EXECUTION COPY
NOTES REGISTRATION RIGHTS AGREEMENT
INTERPOOL, INC.
6% SENIOR NOTES DUE 2014
Dated as of September 14, 2004
This NOTES REGISTRATION RIGHTS AGREEMENT (this
“Agreement”) is made and entered into as of September
14, 2004, between Interpool, Inc., a Delaware corporation (the
“Company”), and the investors signatory hereto (each a
“Purchaser” and collectively, the
“Purchasers”).
This Agreement is made pursuant to the Securities Purchase Agreement (as defined
herein) by and among the Company and the Purchasers. In order to induce the
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement.
The parties hereby agree as follows:
1. Certain Definitions. For purposes of this Notes Registration Rights
Agreement, the following terms shall have the following respective meanings:
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"Blackout Period"
shall have the meaning set forth in Section 2(c) hereof. |
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The term "broker-dealer" shall mean any broker or dealer
registered with the Commission under the Exchange Act. |
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"Closing Date" shall mean the date on which the Securities are
initially issued. |
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"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose. |
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"Effective Time" in the case of (i) an Exchange Registration shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall mean
the time and date as of which the Commission declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective. |
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"Electing Holder" shall mean any holder of Registrable Securities
that has returned a completed and signed Notice and Questionnaire to the Company
in accordance with Section 3(d)(ii) or 3(d)(iii) hereof. |
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"Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor thereto and the rules, regulations and forms promulgated
thereunder, all, as the same shall be amended from time to time. |
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"Exchange Offer" shall have the meaning assigned thereto in
Section 2(a) hereof. |
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"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof. |
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"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof. |
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"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof. |
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The term "holder" shall mean each of the Purchasers and other
persons who acquire Registrable Securities from time to time (including any
successors or assigns), in each case for so long as such person owns any
Registrable Securities. |
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"Indenture" shall mean the Indenture, dated as of September 14,
2004, between the Company, and U.S. Bank, National Association, as Trustee, as
the same shall be amended from time to time. |
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"Notice and Questionnaire" means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto. |
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The term "person" shall mean a corporation, association,
partnership, organization, business, individual, government or political
subdivision thereof or governmental agency. |
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"Purchase Agreement" shall mean the Securities Purchase Agreement,
dated as of September 14, 2004, by and among the Purchasers and the Company
relating to the Securities. |
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"Registrable Securities" shall mean the Securities; provided,
however, that a Security shall cease to be a Registrable Security when (i) in
the circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer as contemplated in
Section 2(a) hereof (provided that any Exchange Security that, pursuant to the
last two sentences of Section 2(a), is included in a prospectus for use in
connection with resales by broker-dealers shall be deemed to be a Registrable
Security with respect to Sections 5, 6 and 9 until resale of such Registrable
Security has been effected within the 90-day period referred to in Section
2(a)(y)); (ii) in the circumstances contemplated by Section 2(b) hereof, a Shelf
Registration Statement registering such Security under the Securities Act has
been declared or becomes effective and such Security has been sold or otherwise
transferred by the holder thereof pursuant to and in a manner contemplated by
such effective Shelf Registration Statement; (iii)such Security is sold
pursuant to Rule 144 under circumstances in which any legend borne by such
Security relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company or pursuant to the
Indenture;(iv) such Security is eligible to be sold pursuant to paragraph (k) of
Rule 144; or (v) such Security shall cease to be outstanding. |
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"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof. |
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"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof. |
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"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof. |
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"Restricted Holder" shall mean (i)a holder that is an affiliate
of the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's business, (iii)
a holder who has arrangements or understandings with any person to participate
in the Exchange Offer for the purpose of distributing Exchange Securities and
(iv) a holder that is a broker-dealer, but only with respect to Exchange
Securities received by such broker-dealer pursuant to an Exchange Offer in
exchange for Registrable Securities acquired by the broker-dealer directly from
the Company. |
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"Rule 144," "Rule 405" and "Rule 415"
shall mean, in each case, such rule promulgated under the Securities Act (or any
successor provision), as the same shall be amended from time to time. |
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"Securities" shall mean, collectively, the 6% Senior Notes due
2014 of the Company to be issued and sold to the Purchasers, and securities
issued in exchange therefor or in lieu thereof pursuant to the Indenture. |
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"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all, as the same shall be amended from time to time. |
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"Shelf Registration" shall have the meaning assigned thereto in
Section 2(b) hereof. |
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"Shelf Registration Statement" shall have the meaning assigned
thereto in Section 2(b) hereof. |
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"Special Interest" shall have the meaning assigned thereto in
Section2(c) hereof. |
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"Trust Indenture Act" shall mean the Trust Indenture Act of 1939,
or any successor thereto, and the rules, regulations and forms promulgated
thereunder, all, as the same shall be amended from time to time. |
Unless the context otherwise requires, any reference herein to a "Section" or
"clause" refers to a Section or clause, as the case may be, of this Notes
Registration Rights Agreement, and the words "herein," "hereof" and "hereunder"
and other words of similar import refer to this Notes Registration Rights
Agreement as a whole and not to any particular Section or other subdivision.
2. Registration Under the Securities Act.
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(a) Except as set forth in Section 2(b) below, the Company agrees to file under
the Securities Act, no later than May 1, 2005, a registration statement relating
to an offer to exchange (such registration statement, the "Exchange
Registration Statement", and such offer, the "Exchange
Offer") any and all of the Securities for a like aggregate principal
amount of debt securities issued by the Company, which debt securities are
substantially identical to the Securities (and are entitled to the benefits of a
trust indenture which is substantially identical to the Indenture or is the
Indenture and which has been qualified under the Trust Indenture Act), except
that they have been registered pursuant to an effective registration statement
under the Securities Act and do not contain provisions for the additional
interest contemplated in Section 2(d) below (such new debt securities
hereinafter called "Exchange Securities"). The Company agrees to
use all commercially reasonable efforts to cause the Exchange Registration
Statement to become effective under the Securities Act no later than July 1,
2005. The Exchange Offer will be registered under the Securities Act on the
appropriate form and will comply with all applicable tender offer rules and
regulations under the Exchange Act. The Company further agrees to use all
commercially reasonable efforts to commence and complete the Exchange Offer
promptly, but no later than 45 days after such registration statement has become
effective, hold the Exchange Offer open for at least 30 days and exchange
Exchange Securities for all Registrable Securities that have been properly
tendered and not withdrawn on or prior to the expiration of the Exchange Offer.
The Exchange Offer will be deemed to have been "completed" only if the debt
securities received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are, upon receipt, transferable by each such
holder without restriction under the Securities Act and the Exchange Act and
without material restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of America. The Exchange
Offer shall be deemed to have been completed upon the earlier to occur of (i)
the Company having exchanged the Exchange Securities for all outstanding
Registrable Securities pursuant to the Exchange Offer and (ii) the Company
having exchanged, pursuant to the Exchange Offer, Exchange Securities for all
Registrable Securities that have been properly tendered and not withdrawn before
the expiration of the Exchange Offer, which shall be on a date that is at least
30 days following the commencement of the Exchange Offer. The Company agrees (x)
to include in the Exchange Registration Statement a prospectus for use in any
resales by any holder of Exchange Securities that is a broker-dealer and (y) to
keep such Exchange Registration Statement effective (other than during any
Blackout Period) for a period (the "Resale Period") beginning when
Exchange Securities are first issued in the Exchange Offer and ending upon the
earlier of the expiration of the 90th day after the Exchange Offer has been
completed or such time as such broker-dealers no longer own any Registrable
Securities. With respect to such Exchange Registration Statement, such holders
shall have the benefit of the rights of indemnification and contribution set
forth in Sections6(a), (c), (d) and (e) hereof. |
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(b) If (i) on or prior to the time the Exchange Offer is completed existing
Commission interpretations are changed such that the debt securities received by
holders other than Restricted Holders in the Exchange Offer for Registrable
Securities are not or would not be, upon receipt, transferable by each such
holder without restriction under the Securities Act, (ii) the Exchange Offer has
not been completed within 225 days following May 1, 2005 or (iii) the Exchange
Offer is not available to any holder of the Securities, the Company shall, in
lieu of (or, in the case of clause (iii), in addition to) conducting the
Exchange Offer contemplated by Section2(a), file under the Securities Act no
later than the later of 30 days after the time such obligation to file arises, a
"shelf" registration statement providing for the registration of, and the sale
on a continuous or delayed basis by the holders of, all of the Registrable
Securities, pursuant to Rule 415 or any similar rule that may be adopted by the
Commission (such filing, the "Shelf Registration" and such
registration statement, the "Shelf Registration Statement"). The
Company agrees to use all commercially reasonable efforts (x) to cause the Shelf
Registration Statement to become or be declared effective no later than 60 days
after such Shelf Registration Statement is filed and to keep such Shelf
Registration Statement continuously effective (other than during any Blackout
Period) for a period ending on the earlier of the second anniversary of the
Effective Time or such time as there are no longer any Registrable Securities
outstanding, provided, however, that no holder shall be entitled to be named as
a selling securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities unless
such holder is an Electing Holder, and (y) after the Effective Time of the Shelf
Registration Statement, promptly upon the request of any holder of Registrable
Securities that is not then an Electing Holder, to take any action reasonably
necessary to enable such holder to use the prospectus forming a part thereof for
resales of Registrable Securities, including, without limitation, any action
necessary to identify such holder as a selling securityholder in the Shelf
Registration Statement, provided, however, that nothing in this clause (y) shall
relieve any such holder of the obligation to return a completed and signed
Notice and Questionnaire to the Company in accordance with Section 3(d)(iii)
hereof. The Company further agrees to supplement or make amendments to the Shelf
Registration Statement, as and when required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or rules and regulations
thereunder for shelf registration, and the Company agrees to furnish to each
Electing Holder copies of any such supplement or amendment prior to its being
used or promptly following its filing with the Commission. |
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(c) Notwithstanding the foregoing, the Company may, upon advising the Purchasers
in writing, pursuant to the advice of outside counsel to the Company, delay the
filing or effectiveness of any Shelf Registration Statement (if not filed or
effective, as applicable) or suspend, or otherwise fail to maintain, the
effectiveness thereof, for a period (each, a "Blackout Period") not to exceed
(i) an aggregate of 15 days in any fiscal quarter during which the Company is
not eligible to use Form S-3 or (ii) 45 consecutive days in any six-month period
during which the Company is eligible to use FormS-3, provided, that there shall
be at least 60 days during which the Shelf Registration Statement is effective
and usable between any two Blackout Periods under this clause (ii), in the event
that (x) the Board of Directors of the Company reasonably and in good faith
determines that the premature disclosure of a material event at such time would
have a material adverse effect on the Company's business, operations or
prospects or (y) the disclosure otherwise relates to a material business
transaction which has not been publicly disclosed and the Board of Directors of
the Company reasonably and in good faith determines that any such disclosure
would jeopardize the success of such transaction; provided, that, upon the
termination of such Blackout Period, the Company promptly shall advise the
Purchasers that such Blackout Period has been terminated. Notwithstanding the
foregoing, in no event will the aggregate number of days covered by Blackout
Periods exceed 90 days in any twelve-month period. |
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(d) In the event that (i) the Company has not filed the Exchange Registration
Statement or Shelf Registration Statement on or before the date on which such
registration statement is required to be filed pursuant to Section 2(a) or 2(b),
respectively, or (ii) such Exchange Registration Statement or Shelf Registration
Statement has not become effective or been declared effective by the Commission
within 90 days after the date on which such registration statement is required
to become or be declared effective pursuant to Section 2(a) or 2(b),
respectively, or (iii) the Exchange Offer has not been consummated within 45
days after the initial effective date of the Exchange Registration Statement
relating to the Exchange Offer (if the Exchange Offer is then required to be
made) or (iv)any Exchange Registration Statement or Shelf Registration Statement
required by Section 2(a) or 2(b) hereof is filed and declared effective but
shall thereafter either be withdrawn by the Company or shall become subject to
an effective stop order issued pursuant to Section 8(d) of the Securities Act
suspending the effectiveness of such registration statement (except as
specifically permitted herein) without being succeeded immediately by an
additional registration statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default" and each
period during which a Registration Default has occurred and is continuing, a
"Registration Default Period"), then, liquidated damages ("Liquidated Damages")
for such Registration Default shall accrue at a per annum rate of 0.25% of the
principal amount of Registrable Securities for the first 90 days of the
Registration Default Period and shall increase by an additional per annum rate
of 0.25% of the principal amount of Registrable Securities for each subsequent
90-day period of the Registration Default Period until all Registration Defaults
have been cured, up to a maximum per annum rate for all Registration Defaults of
1.00% per annum of the principal amount of Registrable Securities; provided,
however, that the Company shall in no event be required to pay Liquidated
Damages (i) with respect to the Registrable Securities for more than one
Registration Default at any given time or (ii) with respect to any Shelf
Registration Statement during any Blackout Period. |
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(e) The Company shall take all actions necessary or advisable to be taken by it
to ensure that the transactions contemplated herein are effected as so
contemplated. |
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(f) Any reference herein to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time and any reference herein to any
post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time. |
3. Registration Procedures.
If the Company files a registration statement pursuant to Section2(a) or
Section2(b), the following provisions shall apply:
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(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company shall qualify the Indenture under
the Trust Indenture Act of 1939. |
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(b) In the event that such qualification would require the appointment of a new
trustee under the Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture. |
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(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall, as soon as
practicable (or as otherwise specified) subject to the provisions of Section
2(c): |
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(i) prepare and file with the Commission no later than May 1, 2005, an Exchange
Registration Statement on any form which may be utilized by the Company and
which shall permit the Exchange Offer and resales of Exchange Securities by
broker-dealers during the Resale Period to be effected as contemplated by
Section 2(a), and use all commercially reasonable efforts to cause such Exchange
Registration Statement to become effective no later than July 1, 2005; |
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(ii) as soon as practicable prepare and file with the Commission such amendments
and supplements to such Exchange Registration Statement and the prospectus
included therein as may be necessary to effect and maintain the effectiveness of
such Exchange Registration Statement for the periods and purposes contemplated
in Section2(a) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the form of
such Exchange Registration Statement, and promptly provide each broker-dealer
holding Exchange Securities with such number of copies of the prospectus
included therein (as then amended or supplemented), in conformity in all
material respects with the requirements of the Securities Act and the Trust
Indenture Act, as such broker-dealer reasonably may request prior to the
expiration of the Resale Period, for use in connection with resales of Exchange
Securities; |
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(iii) promptly notify each broker-dealer that has requested or received copies
of the prospectus included in such registration statement, and confirm such
advice in writing, (A)when such Exchange Registration Statement or the
prospectus included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such Exchange
Registration Statement or any post-effective amendment, when the same has become
effective, (B) of any comments by the Commission and by the blue sky or
securities commissioner or regulator of any state with respect thereto or any
request by the Commission for amendments or supplements to such Exchange
Registration Statement or prospectus or for additional information, (C) of the
issuance by the Commission of any stop order suspending the effectiveness of
such Exchange Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the representations and
warranties of the Company contemplated by Section 5 cease to be true and correct
in all material respects, (E) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Exchange Securities
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, or (F) at any time during the Resale Period when a prospectus
is required to be delivered under the Securities Act, that such Exchange
Registration Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act or
contains an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing; |
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(iv) in the event that the Company would be required, pursuant to Section
3(e)(iii)(F) above, to notify any broker-dealers holding Exchange Securities,
without delay prepare and furnish to each such holder a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to purchasers of such Exchange Securities during the Resale Period, such
prospectus shall conform in all material respects to the applicable requirements
of the Securities Act and the Trust Indenture Act and shall not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; |
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(v) use all commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such Exchange Registration Statement or
any post-effective amendment thereto at the earliest practicable date; |
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(vi) use all commercially reasonable efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of such
jurisdictions as are contemplated by Section 2(a) no later than the commencement
of the Exchange Offer, (B) keep such registrations or qualifications in effect
and comply with such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions until the expiration of the Resale Period
and (C) take any and all other actions as may be reasonably necessary or
advisable to enable each broker-dealer holding Exchange Securities to consummate
the disposition thereof in such jurisdictions; provided, however, that the
Company shall not be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(c)(vi), (2) consent to
general service of process in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by-laws or any agreement between it and its
stockholders; |
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(vii) use all commercially reasonable efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state or local, which
may be required to effect the Exchange Registration, the Exchange Offer and the
offering and sale of Exchange Securities by broker-dealers during the Resale
Period; |
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(viii) use all commercially reasonable efforts to provide a CUSIP number for all
Exchange Securities, not later than the applicable Effective Time; and |
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(ix) comply with all applicable rules and regulations of the Commission, and
make generally available to its securityholders as soon as practicable but no
later than eighteen months after the effective date of such Exchange
Registration Statement, an earnings statement of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act (including, at
the option of the Company, Rule 158 thereunder). |
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(d) In connection with the Company's obligations with respect to the Shelf
Registration, if applicable, the Company shall, as soon as practicable (or as
otherwise specified) subject to the provisions of Section 2(c): |
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(i) prepare and file with the Commission within the time periods specified in
Section 2(b), a Shelf Registration Statement on any form which may be utilized
by the Company and which shall register all of the Registrable Securities for
resale by the holders thereof in accordance with such method or methods of
disposition as may be specified by such of the holders as, from time to time,
may be Electing Holders and use all commercially reasonable efforts to cause
such Shelf Registration Statement to become effective within the time periods
specified in Section 2(b); |
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(ii) not less than 30 calendar days prior to the Effective Time of the Shelf
Registration Statement, mail the Notice and Questionnaire to the holders of
Registrable Securities; no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement as of the Effective Time, and
no holder shall be entitled to use the prospectus forming a part thereof for
resales of Registrable Securities at any time, unless such holder has returned a
completed and signed Notice and Questionnaire to the Company by the deadline for
response set forth therein; provided, however, holders of Registrable Securities
shall have at least 20 calendar days from the date on which the Notice and
Questionnaire is first mailed to such holders to return a completed and signed
Notice and Questionnaire to the Company; |
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(iii) after the Effective Time of the Shelf Registration Statement, upon the
request of any holder of Registrable Securities that is not then an Electing
Holder, promptly send a Notice and Questionnaire to such holder; provided that
the Company shall not be required to take any action to name such holder as a
selling securityholder in the Shelf Registration Statement or to enable such
holder to use the prospectus forming a part thereof for resales of Registrable
Securities until such holder has returned a completed and signed Notice and
Questionnaire to the Company; |
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(iv) as soon as practicable prepare and file with the Commission such amendments
and supplements to such Shelf Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the effectiveness of such
Shelf Registration Statement for the period specified in Section2(b) hereof and
as may be required by the applicable rules and regulations of the Commission and
the instructions applicable to the form of such Shelf Registration Statement,
and furnish to the Electing Holders copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the Commission; |
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(v) comply with the provisions of the Securities Act with respect to the
disposition of all of the Registrable Securities covered by such Shelf
Registration Statement in accordance with the intended methods of disposition by
the Electing Holders provided for in such Shelf Registration Statement; |
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(vi) provide (A)the Electing Holders, (B)the underwriters (which term, for
purposes of this Notes Registration Rights Agreement, shall include a person
deemed to be an underwriter within the meaning of Section 2(a)(11) of the
Securities Act), if any, thereof, (C)any sales or placement agent therefor, (D)
counsel for any such underwriter or agent and (E) not more than one counsel for
all the Electing Holders the opportunity to participate in the preparation of
such Shelf Registration Statement, each prospectus included therein or filed
with the Commission and each amendment or supplement thereto; |
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(vii) for a reasonable period prior to the filing of such Shelf Registration
Statement, and throughout the period specified in Section 2(b), make available
at reasonable times at the Company's principal place of business or such other
reasonable place for inspection by the persons referred to in Section 3(d)(vi)
who shall certify to the Company that they have a current intention to sell the
Registrable Securities pursuant to the Shelf Registration such financial and
other information and books and records of the Company, and cause the officers,
employees, counsel and independent certified public accountants of the Company
to respond to such inquiries, as shall be reasonably necessary, in the judgment
of the respective counsel referred to in such Section, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act; provided,
however, that each such party shall be required to maintain in confidence and
not to disclose to any other person any information or records reasonably
designated by the Company as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of its
inclusion in such registration statement or otherwise), or (B) such person shall
be required so to disclose such information pursuant to a subpoena or order of
any court or other governmental agency or body having jurisdiction over the
matter (subject to the requirements of such order, and only after such person
shall have given the Company prompt prior written notice of such requirement),
or (C) such information is required to be set forth in such Shelf Registration
Statement or the prospectus included therein or in an amendment to such Shelf
Registration Statement or an amendment or supplement to such prospectus in order
that such Shelf Registration Statement, prospectus, amendment or supplement, as
the case may be, complies with applicable requirements of the federal securities
laws and the rules and regulations of the Commission and does not contain an
untrue statement of a material fact or omit to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing; |
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(viii) promptly notify each of the Electing Holders, any sales or placement
agent therefor and any underwriter thereof (which notification may be made
through any managing underwriter that is a representative of such underwriter
for such purpose) and confirm such advice in writing, (A) when such Shelf
Registration Statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been filed, and, with
respect to such Shelf Registration Statement or any post-effective amendment,
when the same has become effective, (B) of any comments by the Commission and by
the blue sky or securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or supplements to such
Shelf Registration Statement or prospectus or for additional information, (C) of
the issuance by the Commission of any stop order suspending the effectiveness of
such Shelf Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the representations and
warranties of the Company contemplated by Section 3(d)(xvii) or Section 5 cease
to be true and correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) if at any time when a
prospectus is required to be delivered under the Securities Act, that such Shelf
Registration Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act or
contains an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing; |
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(ix) use all commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date; |
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(x) if requested by any managing underwriter or underwriters, any placement or
sales agent or any Electing Holder, promptly incorporate in a prospectus
supplement or post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such managing
underwriter or underwriters, such agent or such Electing Holder specifies should
be included therein relating to the terms of the sale of such Registrable
Securities, including information with respect to the principal amount of
Registrable Securities being sold by such Electing Holder or agent or to any
underwriters, the name and description of such Electing Holder, agent or
underwriter, the offering price of such Registrable Securities and any discount,
commission or other compensation payable in respect thereof, the purchase price
being paid therefor by such underwriters and with respect to any other terms of
the offering of the Registrable Securities to be sold by such Electing Holder or
agent or to such underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment; |
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(xi) furnish to each Electing Holder, each placement or sales agent, if any,
therefor, each underwriter, if any, thereof and the respective counsel referred
to in Section 3(d)(vi) an executed copy (or, in the case of an Electing Holder,
a conformed copy) of such Shelf Registration Statement, each such amendment and
supplement thereto (in each case including all exhibits thereto (in the case of
an Electing Holder of Registrable Securities, upon request) and documents
incorporated by reference therein) and such number of copies of such Shelf
Registration Statement (excluding exhibits thereto and documents incorporated by
reference therein unless specifically so requested by such Electing Holder,
agent or underwriter, as the case may be) and of the prospectus included in such
Shelf Registration Statement (including each preliminary prospectus and any
summary prospectus), in conformity in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act, and such other
documents, as such Electing Holder, agent, if any, and underwriter, if any, may
reasonably request in order to facilitate the offering and disposition of the
Registrable Securities owned by such Electing Holder, offered or sold by such
agent or underwritten by such underwriter and to permit such Electing Holder,
agent and underwriter to satisfy the prospectus delivery requirements of the
Securities Act; and the Company hereby consents to the use of such prospectus
(including such preliminary and summary prospectus) and any amendment or
supplement thereto by each such Electing Holder and by any such agent and
underwriter, in each case in the form most recently provided to such person by
the Company, in connection with the offering and sale of the Registrable
Securities covered by the prospectus (including such preliminary and summary
prospectus) or any supplement or amendment thereto; |
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(xii) use all commercially reasonable efforts to (A) register or qualify the
Registrable Securities to be included in such Shelf Registration Statement under
such securities laws or blue sky laws of such jurisdictions as any Electing
Holder and each placement or sales agent, if any, therefor and underwriter, if
any, thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions during
the period the Shelf Registration is required to remain effective under Section
2(b) above and for so long as may be necessary to enable any such Electing
Holder, agent or underwriter to complete its distribution of Securities pursuant
to such Shelf Registration Statement and (C) take any and all other actions as
may be reasonably necessary or advisable to enable each such Electing Holder,
agent, if any, and underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities; provided, however, that the
Company shall not be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(d)(xii), (2) consent to
general service of process in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by-laws or any agreement between it and its
stockholders; |
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(xiii) use all commercially reasonable efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state or local, which
may be required to effect the Shelf Registration or the offering or sale in
connection therewith or to enable the selling holder or holders to offer, or to
consummate the disposition of, their Registrable Securities; |
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(xiv) unless any Registrable Securities shall be in book-entry only form,
cooperate with the Electing Holders and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates, if so required by any
securities exchange upon which any Registrable Securities are listed, shall be
penned, lithographed or engraved, or produced by any combination of such
methods, on steel engraved borders, and which certificates shall not bear any
restrictive legends; and, in the case of an underwritten offering, enable such
Registrable Securities to be in such denominations and registered in such names
as the managing underwriters may request at least two business days prior to any
sale of the Registrable Securities; |
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(xv) use all commercially reasonable efforts to provide a CUSIP number for all
Registrable Securities, not later than the applicable Effective Time; |
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(xvi) enter into one or more underwriting agreements, engagement letters, agency
agreements, "best efforts" underwriting agreements or similar agreements, as
appropriate, including customary provisions relating to indemnification and
contribution, and take such other actions in connection therewith as any
Electing Holders aggregating at least 20% in aggregate principal amount of the
Registrable Securities at the time outstanding shall request in order to
expedite or facilitate the disposition of such Registrable Securities; |
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(xvii) whether or not an agreement of the type referred to in Section 3(d)(xvi)
hereof is entered into and whether or not any portion of the offering
contemplated by the Shelf Registration is an underwritten offering or is made
through a placement or sales agent or any other entity, (A) make the appropriate
officers of the Company available to such holders and underwriters for meetings
with prospective purchasers of the Registrable Securities and preparing and
presenting to potential investors customary "road show" material in a manner
consistent with other new issuances of other securities similar to the
Registrable Securities, (B) make such representations and warranties to the
Electing Holders and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof in form, substance and scope as are customarily
made in connection with an offering of debt securities pursuant to any
appropriate agreement or to a registration statement filed on the form
applicable to the Shelf Registration; (C) obtain an opinion of counsel to the
Company in customary form and covering such matters, of the type customarily
covered by such an opinion, as the managing underwriters, if any, or as any
Electing Holders of at least 20% in aggregate principal amount of the
Registrable Securities at the time outstanding may reasonably request, addressed
to such Electing Holder or Electing Holders and the placement or sales agent, if
any, therefor and the underwriters, if any, thereof and dated the effective date
of such Shelf Registration Statement (and if such Shelf Registration Statement
contemplates an underwritten offering of a part or all of the Registrable
Securities, dated the date of the closing under the underwriting agreement
relating thereto) (it being agreed that the matters to be covered by such
opinion shall include the due incorporation and good standing of the Company and
its subsidiaries; the qualification of the Company and its subsidiaries to
transact business as foreign corporations; the due authorization, execution and
delivery of the relevant agreement of the type referred to in Section 3(d)(xvi)
hereof; the due authorization, execution, authentication and issuance, and the
validity and enforceability, of the Securities; the absence of material legal or
governmental proceedings involving the Company; the absence of governmental
approvals required to be obtained in connection with the Shelf Registration, the
offering and sale of the Registrable Securities, this Notes Registration Rights
Agreement or any agreement of the type referred to in Section 3(d)(xvi) hereof,
except such approvals as may be required under state securities or blue sky
laws; the material compliance as to form of such Shelf Registration Statement
and any documents incorporated by reference therein and of the Indenture with
the requirements of the Securities Act and the Trust Indenture Act,
respectively; and, as of the date of the opinion and of the Shelf Registration
Statement or most recent post-effective amendment thereto, as the case may be,
the absence from such Shelf Registration Statement and the prospectus included
therein, as then amended or supplemented, and from the documents incorporated by
reference therein (in each case other than the financial statements and other
financial information contained therein) of an untrue statement of a material
fact or the omission to state therein a material fact necessary to make the
statements therein not misleading (in the case of such documents, in the light
of the circumstances existing at the time that such documents were filed with
the Commission under the Exchange Act) (it being understood that the matters to
be covered by such opinion may be subject to customary qualifications and
exceptions); (D)obtain a "cold comfort" letter or letters from the independent
certified public accountants of the Company addressed to the selling Electing
Holders, the placement or sales agent, if any, therefor or the underwriters, if
any, thereof, dated (i) the effective date of such Shelf Registration Statement
and (ii) the effective date of any prospectus supplement to the prospectus
included in such Shelf Registration Statement or post-effective amendment to
such Shelf Registration Statement which includes unaudited or audited financial
statements as of a date or for a period subsequent to that of the latest such
statements included in such prospectus (and, if such Shelf Registration
Statement contemplates an underwritten offering pursuant to any prospectus
supplement to the prospectus included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement which includes
unaudited or audited financial statements as of a date or for a period
subsequent to that of the latest such statements included in such prospectus,
dated the date of the closing under the underwriting agreement relating
thereto), such letter or letters to be in customary form and covering such
matters of the type customarily covered by letters of such type; (E) deliver
such documents and certificates, including officers' certificates, as may be
reasonably requested by any Electing Holders of at least 20% in aggregate
principal amount of the Registrable Securities at the time outstanding or the
placement or sales agent, if any, therefor and the managing underwriters, if
any, thereof to evidence the accuracy of the representations and warranties made
pursuant to clause (B) above or those contained in Section 5(a) hereof and the
compliance with or satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the Company; and (F)
undertake such obligations relating to expense reimbursement, indemnification
and contribution as are provided in Section 6 hereof; |
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(xviii) notify in writing each holder of Registrable Securities of any proposal
by the Company to amend or waive any provision of this Notes Registration Rights
Agreement pursuant to Section 9(g) hereof and of any amendment or waiver
effected pursuant thereto, each of which notices shall contain the text of the
amendment or waiver proposed or effected, as the case may be; |
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(xix) in the event that any broker-dealer registered under the Exchange Act
shall underwrite any Registrable Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution" (within
the meaning of the Conduct Rules (the "Conduct Rules") of the
National Association of Securities Dealers, Inc. ("NASD") or any
successor thereto, as amended from time to time) thereof, whether as a holder of
such Registrable Securities or as an underwriter, a placement or sales agent or
a broker or dealer in respect thereof, or otherwise, assist such broker-dealer
in complying with the requirements of such Conduct Rules, including by (A) if
such Conduct Rules shall so require, engaging a "qualified independent
underwriter" (as defined in such Conduct Rules) to participate in the
preparation of the Shelf Registration Statement relating to such Registrable
Securities, to exercise usual standards of due diligence in respect thereto and,
if any portion of the offering contemplated by such Shelf Registration Statement
is an underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Registrable Securities, (B) indemnifying any such
qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof (or to such other customary extent as
may be requested by such underwriter), and (C) 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; and |
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(xx) comply with all applicable rules and regulations of the Commission, and
make generally available to its securityholders as soon as practicable but in
any event not later than eighteen months after the effective date of such Shelf
Registration Statement, an earning statement of the Company and its subsidiaries
complying with Section 11(a) of the Securities Act (including, at the option of
the Company, Rule 158 thereunder). |
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(e) In the event that the Company would be required, pursuant to Section
3(d)(viii)(F) above, to notify the Electing Holders, the placement or sales
agent, if any, therefor and the managing underwriters, if any, thereof, the
Company shall without delay prepare and furnish to each of the Electing Holders,
to each placement or sales agent, if any, and to each such underwriter, if any,
a reasonable number of copies of a prospectus supplemented or amended so that,
as thereafter delivered to purchasers of Registrable Securities, such prospectus
shall conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act and shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; provided, that the foregoing shall not
apply with respect to a Shelf Registration Statement during a Blackout Period.
Each Electing Holder agrees that upon receipt of any notice from the Company
pursuant to Section 3(d)(viii)(F) hereof, such Electing Holder shall forthwith
discontinue the disposition of Registrable Securities pursuant to the Shelf
Registration Statement applicable to such Registrable Securities until such
Electing Holder shall have received copies of such amended or supplemented
prospectus, and if so directed by the Company, such Electing Holder shall
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies, then in such Electing Holder's possession of the
prospectus covering such Registrable Securities at the time of receipt of such
notice. |
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(f) In the event of a Shelf Registration, in addition to the information
required to be provided by each Electing Holder in its Notice Questionnaire, the
Company may require such Electing Holder to furnish to the Company such
additional information regarding such Electing Holder and such Electing Holder's
intended method of distribution of Registrable Securities as may be required in
order to comply with the Securities Act. Each such Electing Holder agrees to
notify the Company as promptly as practicable of any inaccuracy or change in
information previously furnished by such Electing Holder to the Company or of
the occurrence of any event in either case as a result of which any prospectus
relating to such Shelf Registration contains or would contain an untrue
statement of a material fact regarding such Electing Holder or such Electing
Holder's intended method of disposition of such Registrable Securities or omits
to state any material fact regarding such Electing Holder or such Electing
Holder's intended method of disposition of such Registrable Securities required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing, and promptly to furnish to the
Company any additional information required to correct and update any previously
furnished information or required so that such prospectus shall not contain,
with respect to such Electing Holder or the disposition of such Registrable
Securities, an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing. |
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(g) Until the expiration of two years after the Closing Date, the Company will
not, and will not permit any of its "affiliates" (as defined in Rule144) to,
resell any of the Securities that have been reacquired by any of them except
pursuant to an effective registration statement under the Securities Act. |
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all expenses
incident to the Company's performance of or compliance with this Notes
Registration Rights Agreement, including (a) all Commission and any NASD
registration, filing and review fees and expenses including fees and
disbursements of counsel for the placement or sales agent or underwriters in
connection with such registration, filing and review, (b) all fees and expenses
in connection with the qualification of the Securities for offering and sale
under the State securities and blue sky laws referred to in Section 3(d)(xii)
hereof and determination of their eligibility for investment under the laws of
such jurisdictions as any managing underwriters or the Electing Holders may
designate, including any fees and disbursements of counsel for the Electing
Holders or underwriters in connection with such qualification and determination,
(c) all expenses relating to the preparation, printing, production, distribution
and reproduction of each registration statement required to be filed hereunder,
each prospectus included therein or prepared for distribution pursuant hereto,
each amendment or supplement to the foregoing, the expenses of preparing the
Securities for delivery and the expenses of printing or producing any
underwriting agreements, agreements among underwriters, selling agreements and
blue sky or legal investment memoranda and all other documents in connection
with the offering, sale or delivery of Securities to be disposed of (including
certificates representing the Securities), (d) messenger, telephone and delivery
expenses relating to the offering, sale or delivery of Securities and the
preparation of documents referred in clause (c) above, (e) fees and expenses of
the Trustee under the Indenture, any agent of the Trustee and any counsel for
the Trustee and of any collateral agent or custodian, (f) internal expenses
(including all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), (g) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company (including
the expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance), (h) fees, disbursements and expenses of any
"qualified independent underwriter" engaged pursuant to Section 3(d)(xix)
hereof, (i) fees, disbursements and expenses of one counsel for the Electing
Holders retained in connection with a Shelf Registration, as selected by the
Electing Holders of at least a majority in aggregate principal amount of the
Registrable Securities held by Electing Holders (which counsel shall be
reasonably satisfactory to the Company), (j) any fees charged by securities
rating services for rating the Securities, and (k) fees, expenses and
disbursements of any other persons, including special experts, retained by the
Company in connection with such registration (collectively, the "Registration
Expenses"). To the extent that any Registration Expenses are incurred, assumed
or paid by any holder of Registrable Securities or any placement or sales agent
therefor or underwriter thereof, the Company shall reimburse such person for the
full amount of the Registration Expenses so incurred, assumed or paid promptly
after receipt of a request therefor. Notwithstanding the foregoing, the holders
of the Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Purchaser and each
of the holders from time to time of Registrable Securities that:
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(a) Each registration statement covering Registrable Securities and each
prospectus (including any preliminary or summary prospectus) contained therein
or furnished pursuant to Section 3(d) or Section 3(c) hereof and any further
amendments or supplements to any such registration statement or prospectus, when
it becomes effective or is filed with the Commission, as the case may be, and,
in the case of an underwritten offering of Registrable Securities, at the time
of the closing under the underwriting agreement relating thereto, will conform
in all material respects to the requirements of the Securities Act and the Trust
Indenture Act and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading; and at all times subsequent to the
Effective Time when a prospectus would be required to be delivered under the
Securities Act, other than from (i) such time as a notice has been given to
holders of Registrable Securities pursuant to Section 3(d)(viii)(F) or
Section3(c)(iii)(F) hereof until (ii) such time as the Company furnishes an
amended or supplemented prospectus pursuant to Section 3(e) or Section 3(c)(iv)
hereof, each such registration statement, and each prospectus (including any
summary prospectus) contained therein or furnished pursuant to Section 3(d) or
Section 3(c) hereof, as then amended or supplemented, will conform in all
material respects to the requirements of the Securities Act and the Trust
Indenture Act and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances then
existing; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein. |
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(b) Any documents incorporated by reference in any prospectus referred to in
Section 5(a) hereof, when they become or became effective or are or were filed
with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein. |
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(c) The compliance by the Company with all of the provisions of this Notes
Registration Rights Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any subsidiary of the Company is a party or by which the Company or any
subsidiary of the Company is bound or to which any of the property or assets of
the Company or any subsidiary of the Company is subject, nor will such action
result in any violation of the provisions of the certificate of incorporation,
as amended, or the by-laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any subsidiary of the Company or any of their properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
consummation by the Company of the transactions contemplated by this Notes
Registration Rights Agreement, except the registration under the Securities Act
of the Securities, qualification of the Indenture under the Trust Indenture Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under State securities or blue sky laws in connection with the
offering and distribution of the Securities. |
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(d) This Notes Registration Rights Agreement has been duly authorized, executed
and delivered by the Company. |
6. Indemnification.
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(a) Indemnification by the Company. The Company will indemnify and hold
harmless each of the holders of Registrable Securities included in an Exchange
Registration Statement, each of the Electing Holders of Registrable Securities
included in a Shelf Registration Statement and each person who participates as a
placement or sales agent or as an underwriter in any offering or sale of such
Registrable Securities against any losses, claims, damages or liabilities, joint
or several, to which such holder, agent or underwriter may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Exchange Registration Statement or Shelf Registration Statement, as the case may
be, under which such Registrable Securities were registered under the Securities
Act, or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such holder, Electing Holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse such holder, such Electing Holder, such agent and
such underwriter for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
to any such person in any such case to the extent that (i) any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, or preliminary, final or summary prospectus, or
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by such person expressly for use therein,
(ii) if the person asserting any such losses, claims, damages, liabilities or
expenses was not sent or given a copy of the final prospectus (or any amendment
or supplement thereto) (in each case exclusive of the documents from which
information is incorporated by reference) at or prior to the sale of such
Registrable Securities to such Person (other than as a result of the failure by
the Company to deliver such a prospectus in accordance with Section 3(d) hereof)
and the untrue statement contained in or omitted from such prospectus was
subsequently corrected in the final prospectus (or any amendment or supplement
thereto) or (iii) such loss, claim, damage, liability or expense arises from an
offer or sale of Registrable Securities occurring during a Blackout Period, if a
notice of such Blackout Period was given to such Person. |
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(b) Indemnification by the Holders and any Agents and Underwriters. The Company
may require, as a condition to including any Registrable Securities in any
registration statement filed pursuant to Section 2(b) hereof and to entering
into any underwriting agreement with respect thereto, that the Company shall
have received an undertaking reasonably satisfactory to it from the Electing
Holder of such Registrable Securities and from each underwriter named in any
such underwriting agreement, severally and not jointly, to (i) indemnify and
hold harmless the Company and all other holders of Registrable Securities,
against any losses, claims, damages or liabilities to which the Company or such
other holders of Registrable Securities may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, or any preliminary, final or summary prospectus contained therein or
furnished by the Company to any such Electing Holder, agent or underwriter, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Electing Holder or underwriter expressly for use therein, and (ii) reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that no such Electing Holder shall be
required to undertake liability to any person under this Section 6(b) for any
amounts in excess of the dollar amount of the proceeds to be received by such
Electing Holder from the sale of such Electing Holder's Registrable Securities
pursuant to such registration. |
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(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof unless such omission results in
material prejudice to the indemnifying party. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, such indemnifying party shall
not be liable to such indemnified party for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i)includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii)does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party. |
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(d) Contribution. If for any reason the indemnification provisions contemplated
by Section 6(a) or Section 6(b) are unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 6(d) were determined by
pro rata allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the
amount of any damages which such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has 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. The holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered or underwritten, as the case may be,
by them and not joint. |
|
(e) The obligations of the Company under this Section 6 shall be in addition to
any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each officer, director and partner of each holder,
agent and underwriter and each person, if any, who controls any holder, agent or
underwriter within the meaning of the Securities Act; and the obligations of the
holders and any agents or underwriters contemplated by this Section 6 shall be
in addition to any liability which the respective holder, agent or underwriter
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Securities Act. |
7. Underwritten Offerings.
|
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by the Company and shall be reasonably acceptable to the Electing Holders
holding at least a majority in aggregate principal amount of the Registrable
Securities to be included in such offering. |
|
(b) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements. |
8. Rule 144.
The Company covenants to the holders of Registrable Securities that starting
after January 1, 2005 and to the extent it shall be required to do so under the
Exchange Act, the Company shall timely file the reports required to be filed by
it after such date under the Exchange Act or the Securities Act (including the
reports under Section 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(1) of Rule 144 adopted by the Commission under the Securities
Act) and the rules and regulations adopted by the Commission thereunder, and
shall take such further action as any holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Securities without registration under the Securities
Act within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Registrable Securities in connection with that holder's
sale pursuant to Rule144, the Company shall deliver to such holder a written
statement as to whether it has complied with such requirements.
9. Miscellaneous.
|
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to Registrable Securities or any other securities which
would be inconsistent with the terms contained in this Notes Registration Rights
Agreement. |
|
(b) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to it
at Interpool, Inc., 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, and if
to a holder, to the address of such holder set forth in the security register or
other records of the Company, or to such other address as the Company or any
such holder may have furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt. |
|
(c) Parties in Interest. All the terms and provisions of this Notes
Registration Rights Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the parties hereto and the holders from time to
time of the Registrable Securities and the respective successors and assigns of
the parties hereto and such holders. In the event that any transferee of any
holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed a
beneficiary hereof for all purposes and such Registrable Securities shall be
held subject to all of the terms of this Notes Registration Rights Agreement,
and by taking and holding such Registrable Securities such transferee shall be
entitled to receive the benefits of, and be conclusively deemed to have agreed
to be bound by all of the applicable terms and provisions of this Notes
Registration Rights Agreement. If the Company shall so request, any such
successor, assign or transferee shall agree in writing to acquire and hold the
Registrable Securities subject to all of the applicable terms hereof. |
|
(d) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Notes Registration Rights
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer. |
|
(e) Governing Law. This Notes Registration Rights Agreement shall be
governed by and construed in accordance with the laws of the State of New
York. |
|
(f) Headings. The descriptive headings of the several Sections and
paragraphs of this Notes Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Notes Registration Rights
Agreement and shall not affect in any way the meaning or interpretation of this
Notes Registration Rights Agreement. |
|
(g) Entire Agreement; Amendments. This Notes Registration Rights
Agreement and the other writings referred to herein (including the Indenture and
the form of Securities) or delivered pursuant hereto which form a part hereof
contain the entire understanding of the parties with respect to its subject
matter. This Notes Registration Rights Agreement supersedes all prior agreements
and understandings between the parties with respect to its subject matter. This
Notes Registration Rights Agreement may be amended and the observance of any
term of this Notes Registration Rights Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively) only by a
written instrument duly executed by the Company and the holders of at least a
majority in aggregate principal amount of the Registrable Securities at the time
outstanding. Each holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by any amendment or waiver effected pursuant to this
Section 9(g), whether or not any notice, writing or marking indicating such
amendment or waiver appears on such Registrable Securities or is delivered to
such holder. |
|
(h) Inspection. For so long as this Notes Registration Rights Agreement
shall be in effect, this Notes Registration Rights Agreement and a complete list
of the names and addresses of all the holders of Registrable Securities shall be
made available for inspection and copying on any business day by any holder of
Registrable Securities for proper purposes only (which shall include any purpose
related to the rights of the holders of Registrable Securities under the
Securities, the Indenture and this Agreement) at the offices of the Company at
the address thereof set forth in Section 9(b) above and at the office of the
Trustee under the Indenture. |
|
(i) Counterparts. This agreement may be executed by the parties in counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument. |
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
|
INTERPOOL, INC.
By:
Name:
Title: |
Accepted as of the date hereof:
GREYWOLF CAPITAL PARTNERS II LP
By:
Name:
Title:
GREYWOLF CAPITAL OVERSEAS FUND
By:
Name:
Title:
GREYWOLF HIGH YIELD MASTER FUND
By:
Name:
Title:
CASPIAN CAPITAL PARTNERS, LP
By: MARINER INVESTMENT GROUP, INC.,
as Investment Advisor
By:
Name:
Title:
MARINER LDC
By: MARINER INVESTMENT GROUP, INC.,
as Investment Advisor
By:
Name:
Title:
MARINER OPPORTUNITIES FUND, LP
By: MARINER INVESTMENT GROUP, INC.,
as Investment Advisor
By:
Name:
Title:
MARINER VOYAGER MASTER FUND, LTD
By: MARINER INVESTMENT GROUP, INC.,
as Investment Advisor
By:
Name:
Title:
RIVA RIDGE MASTER FUND, LTD.
By: RIVA RIDGE CAPITAL MANAGEMENT LP,
As Investment Manager
By: RIVA RIDGE GP LLC, GP to the Investment Manager
By:
Name:
Title:
MARINER LDC
By: RIVA RIDGE CAPITAL MANAGEMENT LP,
as Investment Manager
By:
Name:
Title:
XXXXXXX, XXXXX & CO.
By:
Name:
Title:
Exhibit A
INTERPOOL, INC.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] *
The Depository Trust Company ("DTC")
has identified you as a DTC Participant through which beneficial interests in
the Interpool, Inc. (the "Company") 6% Senior Notes due 2014 (the
"Securities") are held.
The Company is in the process of registering the
Securities under the Securities Act of 1933 for resale by the beneficial owners
thereof. In order to have their Securities included in the registration
statement, beneficial owners must complete and return the enclosed Notice of
Registration Statement and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of
the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [Deadline For Response]. Please forward a
copy of the enclosed documents to each beneficial owner that holds interests in
the Securities through you. If you require more copies of the enclosed materials
or have any questions pertaining to this matter, please contact Interpool, Inc.,
000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, Tel: (000) 000-0000.
_______________
*Not less than 28 calendar days from date of mailing.
INTERPOOL, INC.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Notes Registration Rights Agreement (the "Notes
Registration Rights Agreement") between Interpool, Inc. (the "Company") and the
Purchasers named therein. Pursuant to the Notes Registration Rights Agreement,
the Company has filed with the United States Securities and Exchange Commission
(the "Commission") a registration statement on Form[__] (the "Shelf Registration
Statement") for the registration and resale under Rule415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's 6% Senior Notes due
2014 (the "Securities"). A copy of the Notes Registration Rights Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Notes Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Company's counsel at the
address set forth herein for receipt ON OR BEFORE [Deadline for
Response]. Beneficial owners of Registrable Securities who do not complete,
execute and return this Notice and Questionnaire by such date (i)will not be
named as selling securityholders in the Shelf Registration Statement and (ii)may
not use the Prospectus forming a part thereof for resales of Registrable
Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term "Registrable Securities" is defined in the Notes Registration Rights
Agreement.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item(3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Notes Registration Rights Agreement,
including, without limitation, Section 6 of the Notes Registration Rights
Agreement, as if the undersigned Selling Securityholder were an original party
thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in AppendixA to the Prospectus and
as Exhibit B to the Notes Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
QUESTIONNAIRE
(1) |
(a) |
Full Legal Name of Selling Securityholder: |
|
(b) |
Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in Item (3) below: |
|
(c) |
Full Legal Name of DTC Participant (if applicable and if not the same as (b)
above) Through Which Registrable Securities Listed in Item (3) below are Held: |
(2) |
Address for Notices to Selling Securityholder:
___________________
___________________
___________________ |
|
Telephone: _______________
Fax: _______________
Contact Person: _______________ |
(3) |
|
Is the Selling Securityholder a broker-dealer?
Yes [ ] No [ ] |
(4) |
|
Is the Selling Securityholder an affiliate of a broker-dealer?
Yes [ ] No [ ] |
(5) |
|
If the Selling Securityholder is an affiliate of a broker-dealer, will the
Selling Securityholder certify that the Registrable Securities were bought in
the ordinary course of business, and at the time of the purchase of the
Registrable Securities to be resold, no agreements or understandings, directly
or indirectly, with any person to distribute the Registrable Securities existed?
Yes [ ] No [ ] |
(6) |
|
Beneficial Ownership of Securities:
Except as set forth below in this Item(3), the undersigned does not
beneficially own any Securities. |
|
(a) |
Principal amount of Registrable Securities beneficially owned:______________________
CUSIP No(s). of such Registrable Securities:__________________________ |
|
(b) |
Principal amount of Securities other than Registrable Securities beneficially owned:
____________________________________________________________________________
CUSIP No(s). of such other Securities:________________________________ |
|
(c) |
Principal amount of Registrable Securities which the undersigned wishes to be included in the Shelf
Registration Statement: _________________________________________________________
CUSIP No(s). of such Registrable Securities to be included in the Shelf Registration Statement:
______________________________________________________________________________________ |
(7) |
|
Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item(4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other securities
of the Company, other than the Securities listed above in Item(3).
State any exceptions here: |
(8) |
|
Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of its
affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three years.
State any exceptions here: |
(9) |
|
Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends to
distribute the Registrable Securities listed above in Item (3) only as follows
(if at all): Such Registrable Securities may be sold from time to time directly
by the undersigned Selling Securityholder or, alternatively, through
underwriters, broker-dealers or agents. Such Registrable Securities may be sold
in one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may involve crosses or
block transactions) (i) on any national securities exchange or quotation service
on which the Registered Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, (iii)in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)through the
writing of options. In connection with sales of the Registrable Securities or
otherwise, the Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Registrable
Securities in the course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
|
Exhibit A-1
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item(3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Notes Registration
Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items(1) through (9) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section3(d) of
the Notes Registration Rights Agreement to provide such information as may be
required by law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Notes Registration Rights
Agreement shall be made in writing, by hand-delivery, first-class mail, or air
courier guaranteeing overnight delivery as follows:
|
(i) To the Company: |
Interpool, Inc.
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer |
|
(ii) With a copy to: |
Interpool, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Facsimile No.: (000) 000-0000 |
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This
Agreement shall be governed in all respects by the laws of the State of New
York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: ____________________
________________________________________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable Securities)
By: ___________________________________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
_________________________
_________________________
_________________________
_________________________
_________________________
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
U.S. Bank National Association
Interpool, Inc.
c/o U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000-0000
Attention: Trust Officer
|
Re: |
Interpool, Inc. (the "Company")
6% Senior Notes due 2014 |
Dear Sirs:
Please be advised that _____________________________________ has transferred
$_______________________ aggregate principal amount of the above-referenced
Notes pursuant to an effective Registration Statement on Form [ ] (File No. 333-
) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated [date] or in supplements thereto, and that the aggregate principal amount
of the Notes transferred are the Notes listed in such Prospectus opposite such
owner's name.
Dated:
|
Very truly yours,
(Name)
By:
(Authorized Signature) |