) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member of
an underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules of the National Association of
Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of such
Securities or as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, the Issuer and the Guarantors
shall assist such broker-dealer in complying with the requirements of such
Rules and By-Laws, including by (i) if such Rules, including Rule 2720,
shall so require, engaging a "qualified independent underwriter" (as
defined in such Rule) to participate in the preparation of the Registration
Statement relating to such Securities, to exercise usual standards of due
diligence with respect thereto and, if any portion of the offering
contemplated by such Registration Statement is an underwritten offering or
is made through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section 5
hereof and (iii) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the requirements of
the Conduct Rules of the NASD.
SECTION 4. REGISTRATION EXPENSES. The Issuer and the Guarantors shall
jointly and severally pay all fees and expenses incident to the performance of
or compliance with this Agreement by the Issuer and the Guarantors including,
without limitation, (i) all Commission, stock exchange or 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
-13-
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 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 Issuer and the Guarantors 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
Issuer, 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.
SECTION 5. INDEMNIFICATION. (a) The Issuer and each of the Guarantors
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 Issuer or any Guarantor 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 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 Issuer or any Guarantor in writing by such Holder
or Participating Broker-Dealer expressly for use therein; PROVIDED that the
foregoing indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any Holder or Participating Broker-Dealer from whom the person
asserting any such losses, claims, damages or liabilities purchased Securities,
or any person controlling or affiliated with such Holder or Participating
Broker-Dealer, if a copy of the final prospectus (as then amended or
supplemented if the Issuer or any Guarantor shall have furnished any amendments
or supplements thereto) was not sent or given by or on behalf of such Holder or
Participating Broker-Dealer to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Securities
to such person, and if the final prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability.
(b) Each Holder of the Securities, severally and not jointly,
agrees to indemnify and hold harmless the Issuer, each of the Guarantors, other
selling Holders, directors of the Issuer, directors of the Guarantors, the
officers of the Issuer or any Guarantor who sign a Registration Statement and
each person, if any, who controls the Issuer or any Guarantor or any selling
Holders, within the meaning of either Section 15 of the
-14-
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Issuer and the Guarantors to such Holder, but only
with reference to information relating to such Holder furnished to the Issuer 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 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 Issuer. 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
-15-
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 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 Issuer and the Guarantors
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 Issuer and the Guarantors 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 Final
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 Issuer and the Guarantors 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 Issuer and the Guarantors 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.
-16-
(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
of the Issuer, its officers or directors or any person controlling the
Issuer 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. 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 by the 60th day following the date hereof neither the
Exchange Offer Registration Statement nor a Shelf Registration Statement
has been filed with the Commission;
(ii) if by the 150th day following the date hereof neither the
Registration Exchange Offer is consummated nor, if required in lieu
thereof, the Shelf Registration Statement is declared effective by the
Commission; or
(iii) if after the 190th day following the date hereof and after
either the Exchange Offer Registration Statement or the Shelf Registration
Statement is declared effective, (A) such Registration Statement thereafter
ceases to be effective prior to completion of the Exchange Offer or the
sale of all the Transferred Restricted Notes registered pursuant to the
Shelf Registration Statement, as the case may be (except upon termination
of the period specified in Section 3(j) hereof or as permitted by Section
6(b) hereof); or (B) such Registration Statement or the related prospectus
ceases to be usable in connection with resales of Transfer Restricted Notes
during the periods specified in this Agreement (except as permitted by
Section 6(b) hereof) because either (1) any event occurs as a result of
which the related prospectus forming part of such Registration Statement
would include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading or (2) it shall be
necessary to amend such Registration Statement, or supplement the related
prospectus, to comply with the Securities Act or the Exchange Act or the
respective rules thereunder.
Additional Interest shall accrue on the Notes over and above the
interest set forth in the title of the Notes from and including the date on
which any such Failure to Register shall occur to but excluding the date on
which all such Failures to Register have been cured, at a rate of 0.50% per
annum.
(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
-17-
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 Issuer and the Guarantors 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 Issuer or any Guarantor that would need to be
described in such Registration Statement or the related prospectus and (ii) in
the case of clause (y), the Issuer and the Guarantors 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 Issuer and the Guarantors determine in good faith must remain confidential
for business reasons, the Issuer and the Guarantors are proceeding promptly and
in good faith to take such steps as are necessary so that such developments need
no longer remain confidential; PROVIDED, HOWEVER, that in any case, if such
Failure to Register occurs for a continuous period in excess of 45 days,
Additional Interest shall be payable in accordance with the above paragraph from
the day following such 45 day period until the date on which such Failure to
Register is cured.
(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 Issuer and the Guarantors shall use
their respective 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 (except to the extent that any Guarantor is permitted to omit filing such
reports in accordance with the terms of any ruling or no-action letter issued by
the Commission) and, if at any time the Issuer or any Guarantor is not required
to file such reports, it will, upon the request of any Holder of Transfer
-18-
Restricted Notes, make publicly available other information so long as necessary
to permit sales of Securities pursuant to Rules 144 and 144A. The Issuer and the
Guarantors 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 Issuer and the Guarantors will provide a copy of this Agreement
to prospective purchasers of Notes identified to the Issuer and the Guarantors
by the Purchasers upon request. Upon the request of any Holder of Transfer
Restricted Notes, the Issuer and the Guarantors 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 Issuer to register any of its securities pursuant to the Exchange
Act.
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 Issuer and the Guarantors.
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 reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
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 Issuer, each of the
Guarantors 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 Issuer and the Guarantors 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
-00-
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Finance
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
-20-
(2) if to the Issuer or any Guarantor, at the following
address:
Xxxxxxxx Scotsman, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxx
General Counsel
- and -
Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, 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. Neither the Issuer nor any
Guarantor has, as of the date hereof, entered into, nor shall it, on or after
the date hereof, enter into, any agreement with respect to its 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 Issuer and the Guarantors 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.
(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.
-21-
(i) SECURITIES HELD BY THE ISSUER. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
is required hereunder, Securities held by the Issuer or its affiliates
(including the Guarantors) (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.
-22-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Issuer and the Guarantors a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Purchasers and the Issuer and the Guarantors in
accordance with its terms.
Very truly yours,
XXXXXXXX SCOTSMAN, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer and
Senior Vice President
EVERGREEN MOBILE COMPANY
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer and
Treasurer
SPACE MASTER INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer and
Treasurer
TRUCK & TRAILER SALES, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer and
Treasurer
-23-
WILLSCOT EQUIPMENT, LLC
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Executive
XXXXXXXX SCOTSMAN OF CANADA, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Financial Officer and
Senior Vice President
Accepted as of the date hereof
Deutsche Bank Securities Inc.
Banc of America Securities LLC
CIBC World Markets Corp.
Fleet Securities, Inc.
Acting severally on behalf of
themselves and the several
Purchasers
By: Deutsche Bank Securities Inc.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
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 Issuer has agreed
that, for a period of 120 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 Existing Notes where such Existing Notes were acquired as a result
of market-making activities or other trading activities. The Issuer, the
Guarantors and the Subordinated Guarantor have agreed that, for a period of 120
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 Issuer, the Guarantors and the Subordinated Guarantor 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 120 days after the Expiration Date the Issuer, the
Guarantors and the Subordinated Guarantor will promptly send additional copies
of this Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such
------------------------
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-
documents in the Letter of Transmittal. The Issuer, the Guarantors and the
Subordinated Guarantor have agreed to pay all expenses incident to the Exchange
Offer other than commissions or concessions of any brokers or dealers and will
indemnify the Holders of the Securities (including any broker-dealers) against
certain liabilities, including liabilities under the Securities Act.
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.
