EXHIBIT 4.2
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XXXXXXXX SCOTSMAN, INC.
REGISTRATION RIGHTS AGREEMENT
February 20, 2002
Deutsche Banc Alex. Xxxxx Inc.
Bear, Xxxxxxx & Co. Inc.
c/o Deutsche Banc Alex. Xxxxx
00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxxx Scotsman, Inc., a Maryland corporation ("Company"),
proposes to issue and sell to Deutsche Banc. Xxxx Xxxxx Inc. and Bear, Xxxxxxx &
Co. Inc. (collectively, the "Purchasers"), upon the terms set forth in a
purchase agreement of even date herewith (the "Purchase Agreement"), $150
million principal amount of its 9 7/8% Senior Notes Due 2007 (the "Notes"). The
Notes will be guaranteed (the "Guarantee") on an unsecured senior basis by
Evergreen Mobile Company ("EMC"), Space Master International, Inc. ("SMI") and
Truck & Trailer Sales, Inc. ("TTS") and guaranteed on a subordinated basis (the
"Subordinated Guarantee") by Willscot Equipment, LLC ("Willscot" and together
with EMC, SMI and TTS, the "Guarantors"). The Notes will be issued pursuant to
the provisions of an Indenture, dated as of May 15, 1997 (as supplemented from
time to time, the "Indenture"), between the Company, as issuer, the Guarantors
and The Bank of New York, as Trustee (the "Trustee").
As an inducement to the Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to your obligations thereunder, the
Company and the Guarantors each agree with the Purchasers, for the benefit of
the registered holders of the Notes (including, without limitation, the
Purchasers), the Exchange Notes (as defined below) and the Private Exchange
Notes (as defined below) (collectively, the "Holders"), as follows:
SECTION 1. REGISTRATION EXCHANGE OFFER. The Company and the
Guarantors shall use their respective best efforts to prepare and file within 60
days of the date of original issue
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of the Notes with the Securities and Exchange Commission (the "Commission"), a
registration statement (the "Exchange Offer Registration Statement") on an
appropriate form under the Securities Act of 1933, as amended (the "Securities
Act"), with respect to an offer (the "Registration Exchange Offer") to the
Holders of Transfer Restricted Notes (as defined in Section 6 hereof) who are
not prohibited by any law or policy of the Commission from participating in the
Registration Exchange Offer to issue and deliver to such Holders, in exchange
for the Notes, a like aggregate principal amount of debt securities (the
"Exchange Notes") of the Company issued under the Indenture and identical in all
material respects to the Notes (except for the transfer restrictions relating to
the Notes) that would be registered under the Securities Act. The Company and
the Guarantors shall use their respective best efforts to cause such Exchange
Offer Registration Statement to become effective under the Securities Act within
150 days after the date of original issue of the Notes and shall keep the
Exchange Offer Registration Statement effective for not less than 30 days (or
longer, if required by applicable law) after the date notice of the Registration
Exchange Offer is mailed to the Holders (such period being called the "Exchange
Offer Registration Period").
If the Company and the Guarantors effect the Registration
Exchange Offer, the Company and the Guarantors will be entitled to close the
Registration Exchange Offer 30 days after the commencement thereof provided that
the Company and the Guarantors have accepted all the Notes theretofore validly
tendered in accordance with the terms of the Registration Exchange Offer.
Following the declaration of the effectiveness of the Exchange
Offer Registration Statement, the Company and the Guarantors shall promptly
commence the Registration Exchange Offer, it being the objective of such
Registration Exchange Offer to enable each Holder of Transfer Restricted Notes
(as defined below) electing to exchange such Transfer Restricted Notes for
Exchange Notes (assuming that such Holder is not an affiliate of the Company
within the meaning of the Securities Act, acquires the Exchange Notes in the
ordinary course of such Holder's business and has no arrangements with any
person to participate in the distribution of the Exchange Notes and is not
prohibited by any law or policy of the Commission from participating in the
Registration Exchange Offer) to trade such Exchange Notes from and after their
receipt without any limita-
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tions or restrictions under the Securities Act and without material restrictions
under the securities laws of the several states of the United States. In
connection with such Registration Exchange Offer, the Company and the Guarantors
shall use their respective best efforts to consummate the Registration Exchange
Offer and shall comply in all material respects with the applicable requirements
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
other applicable laws and regulations in connection with the Registration
Exchange Offer.
The Company and the Guarantors each acknowledge that, pursuant
to current interpretations by the Commission's staff of Section 5 of the
Securities Act, in the absence of an applicable exemption therefrom, (i) each
Holder which is a broker-dealer electing to exchange Notes acquired for its own
account as a result of market-making activities or other trading activities for
Exchange Notes (an "Exchanging Dealer") is required to deliver a prospectus
containing the information set forth in Annex A hereto on the cover, in Annex B
hereto in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section, and in Annex C hereto in the "Plan of Distribution"
section of such prospectus in connection with a sale of any such Exchange Notes
received by such Exchanging Dealer pursuant to the Registration Exchange Offer
and (ii) if the Purchasers are permitted to and elect to sell Exchange Notes
acquired in exchange for Notes constituting any portion of an unsold allotment,
they are required to deliver a prospectus containing the information required by
Item 507 or 508 of Regulation S-K under the Securities Act, as applicable, in
connection with such sale.
The Company and the Guarantors shall include within the
prospectus contained in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution", reasonably acceptable to the Purchasers, which
shall contain a summary statement of the positions taken or policies made by the
staff of the Commission with respect to the potential "underwriter" status of
any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under
the Exchange Act) of Exchange Notes received by such broker-dealer in the
Registration Exchange Offer (a "Participating Broker-Dealer"), whether such
positions or policies have been publicly disseminated by the staff of the
Commission or such positions or policies, in the reasonable judgment of the
Purchasers based upon advice of counsel (which
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may be in-house counsel), represent the prevailing views of the staff of the
Commission.
The Company and the Guarantors shall use their respective best
efforts to keep the Exchange Offer Registration Statement effective and to amend
and supplement the prospectus contained therein, in order to permit such
prospectus to be lawfully delivered by the Purchasers and all Exchanging Dealers
subject to the prospectus delivery requirements of the Securities Act and shall
make such prospectuses available to the Purchasers and such Exchanging Dealers
for such period of time after the consummation of the Registration Exchange
Offer as such persons must comply with such requirements in order to resell the
Exchange Notes; PROVIDED, HOWEVER, that such period shall not exceed 120 days
(unless extended pursuant to Section 3(j) below); and PROVIDED, FURTHER, that
such persons shall not be authorized by the Company or the Guarantors to deliver
and shall not deliver any such prospectus after the expiration of such period in
connection with the resales contemplated by this paragraph.
The Company and the Guarantors shall make available for a
period of 90 days after the consummation of the Registration Exchange Offer, a
copy of the prospectus, and any amendment or supplement thereto, forming part of
the Exchange Offer Registration Statement to any broker-dealer for use in
connection with any resale of any Exchange Notes.
If, upon consummation of the Registration Exchange Offer, any
Purchaser holds Notes acquired by it as part of its initial distribution, the
Company and the Guarantors, simultaneously with the delivery of the Exchange
Notes pursuant to the Registration Exchange Offer, shall issue and deliver to
such Purchaser upon the written request of such Purchaser, in exchange (the
"Private Exchange") for the Notes held by such Purchaser, a like principal
amount of debt securities of the Company issued under the Indenture and
guaranteed by the Guarantors pursuant to the Guarantee and the Subordinated
Guarantee and identical in all material respects (including the existence of
restrictions on transfer under the Securities Act and the securities laws of the
several states of the United States) to the Notes (the "Private Exchange
Notes"). The Notes, the Exchange Notes and the Private Exchange Notes are herein
collectively called the "Securities".
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In connection with the Registration Exchange Offer, the
Company and the Guarantors shall:
(a) mail to each Holder a copy of the prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registration Exchange Offer open for not
less than 30 days (or longer, if required by applicable law) after the
date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the
Registration Exchange Offer with an address in the Borough of
Manhattan, The City of New York, which may be the Trustee or an
affiliate of the Trustee;
(d) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last business day
on which the Registration Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all
applicable laws.
As soon as practicable after the close of the Registration
Exchange Offer or the Private Exchange, as the case may be, the Company and the
Guarantors shall:
(i) accept for exchange all the Notes validly tendered
and not withdrawn pursuant to the Registration Exchange Offer and the
Private Exchange;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all the Notes so accepted for exchange; and
(iii) issue, and cause the Trustee to authenticate and
deliver promptly to each Holder of the Notes, Exchange Notes or Private
Exchange Notes, as the case may be, equal in principal amount to the
Notes of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Notes will not be
subject to the transfer restrictions set forth in
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the Indenture and that all the Securities will vote and consent together on all
matters as one class and that none of the Securities will have the right to vote
or consent as a class separate from one another on any matter.
Interest on each Exchange Note and Private Exchange Note
issued pursuant to the Registration Exchange Offer and in the Private Exchange
will accrue (i) from the later of (a) the last interest payment date on which
interest was paid on the Notes surrendered in exchange therefor or (b) if the
Note is surrendered for exchange on a date in a period which includes the record
date for an interest payment date to occur on or after the date of such exchange
and as to which interest will be paid, the date of such interest payment date or
(ii) if no interest has been paid on the Notes, from the date of original issue
of the Notes.
Each Holder participating in the Registration Exchange Offer
shall be required to represent to the Company and the Guarantors that at the
time of the consummation of the Registration Exchange Offer (i) any Exchange
Notes received by such Holder will be acquired in the ordinary course of
business, (ii) such Holder will have no arrangements or understanding with any
person to participate in the distribution of the Notes or the Exchange Notes
within the meaning of the Securities Act, (iii) such Holder is not an
"affiliate," as defined in Rule 405 of the Securities Act, of the Company or any
Guarantor or if it is an affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable, (iv) if such Holder is not a broker-dealer, that it is not
engaged in, and does not intend to engage in, the distribution of the Exchange
Notes and (v) if such Holder is a broker-dealer, that it will receive Exchange
Notes for its own account in exchange for Notes that were acquired as a result
of market-making activities or other trading activities and that it will be
required to acknowledge that it will deliver a prospectus in connection with any
resale of such Exchange Notes.
Notwithstanding any other provisions hereof, the Company and
the Guarantors will ensure that (i) any Exchange Offer Registration Statement
and any amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the Securities Act and
the rules and regulations thereunder, (ii) any Exchange Offer Reg-
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istration Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading and (iii) any prospectus forming part of any Exchange Offer
Registration Statement, and any supplement to such prospectus, at the time of
issuance does not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
SECTION 2. SHELF REGISTRATION. If (i) the Company and the
Guarantors determine that a Registration Exchange Offer, as contemplated by
Section 1 hereof, is not available or may not be consummated as soon as
practicable after the last date the Registration Exchange Offer is open because
it would violate applicable law or the applicable interpretations of the staff
of the Commission, (ii) the Registration Exchange Offer is not consummated
within 180 days of the date of original issue of the Notes, (iii) the Purchasers
so request with respect to the Notes (or the Private Exchange Notes) not
eligible to be exchanged for Exchange Notes in the Registration Exchange Offer
and held by them following consummation of the Registration Exchange Offer or
(iv) any Holder (other than an Exchanging Dealer) is not eligible to participate
in the Registration Exchange Offer or, in the case of any Holder (other than an
Exchanging Dealer) that participates in the Registration Exchange Offer, such
Holder does not receive freely tradeable Exchange Notes on the date of the
exchange for validly tendered (and not withdrawn) Notes, the Company and the
Guarantors shall take the following actions:
(a) The Company and the Guarantors shall use all
reasonable efforts to prepare and file, as promptly as practicable,
with the Commission and thereafter to cause to be declared effective a
registration statement (the "Shelf Registration Statement" and,
together with the Exchange Offer Registration Statement, a
"Registration Statement") on an appropriate form under the Securities
Act relating to the offer and sale of the Transfer Restricted Notes by
the Holders thereof from time to time in accordance with the methods of
distribution set forth in the Shelf Registration Statement and Rule 415
under the
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Securities Act (hereinafter, the "Shelf Registration"); PROVIDED,
HOWEVER, that no Holder (other than the Purchasers) shall be entitled
to have any Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all the
provisions of this Agreement applicable to such Holder.
(b) The Company and the Guarantors shall use all
reasonable efforts to keep the Shelf Registration Statement
continuously effective in order to permit the prospectus included
therein to be lawfully delivered by the Holders of the relevant
Securities, until the period referred to in Rule 144(k) under the
Securities Act after the original issue date of the Notes expires (or
for such longer period if extended pursuant to Section 3(j) below) or
such shorter period that will terminate when all the Securities covered
by the Shelf Registration Statement have been sold pursuant thereto.
(c) Notwithstanding any other provisions of this
Agreement to the contrary, the Company and the Guarantors shall cause
the Shelf Registration Statement and the related prospectus and any
amendment or supplement thereto, as of the effective date of the Shelf
Registration Statement, amendment or supplement, (i) to comply in all
material respects with the applicable requirements of the Securities
Act and the rules and regulations of the Commission and (ii) not to
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
SECTION 3. REGISTRATION PROCEDURES. In connection with any
Shelf Registration contemplated by Section 2 hereof and, to the extent
applicable, any Registration Exchange Offer contemplated by Section 1 hereof,
the following provisions shall apply:
(a) The Company and the Guarantors shall (i) furnish to
the Purchasers, prior to the filing thereof with the Commission, a copy
of the Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and shall not
file any such Registration Statement or amendment thereto or any
prospectus or any supplement thereto (including such documents which,
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upon filing, would be incorporated or deemed to be incorporated by
reference therein and amendments to such documents other than documents
required to be filed pursuant to the Exchange Act) to which the
Purchasers shall reasonably object, except for any Registration
Statement or amendment thereto or prospectus or supplement thereto (a
copy of which has been previously furnished to the Purchasers and their
counsel (and, in the case of a Shelf Registration Statement, the
Holders and their counsel)) which counsel to the Company and the
Guarantors has advised the Company and the Guarantors in writing is
required to be filed in order to comply with applicable law; (ii)
include information substantially to the effect set forth (A) in Annex
A hereto on the cover of a prospectus forming part of the Exchange
Offer Registration Statement, (B) in Annex B hereto in the "Exchange
Offer Procedures" section and the "Purpose of the Exchange Offer"
section, (C) in Annex C hereto in the "Plan of Distribution" section of
the prospectus forming a part of the Exchange Offer Registration
Statement and (D) in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Registration Exchange Offer; (iii) to the
extent required by law or interpretation of the staff of the
Commission, if requested by the Purchasers, include the information
required by Item 507 or 508 of Regulation S-K under the Securities Act,
as applicable, in the prospectus forming a part of the Exchange Offer
Registration Statement; and (iv) to the extent required by law or
interpretation of the staff of the Commission, in the case of a Shelf
Registration Statement, include the names of the Holders who propose to
sell Securities pursuant to the Shelf Registration Statement as selling
securityholders.
(b) The Company and the Guarantors shall notify the
Purchasers, the Holders and any Participating Broker-Dealer from whom
the Company or any of the Guarantors has received prior written notice
stating that it will be a Participating Broker-Dealer in the
Registration Exchange Offer (which notice pursuant to clauses (ii)
through (v) hereof shall be accompanied by an instruction to suspend
the use of the prospectus until the requisite changes have been made)
promptly, and, if requested by the Purchasers, the Holders or any such
Participating Broker-Dealer, confirm such notice in writing:
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(i) when the Registration Statement or any
amendment thereto has been filed with the Commission and when
the Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the Commission for
amendments or supplements to the Registration Statement or the
prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company or any of the
Guarantors or their legal counsel of any notification with
respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(v) of the happening of any event that requires
the Company or any of the Guarantors to make changes in the
Registration Statement or the prospectus in order that the
Registration Statement or the prospectus does not contain an
untrue statement of a material fact nor omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading; and
(vi) of any determination by the Company or any
of the Guarantors that a post-effective amendment to a
Registration Statement would be appropriate.
(c) The Company and the Guarantors shall make every
reasonable effort to prevent the issuance, and if issued to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Registration Statement and shall provide prompt
written notice to the Purchasers and each Holder of the withdrawal of
any such order.
(d) The Company and the Guarantors shall furnish to each
Holder of Securities included within the coverage of
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the Shelf Registration, without charge, at least one conformed copy of
the Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules (without
documents incorporated therein by reference or exhibits thereto, unless
a Holder so requests in writing).
(e) The Company and the Guarantors shall deliver to the
Purchasers, and to any other Holder that so requests, without charge,
at least one conformed copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules (without documents incorporated therein by
reference or exhibits thereto, unless the Purchasers or any such Holder
so requests in writing).
(f) The Company and the Guarantors shall deliver to each
Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such
person may reasonably request. The Company and each Guarantor consents,
subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto by each of the
selling Holders of the Securities in connection with the offering and
sale of the Securities covered by, and as contemplated by, the
prospectus, or any amendment or supplement thereto, included in the
Shelf Registration Statement.
(g) The Company and the Guarantors shall deliver to the
Purchasers, any Participating Broker-Dealer or any Exchanging Dealer,
without charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement and any amendment or supplement
thereto as such person may reasonably request, during the period not
exceeding 120 days following the consummation of the Registration
Exchange Offer. The Company and each Guarantor consent, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by the Purchasers, if necessary, any
Participating Broker-Dealer or Exchanging Dealer and such other persons
required to deliver a prospectus following the Registration Exchange
Offer in connection with the offering and
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sale of the Exchange Notes covered by the prospectus, or any amendment
or supplement thereto, included in such Exchange Offer Registration
Statement; PROVIDED, HOWEVER, that such persons shall not be authorized
by the Company or any Guarantor to deliver and shall not deliver any
such prospectus after the expiration of the period referred to in the
immediately preceding sentence, in connection with the resales
contemplated by this paragraph.
(h) Prior to any public offering of the Securities
pursuant to any Registration Statement, the Company and the Guarantors
shall use their respective best efforts to register or qualify or
cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification
of the Securities for offer and sale under the securities or Blue Sky
laws of such states of the United States as any Holder of the
Securities reasonably requests in writing and do any and all other acts
or things necessary or advisable to enable such Holder to offer and
sell in such jurisdictions the Securities covered by such Registration
Statement owned by such Holder; PROVIDED, HOWEVER, that neither the
Company nor any Guarantor shall be required to (i) qualify generally or
as a foreign corporation to do business in any jurisdiction where it is
not then so qualified or (ii) take any action which would subject it to
general service of process or to taxation in any jurisdiction where it
is not then so subject.
(i) The Company and the Guarantors shall cooperate with
the Holders of the Securities to facilitate the timely preparation and
delivery of certificates representing the Securities to be sold
pursuant to any Shelf Registration Statement free of any restrictive
legends and in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the Holders may request
at least two business days prior to closing of any sale of the
Securities pursuant to such Shelf Registration Statement.
(j) If any event contemplated by paragraphs (ii) through
(vi) of Section 3(b) above occurs during the period for which the
Company or any Guarantor is required to maintain an effective
Registration Statement, the Company and the Guarantors shall promptly
prepare and file a post-
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effective amendment to the Registration Statement or a supplement to
the related prospectus and any other required document so that, as
thereafter delivered to Holders of the Notes or purchasers of
Securities, the prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the
Company or any Guarantor notifies the Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer in accordance with
paragraphs (ii) through (vi) of Section 3(b) above to suspend the use
of the prospectus until the requisite changes to the prospectus have
been made, then the Purchasers, the Holders of the Securities and any
such Participating Broker-Dealers shall suspend use of such prospectus
until the Company or such Guarantor has amended or supplemented the
prospectus to correct such misstatement or omission, and the period of
effectiveness of the Shelf Registration Statement provided for in
Section 2(b) above and the Exchange Offer Registration Statement
provided for in Section 1 above shall each be extended by the number of
days from and including the date of the giving of such notice to and
including the date when the Purchasers, the Holders of the Securities
and any known Participating Broker-Dealer shall have received such
amended or supplemented prospectus pursuant to this Section 3(j);
PROVIDED, HOWEVER, that the minimum time period before the Company or
any Guarantor shall be entitled to close the Registration Exchange
Offer shall be extended only to the extent required by the Commission.
The Purchasers, each Holder and any Participating Broker-Dealers agree
that upon receipt of any such notice from the Company they will not
distribute copies of the prospectus that are the subject of such notice
and will retain such copies in their files.
(k) Not later than the effective date of the applicable
Registration Statement, the Company and the Guarantors will obtain a
CUSIP number for the Transfer Restricted Notes, the Exchange Notes or
the Private Exchange Notes, as the case may be, and provide the Trustee
with printed certificates for the Notes, the Exchange Notes or the
Private Exchange Notes, as the case may be, in a form eligible for
deposit with The Depository Trust Company.
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(l) The Company and the Guarantors will comply in all
material respects with all rules and regulations of the Commission to
the extent and so long as they are applicable to the Registration
Exchange Offer or the Shelf Registration and will make generally
available to their securityholders (or otherwise provide in accordance
with Section 11(a) of the Securities Act) an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act, no
later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of
the Registration Statement, which statement shall cover such 12-month
period.
(m) The Company and the Guarantors may require each
Holder of Securities to be sold pursuant to the Shelf Registration
Statement to furnish to the Company and the Guarantors such information
regarding the Holder and the distribution of the Securities as the
Company may from time to time reasonably request for inclusion in the
Shelf Registration Statement, and the Company and the Guarantors may
exclude from such registration the Securities of any Holder that fails
to furnish such information within a reasonable time after receiving
such request.
(n) In the case of any Shelf Registration, the Company
and the Guarantors shall enter into such customary agreements
(including if requested an underwriting agreement in customary form)
and take all such other action, if any, as the Holders of a majority of
the Securities being sold shall reasonably request in order to
facilitate the disposition of the Securities pursuant to such Shelf
Registration.
(o) In the case of any Shelf Registration, the Company
and the Guarantors shall make available for inspection by a
representative of the Holders of Securities being sold, its counsel and
an accountant retained by such Holders, in a manner designed to permit
underwriters to satisfy their due diligence investigation under the
Securities Act, all financial and other records, pertinent corporate
documents and properties of the Company and the Guarantors customarily
inspected by underwriters in primary underwritten offerings and cause
the officers, direc-
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tors and employees of the Company and its subsidiaries (including the
Guarantors) to supply all information reasonably requested by, and
customarily supplied in connection with primary underwritten offerings
to, any such representative, attorney or accountant in connection with
such registration; PROVIDED, HOWEVER, that any records, information or
documents that are designated by the Company or any Guarantor as
confidential at the time of delivery of such records, information or
documents shall be kept confidential by such persons, unless (i) such
records, information or documents are in the public domain or otherwise
publicly available, (ii) disclosure of such records, information or
documents is required by court or administrative order or (iii)
disclosure of such records, information or documents, in the written
opinion of counsel to such person, is otherwise required by law
(including, without limitation, pursuant to the requirements of the
Securities Act).
(p) In the case of any Shelf Registration, the Company
and the Guarantors, if requested by any Holder of Securities covered
thereby, shall each (i) cause their counsel to deliver an opinion and
updates thereof relating to the Securities in customary form addressed
to such Holders and the managing underwriters, if any, and dated, in
the case of the initial opinion, the effective date of such Shelf
Registration Statement covering matters customarily covered in opinions
requested in underwritten offerings, (ii) cause their officers to
execute and deliver such documents and certificates and updates thereof
as may be reasonably requested by any underwriters of the applicable
Securities, and which are customarily delivered in underwritten
offerings, to evidence the continued validity of the representations
and warranties of the Company and the Guarantors made pursuant to, and
to evidence compliance with any customary conditions contained in, an
underwriting agreement and (iii) cause their independent public
accountants to provide to the selling Holders of the applicable
Securities and any underwriter therefor a comfort letter in customary
form and covering matters of the type customarily covered in comfort
letters in connection with primary underwritten offerings, subject to
receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72.
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(q) If a Registration Exchange Offer or a Private
Exchange is to be consummated, upon delivery of the Notes by Holders to
the Company and the Guarantors (or to such other person as directed by
the Company or any Guarantor) in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be, the Company shall xxxx, or
cause to be marked, on the Notes so exchanged that such Notes are being
canceled in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be, and in no event shall the Notes be marked as
paid or otherwise satisfied.
(r) The Company and the Guarantors will use their
respective best efforts to cause the Securities covered by a Shelf
Registration Statement to be rated by two nationally recognized
statistical rating organizations (as such term is defined in Rule
436(g)(2) under the Securities Act) if so requested by Holders of a
majority in aggregate principal amount of Securities covered by such
Shelf Registration Statement, or by the managing underwriters, if any.
(s) In the event that any broker-dealer registered under
the Exchange Act shall underwrite any Securities or participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, the
Company and the Guarantors shall assist such broker-dealer in complying
with the requirements of such Rules and By-Laws, including by (i) if
such Rules, including Rule 2720, shall so require, engaging a
"qualified independent underwriter" (as defined in such Rule) to
participate in the preparation of the Registration Statement relating
to such Securities, to exercise usual standards of due diligence with
respect thereto and, if any portion of the offering contemplated by
such Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof and (iii) providing such information to
such broker-dealer as
-17-
may be required in order for such broker-dealer to comply with the
requirements of the Conduct Rules of the NASD.
SECTION 4. REGISTRATION EXPENSES. The Company and the
Guarantors shall jointly and severally pay all fees and expenses incident to the
performance of or compliance with this Agreement by the Company and the
Guarantors including, without limitation, (i) all Commission, stock exchange or
NASD registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or Blue Sky laws (including
reasonable fees and disbursements of counsel for any underwriters or Holders in
connection with Blue Sky qualification of any of the Securities), (iii) all
expenses of any persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any prospectus, any
amendments or supplements thereto, and all expenses of printing any underwriting
agreements, securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) all rating agency fees,
and (v) the fees and disbursements of counsel for the Company and the Guarantors
and in the event of a Shelf Registration, the reasonable fees and disbursements
of one firm of counsel designated by the Holders of a majority in principal
amount of the Securities covered thereby and of the independent public
accountants of the Company, including the expense of any special audits or "cold
comfort" letters required by or incident to such performance and compliance, but
excluding fees and expenses of counsel to the underwriters and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Securities by a Holder.
SECTION 5. INDEMNIFICATION. (a) The Company and each of the
Guarantors jointly and severally agree to indemnify and hold harmless each
Holder of the Securities, any Participating Broker-Dealer and each person, if
any, who controls such Holder or such Participating Broker-Dealer within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, or is under common control with, or is controlled by, such Holder or such
Participating Broker-Dealer, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement or prospectus (as
amended or supplemented
-18-
if the Company or any Guarantor shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information relating to such Holder or Participating Broker-Dealer furnished to
the Company or any Guarantor in writing by such Holder or Participating
Broker-Dealer expressly for use therein; PROVIDED that the foregoing indemnity
with respect to any preliminary prospectus shall not inure to the benefit of any
Holder or Participating Broker-Dealer from whom the person asserting any such
losses, claims, damages or liabilities purchased Securities, or any person
controlling or affiliated with such Holder or Participating Broker-Dealer, if a
copy of the final prospectus (as then amended or supplemented if the Company or
any Guarantor shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Holder or Participating Broker-Dealer
to such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Securities to such person, and if the
final prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability.
(b) Each Holder of the Securities, severally and not
jointly, agrees to indemnify and hold harmless the Company, each of the
Guarantors, other selling Holders, directors of the Company, directors of the
Guarantors, the officers of the Company or any Guarantor who sign a Registration
Statement and each person, if any, who controls the Company or any Guarantor or
any selling Holders, within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company and the Guarantors to such Holder, but only with
reference to information relating to such Holder furnished to the Company in
writing by such Holder expressly for use in a Registration Statement, any
preliminary prospectus, prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified
-19-
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and expenses of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such reasonable fees and expenses shall be reimbursed as they are incurred. If
an indemnified party includes (x) the Purchasers or such controlling persons of
the Purchasers, such firm shall be designated in writing by Deutsche Banc Alex.
Xxxxx or (y) Holders of Securities (other than the Purchasers) or controlling
persons of such Holders, such firm shall be designated in writing by Holders of
a majority in aggregate principal amount of such Securities. In all other cases,
such firm shall be designated by the Company. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 90 days after receipt by such
indemnifying party of the aforesaid request and
-20-
(ii) such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding and for which indemnity
could have been sought hereunder.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party or parties on the other hand or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party or parties on the other hand
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Guarantors
on the one hand and any such Holder, Participating Broker-Dealer or other party
on the other hand shall be deemed to be in the same respective proportions as
the net proceeds from the offering of the Notes (before deducting expenses)
received by the Company and the Guarantors and the total discounts and
commissions received or realized by such Holder, Participating Broker-Dealer or
other party in respect thereof, in each case as set forth in the Final
Memorandum, bear to the aggregate offering price of such Securities. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the
-21-
Guarantors or by such Holder, Participating Broker-Dealer or other party and the
parties relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Holders' respective
obligations to contribute pursuant to this Section 5 are several in proportion
to the respective amount of Notes they have purchased, not joint.
(e) The Company and the Guarantors and each Holder agree
that it would not be just or equitable if contribution pursuant to this Section
5 were determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) of this Section 5. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, no Holder of Securities shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities were sold by such Holder pursuant to a
Registration Statement exceeds the amount of any damages that such Holders have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnity and contribution provisions contained
in this Section 5 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Holder or Participating Broker-Dealer or any person controlling
such Holder or Participating Broker-Dealer or by or on behalf of the Company,
its officers or directors or any person controlling the Company and (iii) the
sale of the Securities. The remedies provided for in this Section 5 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
SECTION 6. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES.
(a) Additional interest (the "Additional Interest")
-22-
with respect to the Securities shall be assessed as follows if any of the
following events occurs (each such event in clauses (i) through (iii) below a
"Failure to Register"):
(i) if by April 21, 2002 neither the Exchange Offer
Registration Statement nor a Shelf Registration Statement has been
filed with the Commission;
(ii) if by July 20, 2002 neither the Registration Exchange
Offer is consummated nor, if required in lieu thereof, the Shelf
Registration Statement is declared effective by the Commission; or
(iii) if after August 19, 2002 and after either the
Exchange Offer Registration Statement or the Shelf Registration
Statement is declared effective, (A) such Registration Statement
thereafter ceases to be effective prior to completion of the Exchange
Offer or the sale of all the Transferred Restricted Notes registered
pursuant to the Shelf Registration Statement, as the case may be
(except upon termination of the period specified in Section 3(j) hereof
or as permitted by Section 6(b) hereof); or (B) such Registration
Statement or the related prospectus ceases to be usable in connection
with resales of Transfer Restricted Notes during the periods specified
in this Agreement (except as permitted by Section 6(b) hereof) because
either (1) any event occurs as a result of which the related prospectus
forming part of such Registration Statement would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading or (2) it shall
be necessary to amend such Registration Statement, or supplement the
related prospectus, to comply with the Securities Act or the Exchange
Act or the respective rules thereunder.
Additional Interest shall accrue on the Notes over and above
the interest set forth in the title of the Notes from and including the date on
which any such Failure to Register shall occur to but excluding the date on
which all such Failures to Register have been cured, at a rate of 0.50% per
annum.
(b) A Failure to Register referred to in Section
6(a)(iii) shall be deemed not to have occurred and be continuing in relation to
a Registration Statement or the related pro-
-23-
spectus if (i) such Failure to Register has occurred solely as a result of (x)
the filing of a post-effective amendment to such Registration Statement to
incorporate annual audited financial information with respect to the Company and
the Guarantors where such post-effective amendment is not yet effective and
needs to be declared effective to permit Holders to use the related prospectus
or (y) the occurrence of other material events or developments with respect to
the Company or any Guarantor that would need to be described in such
Registration Statement or the related prospectus and (ii) in the case of clause
(y), the Company and the Guarantors are proceeding promptly and in good faith to
amend or supplement such Registration Statement and related prospectus to
describe such events or, in the case of material developments that the Company
and the Guarantors determine in good faith must remain confidential for business
reasons, the Company and the Guarantors are proceeding promptly and in good
faith to take such steps as are necessary so that such developments need no
longer remain confidential; PROVIDED, HOWEVER, that in any case, if such Failure
to Register occurs for a continuous period in excess of 45 days, Additional
Interest shall be payable in accordance with the above paragraph from the day
following such 45 day period until the date on which such Failure to Register is
cured.
(c) Any amounts of Additional Interest due pursuant to
Section 6(a)(i), (a)(ii) or (a)(iii) above will be payable in cash on the
regular interest payment dates with respect to the Notes. The amount of
Additional Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the Notes, multiplied by a fraction,
the numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360.
(d) "Transfer Restricted Notes" means each Security until
(i) the date on which such Transfer Restricted Note has been exchanged by a
person other than a broker-dealer for a freely transferable Exchange Note in the
Registration Exchange Offer, (ii) following the exchange by a broker-dealer in
the Registration Exchange Offer of a Transfer Restricted Note for an Exchange
Note, the date on which such Exchange Note is sold to a purchaser who receives
from such broker-dealer on or prior to the date of such sale a copy of the
prospectus contained in
-24-
the Exchange Offer Registration Statement, (iii) the date on which such Transfer
Restricted Note has been effectively registered under the Securities Act and
disposed of in accordance with the Shelf Registration Statement or (iv) the date
on which such Transfer Restricted Note is distributed to the public pursuant to
Rule 144 under the Securities Act or is saleable pursuant to Rule 144(k) under
the Securities Act.
SECTION 7. RULES 144 AND 144A. The Company and the Guarantors
shall use their respective best efforts to file the reports required to be filed
by them under the Securities Act and the Exchange Act in a timely manner (except
to the extent that any Guarantor is permitted to omit filing such reports in
accordance with the terms of any ruling or no-action letter issued by the
Commission) and, if at any time the Company or any Guarantor is not required to
file such reports, it will, upon the request of any Holder of Transfer
Restricted Notes, make publicly available other information so long as necessary
to permit sales of Securities pursuant to Rules 144 and 144A. The Company and
the Guarantors covenant that they will take such further action as any Holder of
Transfer Restricted Notes may reasonably request, all to the extent required
from time to time to enable such Holder to sell Transfer Restricted Notes
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of Rule
144A(d)(4)). The Company and the Guarantors will provide a copy of this
Agreement to prospective purchasers of Notes identified to the Company and the
Guarantors by the Purchasers upon request. Upon the request of any Holder of
Transfer Restricted Notes, the Company and the Guarantors shall deliver to such
Holder a written statement as to whether they have complied with such
requirements. Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require the Company to register any of its securities pursuant to the
Exchange Act.
SECTION 8. UNDERWRITTEN REGISTRATIONS. If any of the Transfer
Restricted Notes covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering ("Managing Underwriters") will be
selected by the holders of a majority in aggregate principal amount of such
Transfer Restricted Notes and any Additional Notes included in such offering;
PROVIDED, HOWEVER, that the
-25-
Managing Underwriters shall be reasonably satisfactory to the Company and the
Guarantors.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Notes on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
SECTION 9. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, except by the
Company, each of the Guarantors and the written consent of the Holders of a
majority in principal amount of the Securities affected by such amendment,
modification, supplement, waiver or consent.
(b) NOTICES. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air courier which guarantees
overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company and the Guarantors in
accordance with the provisions of this Section 9(b), which address
initially is, with respect to each Holder, the address of such Holder
to which confirmation of the sale of the Notes to such Holder was first
sent by the Purchasers, with a copy in like manner to you as follows:
Deutsche Banc. Xxxx Xxxxx Inc.
00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxx
-26-
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
(2) if to the Company or any Guarantor, at the following
address:
Xxxxxxxx Scotsman, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxx
President and Chief Executive Officer
- and -
Xxxx, Weiss, Rifkind, Xxxxxxx
& Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) NO INCONSISTENT AGREEMENTS. Neither the Company nor
any Guarantor has, as of the date hereof, entered into, nor shall it, on or
after the date hereof, enter into, any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon the Company and the Guarantors and their respective successors and
assigns.
(e) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in sepa-
-27-
rate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
(f) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(h) SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(i) SECURITIES HELD BY THE COMPANY. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Company or its
affiliates (including the Guarantors) (other than subsequent Holders of
Securities if such subsequent Holders are deemed to be affiliates solely by
reason of their holdings of such Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
-28-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company and the Guarantors a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement between the Purchasers and the Company and the
Guarantors in accordance with its terms.
Very truly yours,
XXXXXXXX SCOTSMAN, INC.
By: /s/ Xxxx X. Xxxx
---------------------------------------
Name: Xxxx X. Xxxx
Title:
EVERGREEN MOBILE COMPANY
By: /s/ Xxxx X. Xxxx
---------------------------------------
Name: Xxxx X. Xxxx
Title:
SPACE MASTER INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxx
---------------------------------------
Name: Xxxx X. Xxxx
Title:
TRUCK & TRAILER SALES, INC.
By: /s/ Xxxx X. Xxxx
---------------------------------------
Name: Xxxx X. Xxxx
Title:
WILLSCOT EQUIPMENT, LLC
By: /s/ Xxxx X. Xxxx
---------------------------------------
Name: Xxxx X. Xxxx
Title:
-29-
Accepted as of the date hereof
Deutsche Banc Alex. Xxxxx Inc.
Bear, Xxxxxxx & Co. Inc.
Acting severally on behalf of
themselves and the several
Purchasers
By Deutsche Banc Alex. Xxxxx Inc.
By: /s/ Xxxxx Xxxxxxx
----------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
ANNEX A
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Existing Notes where
such Existing Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 120 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution".
ANNEX B
Each broker-dealer that receives Exchange Notes for its own
account in exchange for Notes, where such Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it WILL deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Existing Notes where such Existing Notes were acquired as a result
of market-making activities or other trading activities. The Company, the
Guarantors and the Subordinated Guarantor have agreed that, for a period of 120
days after the Expiration Date, they will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until , 2002, all dealers effecting transactions in the
Exchange Notes may be required to deliver a prospectus. (1)
The Company, the Guarantors and the Subordinated Guarantor
will not receive any proceeds from any sale of Exchange Notes by broker-dealers.
Exchange Notes received by broker-dealers for their own account pursuant to the
Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Notes or a combination of such methods of resale, at
market prices prevailing at the time of resale, at prices related to-such
prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Exchange Notes. Any broker-dealer
that resells Exchange Notes that were received by it for its own account
pursuant to the Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Notes may be deemed to be an
------------------------
(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
-2-
"underwriter" within the meaning of the Securities Act and any profit on any
such resale of Exchange Notes and any commission or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that, by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 120 days after the Expiration Date the
Company, the Guarantors and the Subordinated Guarantor will promptly send
additional copies of this Prospectus and any amendment or supplement to this
Prospectus to any broker-dealer that requests such documents in the Letter of
Transmittal. The Company, the Guarantors and the Subordinated Guarantor have
agreed to pay all expenses incident to the Exchange Offer other than commissions
or concessions of any brokers or dealers and will indemnify the Holders of the
Securities (including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
ANNEX D
[_] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO
RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10
COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
