EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
Dated as of ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇ and Among
AMERCO,
as Issuer,
the GUARANTORS named herein
and
CANPARTNERS INVESTMENTS IV, LLC,
DOUBLE BLACK DIAMOND OFFSHORE LDC,
BLACK DIAMOND OFFSHORE LTD.,
NEWSTART FACTORS, INC.,
SIL LOAN FUNDING LLC,
SATELLITE ASSET MANAGEMENT, L.P.
and
SATELLITE CREDIT OPPORTUNITIES FUND, LTD.
as Purchasers
9.0% Second Lien Senior Secured Notes due 2009
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TABLE OF CONTENTS
Page
Section 1. Definitions...................................................... 1
Section 2. Exchange Offer................................................... 4
Section 3. Shelf Registration............................................... 6
Section 4. Additional Interest.............................................. 7
Section 5. Registration Procedures.......................................... 9
Section 6. Registration Expenses............................................ 16
Section 7. Indemnification.................................................. 16
Section 8. Rule 144 and 144A................................................ 20
Section 9. Underwritten Registrations....................................... 20
Section 10. Miscellaneous.................................................... 20
(a) No Inconsistent Agreements....................................... 21
(b) Adjustments Affecting Registrable Notes.......................... 21
(c) Amendments and Waivers........................................... 21
(d) Notices.......................................................... 21
(e) Guarantors....................................................... 22
(f) Successors and Assigns........................................... 22
(g) Counterparts..................................................... 22
(h) Headings......................................................... 23
(i) Governing Law.................................................... 23
(j) Severability..................................................... 23
(k) Securities Held by the Company or Its Affiliates................. 23
(l) Third-Party Beneficiaries........................................ 23
(m) Attorneys' Fees.................................................. 23
(n) Entire Agreement................................................. 23
SIGNATURES...................................................................... S-1
SCHEDULE A ADDRESSES OF PURCHASERS
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated
as of March 1, 2004, by and among AMERCO, a Nevada corporation (the "Company"),
and each of the Guarantors (as defined herein) (the Company and the Guarantors
are referred to collectively herein as the "Issuers"), on the one hand, and
CANPARTNERS INVESTMENTS IV, LLC, DOUBLE BLACK DIAMOND OFFSHORE LDC, BLACK
DIAMOND OFFSHORE LTD., NEWSTART FACTORS, INC., SIL LOAN FUNDING LLC, SATELLITE
ASSET MANAGEMENT, L.P. and SATELLITE CREDIT OPPORTUNITIES FUND, LTD. (the
"Purchasers"), on the other hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of March 1, 2004, by and among the Issuers and the
Purchasers (the "Purchase Agreement"), relating to the offering of $80,000,000
aggregate principal amount of the Company's 9.0% Second Lien Senior Secured
Notes due 2009 (including the guarantees thereof by the Guarantors, the
"Notes"). The Notes are a part of an issue of $200,000,000 of the Company's 9.0%
Second Lien Senior Secured Notes due 2009 (the "Second Lien Senior Secured
Notes"). The execution and delivery of this Agreement is a condition to the
Purchasers' obligation to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
"action" shall have the meaning set forth in Section 7(c)
hereof.
"Additional Interest" shall have the meaning set forth in
Section 4(a) hereof.
"Additional Interest Payment Date" shall have the meaning set
forth in Section 4(b) hereof.
"Advice" shall have the meaning set forth in Section 5 hereof.
"Agreement" shall have the meaning set forth in the first
introductory paragraph hereof.
"Board of Directors" shall have the meaning set forth in
Section 5 hereof.
"Business Day" shall mean a day that is not a Legal Holiday.
"Company" shall have the meaning set forth in the introductory
paragraph hereof and shall also include the Company's permitted successors and
assigns.
"Commission" shall mean the Securities and Exchange
Commission.
"day" shall mean a calendar day.
"Delay Period" shall have the meaning set forth in Section 5
hereof.
"Effectiveness Period" shall have the meaning set forth in the
second paragraph of Section 3(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Notes" shall have the meaning set forth in Section
2(a) hereof.
"Exchange Offer" shall have the meaning set forth in Section
2(a) hereof.
"Exchange Offer Registration Statement" shall have the meaning
set forth in Section 2(a) hereof.
"Guarantors" means each of the Persons executing this
Agreement as a guarantor on the date hereof and each Person who executes and
delivers a counterpart of this Agreement hereafter pursuant to Section 10(e)
hereof.
"Holder" shall mean any holder of a Registrable Note or
Registrable Notes.
"Indenture" shall mean the Indenture, dated as of March 1,
2004, by and among the Issuers and ▇▇▇▇▇ Fargo Bank, N.A., as trustee, pursuant
to which the Notes are being issued, as amended or supplemented from time to
time in accordance with the terms thereof.
"Initial Shelf Registration" shall have the meaning set forth
in Section 3(a) hereof.
"Inspectors" shall have the meaning set forth in Section 5(n)
hereof.
"Issue Date" shall mean March 15, 2004, the date of original
issuance of the Notes.
"Issuers" shall have the meaning set forth in the first
introductory paragraph hereof.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on
which banking institutions in New York, New York are required by law, regulation
or executive order to remain closed.
"Losses" shall have the meaning set forth in Section 7(a)
hereof.
"Notes" shall have the meaning set forth in the second
introductory paragraph hereof.
"Participant" shall have the meaning set forth in
Section 7(a) hereof.
"Person" shall mean an individual, corporation, partnership,
joint venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other entity.
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"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, any prospectus subject to
completion and a prospectus that includes any information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Purchasers" shall have the meaning set forth in the first
introductory paragraph hereof.
"Purchase Agreement" shall have the meaning set forth in the
second introductory paragraph hereof.
"Records" shall have the meaning set forth in Section 5(n)
hereof.
"Registrable Notes" shall mean each Note upon its original
issuance and at all times subsequent thereto and each Exchange Note as to which
Section 2(c)(iv) hereof is applicable upon original issuance and at all times
subsequent thereto, in each case until the earliest to occur of (i) a
Registration Statement (other than, with respect to any Exchange Note as to
which Section 2(c)(iv) hereof is applicable, the Exchange Offer Registration
Statement) covering such Note or, Exchange Note has been declared effective by
the Commission and such Note or, Exchange Note, as the case may be, has been
disposed of in accordance with such effective Registration Statement, (ii) such
Note has been exchanged pursuant to the Exchange Offer for an Exchange Note or
Exchange Notes that may be resold without restriction under state and federal
securities laws, (iii) such Note or, Exchange Note, as the case may be, ceases
to be outstanding for purposes of the Indenture or (iv) such Note or, Exchange
Note has been sold in compliance with Rule 144 or is salable pursuant to Rule
144(k).
"Registration Default" shall have the meaning set forth in
Section 4(a) hereof.
"Registration Statement" shall mean any appropriate
registration statement of the Company covering any of the Registrable Notes
filed with the Commission under the Securities Act, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference or deemed to be
incorporated by reference therein.
"Rule 144" shall mean Rule 144 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission providing for offers and
sales of securities made in compliance therewith resulting in offers and sales
by subsequent holders that are not affiliates of an issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
"Rule 415" shall mean Rule 415 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission.
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"Second Lien Senior Secured Notes" shall have the meaning set
forth in the second introductory paragraph hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Shelf Filing Event" shall have the meaning set forth in
Section 2(c) hereof.
"Shelf Registration" shall have the meaning set forth in
Section 3(b) hereof.
"Shelf Registration Statement" shall mean any Registration
Statement filed in connection with a Shelf Registration.
"Subsequent Shelf Registration" shall have the meaning set
forth in Section 3(b) hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"Trustee" shall mean the trustee under the Indenture and the
trustee (if any) under any indenture governing the Exchange Notes.
"Underwritten registration or underwritten offering" shall
mean a registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
Section 2. Exchange Offer
(a) The Issuers shall (i) file a Registration Statement
(the "Exchange Offer Registration Statement") within 60 days after the Issue
Date with the Commission on an appropriate registration form with respect to a
registered offer (the "Exchange Offer") to exchange any and all of the
Registrable Notes for a like aggregate principal amount of notes (including the
guarantees with respect thereto, the "Exchange Notes") that are identical in all
material respects to the Notes (except that the Exchange Notes shall not contain
terms with respect to transfer restrictions or Additional Interest upon a
Registration Default), (ii) use their best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the Securities Act within
150 days after the Issue Date and (iii) use their best efforts to consummate the
Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer
Registration Statement being declared effective by the Commission, the Company
will offer the Exchange Notes in exchange for surrender of the Notes. The
Company shall keep the Exchange Offer open for not less than 20 Business Days
(or longer if required by applicable law) after the date notice of the Exchange
Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be
required to represent to the Company in writing that (i) any Exchange Notes to
be received by it will be acquired in the ordinary course of its business, (ii)
it has no arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Notes in
violation of the provisions of the Securities Act, (iii) it is not an affiliate
of the Issuer, as defined by rule 405 of the Securities Act, or if it is an
affiliate, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iv) it is not
engaged in, and does
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not intend to engage in, a distribution of Exchange Notes, and (v) such Holder
has full power and authority to transfer the Notes in exchange for the Exchange
Notes and that the Company will acquire good and unencumbered title thereto free
and clear of any liens, restrictions, charges or encumbrances and not subject to
any adverse claims.
No securities other than the Exchange Notes shall be included
in the Exchange Offer Registration Statement.
Upon consummation of the Exchange Offer in accordance with
this Section 2, the Issuers shall have no further registration obligations other
than the Issuers' continuing registration obligations with respect to Notes as
to which clause (c)(iii) of this Section 2 applies or Exchange Notes as to which
clause (c)(iv) of this Section 2 applies.
(b) In connection with the Exchange Offer, the Company
shall:
(1) mail or cause to be mailed to each Holder entitled to
participate in the Exchange Offer a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(3) 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 Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
the Company shall:
(1) accept for exchange all Notes validly tendered and
not validly withdrawn by the Holders pursuant to the Exchange Offer;
(2) deliver or cause to be delivered to the Trustee for
cancellation all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver
promptly, to each such Holder of Notes, Exchange Notes equal in
principal amount to the Registrable Notes of such Holder so accepted
for exchange.
The Exchange Offer shall not be subject to any conditions,
other than that (i) the Exchange Offer does not violate applicable law or any
applicable interpretation of the staff of the Commission, (ii) no action or
proceeding shall have been instituted or threatened in any court or by any
governmental agency which might materially impair the ability of the Company to
proceed with the Exchange Offer and no material adverse development shall have
occurred in any such existing action or proceeding with respect to the Company
and (iii) all governmental approvals shall have been
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obtained, which approvals the Company reasonably deems necessary for the
consummation of the Exchange Offer.
The Exchange Notes shall be issued under (i) the Indenture or
(ii) an indenture identical in all material respects to the Indenture (in either
case, with such changes as are necessary to comply with any requirements of the
Commission to effect or maintain the qualification thereof under the TIA) and
which, in either case, has been qualified under the TIA and shall provide that
the Exchange Notes shall not be subject to the transfer restrictions set forth
in the Indenture.
(c) In the event that (i) any changes in law or the
applicable interpretations of the staff of the Commission do not permit the
Issuers to effect the Exchange Offer, (ii) for any reason the Exchange Offer is
not consummated within 180 days of the Issue Date, (iii) any Holder, other than
an Initial Purchaser, is prohibited by law or the applicable interpretations of
the staff of the Commission from participating in the Exchange Offer, or (iv) in
the case of any Holder who participates in the Exchange Offer, such Holder does
not receive Exchange Notes on the date of the exchange that may be sold without
restriction under state and federal securities laws (other than due solely to
the status of such Holder as an affiliate of any Issuer within the meaning of
the Securities Act) (each such event referred to in clauses (i) through (iv) of
this sentence, a "Shelf Filing Event"), then the Issuers shall promptly deliver
to the Holders and the Trustee written notice thereto and file a Shelf
Registration pursuant to Section 3 hereof.
Section 3. Shelf Registration
If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuers shall file with the
Commission a Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415 of the Securities Act covering all of the Registrable
Notes not exchanged in the Exchange Offer (the "Initial Shelf Registration").
The Issuers shall file the Initial Shelf Registration with the Commission as
promptly as practicable. The Initial Shelf Registration shall be on an
appropriate form permitting registration of such Registrable Notes for resale by
Holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Issuers shall not permit
any securities other than the Registrable Notes to be included in the Shelf
Registration or any Subsequent Shelf Registration (as defined below).
The Issuers shall use their reasonable best efforts (x) to
cause the Initial Shelf Registration to be declared effective under the
Securities Act on or prior to the 150th day after the date of the Shelf Filing
Event and (y) to keep the Initial Shelf Registration continuously effective
under the Securities Act for the period ending on the date which is two years
from the Issue Date, or such shorter period ending when all Registrable Notes
covered by the Initial Shelf Registration have been sold in the manner set forth
and as contemplated in the Initial Shelf Registration or, if applicable, a
Subsequent Shelf Registration (as may be extended pursuant to the last paragraph
of Section 5 hereof, the "Effectiveness Period"); provided, however, that the
Effectiveness Period in respect of the Initial Shelf Registration shall be
extended to the extent required to permit dealers to comply with the applicable
prospectus delivery requirements of the Securities Act and as otherwise provided
herein. The Company may suspend the effectiveness of the Shelf Registration
Statement by written notice to
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the Holders (i) as a result of the filing of a post-effective amendment to the
Shelf Registration Statement to incorporate annual audited financial information
with respect to the Company where such post-effective amendment is not yet
effective and needs to be declared effective to permit Holders to use the
related Prospectus or (ii) for so long as permitted pursuant to the penultimate
paragraph of Section 5 hereof.
(b) Withdrawal of Stop Orders; Subsequent Shelf
Registrations. If the Initial Shelf Registration or any Subsequent Shelf
Registration (as defined below) ceases to be effective for any reason at any
time during the Effectiveness Period (other than because of the sale of all of
the Notes registered thereunder), the Issuers shall use their reasonable best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 30 days of such cessation
of effectiveness amend such Shelf Registration Statement in a manner to obtain
the withdrawal of the order suspending the effectiveness thereof, or file an
additional Shelf Registration Statement pursuant to Rule 415 covering all of the
Registrable Notes covered by and not sold under the Initial Shelf Registration
or an earlier Subsequent Shelf Registration (each, a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the Issuers shall
use their reasonable best efforts to cause the Subsequent Shelf Registration to
be declared effective under the Securities Act as soon as practicable after such
filing and to keep such subsequent Shelf Registration continuously effective for
a period equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration or any
Subsequent Shelf Registration was previously continuously effective. As used
herein the term "Shelf Registration" means the Initial Shelf Registration and
any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuers agree to
supplement or make amendments to the Shelf Registration Statement as and when
required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration Statement or by the
Securities Act or rules and regulations thereunder for shelf registration, or if
reasonably requested by the Holders of a majority in aggregate principal amount
of the Registrable Notes covered by such Registration Statement or by any
underwriter of such Registrable Notes.
Section 4. Additional Interest
(a) The Issuers and the Purchasers agree that the Holders
will suffer damages if the Issuers fail to fulfill their obligations under
Section 2 or Section 3 hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the Issuers agree, jointly
and severally, that if:
(i) the Exchange Offer Registration Statement is not
filed with the Commission on or prior to the 60th day following the
Issue Date or, if that day is not a Business Day, the next day that is
a Business Day,
(ii) the Exchange Offer Registration Statement is not
declared effective on or prior to the 150th day following the Issue
Date or, if that day is not a Business Day, the next day that is a
Business Day,
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(iii) the Exchange Offer is not consummated on or prior to
the 180th day following the Issue Date, or, if that day is not a
Business Day, the next day that is a Business Day; or
(iv) the Shelf Registration Statement is required to be
filed but is not declared effective on or prior to the 150th day
following the date of the Shelf Filing Event, or, if that day is not a
Business Day, the next day that is a Business Day, or is declared
effective by such date but thereafter ceases to be effective or usable,
except if the Shelf Registration ceases to be effective or usable as
specifically permitted by the penultimate paragraph of Section 5 hereof
(each such event referred to in clauses (i) through (iv) a "Registration
Default," then additional cash interest ("Additional Interest") will accrue on
the Registrable Notes, as applicable. The rate of Additional Interest will be
0.25% per annum for the first 90-day period immediately following the occurrence
of a Registration Default, increasing by an additional 0.50% per annum with
respect to each subsequent 90-day period up to a maximum amount of Additional
Interest of 2.00% per annum, from and including the date on which any such
Registration Default shall occur to, but excluding, the earlier of (1) the date
on which all Registration Defaults have been cured or (2) the date on which all
the Registrable Notes otherwise become freely transferable by Holders other than
affiliates of the Issuers without further registration under the Securities Act.
If, after the cure of all Registration Defaults then in effect, there is a
subsequent Registration Default, the rate of Additional Interest for such
subsequent Registration Default shall initially be 0.25% per annum, regardless
of the rate in effect with respect to any prior Registration Default at the time
of cure of such Registration Default, which amount of Additional Interest shall
increase incrementally thereafter in the manner provided in the preceding
sentence (up to a maximum amount of Additional Interest of 2.00% per annum)
until such Registration Default is cured, with the effect that each subsequent
Registration Default shall be treated as if no prior Registration Default had
occurred.
Notwithstanding the foregoing, (1) the amount of Additional
Interest payable shall not increase because more than one Registration Default
has occurred and is pending and (2) a Holder of Notes or Exchange Notes who is
not entitled to the benefits of the Shelf Registration Statement (i.e., such
Holder has not elected to include information) shall not be entitled to
Additional Interest with respect to a Registration Default that pertains to the
Shelf Registration Statement.
(b) So long as Notes remain outstanding, the Company
shall notify the Trustee within five Business Days after each and every date on
which an event occurs in respect of which Additional Interest is required to be
paid. Any amounts of Additional Interest due pursuant to clause (a) of this
Section 4 will be payable in cash quarterly on each March 15, June 15, September
15 and December 15 (each, an "Additional Interest Payment Date"), commencing
with the first such date occurring after any such Additional Interest commences
to accrue, to Holders of record on the March 1, June 1, September 1 and December
1 immediately preceding such dates. The amount of Additional Interest for
Registrable Notes will be determined by multiplying the applicable rate of
Additional Interest by the aggregate principal amount of all such Registrable
Notes outstanding on the Additional Interest Payment Date following such
Registration Default in the case of the first such payment of Additional
Interest with respect to a Registration Default (and thereafter at the next
succeeding Additional Interest Payment Date until the cure of such Registration
Default), multiplied by a fraction, the numerator of which is the number of days
such Additional Interest rate was applicable during such
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period (determined on the basis of a 360-day year comprised of twelve 30-day
months and, in the case of a partial month, the actual number of days elapsed),
and the denominator of which is 360.
(c) The right to receive payment of Additional Interest
as provided herein shall be the exclusive remedy of any Holder arising out of or
related to any Registration Default.
Section 5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Issuers shall effect such registrations
to permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Issuers hereunder, each
of the Issuers shall:
(a) Prepare and file with the Commission the Registration
Statement or Registration Statements prescribed by Section 2 or 3
hereof, and use their reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as
provided herein; provided, however, that, if such filing is pursuant to
Section 3 hereof before filing any Registration Statement or Prospectus
or any amendments or supplements thereto, the Company shall furnish to
and afford the Holders of the Registrable Notes covered by such
Registration Statement their counsel (if such counsel is known to the
Issuers) and the managing underwriters, if any, a reasonable
opportunity to review copies of all such documents (including copies of
any documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed (in each case at least five Business Days
prior to such filing or such later date as is reasonable under the
circumstances). The Issuers shall not file any Registration Statement
or Prospectus or any amendments or supplements thereto if the Holders
of 75% in aggregate principal amount of the Registrable Notes covered
by such Registration Statement, their counsel, or the managing
underwriters, if any, shall reasonably object on a timely basis.
(b) Prepare and file with the Commission such amendments
and post-effective amendments to each Shelf Registration Statement as
may be necessary to keep such Registration Statement continuously
effective for the Effectiveness Period; cause the related Prospectus to
be supplemented by any Prospectus supplement required by applicable
law, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) promulgated under the Securities Act;
and comply with the applicable provisions of the Securities Act and the
Exchange Act with respect to the disposition of all securities covered
by such Registration Statement as so amended or in such Prospectus as
so supplemented in each case, in accordance with the intended methods
of distribution set forth in such Registration Statement or Prospectus,
as so amended. Other than during any a period specifically provided for
in the penultimate paragraph of Section 5 with respect to a Shelf
Registration Statement, the Issuers shall be deemed not to have used
their reasonable best efforts to keep a Registration Statement
effective if any Issuer voluntarily takes any action that would result
in selling Holders of the Registrable Notes covered thereby not being
able to sell such Registrable Notes during that period unless such
action is required by applicable law or permitted by this Agreement.
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(c) If a Shelf Registration is filed pursuant to Section
3 hereof, notify the selling Holders of Registrable Notes, their
counsel (if such counsel is known to the Issuers) and the managing
underwriters, if any, as promptly as possible, and, if requested by any
such Person, confirm such notice in writing, (i) when a Prospectus or
any Prospectus supplement or post-effective amendment has been filed,
and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon
request, obtain, at the sole expense of the Company, one conformed copy
of such Registration Statement or post-effective amendment including
financial statements and schedules, documents incorporated or deemed to
be incorporated by reference and exhibits), (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus or the initiation of any proceedings for
that purpose, (iii) if at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of the
Registrable Notes the representations and warranties of the Issuers
contained in any agreement (including any underwriting agreement)
contemplated by Section 5(m) hereof cease to be true and correct in all
material respects, (iv) of the receipt by any of the Issuers of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes for offer or sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose, (v) of
the happening of any event, the existence of any condition or any
information becoming known to any Issuer that makes any statement made
in such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in
or amendments or supplements to such Registration Statement, Prospectus
or documents so that, in the case of the Registration Statement, it
will not contain any 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 not misleading, and that in the case of the
Prospectus, it will not contain any 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 the light of the
circumstances under which they were made, not misleading, and (vi) of
the Company's determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use their reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a
Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Notes for sale in any
jurisdiction, and, if any such order is issued, to use their reasonable
best efforts to obtain the withdrawal of any such order at the earliest
practicable moment.
(e) If a Shelf Registration is filed pursuant to Section
3 hereof, and if reasonably requested by the managing underwriter or
underwriters (if any) or the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Registration
Statement, (i) promptly incorporate in such Registration Statement or
Prospectus a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters (if any) or,
such Holders (based upon advice of counsel) reasonably determine is
required to be
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included therein and (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as practicable
after the Company has received notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
provided, however, that the Issuers shall not be required to take any
action hereunder that would, in the written opinion of counsel to the
Company, violate applicable laws.
(f) If a Shelf Registration is filed pursuant to Section
3 hereof, furnish to each selling Holder of Registrable Notes who so
requests, their counsel (if such counsel is known to the Issuers) and
each managing underwriter, if any, at the sole expense of the Issuers,
one conformed copy of the Registration Statement or Registration
Statements and each post-effective amendment thereto, including
financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all
exhibits.
(g) If a Shelf Registration is filed pursuant to Section
3 hereof, deliver to each selling Holder of Registrable Notes their
respective counsel, and the underwriters, if any, at the sole expense
of the Issuers, as many copies of the Prospectus or Prospectuses
(including each form of preliminary prospectus) and each amendment or
supplement thereto and any documents incorporated by reference therein
as such Persons may reasonably request; and, subject to the last
paragraph of this Section 5, the Issuers hereby consent to the use of
such Prospectus and each amendment or supplement thereto by each of the
selling Holders of Registrable Notes and the underwriters or agents, if
any, and dealers (if any), in connection with the offering and sale of
the Registrable Notes covered by such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Notes
under a Shelf Registration filed pursuant to Section 3 hereof, use
their reasonable best efforts to register or qualify, and to cooperate
with the selling Holders of Registrable Notes, the managing underwriter
or underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Notes for offer and
sale under the securities or Blue Sky laws of such jurisdictions within
the United States as any selling Holder, or the managing underwriter or
underwriters reasonably request; provided, however, that where
Registrable Notes are offered other than through an underwritten
offering, the Issuers agree to cause the Company's counsel to perform
Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 5(h); use their
reasonable best efforts to keep each such registration or qualification
(or exemption therefrom) effective during the period such Registration
Statement is required to be kept effective and do any and all other
acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of such Registrable Notes covered by
the applicable Registration Statement; provided, however, that no
Issuer shall be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action
that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section
3 hereof, cooperate with the selling Holders of Registrable Notes and
the managing underwriter or underwriters, if any, to
-11-
facilitate the timely preparation and delivery of certificates
representing Registrable Notes to be sold, which certificates shall not
bear any restrictive legends and shall be in a form eligible for
deposit with The Depository Trust Company; and enable such Registrable
Notes to be in such denominations and registered in such names as the
managing underwriter or underwriters, if any, or selling Holders may
request at least five Business Days prior to any sale of such
Registrable Notes.
(j) Use their reasonable best efforts to cause the
Registrable Notes covered by any Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be reasonably necessary to enable the seller or
sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Notes, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case the Issuers will cooperate in all reasonable
respects with the filing of such Registration Statement and the
granting of such approvals.
(k) If a Shelf Registration is filed pursuant to Section
3 hereof, upon the occurrence of any event contemplated by Section
5(c)(v) or 5(c)(vi) hereof, as promptly as reasonably practicable
prepare and (subject to Section 5(a) and the penultimate paragraph of
this Section 5) file with the Commission, at the sole expense of the
Issuers, a supplement or post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Notes being sold thereunder any such
Prospectus will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP
number for the Registrable Notes.
(m) In connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of
debt securities similar to the Notes and take all such other actions as
are reasonably requested by the managing underwriter or underwriters in
order to expedite or facilitate the registration or the disposition of
such Registrable Notes and, in such connection, (i) make such
representations and warranties to, and covenants with, the underwriters
with respect to the business of the Company and its subsidiaries, as
then conducted (including any acquired business, properties or entity,
if applicable), and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings of debt securities similar to
the Notes, and confirm the same in writing if and when requested; (ii)
use their best efforts to obtain the written opinions of counsel to the
Company and written updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters,
addressed to the underwriters covering the matters
-12-
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by the managing
underwriter or underwriters; (iii) use their best efforts to obtain
"cold comfort" letters and updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters
from the independent certified public accountants of the Company (and,
if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Issuers
for which financial statements and financial data are, or are required
to be, included or incorporated by reference in the Registration
Statement), addressed to each of the underwriters, such letters to be
in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with underwritten offerings;
and (iv) if an underwriting agreement is entered into, the same shall
contain indemnification provisions and procedures no less favorable
than those set forth in Section 7 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal
amount of Registrable Notes covered by such Registration Statement and
the managing underwriter or underwriters or agents) with respect to all
parties to be indemnified pursuant to said Section; provided that the
Issuers shall not be required to provide indemnification to any
underwriter selected in accordance with the provisions of Section 9
hereof with respect to information relating to such underwriter
furnished in writing to the Company by or on behalf of such underwriter
expressly for inclusion in such Registration Statement. The above shall
be done at each closing under such underwriting agreement, or as and to
the extent required thereunder.
(n) If a Shelf Registration is filed pursuant to Section
3 hereof, make available for inspection by any selling Holder of such
Registrable Notes being sold, any underwriter participating in any such
disposition of Registrable Notes, and any attorney, accountant or other
agent retained by any such selling Holder or underwriter (collectively,
the "Inspectors"), at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent
corporate documents and instruments of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Company and its
subsidiaries to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement and
Prospectus. Each Inspector shall agree in writing that it will keep the
Records confidential and that it will not disclose, or use in
connection with any market transactions in violation of any applicable
securities laws, any Records that the Company determines, in good
faith, to be confidential and that it notifies the Inspectors in
writing are confidential unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in such
Registration Statement or Prospectus, (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, (iii) disclosure of such information is
necessary or advisable in the opinion of counsel for an Inspector in
connection with any action, claim, suit or proceeding, directly or
indirectly, involving or potentially involving such Inspector and
arising out of, based upon, relating to, or involving this Agreement or
the Purchase Agreement, or any transactions contemplated hereby or
thereby or arising hereunder or thereunder, or (iv) the information in
such Records has been made generally available to the public; provided,
however, that (A) each Inspector shall agree to use reasonable best
efforts to provide notice to the Company of the potential disclosure of
any information by such Inspector pursuant to
-13-
clause (i), (ii) or (iii) of this sentence to permit the Issuers to
obtain a protective order (or waive the provisions of this paragraph
(n)) and (B) each such Inspector shall take such actions as are
reasonably necessary to protect the confidentiality of such information
(if practicable) to the extent such action is otherwise not
inconsistent with, an impairment of or in derogation of the rights and
interests of the Holder or any Inspector.
(o) Provide an indenture trustee for the Registrable
Notes or the Exchange Notes, as the case may be, and cause the
Indenture or the trust indenture provided for in Section 2(a) hereof to
be qualified under the TIA not later than the effective date of the
Exchange Offer or the first Registration Statement relating to the
Registrable Notes; and in connection therewith, cooperate with the
trustee under any such indenture and the Holders of the Registrable
Notes or Exchange Notes, as applicable, to effect such changes to such
indenture as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use their
reasonable best efforts to cause such trustee to execute, all documents
as may be required to effect such changes, and all other forms and
documents required to be filed with the Commission to enable such
indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of
the Commission and make generally available to the Company's
securityholders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act) no later than 45
days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) (i) commencing at
the end of any fiscal quarter in which Registrable Notes are sold to
underwriters in a firm commitment or best efforts underwritten offering
and (ii) if not sold to underwriters in such an offering, commencing on
the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which statements shall
cover said 12-month periods consistent with the requirements of Rule
158.
(q) If the Exchange Offer is to be consummated, upon
delivery of the Registrable Notes by Holders to the Company (or to such
other Person as directed by the Company) in exchange for the Exchange
Notes ▇▇▇▇, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the Exchange
Notes; provided that in no event shall such Registrable Notes be marked
as paid or otherwise satisfied.
(r) Use their reasonable best efforts to take all other
steps reasonably necessary or advisable to effect the registration of
the Exchange Notes and/or Registrable Notes covered by a Registration
Statement contemplated hereby.
(s) Upon consummation of the Exchange Offer, if so
requested by the Trustee, obtain an opinion of counsel to the Issuers,
in a form customary for underwritten transactions, addressed to the
Trustee for the benefit of all Holders of Registrable Notes
participating in the Exchange Offer that the Exchange Notes, the
related guarantee and the related indenture constitute legal, valid and
binding obligations of the Issuers, enforceable against the Issuers in
accordance with their respective terms, subject to customary exceptions
and qualifications.
-14-
The Company may require each seller of Registrable Notes as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable Notes
as the Company may, from time to time, reasonably request. The Company may
exclude from such registration the Registrable Notes of any seller if such
seller fails to furnish such information by the date set forth in the Company's
request; provided, however, that such request shall not afford such seller less
than ten (10) Business Days from the date of such seller's receipt of the
Company's request to furnish such information. In the event of such an
exclusion, the Issuers shall have no further obligation under this Agreement
(including, without limitation, the obligations under Section 4) with respect to
such seller or any subsequent Holder of such Registrable Notes. Each seller as
to which any Shelf Registration is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make any
information previously furnished to the Company by such seller not materially
misleading.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Company, then such
Holder shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such Holder, to the effect that
the holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company, or (ii) in
the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Holder in any amendment or supplement to the
applicable Registration Statement filed or prepared subsequent to the time that
such reference ceases to be required.
Each Holder of Registrable Notes agrees by acquisition of such
Registrable Notes that, upon actual receipt of any notice from the Company (x)
of the happening of any event of the kind described in Section 5(c)(ii),
5(c)(iii), 5(c)(iv), or 5(c)(v) hereof, or (y) that the Board of Directors of
the Company (the "Board of Directors") has resolved that the disclosure of an
event, occurrence or other item at such time could reasonably be expected to
have a material adverse effect on the business, operations or prospects of the
Company and its subsidiaries or (z) that the Board of Directors determined, in
good faith, that disclosure relating to a material business transaction which
has not been publicly disclosed would jeopardize the success of such transaction
or that disclosure of the transaction is prohibited pursuant to the terms
thereto, then the Company may delay the filing or the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration Statement (if
not then filed or effective, as applicable) and shall not be required to
maintain the effectiveness thereof or amend or supplement the Exchange Offer
Registration Statement or the Shelf Registration, in all cases, for a period (a
"Delay Period") expiring upon the earlier to occur of (i) in the case of the
immediately preceding clause (x), such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof or until
it is advised in writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto or (ii) in the case of the immediately preceding clause
(y) or (z), the date which is the earlier of (A) the date on which such
disclosure ceases to interfere with the Company's obligations to file or
maintain the effectiveness of any such Registration Statement pursuant to this
Agreement or (B) 60 days after the Company notifies the Holders of such good
faith determination. There shall not be more than 60 days of Delay Periods
during any 12-month period.
-15-
Any Delay Period will not alter the obligations of the Company to pay Additional
Interest under the circumstances set forth in Section 4 hereof, except to the
extent specifically provided therein.
In the event of any Delay Period pursuant to clause (y) or (z)
of the preceding paragraph, notice shall be given as soon as practicable after
the Board of Directors makes such a determination of the need for a Delay Period
and shall state, to the extent practicable, an estimate of the duration of such
Delay Period and shall advise the recipient thereof of the agreement of such
Holder provided in the next succeeding sentence. Each Holder, by his acceptance
of any Registrable Note, agrees that during any Delay Period, each Holder will
discontinue disposition of any Registrable Notes covered by such Registration
Statement. The Effectiveness Period shall be extended by the number of days
during each such Delay Period.
Section 6. Registration Expenses
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers (other than any underwriting
discounts or commissions) shall be borne by the Issuers, whether or not the
Exchange Offer Registration Statement or any Shelf Registration is filed or
becomes effective or the Exchange Offer is consummated, including, without
limitation, (i) all registration and filing fees (including, without limitation,
fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, fees and disbursements of counsel in connection
with Blue Sky qualifications of the Registrable Notes and determination of the
eligibility of the Registrable Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of an Exchange Offer, or (y) as provided in Section 5(h) hereof, in the
case of a Shelf Registration)), (ii) printing expenses, including, without
limitation, expenses of printing certificates for Registrable Notes or Exchange
Notes in a form eligible for deposit with The Depository Trust Company and of
printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, or by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Issuers and, in the case of a Shelf
Registration, reasonable fees and disbursements of one special counsel for all
of the sellers of the Registrable Notes, and disbursements of all independent
certified public accountants referred to in Section 5(m)(iii) hereof (including,
without limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, if the Company desires such insurance, (vii) fees and expenses of all
other Persons retained by any of the Issuers, (viii) internal expenses of the
Issuers (including, without limitation, all salaries and expenses of officers
and employees of the Issuers performing legal or accounting duties), (ix) the
expense of any annual audit, (x) the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange,
and the obtaining of a rating of the securities, in each case, if applicable,
and (xi) the expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, indentures and any other
documents necessary in order to comply with this Agreement. Notwithstanding the
foregoing or anything to the contrary, each Holder shall pay all underwriting
discounts and commissions of any underwriters with respect to any Registrable
Notes sold by or on behalf of it.
Section 7. Indemnification
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(a) Each Issuer, jointly and severally, agrees to
indemnify and hold harmless (i) each Holder of Registrable Notes, (ii) each
Person, if any, who controls any such Holder within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act, (iii) the agents,
employees, officers and directors of each Holder and (iv) the agents, employees,
officers and directors of any such controlling Person (each of the above Persons
listed in clauses (i), (ii), (iii) and (iv) of this Section 7(a), a
"Participant"), from and against any and all losses, liabilities, claims,
damages and expenses (including, but not limited to, reasonable attorneys' fees
and any and all reasonable out-of-pocket expenses actually incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action and any and
all reasonable amounts paid in settlement of any claim or litigation (in the
manner set forth in clause (c) below)) (collectively, "Losses") to which they or
any of them may become subject under the Securities Act, the Exchange Act or
otherwise insofar as such Losses (or actions in respect thereof) are caused by,
arise out of or are based upon:
(1) any untrue statement or alleged untrue statement made by
any Issuer contained in any application or any other document or any amendment
or supplement thereto executed by any Issuer based upon written information
furnished by or on behalf of any Issuer filed in any jurisdiction in order to
qualify the Notes under the securities or "Blue Sky" laws thereto or filed with
the Commission or any securities association or securities exchange (each, an
"Application");
(2) any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment thereto)
or Prospectus (as amended or supplemented if any of the Issuers shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
(3) any omission or alleged omission to state in any
Registration Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if any of the Issuers shall have furnished any amendments or
supplements thereto) or any preliminary prospectus or any Application or any
other document or any amendment or supplement thereto, a material fact required
to be stated therein or necessary to make the statements therein, in the case of
the Prospectus, in the light of the circumstances under which they were made,
not misleading,
provided that (i) the foregoing indemnity shall not be
available to any Participant to the extent that such Losses are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to such Participant
furnished to the Company in writing by or on behalf of such Participant
expressly for use therein, and (ii) that the foregoing indemnity with respect to
any preliminary prospectus shall not inure to the benefit of any Participant
from whom the Person asserting such Losses purchased Registrable Notes if (x) it
is established in the related proceeding that such Participant failed to send or
give a copy of the Prospectus (as amended or supplemented if such Prospectus,
amendment or supplement was furnished to such Participant sufficient to allow
for a timely distribution prior to the written confirmation of such sale) to
such Person with or prior to the written confirmation of such sale, if required
by applicable law, and (y) the untrue statement or omission or alleged untrue
statement or omission was completely corrected in the Prospectus (as amended or
supplemented if amended or supplemented as aforesaid) and such Prospectus does
not contain any other untrue statement or omission or alleged untrue
-17-
statement or omission that was the subject matter of the related proceeding.
This indemnity agreement will be in addition to any liability that the Issuers
may otherwise have, including, but not limited to, liability under this
Agreement.
(b) Each Participant agrees, severally and not jointly,
to indemnify and hold harmless (i) each Issuer, (ii) each Person, if any, who
controls any Issuer within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, and each of their respective agents,
employees, officers and directors and (iii) the agents, employees, officers and
directors of any such controlling Person from and against any Losses to which
they or any of them may become subject under the Securities Act, the Exchange
Act or otherwise insofar as such Losses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment thereto)
or Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any preliminary prospectus, or caused
by, arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the case of the Prospectus, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that any such Loss arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information relating to
such Participant furnished in writing to the Company by or on behalf of such
Participant expressly for use therein.
(c) Promptly after receipt by an indemnified party under
subsection 7(a) or 7(b) above of notice of the commencement of any action, suit
or proceeding (collectively, an "action"), such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 7 except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
reasonably satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such action, but the reasonable fees and expenses of
such counsel shall be at the expense of such indemnified party or parties unless
(i) the employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying party or parties
(or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded, after consultation
with counsel, that there may be defenses available to it or them that are
different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such reasonable fees and expenses of counsel
shall be borne by the indemnifying parties. In no event shall the indemnifying
party be
-18-
liable for the reasonable fees and expenses of more than one counsel (together
with appropriate local counsel) at any time for all indemnified parties in
connection with any one action or separate but substantially similar or related
actions arising in the same jurisdiction out of the same general allegations or
circumstances. Any such separate firm for the Participants shall be designated
in writing by Participants who sold a majority in interest of Registrable Notes
sold by all such Participants and shall be reasonably acceptable to the Company
and any such separate firm for the Issuers, their affiliates, officers,
directors, representatives, employees and agents and such control Person of such
Issuers shall be designated in writing by such Issuers and shall be reasonable
acceptable to the Holders. An indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent, which
consent may not be unreasonably withheld. 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.
(d) In order to provide for contribution in circumstances
in which the indemnification provided for in this Section 7 is for any reason
held to be unavailable from the indemnifying party, or is insufficient to hold
harmless a party indemnified under this Section 7, each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such aggregate Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party, on the one hand, and each
indemnified party, on the other hand, from the sale of the Notes to the
Purchasers or the resale of the Registrable Notes by such Holder, as applicable,
or (ii) if such allocation 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 each indemnified party, on
the one hand, and each indemnifying party, on the other hand, in connection with
the statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits received by the
Issuers, on the one hand, and each Participant, on the other hand, shall be
deemed to be in the same proportion as (x) the total proceeds from the sale of
the Notes to the Purchasers (net of discounts and commissions but before
deducting expenses) received by the Issuers are to (y) the total net profit
received by such Participant in connection with the sale of the Registrable
Notes. 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 Issuers or such Participant and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission or alleged statement or omission or any other
equitable considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to above. Notwithstanding the provisions
of this Section 7, (i) in no case shall any Participant be required to
contribute any amount in excess of the amount by which the net profit received
by such Participant in connection with the sale of the Registrable Notes exceeds
the amount of any damages that such Participant has otherwise been required to
pay by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the
-19-
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action against such
party in respect of which a claim for contribution may be made against another
party or parties under this Section 7, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 7 or otherwise, except to
the extent that it has been prejudiced in any material respect by such failure;
provided, however, that no additional notice shall be required with respect to
any action for which notice has been given under this Section 7 for purposes of
indemnification. Anything in this section to the contrary notwithstanding, no
party shall be liable for contribution with respect to any action or claim
settled without its written consent, provided, however, that such written
consent was not unreasonably withheld.
Section 8. Rule 144 and 144A
The Issuers covenant that they will file the reports required,
if any, to be filed by them under the Securities Act and the Exchange Act and
the rules and regulations adopted by the Commission thereunder in a timely
manner in accordance with the requirements of the Securities Act and the
Exchange Act and, if at any time the Issuers are not required to file such
reports, they will, upon the request of any Holder or beneficial owner of
Registrable Notes, make available such information necessary to permit sales
pursuant to Rule 144 or 144A under the Securities Act. The Issuers further
covenant that for so long as any Registrable Notes remain outstanding they will
take such further action as any Holder of Registrable Notes may reasonably
request from time to time to enable such Holder to sell Registrable Notes
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144(k) or 144A under the Securities Act, as such
Rules may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the Commission.
Section 9. Underwritten Registrations
If any of the Registrable 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 manage the offering will
be selected by the Holders of 75% of the aggregate principal amount of such
Registrable Notes included in such offering; provided, however, that such
selection shall be subject to the approval of the Company, which approval shall
not be unreasonably withheld.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder if such Holder does not (a) agree to sell
such Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) complete and execute all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
Section 10. Miscellaneous
-20-
(a) No Inconsistent Agreements. The Issuers have not, as
of the date hereof, and shall not, after the date of this Agreement, enter into
any agreement with respect to any of their securities that is inconsistent with
the rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not conflict with and are not inconsistent with, in any
material respect, the rights granted to the holders of any of the Issuers' other
issued and outstanding securities under any such agreements. The Issuers have
not entered and will not enter into any agreement with respect to any of their
securities which will grant to any Person piggy-back registration rights with
respect to any Registration Statement required hereunder.
(b) Adjustments Affecting Registrable Notes. The Issuers
shall not, directly or indirectly, take any action with respect to the
Registrable Notes as a class that would adversely affect the ability of the
Holders of Registrable Notes to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(c) 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 pursuant to a
written agreement duly signed and delivered by (i) the Company (on behalf of all
Issuers) and (ii) the Holders of not less than 75% of the aggregate principal
amount of the then outstanding Registrable Notes; provided, however, that
Section 7 and this Section 10(c) may not be amended, modified or supplemented
except pursuant to a written agreement duly signed and delivered by the Company
(on behalf of all Issuers) and each Holder (including any Person who was a
Holder of Registrable Notes disposed of pursuant to any Registration Statement)
affected by any such amendment, modification, waiver or supplement.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Notes whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Notes may be
given by Holders of at least 75% of the aggregate principal amount of the
Registrable Notes being sold pursuant to such Registration Statement.
(d) Notices. All notices and other communications
(including, without limitation, any notices or other communications to the
Trustee) provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes at the most
current address of such Holder set forth on the records of the
registrar under the Indenture.
(ii) if to the Issuers, at the address as follows:
AMERCO
c/o U-Haul International, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
-21-
With a copy to:
Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.
Two Renaissance Square
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to any Purchaser, at the address for such
Purchaser set forth on Schedule A hereto:
with a copy to:
Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.
(e) Guarantors. So long as any Registrable Notes remain
outstanding, the Issuers shall cause each Person that becomes a guarantor of the
Second Lien Senior Secured Notes under the Indenture to execute and deliver a
counterpart to this Agreement which subjects such Person to the provisions of
this Agreement as a Guarantor. Each of the Guarantors agrees to join the Company
in all of its undertakings hereunder to effect the Exchange Offer for the
Exchange Notes and the filing of any Shelf Registration Statement required
hereunder.
(f) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties hereto and the Holders; provided, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign holds Registrable Notes.
(g) 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.
-22-
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(j) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(k) Securities Held by the Company or Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Company
or any of its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(l) Third-Party Beneficiaries. Holders and beneficial
owners of Registrable Notes are intended third-party beneficiaries of this
Agreement, and this Agreement may be enforced by such Persons. No other Person
is intended to be, or shall be construed as, a third-party beneficiary of this
Agreement.
(m) Attorneys' Fees. As between the parties to this
Agreement, in any action or proceeding brought to enforce any provision of this
Agreement, or where any provision hereof is validly asserted as a defense, the
successful party shall be entitled to recover reasonable attorneys' fees
actually incurred in addition to its costs and expenses and any other available
remedy.
(n) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all prior
oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Holders
on the one hand and the Issuers on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
-23-
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
AMERCO
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Secretary
S-1
GUARANTORS:
AMERCO REAL ESTATE COMPANY, a Nevada
corporation
AMERCO REAL ESTATE SERVICES, INC. a Nevada
corporation
AMERCO REAL ESTATE COMPANY OF ALABAMA,
INC., an Alabama corporation
AMERCO REAL ESTATE COMPANY OF TEXAS,
INC. a Texas corporation
ONE PAC COMPANY, a Nevada corporation
TWO PAC COMPANY, a Nevada corporation
THREE PAC COMPANY, a Nevada corporation
FOUR PAC COMPANY, a Nevada corporation
FIVE PAC COMPANY, a Nevada corporation
SIX PAC COMPANY, a Nevada corporation
SEVEN PAC COMPANY, a Nevada corporation
EIGHT PAC COMPANY, a Nevada corporation
NINE PAC COMPANY, a Nevada corporation
TEN PAC COMPANY, a Nevada corporation
ELEVEN PAC COMPANY, a Nevada corporation
TWELVE PAC COMPANY, a Nevada corporation
FOURTEEN PAC COMPANY, a Nevada corporation
FIFTEEN PAC COMPANY, a Nevada corporation
SIXTEEN PAC COMPANY, a Nevada corporation
SEVENTEEN PAC COMPANY, a Nevada
corporation
NATIONWIDE COMMERCIAL CO., an Arizona
corporation
PF&F HOLDINGS CORPORATION, a Delaware
corporation
S-2
YONKERS PROPERTY CORPORATION, a New
York corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
__________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
S-3
EMOVE, INC., a Nevada corporation
WEB TEAM ASSOCIATES, INC. a Nevada
corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
__________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Secretary
S-4
U-HAUL INSPECTIONS, LTD., a British
Columbia corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Secretary
S-5
U-HAUL INTERNATIONAL, INC., a Nevada
corporation
A & M ASSOCIATES, INC., an Arizona
corporation
U-HAUL SELF-STORAGE CORPORATION, a Nevada
corporation
U-HAUL SELF-STORAGE MANAGEMENT (WPC),
INC., a Nevada corporation
U-HAUL BUSINESS CONSULTANTS, INC., an
Arizona corporation
U-HAUL LEASING & SALES CO., a Nevada corporation
U-HAUL CO. OF ALABAMA, INC., an Alabama corporation
U-HAUL CO. OF ALASKA, an Alaska corporation
U-HAUL CO. OF ARIZONA, an Arizona corporation
U-HAUL CO. OF ARKANSAS, an Arkansas
corporation
U-HAUL CO. OF CALIFORNIA, a California
corporation
U-HAUL CO. OF COLORADO, a Colorado
corporation
U-HAUL CO. OF CONNECTICUT, a Connecticut
corporation
U-HAUL CO. OF DISTRICT OF COLUMBIA, INC.,
a District of Columbia corporation
U-HAUL CO. OF FLORIDA, a Florida corporation
U-HAUL CO. OF GEORGIA, a Georgia corporation
U-HAUL OF HAWAII, INC., a Hawaii corporation
U-HAUL CO. OF IDAHO, INC., an Idaho corporation
U-HAUL CO. OF IOWA, INC., an Iowa corporation
U-HAUL CO. OF ILLINOIS, INC., an Illinois
corporation
U-HAUL CO. OF INDIANA, INC., an Indiana
corporation
U-HAUL CO. OF KANSAS, INC., a Kansas
corporation
U-HAUL CO. OF KENTUCKY, a Kentucky
corporation
U-HAUL CO. OF LOUISIANA, a Louisiana
corporation
S-6
U-HAUL CO. OF MASSACHUSETTS AND OHIO,
INC., a Massachusetts corporation
U-HAUL CO. OF MARYLAND, INC., a Maryland
corporation
U-HAUL CO. OF MAINE, INC., a Maine
corporation
U-HAUL CO. OF MICHIGAN, a Michigan
corporation
U-HAUL CO. OF MINNESOTA, a Minnesota
corporation
U-HAUL COMPANY OF MISSOURI, a Missouri
corporation
U-HAUL CO. OF MISSISSIPPI, a Mississippi
corporation
U-HAUL CO. OF MONTANA, INC., a Montana
corporation
U-HAUL CO. OF NORTH CAROLINA, a North
Carolina corporation
U-HAUL CO. OF NORTH DAKOTA, a North Dakota
corporation
U-HAUL CO. OF NEBRASKA, a Nebraska
corporation
U-HAUL CO. OF NEVADA, INC., a Nevada
corporation
U-HAUL CO. OF NEW HAMPSHIRE, INC., a New
Hampshire corporation
U-HAUL CO. OF NEW JERSEY, INC. a New
Jersey corporation
U-HAUL CO. OF NEW MEXICO, INC., a New
Mexico corporation
U-HAUL CO. OF NEW YORK, INC., a New York
corporation
U-HAUL CO. OF OKLAHOMA, INC., an Oklahoma
corporation
U-HAUL CO. OF OREGON, an Oregon corporation
U-HAUL CO. OF PENNSYLVANIA, a Pennsylvania
corporation
U-HAUL CO. OF RHODE ISLAND, a Rhode Island
corporation
U-HAUL CO. OF SOUTH CAROLINA, INC. a South
Carolina corporation
S-7
U-HAUL CO. OF SOUTH DAKOTA, INC., a South
Dakota corporation
U-HAUL CO. OF TENNESSEE, a Tennessee
corporation
U-HAUL CO. OF TEXAS, a Texas corporation
U-HAUL CO. OF UTAH, INC., a Utah corporation
U-HAUL CO. OF VIRGINIA, a Virginia corporation
U-HAUL CO. OF WASHINGTON, a Washington
corporation
U-HAUL CO. OF WISCONSIN, INC., a Wisconsin
corporation
U-HAUL CO. OF WEST VIRGINIA, a West
Virginia corporation
U-HAUL CO. OF WYOMING, INC., a Wyoming
corporation
U-HAUL CO. (CANADA) LTD. U-HAUL CO.
(CANADA) LTEE, AN Ontario corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
___________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Secretary
S-8
BLACK DIAMOND OFFSHORE LTD.
By: ▇▇▇▇▇▇▇ Capital, L.P.,
its investment advisor
By: Asgard Investment Corp.,
its general partner
By: [ILLEGIBLE]
--------------------------
Name:
Title:
DOUBLE BLACK DIAMOND OFFSHORE LDC
By: ▇▇▇▇▇▇▇ Capital, L.P.,
its investment advisor
By: Asgard Investment Corp.,
its general partner
By: [ILLEGIBLE]
--------------------------
Name:
Title:
CANPARTNERS INVESTMENTS IV, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Authorized Signatory
NEWSTART FACTORS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
S-9
SATELLITE ASSET MANAGEMENT, L.P.,
as investment manager on behalf of
its managed funds and accounts
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
__________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Operating Officer and
Principal
SATELLITE CREDIT OPPORTUNITIES FUND, LTD.
By: Satellite Asset Management, L.P.,
its investment manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Operating Officer and
Principal
SIL LOAN FUNDING LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Attorney in fact
S-10
SCHEDULE A
ADDRESSES OF PURCHASERS
Canpartners Investments IV, LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Black Diamond Offshore, Ltd.
c/o Carlson Capital, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Double Black Diamond Offshore LDC
c/o Carlson Capital, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Newstart Factors, Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Managing Director
Satellite Asset Management, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Operating Officer
Satellite Credit Opportunities Fund, Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Operating Officer
SIL Loan Funding LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇, Managing Director