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REGISTRATION RIGHTS AGREEMENT
DATED AS OF DECEMBER 18, 2006
AMONG
NAVIOS MARITIME HOLDINGS INC.
AND
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED,
X.X. XXXXXX SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC
AND
X. XXXXXXX ADVISORS LLC
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of December 18, 2006 by and among NAVIOS MARITIME HOLDINGS INC.,
a Xxxxxxxx Islands corporation (the "Company"), each of the guarantors listed in
Schedule A attached hereto (the "Guarantors"), and XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED ("Xxxxxxx Xxxxx") and X.X. XXXXXX SECURITIES INC.
("JPMorgan" and each other Initial Purchaser set forth on Schedule B attached
hereto collectively, the "Initial Purchasers"), for whom Xxxxxxx Xxxxx and
JPMorgan are acting as representatives (the "Representatives").
This Agreement is made pursuant to the Purchase Agreement, dated as of
December 13, 2006, among the Company, the Guarantors and the Initial Purchasers
(the "Purchase Agreement"), which provides for the sale by the Company to the
Initial Purchasers of an aggregate of $300,000,000 principal amount of the
Company's 9 1/2% Senior Notes due 2014 (the "Securities"), unconditionally
guaranteed on a senior basis by each of the Guarantors. In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company and the
Guarantors have agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Closing Date" shall mean the day of the Closing Time as defined in
the Purchase Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, provided, however, that such depositary
must have an address in the Borough of Manhattan, in the City of New York.
"Exchange Offer" shall mean the exchange offer by the Company and the
Guarantors of Exchange Securities for Registrable Securities pursuant to Section
2.1 hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form F-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement,
including the Prospectus contained therein, all exhibits thereto and all
documents incorporated by reference therein. For the avoidance of doubt, all
guarantors in respect of the Securities (regardless of whether each such person
is a Guarantor on the date hereof) shall be included as registrants in any
Exchange Offer Registration Statement.
"Exchange Period" shall have the meaning set forth in Section 2.1
hereof.
"Exchange Securities" shall mean the 9 1/2% Senior Notes due 2014,
issued by the Company under the Indenture containing terms identical to the
Securities in all material respects (except that the additional interest rate,
restrictions on transfers and restrictive legends provisions thereof shall be
eliminated), to be offered to Holders of Securities in exchange for Securities
pursuant to the Exchange Offer.
"Holder" shall mean an Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture and each Participating Broker-Dealer that holds Exchange
Securities for so long as such Participating Broker-Dealer is required to
deliver a prospectus meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Securities.
"Indenture" shall mean the Indenture relating to the Securities, dated
as of December 18, 2006, among the Company, the Guarantors and Xxxxx Fargo Bank,
N.A., as trustee, as the same may be amended, supplemented, waived or otherwise
modified from time to time in accordance with the terms thereof.
"Initial Purchaser" or "Initial Purchasers" shall have the meaning set
forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Company, the Guarantors and any other guarantors of the Securities or any
Affiliate (as defined in the Indenture) of the Company or the Guarantors (or any
other guarantor of the Securities) shall be disregarded in determining whether
such consent or approval was given by the Holders of such required percentage
amount.
"Participating Broker-Dealer" shall mean any of Xxxxxxx Xxxxx,
JPMorgan, Banc of America Securities LLC, X. Xxxxxxx Advisors LLC, and any other
broker-dealer which makes a market in the Securities and exchanges Registrable
Securities in the Exchange Offer for Exchange Securities.
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"Person" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated organization, or
a government or agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2.1
hereof.
"Private Exchange Securities" shall have the meaning set forth in
Section 2.1 hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any portion
of the Registrable Securities covered by a Shelf Registration Statement, and by
all other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities and, if issued, the
Private Exchange Securities; provided, however, that Securities and, if issued,
the Private Exchange Securities, shall cease to be Registrable Securities when
(i) a Registration Statement with respect to such Securities or Private Exchange
Securities shall have been declared effective under the 1933 Act and such
Securities or Private Exchange Securities shall have been disposed of pursuant
to such Registration Statement, (ii) such Securities or Private Exchange
Securities have become eligible to be sold to the public pursuant to Rule l44(k)
(or any similar provision then in force, but not Rule 144A) under the 1933 Act,
(iii) such Securities or Private Exchange Securities shall have ceased to be
outstanding or (iv) the Exchange Offer is consummated (except in the case of
Private Exchange Securities and Securities purchased from the Company and
continued to be held by the Initial Purchasers).
"Registration Expenses" shall mean any and all expenses incident to or
incurred in connection with the performance by the Company and the Guarantors
of, or compliance by the Company and the Guarantors with, this Agreement,
including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. (the "NASD") registration and filing
fees, including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be retained by
any holder of Registrable Securities in accordance with the rules and
regulations of the NASD, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws and compliance with the rules
of the NASD (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any of the
Exchange Securities or Registrable Securities and any filings with the NASD),
(iii) all expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Securities on any
securities exchange
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or exchanges, (v) all rating agency fees, (vi) the fees and disbursements of
counsel for the Company and the Guarantors and of the independent public
accountants of the Company and the Guarantors, including the expenses of any
special audits or "cold comfort" letters required by or incident to such
performance and compliance, (vii) the fees and expenses of the Trustee, and any
escrow agent or custodian, (viii) the reasonable fees and expenses of the
Initial Purchasers in connection with the Exchange Offer, (ix) in the case of a
Shelf Registration Statement, the reasonable fees and disbursements of one
special counsel (and any reasonably requested local counsel) representing the
Holders of Registrable Securities (which counsel shall be elected by the
Majority Holders and which counsel may also be the counsel for the Initial
Purchasers) and (x) any fees and disbursements of the underwriters customarily
required to be paid by issuers or sellers of securities and the fees and
expenses of any special experts retained by the Company and the Guarantors in
connection with any Registration Statement, but excluding underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or disposition
of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement, and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently performed
by the United States Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Guarantors pursuant to the provisions of
Section 2.2 of this Agreement which covers all of the Registrable Securities or
all of the Private Exchange Securities on an appropriate form under Rule 415
under the 1933 Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein. For the avoidance of doubt, all guarantors in respect of the Securities
(regardless of whether each such person is a Guarantor on the date hereof) shall
be included as registrants in any Shelf Registration Statement.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
2. Registration Under the 1933 Act.
2.1. Exchange Offer. The Company and the Guarantors shall, for the
benefit of the Holders, at the Company and the Guarantors' cost, (A) prepare and
file with the SEC not later than June 29, 2007, an Exchange Offer Registration
Statement on an appropriate form under the 1933 Act with respect to a proposed
Exchange Offer and the issuance and delivery to the
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Holders, in exchange for the Registrable Securities (other than Private Exchange
Securities), of a like principal amount of Exchange Securities, (B) use their
commercially reasonable efforts to cause the Exchange Offer Registration
Statement to be declared effective under the 1933 Act not later than October 1,
2007, (C) use their commercially reasonable efforts to keep the Exchange Offer
Registration Statement effective until the closing of the Exchange Offer and (D)
use their commercially reasonable efforts to cause the Exchange Offer to be
consummated not later than November 1, 2007, and (E) upon the effectiveness of
the Exchange Offer Registration Statement, promptly commence the Exchange Offer,
it being the objective of such Exchange Offer to enable each Holder eligible and
electing to exchange Registrable Securities for Exchange Securities (assuming
that such Holder (a) is not an affiliate of the Company within the meaning of
Rule 405 under the 1933 Act, (b) is not a broker-dealer tendering Registrable
Securities acquired directly from the Company for its own account, (c) acquired
the Exchange Securities in the ordinary course of such Holder's business and (d)
has no arrangements or understandings with any Person to participate in the
Exchange Offer for the purpose of distributing the Exchange Securities) to
transfer such Exchange Securities from and after their receipt without any
limitations or restrictions under the 1933 Act and under state securities or
blue sky laws.
In connection with the Exchange Offer, the Company and the Guarantors
shall:
(a) mail as promptly as reasonably practicable to each Holder a copy
of the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and related
documents;
(b) keep the Exchange Offer open for acceptance for a period of not
less than 30 calendar days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period referred to
herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange Offer;
(d) permit Holders to withdraw tendered Registrable Securities at any
time prior to 5:00 p.m. (Eastern time), on the last business day of the
Exchange Period, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Registrable Securities delivered for
exchange, and a statement that such Holder is withdrawing such Holder's
election to have such Securities exchanged;
(e) notify each Holder that any Registrable Security not tendered will
remain outstanding and continue to accrue interest, but will not retain any
rights under this Agreement (except in the case of the Initial Purchasers
and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws relating
to the Exchange Offer.
A Holder that wishes to exchange Registrable Securities in the
Exchange Offer shall be required (a) to represent that (i) all Exchange
Securities to be received by it shall be
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acquired in the ordinary course of its business and (ii) at the time of the
consummation of the Exchange Offer it shall have no arrangement or understanding
with any person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Securities and (b) make such other
representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations.
If such Holder is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Registrable Securities that were
acquired as a result of market-making or other trading activities, such
broker-dealer will be required to acknowledge that it will deliver a Prospectus
in connection with any resale of the Exchange Securities (and the Company hereby
agrees and undertake to provide any such broker-dealer with such number of
Prospectuses as such broker-dealer may reasonably request for such purpose).
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Securities acquired by them and having the status of an
unsold allotment in the initial distribution, the Company upon the request of
any Initial Purchaser shall, simultaneously with the delivery of the Exchange
Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in
exchange (the "Private Exchange") for the Securities held by such Initial
Purchaser, a like principal amount of debt securities of the Company on a senior
basis, that are identical to the Exchange Securities, except that such
securities shall bear appropriate transfer restrictions (the "Private Exchange
Securities").
The Exchange Securities and the Private Exchange Securities shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture and which, in either case, has been qualified under
the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from such
qualification and shall provide that the Exchange Securities shall not be
subject to the transfer restrictions or "Additional Interest" provisions set
forth in the Indenture but that the Private Exchange Securities shall be subject
to such transfer restrictions. The Indenture or such indenture shall provide
that the Exchange Securities, the Private Exchange Securities and the Securities
shall vote and consent together on all matters as one class and that none of the
Exchange Securities, the Private Exchange Securities or the Securities will have
the right to vote or consent as a separate class on any matter. The Private
Exchange Securities shall be of the same series as and the Company shall use all
commercially reasonable efforts to have the Private Exchange Securities bear the
same CUSIP number as the Exchange Securities. The Company shall not have any
liability under this Agreement solely as a result of such Private Exchange
Securities not bearing the same CUSIP number as the Exchange Securities.
As soon as reasonably practicable after the close of the Exchange
Offer and/or the Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all Registrable Securities duly tendered
and not validly withdrawn pursuant to the Exchange Offer in accordance
with the terms of the Exchange Offer Registration Statement and the
letter of transmittal which shall be an exhibit thereto;
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(ii) accept for exchange all Securities properly tendered
pursuant to the Private Exchange;
(iii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange; and
(iv) cause the Trustee promptly to authenticate and deliver
Exchange Securities or Private Exchange Securities, as the case may
be, to each Holder of Registrable Securities so accepted for exchange
in a principal amount equal to the principal amount of the Registrable
Securities of such Holder so accepted for exchange.
Interest on each Exchange Security and Private Exchange Security will
accrue from the last date on which interest was paid on the Registrable
Securities surrendered in exchange therefor or, if no interest has been paid on
the Registrable Securities, from the date of original issuance. The Exchange
Offer and the Private Exchange shall not be subject to any conditions, other
than (i) that the Exchange Offer or the Private Exchange, or the making of any
exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer and the Private Exchange, (iii)
that each Holder of Registrable Securities exchanged in the Exchange Offer shall
have represented that all Exchange Securities to be received by it shall be
acquired in the ordinary course of its business and that at the time of the
consummation of the Exchange Offer it shall have no arrangement or understanding
with any person to participate in the distribution (within the meaning of the
0000 Xxx) of the Exchange Securities and shall have made such other
representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form F-4 or other
appropriate form under the 1933 Act available and (iv) that no action or
proceeding shall have been instituted or threatened in any court or by or before
any governmental agency with respect to the Exchange Offer or the Private
Exchange which, in the Company's judgment, would reasonably be expected to
impair the ability of the Company to proceed with the Exchange Offer or the
Private Exchange. If the Company determines in its reasonable judgment that
either of the foregoing conditions is not satisfied, the Company may (a) refuse
to accept any Registrable Securities and return all tendered Registrable
Securities to the tendering Holders, (b) extend the Exchange Offer and retain
all Registrable Securities tendered before the expiration of the Exchange Offer,
subject, however, to the rights of holders to withdraw those Registrable
Securities, or (c) waive the unsatisfied conditions with respect to the Exchange
Offer and accept all properly tendered Registrable Securities that have not been
withdrawn (unless to do so could reasonably be expected to materially and
adversely affect one or more tendering Holders in its capacity as such);
provided that the foregoing shall not limit the right of Holders to receive, or
the obligation of the Company to pay, Additional Interest as provided by Section
2.5. The Company shall inform the Initial Purchasers of the names and addresses
of the Holders to whom the Exchange Offer is made, and the Initial Purchasers
shall have the right to contact such Holders and otherwise facilitate the tender
of Registrable Securities in the Exchange Offer.
2.2. Shelf Registration. (i) If, because of any changes in law, SEC
rules or regulations or applicable interpretations thereof by the staff of the
SEC, the Company is not
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permitted to effect the Exchange Offer as contemplated by Section 2.1 hereof,
(ii) if for any other reason the Exchange Offer Registration Statement is not
declared effective on or prior to October 1, 2007, or the Exchange Offer is not
consummated on or prior to November 1, 2007, (iii) upon the request of any of
the Initial Purchasers that hold Securities or (iv) if a Holder is not permitted
to participate in the Exchange Offer or does not receive fully tradeable
Exchange Securities pursuant to the Exchange Offer, then in case of each of
clauses (i) through (iv) the Company and the Guarantors shall, at their cost:
(a) file with the SEC, and thereafter shall use their commercially
reasonable efforts to cause to be declared effective not later than
December 1, 2007, a Shelf Registration Statement relating to the offer and
sale of the Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by the Majority Holders
participating in the Shelf Registration and set forth in such Shelf
Registration Statement.
(b) Use their commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of two
years from the date the Shelf Registration Statement is declared effective
by the SEC, or for such shorter period that will terminate when all
Registrable Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or cease to be
outstanding or otherwise to be Registrable Securities (the "Effectiveness
Period"); provided, however, that the Effectiveness Period in respect of
the Shelf Registration Statement shall be extended to the extent required
to permit dealers to comply with the applicable prospectus delivery
requirements of Rule 174 under the 1933 Act and as otherwise provided
herein. Notwithstanding anything to the contrary in this Agreement, at any
time, the Company and the Guarantors may delay the filing of the Shelf
Registration Statement or delay or suspend the effectiveness thereof, for a
reasonable period of time, but not in excess of 90 consecutive days nor
more than three (3) times during any twelve-month period (each, a "Shelf
Suspension Period"), if (x) the Company's board of directors determines
reasonably and in good faith that because of valid business reasons (not
including avoidance of the Company's and the Guarantors' obligations
hereunder), including without limitation proposed or pending corporate
developments and similar events or because of filings with the SEC, it is
in the best interests of the Company and the Guarantors to delay such
filing or suspend such effectiveness and (y) the Company provides prior
written notice of such suspension to the Holders (which notice shall not be
required to specify the nature of the event giving rise to the suspension).
(c) Notwithstanding any other provisions hereof, use their
commercially reasonable efforts to ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming part thereof
and any supplement thereto complies in all material respects with the 1933
Act and the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming part of any Shelf
Registration Statement, and any supplement to such Prospectus (as amended
or supplemented from time to time), does not include an untrue
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statement of a material fact or omit to state a material fact necessary in
order to make the statements, in light of the circumstances under which
they were made, not misleading.
The Company and the Guarantors shall not permit any securities other
than Registrable Securities (and any Additional Notes issued under (and as
defined in) the Indenture) to be included in the Shelf Registration Statement.
The Company and the Guarantors further agree, if necessary, to supplement or
amend the Shelf Registration Statement, as required by Section 3(b) below, and
to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
2.3. Expenses. The Company and the Guarantors shall pay all
Registration Expenses in connection with the registration pursuant to Section
2.1 or 2.2. Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration Statement.
2.4. Effectiveness. (a) For purposes of Section 5.7, subject to the
right of the Company to effect a Suspension Period as set forth in Section 3,
the Company and the Guarantors will be deemed not have used their commercially
reasonable efforts to cause the Exchange Offer Registration Statement or the
Shelf Registration Statement, as the case may be, to become, or to remain,
effective during the requisite period if the Company or any Guarantor
voluntarily takes any action that would, or omits to take any commercially
practicable action which omission would, result in any such Registration
Statement not being declared effective or in the Holders of Registrable
Securities covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period as and to the extent contemplated
hereby, unless such action is required by applicable law.
(b) An Exchange Offer Registration Statement pursuant to Section 2.1
hereof or a Shelf Registration Statement pursuant to Section 2.2 hereof will not
be deemed to have become effective unless it has been declared effective by the
SEC; provided, however, that if, after it has been declared effective, the
offering of Registrable Securities pursuant to an Exchange Offer Registration
Statement or a Shelf Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed not to
have become effective during the period of such interference, until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume.
2.5. Additional Interest. The Indenture executed in connection with
the Securities will provide that in the event that either (a) the Exchange Offer
Registration Statement is not filed with the SEC on or prior to June 29, 2007,
(b) the Exchange Offer Registration Statement has not been declared effective on
or prior to October 1, 2007, or (c) the Exchange Offer is not consummated and a
Shelf Registration Statement is not declared effective, in both cases, on or
prior to November 1, 2007 (each such event referred to in clauses (a) through
(c) above, a "Registration Default"), the interest rate borne by the Securities
shall be increased ("Additional Interest") by 0.25% per annum upon the
occurrence of each Registration Default, which rate will increase by 0.25% per
annum each 90-day period that such Additional Interest continues to accrue under
any such circumstance, provided that the maximum aggregate increase in the
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interest rate will in no event exceed 1.00% per annum. Notwithstanding the
foregoing, a Holder of Registrable Securities who participated or could have
participated in a consummated Exchange Offer shall not, subsequent to the
consummation of such Exchange Offer in accordance with the terms of this
Agreement, be entitled to Additional Interest with respect to any failure with
respect to a Shelf Registration Statement. Following the cure of all
Registration Defaults the accrual of Additional Interest will cease and the
interest rate will revert to the original rate.
If the Shelf Registration Statement is unusable by the Holders for any
reason, and the aggregate number of days in any consecutive twelve-month period
for which the Shelf Registration Statement shall not be usable exceeds 45 days
in the aggregate (other than as part of a permitted Shelf Suspension Period),
then the interest rate borne by the Securities will be increased by 0.25% per
annum of the principal amount of the Securities for the first 90-day period (or
portion thereof) beginning on the 45th such date that such Shelf Registration
Statement ceases to be usable in such twelve-month period (other than as part of
a permitted Shelf Suspension Period), which rate shall be increased by an
additional 0.25% per annum of the principal amount of the Securities at the
beginning of each subsequent 90-day period, provided that the maximum aggregate
increase in the interest rate will in no event exceed 1.00% per annum. Any
amounts payable under this paragraph shall also be deemed "Additional Interest"
for purposes of this Agreement. Upon the Shelf Registration Statement once again
becoming usable, the interest rate borne by the Securities will be reduced to
the original interest rate if the Company is otherwise in compliance with this
Agreement at such time. Additional Interest shall be computed based on the
actual number of days elapsed in each 90-day period in which the Shelf
Registration Statement is unusable.
The Company shall notify the Trustee within three business days after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "Event Date"). Additional Interest shall be
paid by depositing with the Trustee, in trust, for the benefit of the Holders of
Registrable Securities, on or before the applicable semiannual interest payment
date, immediately available funds in sums sufficient to pay the Additional
Interest then due. The Additional Interest due shall be payable on each interest
payment date to the record Holder of Registrable Securities entitled to receive
the interest payment to be paid on such date as set forth in the Indenture. Each
obligation to pay Additional Interest shall be deemed to accrue from and
including the day following the applicable Event Date.
3. Registration Procedures.
In connection with the obligations of the Company and the Guarantors
with respect to Registration Statements pursuant to Sections 2.1 and 2.2 hereof,
the Company and the Guarantors shall:
(a) prepare and file with the SEC a Registration Statement, within the
relevant time period specified in Section 2, on the appropriate form under
the 1933 Act, which form (i) shall be selected by the Company, (ii) shall,
in the case of a Shelf Registration, be available for the sale of the
Registrable Securities by the selling Holders thereof, (iii) shall comply
as to form in all material respects with the requirements of the applicable
form and
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include or incorporate by reference all financial statements required by
the SEC to be filed therewith or incorporated by reference therein, and
(iv) shall comply in all respects with the requirements of Regulation S-T
under the 1933 Act, and use their commercially reasonable efforts to cause
such Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under
applicable law to keep such Registration Statement effective for the
applicable period in accordance with Section 2 hereof; and cause each
Prospectus to be supplemented by any required prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 (or any similar provision
then in force) under the 1933 Act and comply with the provisions of the
1933 Act, the 1934 Act and the rules and regulations thereunder applicable
to them with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling Holders thereof
(including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities for which the Company has information, at least five
business days prior to filing, that a Shelf Registration Statement with
respect to the Registrable Securities is being filed and advising such
Holders that the distribution of Registrable Securities will be made in
accordance with the method selected by the Majority Holders participating
in the Shelf Registration; (ii) furnish to each Holder of Registrable
Securities and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter
may reasonably request, including financial statements and schedules and,
if the Holder so requests, all exhibits in order to facilitate the public
sale or other disposition of the Registrable Securities (for the avoidance
of doubt, any such supplement or amendment electronically filed with the
SEC on the XXXXX system shall be deemed furnished to the Holders of
Registrable Securities); and (iii) hereby consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Securities in accordance with applicable law in
connection with the offering and sale of the Registrable Securities covered
by the Prospectus or any amendment or supplement thereto;
(d) use their commercially reasonable efforts to register or qualify
the Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder of Registrable Securities
covered by a Registration Statement and each underwriter of an underwritten
offering of Registrable Securities shall reasonably request by the time the
applicable Registration Statement is declared effective by the SEC, and do
any and all other acts and things which may be reasonably necessary or
advisable to enable each such Holder and underwriter to consummate the
disposition in each such jurisdiction of such Registrable Securities owned
by such Holder; provided, however, that neither the Company nor any
Guarantor shall be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it is not then so qualified
or would not otherwise be required to
11
qualify but for this Section 3(d), or (ii) take any action which would
subject it to general service of process or taxation in any such
jurisdiction where it is not then so subject;
(e) notify promptly each Holder of Registrable Securities under a
Shelf Registration for which the Company has information, or any
Participating Broker-Dealer who has notified the Company that it is
utilizing the Exchange Offer Registration Statement as provided in
paragraph (f) below, and, if requested by such Holder or Participating
Broker-Dealer, confirm such advice in writing promptly (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by
the SEC or any state securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii) of
the issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation
of any proceedings for that purpose, (iv) in the case of a Shelf
Registration, if, between the effective date of a Registration Statement
and the closing of any sale of Registrable Securities covered thereby, the
representations and warranties of the Company and the Guarantors contained
in any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and correct in
all material respects (or, in the case of any representation or warranty
that by its terms is qualified by reference to materiality, a material
adverse effect or any term or concept of similar import, such
representation or warranty ceases to be true in all respects), (v) of the
happening of any event or the discovery of any facts during the period a
Shelf Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements
therein not misleading, (vi) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities or the Exchange Securities, as the case may be, for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose and (vii) of any determination by the Company that a
post-effective amendment to such Registration Statement would be
appropriate;
(f) (A) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution" which section shall be reasonably acceptable to
Xxxxxxx Xxxxx and JPMorgan on behalf of the Participating Broker-Dealers,
and which shall contain a summary statement of the positions taken or
policies made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that holds Registrable Securities
acquired for its own account as a result of market-making activities or
other trading activities and that will be the beneficial owner (as defined
in Rule 13d-3 under the 0000 Xxx) of Exchange Securities to be received by
such broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the SEC or such
positions or policies, in the reasonable judgment of Xxxxxxx Xxxxx and
JPMorgan on behalf of the Participating Broker-Dealers and their counsel,
represent the prevailing views of the staff of the SEC, including a
statement that any such broker-dealer who receives Exchange Securities for
Registrable Securities pursuant to the Exchange Offer may be deemed a
statutory underwriter and must deliver a
12
prospectus meeting the requirements of the 1933 Act in connection with any
resale of such Exchange Securities, (ii) furnish to each Participating
Broker-Dealer who has delivered to the Company the notice referred to in
Section 3(e), without charge, as many copies of each Prospectus included in
the Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such Participating
Broker-Dealer may reasonably request, (iii) hereby consent to the use of
the Prospectus forming part of the Exchange Offer Registration Statement or
any amendment or supplement thereto, by any Person subject to the
prospectus delivery requirements of the SEC, including all Participating
Broker-Dealers, in connection with the sale or transfer of the Exchange
Securities covered by the Prospectus or any amendment or supplement
thereto, and (iv) include in the Prospectus forming part of the Exchange
Offer Registration Statement (and in any transmittal letter or similar
document to be executed by an exchange offerree in order to participate in
the Exchange Offer): (x) the following provision:
"If the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of market-making
activities or other trading activities, it will deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale
of Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer"; and
(y) a statement to the effect that by a broker-dealer making the acknowledgment
described in clause (x) and by delivering a Prospectus in connection with the
exchange of Registrable Securities, the broker-dealer will not be deemed to
admit that it is an underwriter within the meaning of the 1933 Act;
(B) to the extent any Participating Broker-Dealer participates in
the Exchange Offer, the Company and the Subsidiary Guarantors (to the
extent customary for such a transaction) shall use their reasonable
best efforts to cause to be delivered at the request of an entity
representing the Participating Broker-Dealers (which entity shall be
one of the Initial Purchasers, unless it elects not to act as such
representative) only one, if any, "cold comfort" letter with respect
to the Prospectus in the form existing on the last date for which
exchanges are accepted pursuant to the Exchange Offer and with respect
to each subsequent amendment or supplement, if any, effected during
the period specified in clause (C) below; and
(C) to the extent any Participating Broker-Dealer participates in
the Exchange Offer, the Company and the Subsidiary Guarantors shall
use their best efforts to maintain the effectiveness of the Exchange
Offer Registration Statement for a period of 180 days following the
closing of the Exchange Offer;
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities copies of any comment
letters received from the SEC or any other request by the SEC or any state
securities authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
13
(h) make commercially reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, and each underwriter, if any, without charge, at
least one conformed copy (or one electronically reproducible conformed
copy) of each Registration Statement and any post-effective amendment
thereto, including financial statements and schedules (without documents
incorporated therein by reference and all exhibits thereto, unless
requested);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable Securities
to be in such denominations (consistent with the provisions of the
Indenture) and registered in such names as the selling Holders or the
underwriters, if any, may reasonably request at least three business days
prior to the closing of any sale of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Sections
3(e)(v) and 3(e)(vi) hereof, as promptly as practicable after the
occurrence of such an event, use their commercially reasonable efforts to
prepare a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities or Participating
Broker-Dealers, such Prospectus will not contain at the time of such
delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or will remain so
qualified. At such time as such public disclosure is otherwise made or the
Company determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted
material fact, the Company agrees as promptly as practicable to notify each
Holder of such determination and to furnish each Holder such number of
copies of the Prospectus as amended or supplemented, as such Holder may
reasonably request;
(l) in the case of a Shelf Registration, a reasonable time prior to
the filing of any Registration Statement, any Prospectus, any amendment to
a Registration Statement or amendment or supplement to a Prospectus,
provide copies of such document to the Initial Purchasers on behalf of such
Holders (without documents incorporated therein by reference or exhibits
thereto, unless so requested by any Initial Purchaser); and make
representatives of the Company as shall be reasonably requested by the
Holders of Registrable Securities, or the Initial Purchasers on behalf of
such Holders, available for discussion of such document;
(m) obtain a CUSIP number for all Exchange Securities, Private
Exchange Securities or Registrable Securities, as the case may be, not
later than the effective date of a Registration Statement, and provide the
Trustee with printed certificates for the Exchange Securities, Private
Exchange Securities or the Registrable Securities, as the case may be, in a
form eligible for deposit with the Depositary;
14
(n) (i) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be, (ii) cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA and
(iii) execute, and use their commercially reasonable efforts to cause the
Trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the
SEC to enable the Indenture to be so qualified in a timely manner;
(o) in the case of a Shelf Registration, enter into underwriting
agreements and take all other customary and appropriate actions in order to
expedite or facilitate the disposition of such Registrable Securities and
in such connection therewith:
(i) to the extent practicable, make such representations and
warranties to the Holders of such Registrable Securities and the
underwriters, if any, in form, substance and scope as are customarily
made by issuers and guarantors to Holders or underwriters, as the case
may be, in similar underwritten offerings as may be reasonably
requested by them;
(ii) if requested by any Holder or Holders of Securities being
sold, obtain opinions of counsel to the Company and the Guarantors and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the holders of a majority in principal
amount of the Registrable Securities being sold) addressed to each
selling Holder (to the extent customary) and the underwriters, if any,
covering the matters customarily covered in opinions requested in
sales of securities or underwritten offerings and such other matters
as may be reasonably requested by such Holders and underwriters;
(iii) in the case of an underwritten offering, obtain "cold
comfort" letters and updates thereof from the Company's independent
certified public accountants (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements
are, or are required to be, included in the Registration Statement)
addressed to the underwriters, if any, and use reasonable efforts to
have such letter addressed to the selling Holders of Registrable
Securities (to the extent consistent with Statement on Auditing
Standards No. 72 of the American Institute of Certified Public
Accountants), such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters to
underwriters in connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders and
an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Securities, which agreement shall
be in form, substance and scope customary for similar offerings;
15
(v) if an underwriting agreement is entered into, cause the same
to set forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures set forth
in Section 4 hereof with respect to the underwriters and all other
parties to be indemnified pursuant to said Section or, at the request
of any underwriters, in the form customarily provided to such
underwriters in similar types of transactions; and
(vi) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings to the
Holders of a majority in principal amount of the Registrable
Securities being sold and the managing underwriters, if any.
The above shall be done at (i) the effectiveness of such Shelf Registration
Statement (and each post-effective amendment thereto) and (ii) each closing
under any underwriting agreement as and to the extent required thereunder;
(p) in the case of a Shelf Registration or if a Prospectus is required
to be delivered by any Participating Broker-Dealer in the case of an
Exchange Offer, make available for inspection by representatives of the
Holders of the Registrable Securities, any lead managing underwriters
participating in any disposition pursuant to a Shelf Registration
Statement, any Participating Broker-Dealer and any counsel or accountant
retained by any of the foregoing, at reasonable times and in a reasonable
manner, all financial and other records, pertinent corporate documents and
properties of the Company and the Guarantors reasonably requested by any
such persons, and cause the respective officers, directors, employees, and
any other agents of the Company and the Guarantors to supply all
information reasonably requested by any such representative, underwriter,
special counsel or accountant in connection with a Registration Statement,
and make such representatives of the Company and the Guarantors available
for discussion of such documents as shall be reasonably requested by the
Initial Purchasers or any underwriter; provided that if any such
information is reasonably identified by the Company and the Guarantors as
being confidential or proprietary, each person receiving such information
shall take such actions as are reasonably necessary to protect the
confidentiality of such information to the extent such action is otherwise
not inconsistent with, an impairment of or a derogation of the rights,
interests or duties of any underwriter;
(q) (i) in the case of an Exchange Offer Registration Statement, a
reasonable time prior to the filing of any Exchange Offer Registration
Statement, any Prospectus forming a part thereof, any amendment to an
Exchange Offer Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Initial Purchasers and
to counsel to the Holders of Registrable Securities and make such changes
in any such document prior to the filing thereof as the Initial Purchasers
or counsel to the Holders of Registrable Securities may reasonably request
in a timely manner under the circumstances and, except as otherwise
required by applicable law, not file any such document in a form to which
the Initial Purchasers on behalf of the Holders of Registrable Securities
and counsel to the Holders of Registrable Securities shall not have
previously been advised and furnished a copy of or to which the Initial
Purchasers on behalf of the
16
Holders of Registrable Securities or counsel to the Holders of Registrable
Securities shall reasonably object within three business days of receipt of
the applicable document, and make the representatives of the Company and
the Guarantors available for discussion of such documents as shall be
reasonably requested by the Initial Purchasers; and
(ii) in the case of a Shelf Registration, a reasonable time prior
to filing any Shelf Registration Statement, any Prospectus forming a part
thereof, any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the Holders of
Registrable Securities, to the Initial Purchasers, to counsel for the Holders
and to the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any, make such changes in any such document prior to
the filing thereof as the Initial Purchasers, the counsel to the Holders or the
underwriter or underwriters reasonably request and, except as otherwise required
by applicable law, not file any such document in a form to which the Majority
Holders, the Initial Purchasers on behalf of the Holders of Registrable
Securities, counsel for the Holders of Registrable Securities or any underwriter
shall not have previously been advised and furnished a copy of or to which the
Majority Holders, the Initial Purchasers of behalf of the Holders of Registrable
Securities, counsel to the Holders of Registrable Securities or any underwriter
shall reasonably object within three business days of receipt of the applicable
document, and make the representatives of the Company and the Guarantors
available for discussion of such document as shall be reasonably requested by
the Holders of Registrable Securities, the Initial Purchasers on behalf of such
Holders, counsel for the Holders of Registrable Securities or any underwriter.
(r) in the case of a Shelf Registration, use its commercially
reasonable efforts to cause all Registrable Securities to be listed on any
securities exchange on which similar debt securities issued by the Company
or any Guarantor are then listed if requested by the Majority Holders, or
if requested by the underwriter or underwriters of an underwritten offering
of Registrable Securities, if any;
(s) in the case of a Shelf Registration, use their commercially
reasonable efforts to cause the Registrable Securities to be rated by the
appropriate rating agencies, if so requested by the Majority Holders, or if
requested by the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any;
(t) otherwise comply with all applicable rules and regulations of the
SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder;
(u) reasonably cooperate and assist in any filings required to be made
with the NASD and, in the case of a Shelf Registration, in the performance
of any due diligence investigation by any underwriter and its counsel
(including any "qualified independent underwriter" that is required to be
retained in accordance with the rules and regulations of the NASD); and
17
(v) upon consummation of an Exchange Offer or a Private Exchange,
obtain a customary opinion of counsel to the Company and the Guarantors
addressed to the Trustee as so may be required under the Indenture.
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Securities to furnish to the Company such information
regarding the Holder (including, without limitation, a customary selling holder
questionnaire) and the proposed distribution by such Holder of such Registrable
Securities as the Company may from time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company of the happening of any event
or the discovery of any facts, each of the kind described in Section 3(e)(v)
hereof, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to a Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
3(k) hereof, and, if so directed by the Company, such Holder will deliver to the
Company (at its expense) all copies in such Holder's possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice.
In the event that the Company and the Guarantors fail to effect the
Exchange Offer or file any Shelf Registration Statement and maintain the
effectiveness of any Shelf Registration Statement as provided herein, neither
the Company nor any Guarantor shall file any Registration Statement with respect
to any securities (within the meaning of Section 2(1) of the 0000 Xxx) of the
Company or any Guarantor, other than Registrable Securities.
If any of the Registrable Securities covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage such offering will be
selected by the Majority Holders of such Registrable Securities included in such
offering and shall be acceptable to the Company. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless
such Holder (a) 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 (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
4. Indemnification; Contribution.
(a) The Company and the Guarantors agree jointly and severally to
indemnify and hold harmless the Initial Purchasers, each Holder, each
Participating Broker-Dealer, each Person who participates as an underwriter
(any such Person being an "Underwriter") and each Person, if any, who
controls any Holder or Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act as follows:
18
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto)
pursuant to which Exchange Securities or Registrable Securities were
registered under the 1933 Act, including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 4(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by
any indemnified party), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Holder or Underwriter expressly for use in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto).
(b) Each Holder severally, but not jointly, agrees to indemnify and
hold harmless the Company, the Guarantors, the Initial Purchasers, each
Underwriter and the other selling Holders, and each of their respective
directors and officers, and each Person, if any, who controls the Company,
a Guarantor, the Initial Purchasers, any Underwriter or any other selling
Holder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 4(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Shelf Registration
Statement (or any amendment thereto) or any Prospectus included therein (or
any amendment or supplement thereto) in reliance upon and in conformity
with written
19
information with respect to such Holder furnished to the Company by such
Holder expressly for use in the Shelf Registration Statement (or any
amendment thereto) or such Prospectus (or any amendment or supplement
thereto); provided, however, that no such Holder shall be liable for any
claims hereunder in excess of the amount of net proceeds received by such
Holder from the sale of Registrable Securities pursuant to such Shelf
Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder,
but failure so to notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account
of this indemnity agreement. An indemnifying party may participate at its
own expense in the defense of such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event
shall the indemnifying party or parties be liable for the reasonable fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be
sought under this Section 4 (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation,
proceeding 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.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for reasonable fees
and expenses of counsel, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 4(a)(ii)
effected without its written consent if (i) such settlement is entered into
more than 60 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the
terms of such settlement at least 45 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of
such settlement.
(e) If the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred
to therein, then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and expenses incurred
by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative fault of the Company and the Guarantors
on the one hand and the Holders and the Initial Purchasers on the other
hand in connection with the
20
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations.
The relative fault of the Company and the Guarantors on the one hand
and the Holders and the Initial Purchasers on the other hand shall be determined
by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company and/or the Guarantors, the
Holders or the Initial Purchasers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company, the Guarantors, the Holders and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to this
Section 4 were determined by pro rata allocation (even if the Holders and/or
Initial Purchasers 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 above in this Section 4. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 4 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 4, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total discount received by it in connection with its purchase of the Securities
exceeds the amount of any damages which such Initial Purchaser 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 0000 Xxx) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls an
Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Initial Purchaser or Holder, and each director of the Company or any Guarantor,
and each Person, if any, who controls the Company or any Guarantor within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as the Company or such Guarantor, as applicable.
The Initial Purchasers' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the principal amount of Securities set
forth opposite their respective names in Schedule A to the Purchase Agreement
and not joint.
5. Miscellaneous.
5.1. Rule 144 and Rule 144A. If the Company ceases to be required to
file reports under the 1934 Act, the Company covenants that it will upon the
request of any Holder of
21
Registrable Securities (a) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act if Rule 144 is
applicable to a sale by such Holder, (b) deliver such information to a
prospective purchaser as is necessary to permit sales pursuant to Rule 144A
under the 1933 Act, and (c) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Securities without registration under the
1933 Act within the limitation of the exemptions provided by (i) Rule 144 under
the 1933 Act, as such Rule may be amended from time to time if Rule 144 is
applicable to the sale, (ii) Rule 144A under the 1933 Act, as such Rule may be
amended from time to time, or (iii) any similar rules or regulations hereafter
adopted by the SEC. Upon the request of any Holder of Registrable Securities,
the Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
5.2. No Inconsistent Agreements. Neither the Company nor any Guarantor
has entered into, and neither the Company nor any Guarantor will after the date
of this Agreement enter into, any agreement which is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not and will not for the term of this Agreement in any way
conflict with the rights granted to the holders of the Company's or any
Guarantor's other issued and outstanding securities under any such agreements.
5.3. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or departure.
5.4. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially is the address set forth in the Purchase
Agreement with respect to the Initial Purchasers; and (b) if to the Company or
any Guarantor, initially at the Company's address set forth in the Purchase
Agreement, and thereafter at such other address of which notice is given in
accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and on the next
business day if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture, at the address specified in such Indenture.
22
5.5. Successor and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable Securities such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and,
if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
5.6. Third Party Beneficiaries. The Initial Purchasers (even if the
Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Holders, on the other hand, and shall have
the right to enforce such agreements directly to the extent they deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights hereunder.
5.7. Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Sections 2.1 through
2.4 hereof may result in material irreparable injury to the Initial Purchasers
or the Holders for which there is no adequate remedy at law, that it would not
be possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Initial Purchasers or any Holder may obtain such
relief as may be required to specifically enforce the Company's obligations
under Sections 2.1 through 2.4 hereof.
5.8. Restriction on Resales. Until the expiration of two years after
the original issuance of the Securities and the Guarantees, the Company and the
Guarantor will not, and will cause their "affiliates" (as such term is defined
in Rule 144(a)(1) under the 0000 Xxx) not to, resell any Securities that are
"restricted securities" (as such term is defined under Rule 144(a)(3) under the
0000 Xxx) that have been reacquired by any of them and shall immediately upon
any purchase of any such Securities submit such Securities to the Trustee for
cancellation.
5.9. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
5.10. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
23
5.11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.12. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
5.13. [Reserved].
5.14. Consent to Jurisdiction. Each of the Company and the Guarantors
irrevocably consents and agrees that any legal action, suit or proceeding
brought against it with respect to its obligations, liabilities or any other
matter arising out of or in connection with this Agreement or the transactions
contemplated hereby may be brought in the courts of the State of New York or the
courts of the United States of America located in the County of New York and,
until all amounts due and to become due hereunder, if any, have been paid, or
until any such legal action, suit or proceeding commenced prior to such payment
has been concluded, hereby irrevocably consents and irrevocably submits to the
non-exclusive jurisdiction of each such court in person and, generally and
unconditionally with respect to any action, suit or proceeding for themselves.
5.15. Appointment of Agent for Service of Process.
(a) The Company and each Guarantor hereby irrevocably consent and
agree to the service of any and all legal process, summons, notices and
documents in any such action, suit or proceeding brought against them with
respect to their obligations, liabilities or any other matter arising out
of or in connection with this Agreement, by serving a copy thereof upon any
employee of any of the Company or any Guarantor (in such capacity, the
"Company Process Agent") at any business location that the Company or any
Guarantor may maintain from time to time in the United States including,
without limitation, at the offices of Navios Corporation located at 00
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxxx, Xxxxxxxxxxx 00000.
(b) If at any time the Company or any Guarantor has or maintains a
business location in the State of New York (such Person, the "New York
Presence Obligor"), then the Company and the Guarantors shall, within 30
days after such location is opened, is acquired or otherwise exists,
irrevocably designate, appoint and empower the New York Presence Obligor as
their designee, appointee and agent to receive, accept and acknowledge for
and on their behalf service of any and all legal process, summons, notices
and documents that may be served in any action, suit or proceeding brought
against them in any United States or state court located in the County of
New York with respect to their obligations, liabilities or any other matter
arising out of or in connection with this Agreement and that may be made on
such designee, appointee and agent in accordance with legal procedures
prescribed for such courts (the "New York Process Agent").
24
(c) If at any time either (i) neither the Company nor any Guarantor
maintains a bona fide business location in the State of Connecticut or the
State of New York or (ii) a New York Presence Obligor exists but the
Company or any Guarantor fails to satisfy its obligations under the
foregoing paragraph (b), then the Company and the Guarantors shall promptly
(and in any event within 10 days) irrevocably designate, appoint and
empower CT Corporation System, with offices currently at 000 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (or such other third party corporate service
provider of national standing as may be reasonably acceptable to the
Representatives), as their designee, appointee and agent to receive, accept
and acknowledge for and on their behalf service of any and all legal
process, summons, notices and documents that may be served in any action,
suit or proceeding brought against them in any such United States or state
court located in the County of New York with respect to their obligations,
liabilities or any other matter arising out of or in connection with this
Agreement and that may be made on such designee, appointee and agent in
accordance with legal procedures prescribed for such courts (the "Third
Party Process Agent"; each of the Company Process Agent, the New York
Process Agent or the Third Party Process Agent, a "Process Agent") and pay
all fees and expenses required by the Third Party Process Agent in
connection therewith. If for any reason such Third Party Process Agent
hereunder shall cease to be available to act as such, each of the Company
and the Guarantors agrees to designate a new Third Party Process Agent in
the County of New York on the terms and for the purposes of this Section
15.15 reasonably satisfactory to the Representatives.
(d) Each of the Company and the Guarantors further hereby irrevocably
consents and agrees to the service of any and all legal process, summons,
notices and documents in any such action, suit or proceeding against them
arising out of or in connection with this Agreement by (i) serving a copy
thereof upon any of the relevant Process Agents specified in clauses (a)
through (c) above, or (ii) or by mailing copies thereof by registered or
certified air mail, postage prepaid, to the Company, at its address
specified in or designated pursuant to this Agreement (including by
reference pursuant to Section 5.4). Each of the Company and the Guarantors
agrees that the failure of any Process Agent, to give any notice of such
service to it shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
(e) Nothing herein shall in any way be deemed to limit the ability of
any Initial Purchaser (or Holder or other third party beneficiary
hereunder) to serve any such legal process, summons, notices and documents
in any other manner permitted by applicable law or to obtain jurisdiction
over the Company or the Guarantors or bring actions, suits or proceedings
against them in such other jurisdictions, and in such manner, as may be
permitted by applicable law.
(f) Each of the Company and the Guarantors hereby irrevocably and
unconditionally waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of venue of any
of the aforesaid actions, suits or proceedings arising out of or in
connection with this Agreement brought in the United States federal courts
located in the County of New York or the courts of the State of New York
located in the County of New York and hereby further irrevocably and
unconditionally waives and
25
agrees not to plead or claim in any such court that any such action, suit
or proceeding brought in any such court has been brought in an inconvenient
forum.
(g) The provisions of this Section 5.15 shall survive any termination
of this Agreement, in whole or in part.
5.16. Waiver of Immunities. To the extent that the Company, a
Guarantor or any of their respective properties, assets or revenues may have or
may hereafter become entitled to, or have attributed to them, any right of
immunity, on the grounds of sovereignty, from any legal action, suit or
proceeding, from set-off or counterclaim, from the jurisdiction of any court,
from service of process, from attachment upon or prior to judgment, or from
attachment in aid of execution of judgment, or from execution of judgment, or
other legal process or proceeding for the giving of any relief or for the
enforcement of any judgment, in any jurisdiction in which proceedings may at any
time be commenced, with respect to their obligations, liabilities or any other
matter under or arising out of or in connection with this Agreement, each of the
Company and the Guarantors hereby irrevocably and unconditionally, to the extent
permitted by applicable law, waives and agrees not to plead or claim any such
immunity and consents to such relief and enforcement.
5.17. Foreign Taxes. All payments by the Company or a Guarantor shall
be made free and clear of, and without deduction or withholding for or on
account of, any and all present and future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereinafter
imposed, levied, collected, withheld or assessed by any jurisdiction of
formation of the Company and the Guarantors (each a "Relevant Jurisdiction") and
any political subdivision thereof or any other jurisdiction in which the Company
or a Guarantor has an office from which payment is made or deemed to be made
(all such taxes, "Foreign Taxes"). If the Company or a Guarantor is prevented by
operation of law or otherwise from paying, causing to be paid or remitting that
portion of amounts payable hereunder represented by Foreign Taxes withheld or
deducted, then amounts payable under this Agreement shall, to the extent
permitted by law, be increased to such amount as is necessary to yield and remit
an amount which, after deduction of all Foreign Taxes (including all Foreign
Taxes payable on such increased payments) equals the amount that would have been
payable if no Foreign Taxes applied.
5.18. Judgment Currency. Each of the Company and the Guarantors agrees
to indemnify the Initial Purchasers (or any third party beneficiary hereunder)
against any loss incurred by any such person as a result of any judgment or
order being given or made against the Company or a Guarantor for any amount due
hereunder and such judgment or order being expressed and paid in a currency (the
"Judgment Currency") other than United States dollars and as a result of any
variation as between (i) the rate of exchange at which the United States dollar
amount is converted into the Judgment Currency for the purpose of such judgment
or order, and (ii) the rate of exchange in The City of New York at which such
party on the date of payment of such judgment or order is able to purchase
United States dollars with the amount of the Judgment Currency actually received
by such party if such party had utilized such amount of Judgment Currency to
purchase United States dollars as promptly as practicable upon such party's
receipt thereof. The foregoing indemnity shall constitute a separate and
independent obligation of the
26
Company and the Guarantors and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "rate of
exchange" shall include any premiums and costs of exchange payable in connection
with the purchase of, or conversion into, the relevant currency.
27
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
NAVIOS MARITIME HOLDINGS INC.
By:
------------------------------------
Name:
Title:
NAVIOS CORPORATION
NAVIOS INTERNATIONAL INC.
NAVIMAX CORPORATION
NAVIOS HANDYBULK INC.
HESTIA SHIPPING LTD.
ANEMOS MARITIME HOLDINGS INC.
ACHILLES SHIPPING CORPORATION
AEGEAN SHIPPING CORPORATION
ALEGRIA SHIPPING CORPORATION
APOLLON SHIPPING CORPORATION
ARC SHIPPING CORPORATION
FELICITY SHIPPING CORPORATION
GALAXY SHIPPING CORPORATION
GEMINI SHIPPING CORPORATION
HERAKLES SHIPPING CORPORATION
HIOS SHIPPING CORPORATION
HORIZON SHIPPING ENTERPRISES CORPORATION
HYPERION ENTERPRISES INC.
IONIAN SHIPPING CORPORATION
KYPROS SHIPPING CORPORATION
LIBRA SHIPPING ENTERPRISES CORPORATION
NAVIOS SHIPMANAGEMENT INC.
MAGELLAN SHIPPING CORPORATION
MERIDIAN SHIPPING ENTERPRISES INC.
MERCATOR SHIPPING CORPORATION
STAR MARITIME ENTERPRISES CORPORATION
By:
------------------------------------
Name:
Title:
28
Confirmed and accepted as
of the date first above
written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXX SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
X. XXXXXXX ADVISORS LLC
BY: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
--------------------------------
Name:
Title:
BY: X.X. XXXXXX SECURITIES INC.
By:
--------------------------------
Name:
Title:
29
Schedule A
GUARANTORS
Navios Corporation
Navios International Inc.
Navimax Corporation
Navios Handybulk Inc.
Hestia Shipping Ltd.
Anemos Maritime Holdings Inc.
Achilles Shipping Corporation
Aegean Shipping Corporation
Alegria Shipping Corporation
Apollon Shipping Corporation
Arc Shipping Corporation
Felicity Shipping Corporation
Galaxy Shipping Corporation
Gemini Shipping Corporation
Herakles Shipping Corporation
Hios Shipping Corporation
Horizon Shipping Enterprises Corporation
Hyperion Enterprises Inc.
Ionian Shipping Corporation
Kypros Shipping Corporation
Libra Shipping Enterprises Corporation
Navios ShipManagement Inc.
Magellan Shipping Corporation
Meridian Shipping Enterprises Inc.
Mercator Shipping Corporation
Star Maritime Enterprises Corporation
Schedule B
INITIAL PURCHASERS
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
X.X. Xxxxxx Securities Inc.
Banc of America Securities LLC
X. Xxxxxxx Advisors LLC
