EXHIBIT 4.1
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▇▇▇▇▇▇▇▇ SCOTSMAN, INC.
REGISTRATION RIGHTS AGREEMENT
April 18, 2006
Deutsche Bank Securities Inc.
Banc of America Securities LLC
▇▇▇▇▇▇ Brothers Inc.
c/o Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇▇ Scotsman, Inc., a Maryland corporation (the "Issuer"),
proposes to issue and sell to Deutsche Bank Securities Inc., Banc of America
Securities LLC and ▇▇▇▇▇▇ Brothers Inc. (collectively, the "Purchasers"), upon
the terms set forth in two purchase agreements dated as of April 12, 2006
(collectively, the "Purchase Agreement"), $100,000,000 principal amount of its
8 1/2% Senior Notes Due 2015 (the "Notes"). The Notes will be guaranteed (the
"Guarantees") on a senior unsecured basis by ▇▇▇▇▇▇▇▇ Scotsman International,
Inc. ("Parent"), Evergreen Mobile Company ("EMC"), Space Master International,
Inc. ("SMI"), Truck & Trailer Sales, Inc. ("TTS") and ▇▇▇▇▇▇▇▇ Scotsman of
Canada, Inc. ("WSC") and guaranteed on a subordinated unsecured basis (the
"Subordinated Guarantee") by Willscot Equipment, LLC ("Willscot" and together
with Parent, EMC, SMI, TTS and WSC, the "Guarantors"). The Notes will be
issued pursuant to the provisions of an Indenture, dated as of September 29,
2005 (as supplemented from time to time, the "Indenture"), between the Issuer,
as issuer, the Guarantors and The Bank of New York, as Trustee (the
"Trustee"). Terms used but not defined in this agreement shall have the
meanings assigned to them in the Purchase Agreement.
As an inducement to the Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to your obligations thereunder,
the Issuer and the Guarantors each agree with the Purchasers, for the benefit
of the registered holders of the Notes (including, without limitation, the
Purchasers), the Exchange Notes (as defined below) and the Private Exchange
Notes (as defined below) (collectively, the "Holders"), as follows:
SECTION 1. REGISTRATION EXCHANGE OFFER. The Issuer and the Guarantors
shall use their respective commercially reasonable efforts to prepare and file
within 60 days after the date of original issue of the Notes with the
Securities and Exchange Commission (the "Commission"), a registration
statement (the "Exchange Offer Registration Statement") on an appropriate form
under the Securities Act of 1933, as amended (the "Securities Act"), with
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respect to an offer (the "Registration Exchange Offer") to the Holders of
Transfer Restricted Notes (as defined in Section 6 hereof) who are not
prohibited by any law or policy of the Commission from participating in the
Registration Exchange Offer to issue and deliver to such Holders, in exchange
for the Notes, a like aggregate principal amount of debt securities (the
"Exchange Notes") of the Issuer issued under the Indenture and identical in
all material respects to the Notes (except for the transfer restrictions
relating to the Notes) that would be registered under the Securities Act. The
Issuer and the Guarantors shall use their respective commercially reasonable
efforts to cause such Exchange Offer Registration Statement to become
effective under the Securities Act within 150 days after the date of original
issue of the Notes and shall keep the Exchange Offer Registration Statement
effective for not less than 30 days (or longer, if required by applicable law)
after the date notice of the Registration Exchange Offer is mailed to the
Holders (such period being called the "Exchange Offer Registration Period").
If the Issuer and the Guarantors effect the Registration Exchange
Offer, the Issuer and the Guarantors will be entitled to close the
Registration Exchange Offer 30 days after the commencement thereof provided
that the Issuer and the Guarantors have accepted all the Notes theretofore
validly tendered in accordance with the terms of the Registration Exchange
Offer.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Issuer and the Guarantors shall promptly commence
the Registration Exchange Offer, it being the objective of such Registration
Exchange Offer to enable each Holder of Transfer Restricted Notes (as defined
below) electing to exchange such Transfer Restricted Notes for Exchange Notes
(assuming that such Holder is not an affiliate of the Issuer within the
meaning of the Securities Act, acquires the Exchange Notes in the ordinary
course of such Holder's business and has no arrangements with any person to
participate in the distribution of the Exchange Notes and is not prohibited by
any law or policy of the Commission from participating in the Registration
Exchange Offer) to trade such Exchange Notes from and after their receipt
without any limitations or restrictions under the Securities Act and without
material restrictions under the securities laws of the several states of the
United States. In connection with such Registration Exchange Offer, the Issuer
and the Guarantors shall use their respective commercially reasonable efforts
to consummate the Registration Exchange Offer and shall comply in all material
respects with the applicable requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and other applicable laws and
regulations in connection with the Registration Exchange Offer.
The Issuer and the Guarantors each acknowledge that, pursuant to
current interpretations by the Commission's staff of Section 5 of the
Securities Act, in the absence of an applicable exemption therefrom, (i) each
Holder which is a broker-dealer electing to exchange Notes acquired for its
own account as a result of market-making activities or other trading
activities for Exchange Notes (an "Exchanging Dealer") is required to deliver
a prospectus containing the information set forth in Annex A hereto on the
cover, in Annex B hereto in the
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"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 Issuer and the Guarantors shall include within the prospectus
contained in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution", reasonably acceptable to the Purchasers, which shall
contain a summary statement of the positions taken or policies made by the
staff of the Commission with respect to the potential "underwriter" status of
any broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under
the Exchange Act) of Exchange Notes received by such broker-dealer in the
Registration Exchange Offer (a "Participating Broker-Dealer"), whether such
positions or policies have been publicly disseminated by the staff of the
Commission or such positions or policies, in the reasonable judgment of the
Purchasers based upon advice of counsel (which may be in-house counsel),
represent the prevailing views of the staff of the Commission.
The Issuer and the Guarantors shall use their respective commercially
reasonable efforts to keep the Exchange Offer Registration Statement effective
and to amend and supplement the prospectus contained therein, in order to
permit such prospectus to be lawfully delivered by the Purchasers and all
Exchanging Dealers subject to the prospectus delivery requirements of the
Securities Act and shall make such prospectuses available to the Purchasers
and such Exchanging Dealers for such period of time after the consummation of
the Registration Exchange Offer as such persons must comply with such
requirements in order to resell the Exchange Notes; PROVIDED, HOWEVER, that
such period shall not exceed 120 days (unless extended pursuant to Section
3(j) below); and PROVIDED, FURTHER, that such persons shall not be authorized
by the Issuer or the Guarantors to deliver and shall not deliver any such
prospectus after the expiration of such period in connection with the resales
contemplated by this paragraph.
The Issuer and the Guarantors shall make available for a period of 90
days after the consummation of the Registration Exchange Offer, a copy of the
prospectus, and any amendment or supplement thereto, forming part of the
Exchange Offer Registration Statement to any broker-dealer for use in
connection with any resale of any Exchange Notes.
If, upon consummation of the Registration Exchange Offer, any
Purchaser holds Notes acquired by it as part of its initial distribution, the
Issuer and the Guarantors, simultaneously with the delivery of the Exchange
Notes pursuant to the Registration Exchange Offer, shall issue and deliver to
such Purchaser upon the written request of such Purchaser, in exchange (the
"Private Exchange") for the Notes held by such Purchaser, a like principal
amount of debt securities of the Issuer issued under the Indenture and
guaranteed by the
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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".
In connection with the Registration Exchange Offer, the Issuer and
the Guarantors shall:
(a) mail to each Holder a copy of the prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(b) keep the Registration Exchange Offer open for not less than
30 days (or longer, if required by applicable law) after the date notice
thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registration
Exchange Offer with an address in the Borough of Manhattan, The City of
New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Notes at any time prior
to the close of business, New York time, on the last business day on
which the Registration Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all
applicable laws.
As soon as practicable after the close of the Registration Exchange
Offer or the Private Exchange, as the case may be, the Issuer and the
Guarantors shall:
(i) accept for exchange all the Notes validly tendered and not
withdrawn pursuant to the Registration Exchange Offer and the Private
Exchange;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all the Notes so accepted for exchange; and
(iii) issue, and cause the Trustee to authenticate and deliver
promptly to each Holder of the Notes, Exchange Notes or Private Exchange
Notes, as the case may be, equal in principal amount to the Notes of such
Holder so accepted for exchange.
The Indenture will provide that the Exchange Notes will not be
subject to the transfer restrictions set forth in the Indenture and that all
the Securities will vote and consent together on all matters as one class and
that none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
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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 April 1,
2006.
Each Holder participating in the Registration Exchange Offer shall be
required to represent to the Issuer and the Guarantors that at the time of the
consummation of the Registration Exchange Offer (i) any Exchange Notes
received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any person to
participate in the distribution of the Notes or the Exchange Notes within the
meaning of the Securities Act, (iii) such Holder is not an "affiliate," as
defined in Rule 405 of the Securities Act, of the Issuer or any Guarantor or
if it is an affiliate, such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent
applicable, (iv) if such Holder is not a broker-dealer, that it is not engaged
in, and does not intend to engage in, the distribution of the Exchange Notes
and (v) if such Holder is a broker-dealer, that it will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market-making activities or other trading activities and that it will be
required to acknowledge that it will deliver a prospectus in connection with
any resale of such Exchange Notes.
Notwithstanding any other provisions hereof, the Issuer and the
Guarantors will ensure that (i) any Exchange Offer Registration Statement and
any amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the Securities Act
and the rules and regulations thereunder, (ii) any Exchange Offer Registration
Statement and any amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading and (iii) any prospectus forming part of any Exchange Offer
Registration Statement, and any supplement to such prospectus, at the time of
issuance does not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
SECTION 2. SHELF REGISTRATION. If (i) the Issuer and the Guarantors
determine that a Registration Exchange Offer, as contemplated by Section 1
hereof, is not available or may not be consummated as soon as practicable
after the last date the Registration Exchange Offer is open because it would
violate applicable law or the applicable interpretations of the staff of the
Commission, (ii) the Registration Exchange Offer is not consummated within 190
days of the date of original issue of the Notes, (iii) the Purchasers so
request with respect to the Notes (or the Private Exchange Notes) not eligible
to be exchanged for Ex-
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change 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 (and such Holder so notifies the
Issuer within 30 days of the consummation of the Registration Exchange Offer),
the Issuer and the Guarantors shall take the following actions:
(a) The Issuer and the Guarantors shall use all commercially
reasonable efforts to prepare and file, as promptly as practicable, with
the Commission and thereafter to cause to be declared effective a
registration statement (the "Shelf Registration Statement" and, together
with the Exchange Offer Registration Statement, a "Registration
Statement") on an appropriate form under the Securities Act relating to
the offer and sale of the Transfer Restricted Notes by the Holders
thereof from time to time in accordance with the methods of distribution
set forth in the Shelf Registration Statement and Rule 415 under the
Securities Act (hereinafter, the "Shelf Registration"); PROVIDED,
HOWEVER, that no Holder (other than the Purchasers) shall be entitled to
have any Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all the
provisions of this Agreement applicable to such Holder.
(b) The Issuer and the Guarantors shall use all commercially
reasonable efforts to keep the Shelf Registration Statement continuously
effective in order to permit the prospectus included therein to be
lawfully delivered by the Holders of the relevant Securities, until the
period referred to in Rule 144(k) under the Securities Act after the
original issue date of the Notes expires (or for such longer period if
extended pursuant to Section 3(j) below) or such shorter period that will
terminate when all the Securities covered by the Shelf Registration
Statement have been sold pursuant thereto.
(c) Notwithstanding any other provisions of this Agreement to
the contrary, the Issuer and the Guarantors shall cause the Shelf
Registration Statement and the related prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement, amendment or supplement, (i) to comply in all material
respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission and (ii) not to contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
SECTION 3. REGISTRATION PROCEDURES. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent applicable,
any Registration Exchange Offer contemplated by Section 1 hereof, the
following provisions shall apply:
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(a) The Issuer and the Guarantors shall (i) furnish to the
Purchasers, prior to the filing thereof with the Commission, a copy of
the Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and shall not file
any such Registration Statement or amendment thereto or any prospectus or
any supplement thereto (including such documents which, upon filing,
would be incorporated or deemed to be incorporated by reference therein
and amendments to such documents other than documents required to be
filed pursuant to the Exchange Act) to which the Purchasers shall
reasonably object, except for any Registration Statement or amendment
thereto or prospectus or supplement thereto (a copy of which has been
previously furnished to the Purchasers and their counsel (and, in the
case of a Shelf Registration Statement, the Holders and their counsel))
which counsel to the Issuer and the Guarantors has advised the Issuer and
the Guarantors in writing is required to be filed in order to comply with
applicable law; (ii) include information substantially to the effect set
forth (A) in Annex A hereto on the cover of a prospectus forming part of
the Exchange Offer Registration Statement, (B) in Annex B hereto in the
"Exchange Offer Procedures" section and the "Purpose of the Exchange
Offer" section, (C) in Annex C hereto in the "Plan of Distribution"
section of the prospectus forming a part of the Exchange Offer
Registration Statement and (D) in Annex D hereto in the Letter of
Transmittal delivered pursuant to the Registration Exchange Offer; (iii)
to the extent required by law or interpretation of the staff of the
Commission, if requested by the Purchasers, include the information
required by Item 507 or 508 of Regulation S-K under the Securities Act,
as applicable, in the prospectus forming a part of the Exchange Offer
Registration Statement; and (iv) to the extent required by law or
interpretation of the staff of the Commission, in the case of a Shelf
Registration Statement, include the names of the Holders who propose to
sell Securities pursuant to the Shelf Registration Statement as selling
securityholders.
(b) The Issuer and the Guarantors shall notify the Purchasers,
the Holders and any Participating Broker-Dealer from whom the Issuer or
any of the Guarantors has received prior written notice stating that it
will be a Participating Broker-Dealer in the Registration Exchange Offer
(which notice pursuant to clauses (ii) through (v) hereof shall be
accompanied by an instruction to suspend the use of the prospectus until
the requisite changes have been made) promptly, and, if requested by the
Purchasers, the Holders or any such Participating Broker-Dealer, confirm
such notice in writing:
(i) when the Registration Statement or any amendment
thereto has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus included
therein or for additional information;
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(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 Issuer or any of the
Guarantors or their legal counsel of any notification with respect to
the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(v) of the happening of any event that requires the
Issuer or any of the Guarantors to make changes in the Registration
Statement or the prospectus in order that the Registration Statement
or the prospectus does not contain an untrue statement of a material
fact nor omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(vi) of any determination by the Issuer or any of the
Guarantors that a post-effective amendment to a Registration
Statement would be appropriate.
(c) The Issuer and the Guarantors shall make all commercially
reasonable efforts to prevent the issuance, and if issued to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Registration Statement and shall provide prompt
written notice to the Purchasers and each Holder of the withdrawal of any
such order.
(d) The Issuer and the Guarantors shall furnish to each Holder
of Securities included within the coverage of the Shelf Registration,
without charge, at least one conformed copy of the Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules (without documents incorporated therein by
reference or exhibits thereto, unless a Holder so requests in writing).
(e) The Issuer and the Guarantors shall deliver to the
Purchasers, and to any other Holder that so requests, without charge, at
least one conformed copy of the Exchange Offer Registration Statement and
any post-effective amendment thereto, including financial statements and
schedules (without documents incorporated therein by reference or
exhibits thereto, unless the Purchasers or any such Holder so requests in
writing).
(f) The Issuer and the Guarantors shall deliver to each Holder
of Securities included within the coverage of the Shelf Registration,
without charge, as many copies of the prospectus (including each
preliminary prospectus) included in the Shelf Registration Statement and
any amendment or supplement thereto as such person may reasonably
request. The Issuer and each Guarantor consents, subject to the
provisions of
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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 Issuer and the Guarantors shall deliver to the
Purchasers, any Participating Broker-Dealer or any Exchanging Dealer,
without charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement and any amendment or supplement
thereto as such person may reasonably request, during the period not
exceeding 120 days following the consummation of the Registration
Exchange Offer. The Issuer and each Guarantor consent, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by the Purchasers, if necessary, any
Participating Broker-Dealer or Exchanging Dealer and such other persons
required to deliver a prospectus following the Registration Exchange
Offer in connection with the offering and sale of the Exchange Notes
covered by the prospectus, or any amendment or supplement thereto,
included in such Exchange Offer Registration Statement; PROVIDED,
HOWEVER, that such persons shall not be authorized by the Issuer or any
Guarantor to deliver and shall not deliver any such prospectus after the
expiration of the period referred to in the immediately preceding
sentence, in connection with the resales contemplated by this paragraph.
(h) Prior to any public offering of the Securities pursuant to
any Registration Statement, the Issuer and the Guarantors shall use their
respective commercially reasonable efforts to register or qualify or
cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification
of the Securities for offer and sale under the securities or Blue Sky
laws of such states of the United States as any Holder of the Securities
reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable such Holder to offer and sell in such
jurisdictions the Securities covered by such Registration Statement owned
by such Holder; PROVIDED, however, that neither the Issuer nor any
Guarantor shall be required to (i) qualify generally or as a foreign
corporation to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction where it is not
then so subject.
(i) The Issuer and the Guarantors shall cooperate with the
Holders of the Securities to facilitate the timely preparation and
delivery of certificates representing the Securities to be sold pursuant
to any Shelf Registration Statement free of any restrictive legends and
in such denominations (consistent with the provisions of the Indenture)
and registered in such names as the Holders may request at least two
business days prior to closing of any sale of the Securities pursuant to
such Shelf Registration Statement.
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(j) If any event contemplated by paragraphs (ii) through (vi) of
Section 3(b) above occurs during the period for which the Issuer or any
Guarantor is required to maintain an effective Registration Statement,
the Issuer and the Guarantors shall promptly prepare and file a
post-effective amendment to the Registration Statement or a supplement to
the related prospectus and any other required document so that, as
thereafter delivered to Holders of the Notes or purchasers of Securities,
the prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If the Issuer or any
Guarantor notifies the Purchasers, the Holders of the Securities and any
known Participating Broker-Dealer in accordance with paragraphs (ii)
through (vi) of Section 3(b) above to suspend the use of the prospectus
until the requisite changes to the prospectus have been made, then the
Purchasers, the Holders of the Securities and any such Participating
Broker-Dealers shall suspend use of such prospectus until the Issuer or
such Guarantor has amended or supplemented the prospectus to correct such
misstatement or omission, and the period of effectiveness of the Shelf
Registration Statement provided for in Section 2(b) above and the
Exchange Offer Registration Statement provided for in Section 1 above
shall each be extended by the number of days from and including the date
of the giving of such notice to and including the date when the
Purchasers, the Holders of the Securities and any known Participating
Broker-Dealer shall have received such amended or supplemented prospectus
pursuant to this Section 3(j); PROVIDED, HOWEVER, that the minimum time
period before the Issuer or any Guarantor shall be entitled to close the
Registration Exchange Offer shall be extended only to the extent required
by the Commission. The Purchasers, each Holder and any Participating
Broker-Dealers agree that upon receipt of any such notice from the Issuer
they will not distribute copies of the prospectus that are the subject of
such notice and will retain such copies in their files.
(k) Not later than the effective date of the applicable
Registration Statement, the Issuer and the Guarantors will obtain a CUSIP
number for the Transfer Restricted Notes, the Exchange Notes or the
Private Exchange Notes, as the case may be, and provide the Trustee with
printed certificates for the Notes, the Exchange Notes or the Private
Exchange Notes, as the case may be, in a form eligible for deposit with
The Depository Trust Company.
(l) The Issuer and the Guarantors will comply in all material
respects with all rules and regulations of the Commission to the extent
and so long as they are applicable to the Registration Exchange Offer or
the Shelf Registration and will make generally available to their
securityholders (or otherwise provide in accordance with Section 11(a) of
the Securities Act) an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act, no later than 45 days after the end
of a 12-month period (or 90 days, if such period is a fiscal year)
beginning with the first month of the
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Issuer's first fiscal quarter commencing after the effective date of the
Registration Statement, which statement shall cover such 12-month period.
(m) The Issuer and the Guarantors may require each Holder of
Securities to be sold pursuant to the Shelf Registration Statement to
furnish to the Issuer and the Guarantors such information regarding the
Holder and the distribution of the Securities as the Issuer may from time
to time reasonably request for inclusion in the Shelf Registration
Statement, and the Issuer and the Guarantors may exclude from such
registration the Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(n) In the case of any Shelf Registration, the Issuer and the
Guarantors shall enter into such customary agreements (including if
requested an underwriting agreement in customary form) and take all such
other action, if any, as the Holders of a majority of the Securities
being sold shall reasonably request in order to facilitate the
disposition of the Securities pursuant to such Shelf Registration.
(o) In the case of any Shelf Registration, the Issuer and the
Guarantors shall make available for inspection by a representative of the
Holders of Securities being sold, its counsel and an accountant retained
by such Holders, in a manner designed to permit underwriters to satisfy
their due diligence investigation under the Securities Act, all financial
and other records, pertinent corporate documents and properties of the
Issuer and the Guarantors customarily inspected by underwriters in
primary underwritten offerings and cause the officers, directors and
employees of the Issuer and its subsidiaries (including the Guarantors)
to supply all information reasonably requested by, and customarily
supplied in connection with primary underwritten offerings to, any such
representative, attorney or accountant in connection with such
registration; PROVIDED, HOWEVER, that any records, information or
documents that are designated by the Issuer or any Guarantor as
confidential at the time of delivery of such records, information or
documents shall be kept confidential by such persons, unless (i) such
records, information or documents are in the public domain or otherwise
publicly available, (ii) disclosure of such records, information or
documents is required by court or administrative order or (iii)
disclosure of such records, information or documents, in the written
opinion of counsel to such person, is otherwise required by law
(including, without limitation, pursuant to the requirements of the
Securities Act).
(p) In the case of any Shelf Registration, the Issuer and the
Guarantors, if requested by any Holder of Securities covered thereby,
shall each (i) cause their counsel to deliver an opinion and updates
thereof relating to the Securities in customary form addressed to such
Holders and the managing underwriters, if any, and dated, in the case of
the initial opinion, the effective date of such Shelf Registration
Statement covering matters customarily covered in opinions requested in
underwritten offerings, (ii) cause their officers to execute and deliver
such documents and certificates and up-
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dates thereof as may be reasonably requested by any underwriters of the
applicable Securities, and which are customarily delivered in
underwritten offerings, to evidence the continued validity of the
representations and warranties of the Issuer and the Guarantors made
pursuant to, and to evidence compliance with any customary conditions
contained in, an underwriting agreement and (iii) cause their independent
public accountants to provide to the selling Holders of the applicable
Securities and any underwriter therefor a comfort letter in customary
form and covering matters of the type customarily covered in comfort
letters in connection with primary underwritten offerings, subject to
receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72 (or any successor
bulletins).
(q) If a Registration Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Notes by Holders to the Issuer and
the Guarantors (or to such other person as directed by the Issuer or any
Guarantor) in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be, the Issuer shall ▇▇▇▇, or cause to be marked,
on the Notes so exchanged that such Notes are being canceled in exchange
for the Exchange Notes or the Private Exchange Notes, as the case may be,
and in no event shall the Notes be marked as paid or otherwise satisfied.
(r) The Issuer and the Guarantors will use their respective
commercially reasonable efforts to cause the Securities covered by a
Shelf Registration Statement to be rated by two nationally recognized
statistical rating organizations (as such term is defined in Rule
436(g)(2) under the Securities Act) if so requested by Holders of a
majority in aggregate principal amount of Securities covered by such
Shelf Registration Statement, or by the managing underwriters, if any.
(s) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member
of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules of the National
Association of Securities Dealers, Inc. ("NASD")) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, the Issuer
and the Guarantors shall assist such broker-dealer in complying with the
requirements of such Rules and By-Laws, including by (i) if such Rules,
including Rule 2720, shall so require, engaging a "qualified independent
underwriter" (as defined in such Rule) to participate in the preparation
of the Registration Statement relating to such Securities, to exercise
usual standards of due diligence with respect thereto and, if any portion
of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Securities, (ii) indemnifying any such
qualified independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof and (iii) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Conduct Rules of the
NASD.
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SECTION 4. REGISTRATION EXPENSES. The Issuer and the Guarantors shall
jointly and severally pay all fees and expenses incident to the performance of
or compliance with this Agreement by the Issuer and the Guarantors including,
without limitation, (i) all Commission, stock exchange or NASD registration
and filing fees, (ii) all fees and expenses incurred in connection with
compliance with state securities or Blue Sky laws (including reasonable fees
and disbursements of counsel for any underwriters or Holders in connection
with Blue Sky qualification of any of the Securities), (iii) all expenses of
any persons in preparing or assisting in preparing, word processing, printing
and distributing any Registration Statement, any prospectus, any amendments or
supplements thereto, and all expenses of printing any underwriting agreements,
securities sales agreements and other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, and (v) the
fees and disbursements of counsel for the Issuer and the Guarantors and in the
event of a Shelf Registration, the reasonable fees and disbursements of one
firm of counsel designated by the Holders of a majority in principal amount of
the Securities covered thereby and of the independent public accountants of
the Issuer, including the expense of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, but
excluding fees and expenses of counsel to the underwriters and underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Securities by a Holder.
SECTION 5. INDEMNIFICATION. (a) The Issuer and each of the Guarantors
jointly and severally agree to indemnify and hold harmless each Holder of the
Securities, any Participating Broker-Dealer and each person, if any, who
controls such Holder or such Participating Broker-Dealer within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, or
is under common control with, or is controlled by, such Holder or such
Participating Broker-Dealer, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement or
prospectus (as amended or supplemented if the Issuer or any Guarantor shall
have furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required to be
stated to make the statements therein, in light of the circumstances under
which they were made, not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to such
Holder or Participating Broker-Dealer furnished to the Issuer or any Guarantor
in writing by such Holder or Participating Broker-Dealer expressly for use
therein; PROVIDED that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Holder or Participating
Broker-Dealer from whom the person asserting any such losses, claims, damages
or liabilities purchased Securities, or any person controlling or affiliated
with such Holder or Participating Broker-Dealer, if a copy of the final
prospectus (as then amended or supplemented if the Issuer or any Guarantor
shall have furnished any amendments or supplements thereto) was not sent or
given by or on behalf of such Holder or Participating Broker-Dealer to such
person, if required by law so to have been delivered, at or prior to the writ-
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ten confirmation of the sale of the Securities to such person, and if the
final prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage or liability.
(b) Each Holder of the Securities, severally and not jointly,
agrees to indemnify and hold harmless the Issuer, each of the Guarantors,
other selling Holders, directors of the Issuer, directors of the Guarantors,
the officers of the Issuer or any Guarantor who sign a Registration Statement
and each person, if any, who controls the Issuer or any Guarantor or any
selling Holders, within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Issuer and the Guarantors to such Holder, but only with
reference to information relating to such Holder furnished to the Issuer in
writing by such Holder expressly for use in a Registration Statement, any
preliminary prospectus, prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable fees and expenses of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the
legal expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such reasonable fees
and expenses shall be reimbursed as they are incurred. If an indemnified party
includes (x) the Purchasers or such controlling persons of the Purchasers,
such firm shall be designated in writing by Deutsche Bank Securities Inc. or
(y) Holders of Securities (other than the Purchasers) or controlling persons
of such Holders, such firm shall be designated in writing by Holders of a
majority in aggregate principal amount of such Securities. In all other cases,
such firm shall be designated by the Issuer. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees
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and expenses of counsel as contemplated by the second and third sentences of
this paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 90 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding and for which indemnity could
have been sought hereunder.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party or parties on the other hand or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Issuer and the Guarantors on the one hand and any such Holder, Participating
Broker-Dealer or other party on the other hand shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the Notes
(before deducting expenses) received by the Issuer and the Guarantors and the
total discounts and commissions received or realized by such Holder,
Participating Broker-Dealer or other party in respect thereof, in each case as
set forth in the Final Memorandum, bear to the aggregate offering price of
such Securities. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Issuer and the Guarantors
or by such Holder, Participating Broker-Dealer or other party and the parties
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Holders' respective obligations to
contribute pursuant to this Section 5 are several in proportion to the
respective amount of Notes they have purchased, not joint.
(e) The Issuer and the Guarantors and each Holder agree that it
would not be just or equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in paragraph
(d) of this Section 5. The amount paid or payable by an in-
-16-
demnified 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 Issuer,
its officers or directors or any person controlling the Issuer and (iii) the
sale of the Securities. The remedies provided for in this Section 5 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
SECTION 6. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES. (a)
Additional interest (the "Additional Interest") with respect to the Securities
shall be assessed as follows if any of the following events occurs (each such
event in clauses (i) through (iii) below a "Failure to Register"):
(i) if by the 60th day following the date hereof neither the
Exchange Offer Registration Statement nor a Shelf Registration Statement
has been filed with the Commission;
(ii) if by the 150th day following the date hereof neither the
Registration Exchange Offer is consummated nor, if required in lieu
thereof, the Shelf Registration Statement is declared effective by the
Commission; or
(iii) if after the 190th day following the date hereof and after
either the Exchange Offer Registration Statement or the Shelf
Registration Statement is declared effective, (A) such Registration
Statement thereafter ceases to be effective prior to completion of the
Exchange Offer or the sale of all the Transferred Restricted Notes
registered pursuant to the Shelf Registration Statement, as the case may
be (except upon termination of the period specified in Section 3(j)
hereof or as permitted by Section 6(b) hereof); or (B) such Registration
Statement or the related prospectus ceases to be usable in connection
with resales of Transfer Restricted Notes during the periods specified in
this Agreement (except as permitted by Section 6(b) hereof) because
either (1) any event occurs as a result of which the related prospectus
forming part of
-17-
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 prospectus if (i) such Failure to Register has
occurred solely as a result of (x) the filing of a post-effective amendment to
such Registration Statement to incorporate annual audited financial
information with respect to the Issuer and the Guarantors where such
post-effective amendment is not yet effective and needs to be declared
effective to permit Holders to use the related prospectus or (y) the
occurrence of other material events or developments with respect to the Issuer
or any Guarantor that would need to be described in such Registration
Statement or the related prospectus and (ii) in the case of clause (y), the
Issuer and the Guarantors are proceeding promptly and in good faith to amend
or supplement such Registration Statement and related prospectus to describe
such events or, in the case of material developments that the Issuer and the
Guarantors determine in good faith must remain confidential for business
reasons, the Issuer and the Guarantors are proceeding promptly and in good
faith to take such steps as are necessary so that such developments need no
longer remain confidential; PROVIDED, HOWEVER, that in any case, if such
Failure to Register occurs for a continuous period in excess of 45 days,
Additional Interest shall be payable in accordance with the above paragraph
from the day following such 45 day period until the date on which such Failure
to Register is cured.
(c) Any amounts of Additional Interest due pursuant to Section
6(a)(i), (a)(ii) or (a)(iii) above will be payable in cash on the regular
interest payment dates with respect to the Notes. The amount of Additional
Interest will be determined by multiplying the applicable Additional Interest
rate by the principal amount of the Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360.
(d) "Transfer Restricted Notes" means each Security until (i)
the date on which such Transfer Restricted Note has been exchanged by a person
other than a broker-dealer for a freely transferable Exchange Note in the
Registration Exchange Offer, (ii) following the exchange by a broker-dealer in
the Registration Exchange Offer of a Transfer Restricted Note for an Exchange
Note, the date on which such Exchange Note is sold to a
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purchaser who receives from such broker-dealer on or prior to the date of such
sale a copy of the prospectus contained in the Exchange Offer Registration
Statement, (iii) the date on which such Transfer Restricted Note has been
effectively registered under the Securities Act and disposed of in accordance
with the Shelf Registration Statement or (iv) the date on which such Transfer
Restricted Note is distributed to the public pursuant to Rule 144 under the
Securities Act or is saleable pursuant to Rule 144(k) under the Securities
Act.
SECTION 7. RULES 144 AND 144A. The Parent shall use its respective
commercially reasonable efforts to file the reports required to be filed by it
under the Securities Act and the Exchange Act in a timely manner and, if at
any time the Parent 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 Issuer and the Guarantors covenant that they will
take such further action as any Holder of Transfer Restricted Notes may
reasonably request, all to the extent required from time to time to enable
such Holder to sell Transfer Restricted Notes without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144
and 144A (including the requirements of Rule 144A(d)(4)). The Issuer and the
Guarantors will provide a copy of this Agreement to prospective purchasers of
Notes identified to the Issuer and the Guarantors by the Purchasers upon
request. Upon the request of any Holder of Transfer Restricted Notes, the
Issuer and the Guarantors shall deliver to such Holder a written statement as
to whether they have complied with such requirements. Notwithstanding the
foregoing, nothing in this Section 7 shall be deemed to require the Issuer to
register any of its securities pursuant to the Exchange Act.
SECTION 8. UNDERWRITTEN REGISTRATIONS. If any of the Transfer
Restricted Notes covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering ("Managing Underwriters") will
be selected by the holders of a majority in aggregate principal amount of such
Transfer Restricted Notes and any Additional Notes included in such offering;
PROVIDED, HOWEVER, that the Managing Underwriters shall be reasonably
satisfactory to the Issuer and the Guarantors.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Notes
on the basis reasonably provided in any underwriting arrangements approved by
the persons entitled hereunder to approve such arrangements and (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
SECTION 9. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, except by the Issuer,
each of the Guarantors and the written
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consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consent.
(b) NOTICES. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, first-class
mail, facsimile transmission, or air courier which guarantees overnight
delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Issuer and the Guarantors in
accordance with the provisions of this Section 9(b), which address
initially is, with respect to each Holder, the address of such Holder to
which confirmation of the sale of the Notes to such Holder was first sent
by the Purchasers, with a copy in like manner to you as follows:
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Finance
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(2) if to the Issuer or any Guarantor, at the following address:
▇▇▇▇▇▇▇▇ Scotsman, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
General Counsel
- and -
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when
receipt is acknowledged by recipient's facsimile machine operator, if sent by
facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) NO INCONSISTENT AGREEMENTS. Neither the Issuer nor any
Guarantor has, as of the date hereof, entered into, nor shall it, on or after
the date hereof, enter into, any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
the Issuer and the Guarantors and their respective successors and assigns.
(e) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(f) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW.
(h) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of any
such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(i) SECURITIES HELD BY THE ISSUER. Whenever the consent or
approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Issuer or its
affiliates (including the Guarantors) (other than subsequent Holders of
Securities if such subsequent Holders are deemed to be affiliates solely by
reason of their holdings of such Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Issuer and the Guarantors a
counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement between the Purchasers and the Issuer and the
Guarantors in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇▇ SCOTSMAN, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇▇ SCOTSMAN INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
EVERGREEN MOBILE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
SPACE MASTER INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
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TRUCK & TRAILER SALES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇▇ SCOTSMAN OF CANADA, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
WILLSCOT EQUIPMENT, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
-23-
Accepted as of the date hereof
Deutsche Bank Securities Inc.
Banc of America Securities LLC
▇▇▇▇▇▇ Brothers Inc.
Acting severally on behalf of
themselves and the several
Purchasers
By: Deutsche Bank Securities Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
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 Issuer has agreed
that, for a period of 120 days after the Expiration Date (as defined herein),
it will make this Prospectus available to any broker-dealer for use in
connection with any such resale. See "Plan of Distribution".
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account
in exchange for Notes, where such Notes were acquired by such broker-dealer as
a result of market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Notes received
in exchange for Existing Notes where such Existing Notes were acquired as a
result of market-making activities or other trading activities. The Issuer,
the Guarantors and the Subordinated Guarantor have agreed that, for a period
of 120 days after the Expiration Date, they will make this prospectus, as
amended or supplemented, available to any broker-dealer for use in connection
with any such resale. In addition, until , 200[ ], all dealers effecting
transactions in the Exchange Notes may be required to deliver a prospectus.(1)
The Issuer, the Guarantors and the Subordinated Guarantor will not
receive any proceeds from any sale of Exchange Notes by broker-dealers.
Exchange Notes received by broker-dealers for their own account pursuant to
the Exchange Offer may be sold from time to time in one or more transactions
in the over-the-counter market, in negotiated transactions, through the
writing of options on the Exchange Notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related
to-such prevailing market prices or negotiated prices. Any such resale may be
made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Exchange Notes. Any broker-dealer
that resells Exchange Notes that were received by it for its own account
pursuant to the Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Notes may be deemed to be an "underwriter"
within the meaning of the Securities Act and any profit on any such resale of
Exchange Notes and any commission or concessions received by any such persons
may be deemed to be underwriting compensation under the Securities Act. The
Letter of Transmittal states that, by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of 120 days after the Expiration Date the Issuer, the
Guarantors and the Subordinated Guarantor will promptly send additional copies
of this Prospectus and
-----------------------------
(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-
any amendment or supplement to this Prospectus to any broker-dealer that
requests such documents in the Letter of Transmittal. The Issuer, the
Guarantors and the Subordinated Guarantor have agreed to pay all expenses
incident to the Exchange Offer other than commissions or concessions of any
brokers or dealers and transfer taxes 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.
