Exhibit 4.2
▇▇▇▇▇▇▇▇ SCOTSMAN, INC.
REGISTRATION RIGHTS AGREEMENT
May 22, 1997
BT Securities Corporation
Alex. ▇▇▇▇▇ & Sons Incorporated
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation
c/o BT Securities Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
▇▇▇▇▇▇▇▇ Scotsman, Inc., a Maryland corporation ("Company"),
proposes to issue and sell to BT Securities Corporation, Alex. ▇▇▇▇▇ & Sons
Incorporated and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
(collectively, the "Purchasers"), upon the terms set forth in a purchase
agreement of even date herewith (the "Purchase Agreement"), $300 million
principal amount of its 9 7/8% Senior Notes Due 2007 (the "Notes"). The Notes
will be guaranteed (the "Guarantee") on a senior basis by Mobile Field Office
Company ("MFO") and guaranteed on a subordinated basis (the "Subordinated
Guarantee") by WillScot Equipment, LLC (collectively with MFO, the
"Guarantors"). The Notes will be issued pursuant to the provisions of an
Indenture, dated as of May 15, 1997 (the "Indenture"), between the Company, as
issuer, the Guarantors and The Bank of New York, as Trustee (the "Trustee").
As an inducement to the Purchasers to enter into the Purchase
Agreement and in satisfaction of a condition to your obligations thereunder, the
Company and the Guarantors each agrees with the Purchasers, for the benefit of
the registered holders of the Notes (including, without limitation, the
Purchasers), the Exchange Notes (as defined below) and the Private Exchange
Notes (as defined below) (collectively, the "Holders"), as follows:
SECTION 1. Registration Exchange Offer. The Company and the
Guarantors shall use their respective best efforts to prepare and file within 45
days of the 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 respect to an offer (the
"Registration Exchange Offer") to the Holders of Transfer Restricted Notes (as
defined in Section 6 hereof), who are not prohibited by any law or policy of the
Commission from participating in the Registration Exchange Offer, to issue and
deliver to such Holders, in exchange for the Notes, a like aggregate principal
amount of debt securities (the "Exchange Notes") of the Company
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issued under the Indenture and identical in all material respects to the Notes
(except for the transfer restrictions relating to the Notes) that would be
registered under the Securities Act. The Company and the Guarantors shall use
their respective best efforts to cause such Exchange Offer Registration
Statement to become effective under the Securities Act within 150 days after the
date of original issue of the Notes and shall keep the Exchange Offer
Registration Statement effective for not less than 30 days (or longer, if
required by applicable law) after the date notice of the Registration Exchange
Offer is mailed to the Holders (such period being called the "Exchange Offer
Registration Period"). It is understood and agreed that the Exchange Offer
Registration Statement and the Registration Exchange Offer may include up to
$100 million of additional Exchange Notes which shall be offered to the holders
of $100 million of Notes originally sold to Oak Hill Securities Fund, L.P.
pursuant to a separate purchase agreement (the "Additional Notes"); provided,
however, that if and to the extent such inclusion of such additional Exchange
Notes shall delay or impede the filing or the declaration of the effectiveness
of the Exchange Offer Registration Statement or the registration of the Exchange
Notes beyond 150 days after the date of the original issue of the Notes, then
such additional Exchange Notes shall not be so included or, if so included, such
inclusion shall be promptly withdrawn.
If the Company and the Guarantors effect the Registration Exchange
Offer, the Company and the Guarantors will be entitled to close the Registration
Exchange Offer 30 days after the commencement thereof provided that the Company
and the Guarantors have accepted all the Notes theretofore validly tendered in
accordance with the terms of the Registration Exchange Offer.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall promptly commence
the Registration Exchange Offer, it being the objective of such Registration
Exchange Offer to enable each Holder of Transfer Restricted Notes (as defined
below) electing to exchange such Transfer Restricted Notes for Exchange Notes
(assuming that such Holder is not an affiliate of the Company within the meaning
of the Securities Act, acquires the Exchange Notes in the ordinary course of
such Holder's business and has no arrangements with any person to participate in
the distribution of the Exchange Notes and is not prohibited by any law or
policy of the Commission from participating in the Registration Exchange Offer)
to trade such Exchange Notes from and after their receipt without any
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 Company and the
Guarantors shall use their respective best efforts to consummate the
Registration Exchange Offer and shall comply in all material respects with the
applicable requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and other applicable laws and regulations in connection with the
Registration Exchange Offer.
The Company and the Guarantors each acknowledges 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
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broker-dealer electing to exchange Notes, acquired for its own account as a
result of market-making activities or other trading activities, for Exchange
Notes (an "Exchanging Dealer"), is required to deliver a prospectus containing
the information set forth in Annex A hereto on the cover, in Annex B hereto in
the "Exchange Offer Procedures" section and the "Purpose of the Exchange Offer"
section, and in Annex C hereto in the "Plan of Distribution" section of such
prospectus in connection with a sale of any such Exchange Notes received by such
Exchanging Dealer pursuant to the Registration Exchange Offer and (ii) if the
Purchasers are permitted to and elect to sell Exchange Notes acquired in
exchange for Notes constituting any portion of an unsold allotment, they are
required to deliver a prospectus containing the information required by Items
507 or 508 of Regulation S-K under the Securities Act, as applicable, in
connection with such sale.
The Company and the Guarantors shall include within the prospectus
contained in the Exchange Offer Registration Statement a section entitled "Plan
of Distribution", reasonably acceptable to the Purchasers, which shall contain a
summary statement of the positions taken or policies made by the staff of the
Commission with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Notes received by such broker-dealer in the
Registration Exchange Offer (a "Participating Broker-Dealer"), whether such
positions or policies have been publicly disseminated by the staff of the
Commission or such positions or policies, in the reasonable judgment of the
Purchasers based upon advice of counsel (which may be in-house counsel),
represent the prevailing views of the staff of the Commission.
The Company and the Guarantors shall use their respective best
efforts to keep the Exchange Offer Registration Statement effective and to amend
and supplement the prospectus contained therein, in order to permit such
prospectus to be lawfully delivered by the Purchasers and all Exchanging Dealers
subject to the prospectus delivery requirements of the Securities Act and shall
make such prospectuses available to the Purchasers and such Exchanging Dealers
for such period of time after the consummation of the Registration Exchange
Offer as such persons must comply with such requirements in order to resell the
Exchange Notes; provided, however, that such period shall not exceed 120 days
(unless extended pursuant to Section 3(j) below); and, provided further, that
such persons shall not be authorized by the Company or the Guarantors to deliver
and shall not deliver any such prospectus after the expiration of such period in
connection with the resales contemplated by this paragraph.
The Company and the Guarantors shall make available for a period of
90 days after the consummation of the Registration Exchange Offer, a copy of the
prospectus, and any amendment or supplement thereto, forming part of the
Exchange Offer Registration Statement to any broker-dealer for use in connection
with any resale of any Exchange Notes.
If, upon consummation of the Registration Exchange Offer, any
Purchaser holds Notes acquired by it as part of its initial distribution, the
Company
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and the Guarantors, simultaneously with the delivery of the Exchange Notes
pursuant to the Registration Exchange Offer, shall issue and deliver to such
Purchaser upon the written request of such Purchaser, in exchange (the "Private
Exchange") for the Notes held by such Purchaser, a like principal amount of debt
securities of the Company issued under the Indenture and guaranteed by the
Guarantors pursuant to the Guarantee and the Subordinated Guarantee and
identical in all material respects (including the existence of restrictions on
transfer under the Securities Act and the securities laws of the several states
of the United States) to the Notes (the "Private Exchange Notes"). The Notes,
the Exchange Notes and the Private Exchange Notes are herein collectively called
the "Securities."
In connection with the Registration Exchange Offer, the Company and
the Guarantors shall:
(a) mail to each Holder a copy of the prospectus forming part
of the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(b) keep the Registration Exchange Offer open for not less
than 30 days (or longer, if required by applicable law) after the date
notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registration
Exchange Offer with an address in the Borough of Manhattan, The City of
New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last business day on
which the Registration Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all
applicable laws.
As soon as practicable after the close of the Registration Exchange
Offer or the Private Exchange, as the case may be, the Company and the
Guarantors shall:
(i) accept for exchange all the Notes validly tendered and
not withdrawn pursuant to the Registration Exchange Offer and the Private
Exchange;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all the Notes so accepted for exchange; and
(iii) issue, and cause the Trustee to authenticate and deliver
promptly to each Holder of the Notes, Exchange Notes or Private Exchange
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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.
Interest on each Exchange Note and Private Exchange Note issued
pursuant to the Registration Exchange Offer and in the Private Exchange will
accrue (i) from the later of (a) the last interest payment date on which
interest was paid on the Notes surrendered in exchange therefor or, (b) if the
Note is surrendered for exchange on a date in a period which includes the record
date for an interest payment date to occur on or after the date of such exchange
and as to which interest will be paid, the date of such interest payment date or
(ii) if no interest has been paid on the Notes, from the date of original issue
of the Notes.
Each Holder participating in the Registration Exchange Offer shall
be required to represent to the Company and the Guarantors that at the time of
the consummation of the Registration Exchange Offer (i) any Exchange Notes
received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any person to
participate in the distribution of the Notes or the Exchange Notes within the
meaning of the Securities Act, (iii) such Holder is not an "affiliate," as
defined in Rule 405 of the Securities Act, of the Company or any Guarantor or if
it is an affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (iv) if
such Holder is not a broker-dealer, that it is not engaged in, and does not
intend to engage in, the distribution of the Exchange Notes and (v) if such
Holder is a broker-dealer, that it will receive Exchange Notes for its own
account in exchange for Notes that were acquired as a result of market-making
activities or other trading activities and that it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes.
Notwithstanding any other provisions hereof, the Company and the
Guarantors will ensure that (i) any Exchange Offer Registration Statement and
any amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations thereunder, (ii) any Exchange Offer 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
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statements therein, in light of the circumstances under which they were made,
not misleading.
SECTION 2. Shelf Registration. If (i) the Company and the Guarantors
determine that a Registration Exchange Offer, as contemplated by Section I
hereof, is not available or may not be consummated as soon as practicable after
the last date the Registration Exchange Offer is open because it would violate
applicable law or the applicable interpretations of the staff of the Commission,
(ii) the Registration Exchange Offer is not consummated within 180 days of the
date of original issue of the Notes, (iii) the Purchasers so request with
respect to the Notes (or the Private Exchange Notes) not eligible to be
exchanged for Exchange Notes in the Registration Exchange Offer and held by them
following consummation of the Registration Exchange Offer or (iv) any Holder
(other than an Exchanging Dealer) is not eligible to participate in the
Registration Exchange Offer or, in the case of any Holder (other than an
Exchanging Dealer) that participates in the Registration Exchange Offer, such
Holder does not receive freely tradeable Exchange Notes on the date of the
exchange for validly tendered (and not withdrawn) Notes, the Company and the
Guarantors shall take the following actions:
(a) The Company and the Guarantors shall use all reasonable
efforts to prepare and file, as promptly as practicable, with the
Commission and thereafter to cause to be declared effective a registration
statement (the "Shelf Registration Statement" and, together with the
Exchange Offer Registration Statement, a "Registration Statement") on an
appropriate form under the Securities Act relating to the offer and sale
of the Transfer Restricted Notes, by the Holders thereof from time to time
in accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the 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. It is agreed that the holders of the Additional Notes are
entitled to have the Additional Notes held by them included in the Shelf
Registration Statement and that the provisions of the registration rights
agreement dated as of the date hereof, among the Company, the Guarantors
and Oak Hill Securities Fund, L.P. shall be applicable to such holders;
provided, however, that if and to the extent such inclusion of such
Additional Notes shall delay or impede the filing or the declaration of
the effectiveness of the Shelf Registration Registration Statement or the
registration of the Additional Notes beyond 180 days after the date of the
original issue of the Notes then such Additional Notes shall not be so
included or, if so included, such inclusion shall be promptly withdrawn.
(b) The Company and the Guarantors shall use all reasonable
efforts to keep the Shelf Registration Statement continuously effective in
order to permit the prospectus included therein to be lawfully delivered
by the Holders of the relevant Securities, until the period referred to in
Rule 144(k)
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under the Securities Act after the original issue date of the Notes
expires (or for such longer period if extended pursuant to Section 3(j)
below) or such shorter period that will terminate when all the Securities
covered by the Shelf Registration Statement have been sold pursuant
thereto.
(c) Notwithstanding any other provisions of this Agreement to
the contrary, the Company and the Guarantors shall cause the Shelf
Registration Statement and the related prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement, amendment or supplement, (i) to comply in all material respects
with the applicable requirements of the Securities Act and the rules and
regulations of the Commission and (ii) not to contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
SECTION 3. Registration Procedures. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent applicable, any
Registration Exchange Offer contemplated by Section I hereof, the following
provisions shall apply:
(a) The Company and the Guarantors shall (i) furnish to the
Purchasers, prior to the filing thereof with the Commission, a copy of the
Registration Statement and each amendment thereof and each supplement, if
any, to the prospectus included therein and shall not file any such
Registration Statement or amendment thereto or any prospectus or any
supplement thereto (including such documents which, upon filing, would be
incorporated or deemed to be incorporated by reference therein and
amendments to such documents other than documents required to be filed
pursuant to the Exchange Act) to which the Purchasers shall reasonably
object, except for any Registration Statement or amendment thereto or
prospectus or supplement thereto (a copy of which has been previously
furnished to the Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel)) which counsel to
the Company and the Guarantors has advised the Company and the Guarantors
in writing is required to be filed in order to comply with applicable law;
(ii) include information substantially to the effect set forth (A) in
Annex A hereto on the cover of a prospectus forming part of the Exchange
Offer Registration Statement, (B) in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section, (C)
in Annex C hereto in the "Plan of Distribution" section of the prospectus
forming a part of the Exchange Offer Registration Statement and (D)
include the information set forth 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 Items 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;
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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 security holders.
(b) The Company and the Guarantors shall notify the
Purchasers, the Holders and any Participating Broker-Dealer from whom the
Company or any of the Guarantors has received prior written notice stating
that it will be a Participating Broker-Dealer in the Registration Exchange
Offer (which notice pursuant to clauses (ii) through (v) hereof shall be
accompanied by an instruction to suspend the use of the prospectus until
the requisite changes have been made) promptly, and, if requested by the
Purchasers, the Holders or any such Participating Broker-Dealer, confirm
such notice in writing:
(i) when the Registration Statement or any amendment
thereto has been filed with the Commission and when the Registration
Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus included
therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or any of the Guarantors
or their legal counsel of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(v) of the happening of any event that requires the Company
or any of the Guarantors to make changes in the Registration
Statement or the prospectus in order that the Registration Statement
or the prospectus do not contain an untrue statement of a material
fact nor omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(vi) of any determination by the Company or any of the
Guarantors that a post-effective amendment to a Registration
Statement would be appropriate.
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(c) The Company and the Guarantors shall make every reasonable
effort to prevent the issuance, and if issued to obtain the withdrawal at
the earliest possible time, of any order suspending the effectiveness of
the Registration Statement and shall provide prompt written notice to the
Purchasers and each Holder of the withdrawal of any such order.
(d) The Company and the Guarantors shall furnish to each
Holder of Securities included within the coverage of the Shelf
Registration, without charge, at least one conformed copy of the Shelf
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules (without documents incorporated therein
by reference or exhibits thereto, unless a Holder so requests in writing).
(e) The Company and the Guarantors shall deliver to the
Purchasers, and to any other Holder that so requests, without charge, at
least one conformed copy of the Exchange Offer Registration Statement and
any post-effective amendment thereto, including financial statements and
schedules (without documents incorporated therein by reference or exhibits
thereto, unless the Purchasers or any such Holder so request in writing).
(f) The Company and the Guarantors shall deliver to each
Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus (including
each preliminary prospectus) included in the Shelf Registration Statement
and any amendment or supplement thereto as such person may reasonably
request. The Company and each Guarantor consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of the
Securities in connection with the offering and sale of the Securities
covered by, and as contemplated by, the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
(g) The Company and the Guarantors shall deliver to the
Purchasers, any Participating Broker-Dealer or any Exchanging Dealer,
without charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement and any amendment or supplement
thereto as such person may reasonably request, during the period not
exceeding 120 days following the consummation of the Registration Exchange
Offer. The Company and each Guarantor consents, 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 Company or any Guarantor to deliver
and shall not deliver
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any such prospectus after the expiration of the period referred to in the
immediately preceding sentence, in connection with the resales
contemplated by this paragraph.
(h) Prior to any public offering of the Securities pursuant to
any Registration Statement, the Company and the Guarantors shall use their
respective best efforts to register or qualify or cooperate with the
Holders of the Securities included therein and their respective counsel in
connection with the registration or qualification of the Securities for
offer and sale under the securities or Blue Sky laws of such states of the
United States as any Holder of the Securities reasonably requests in
writing and do any and all other acts or things necessary or advisable to
enable such Holder to offer and sell in such jurisdictions the Securities
covered by such Registration Statement owned by such Holder; provided,
however, that neither the Company nor any Guarantor shall be required to
(i) qualify generally or as a foreign corporation to do business in any
jurisdiction where it is not then so qualified or (ii) take any action
which would subject it to general service of process or to taxation in any
jurisdiction where it is not then so subject.
(i) The Company and the Guarantors shall cooperate with the
Holders of the Securities to facilitate the timely preparation and
delivery of certificates representing the Securities to be sold pursuant
to any Shelf Registration Statement free of any restrictive legends and in
such denominations (consistent with the provisions of the Indenture) and
registered in such names as the Holders may request at least two business
days prior to closing of any sale of the Securities pursuant to such Shelf
Registration Statement.
(j) If any event contemplated by paragraphs (ii) through (vi)
of Section 3(b) above occurs during the period for which the Company or
any Guarantor is required to maintain an effective Registration Statement,
the Company and the Guarantors shall promptly prepare and file a
post-effective amendment to the Registration Statement or a supplement to
the related prospectus and any other required document so that, as
thereafter delivered to Holders of the Notes or purchasers of Securities,
the prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading. If the Company or any Guarantor notifies
the Purchasers, the Holders of the Securities and any known Participating
Broker-Dealer in accordance with paragraphs (ii) through (vi) of Section
3(b) above to suspend the use of the prospectus until the requisite
changes to the prospectus have been made, then the Purchasers, the Holders
of the Securities and any such Participating Broker-Dealers shall suspend
use of such prospectus until the Company or such Guarantor has amended or
supplemented the prospectus to correct such misstatement or omission, and
the period of effectiveness of the Shelf Registration Statement provided
for in Section 2(b) above and the Exchange
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Offer Registration Statement provided for in Section 1 above shall each be
extended by the number of days from and including the date of the giving
of such notice to and including the date when the Purchasers, the Holders
of the Securities and any known Participating Broker-Dealer shall have
received such amended or supplemented prospectus pursuant to this Section
3(j); provided, however, that the minimum time period before the Company
or any Guarantor shall be entitled to close the Registration Exchange
Offer shall be extended only to the extent required by the Commission. The
Purchasers, each Holder and any Participating Broker-Dealers agree that
upon receipt of any such notice from the Company it will not distribute
copies of the prospectus that are the subject of such notice and will
retain such copies in its files.
(k) Not later than the effective date of the applicable
Registration Statement, the Company and the Guarantors will obtain a CUSIP
number for the Transfer Restricted Notes, the Exchange Notes or the
Private Exchange Notes, as the case may be, and provide the Trustee with
printed certificates for the Notes, the Exchange Notes or the Private
Exchange Notes, as the case may be, in a form eligible for deposit with
The Depository Trust Company.
(l) The Company and the Guarantors will comply in all material
respects with all rules and regulations of the Commission to the extent
and so long as they are applicable to the Registration Exchange Offer or
the Shelf Registration and will make generally available to its securities
holders (or otherwise provide in accordance with Section 11(a) of the
Securities Act) an earnings statement satisfying the provisions of Section
11(a) of the Securities Act, no later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning
with the first month of the Company's first fiscal quarter commencing
after the effective date of the Registration Statement, which statement
shall cover such 12-month period.
(m) The Company and the Guarantors shall cause the Indenture
to be qualified under the Trust Indenture Act of 1939, as amended, in a
timely manner and containing such changes, if any, as shall be necessary
for such qualification. In the event that such qualification would require
the appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
(n) The Company and the Guarantors may require each Holder of
Securities to be sold pursuant to the Shelf Registration Statement to
furnish to the Company and the Guarantors such information regarding the
Holder and the distribution of the Securities as the Company may from time
to time reasonably request for inclusion in the Shelf Registration
Statement, and the Company and the Guarantors may exclude from such
registration the Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
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(o) In the case of any Shelf Registration, the Company and the
Guarantors shall enter into such customary agreements (including if
requested an underwriting agreement in customary form) and take all such
other action, if any, as the Holders of a majority of the Securities being
sold shall reasonably request in order to facilitate the disposition of
the Securities pursuant to such Shelf Registration.
(p) In the case of any Shelf Registration, the Company and the
Guarantors shall make available for inspection by a representative of the
Holders of Securities being sold, its counsel and an accountant retained
by such Holders, in a manner designed to permit underwriters to satisfy
their due diligence investigation under the Securities Act, all financial
and other records, pertinent corporate documents and properties of the
Company and the Guarantors customarily inspected by underwriters in
primary underwritten offerings and cause the officers, directors and
employees of the Company and its subsidiaries (including the Guarantors)
to supply all information reasonably requested by, and customarily
supplied in connection with primary underwritten offerings to, any such
representative, attorney or accountant in connection with such
registration; provided, however, that any records, information or
documents that are designated by the Company or any Guarantor as
confidential at the time of delivery of such records, information or
documents shall be kept confidential by such persons, unless (i) such
records, information or documents are in the public domain or otherwise
publicly available, (ii) disclosure of such records, information or
documents is required by court or administrative order or (iii) disclosure
of such records, information or documents, in the written opinion of
counsel to such person, is otherwise required by law (including, without
limitation, pursuant to the requirements of the Securities Act).
(q) In the case of any Shelf Registration, the Company and the
Guarantors, if requested by any Holder of Securities covered thereby,
shall each (i) cause their counsel to deliver an opinion and updates
thereof relating to the Securities in customary form addressed to such
Holders and the managing underwriters, if any, and dated, in the case of
the initial opinion, the effective date of such Shelf Registration
Statement covering matters customarily covered in opinions requested in
underwritten offerings, (ii) cause its officers to execute and deliver
such documents and certificates and updates thereof as may be reasonably
requested by any underwriters of the applicable Securities, and which are
customarily delivered in underwritten offerings, to evidence the continued
validity of the representations and warranties of the Company and the
Guarantors made pursuant to, and to evidence compliance with any customary
conditions contained in, an underwriting agreement and (iii) cause its
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
13
receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72.
(r) If a Registration Exchange Offer or a Private Exchange is
to be consummated, upon delivery of the Notes by Holders to the Company
and the Guarantors (or to such other Person as directed by the Company or
any Guarantor) in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be, the Company shall ▇▇▇▇, 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.
(s) The Company and the Guarantors will use their respective
best efforts to cause the Securities covered by a Shelf Registration
Statement to be rated by two nationally recognized statistical rating
organizations (as such term is defined in Rule 436(g)(2) under the
Securities Act) if so requested by Holders of a majority in aggregate
principal amount of Securities covered by such Shelf Registration
Statement, or by the managing underwriters, if any.
(t) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member of
an underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Conduct Rules of the National Association of
Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of such
Securities or as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, the Company and the Guarantors
shall assist such broker-dealer in complying with the requirements of such
Rules and By-Laws, including by (i) if such Rules, including Rule 2720,
shall so require, engaging a "qualified independent underwriter" (as
defined in such Rule) to participate in the preparation of the
Registration Statement relating to such Securities, to exercise usual
standards of due diligence in 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.
SECTION 4. Registration Expenses. The Company and the Guarantors
shall jointly and severally pay all fees and expenses incident to the
performance of or compliance with this Agreement by the Company and the
Guarantors including, without limitation, (i) all Commission, stock exchange or
NASD registration and filing fees, (ii) all fees and expenses incurred in
connection with compliance with state securities or Blue Sky laws (including
reasonable fees and disbursements of counsel for any underwriters or holders in
connection with Blue Sky
14
qualification of any of the Securities), (iii) all expenses of any persons in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any prospectus, any amendments or supplements
thereto, and all expenses of printing any underwriting agreements, securities
sales agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, and (v) the fees
and disbursements of counsel for the Company and the Guarantors and in the event
of a Shelf Registration, the reasonable fees and disbursements of one firm of
counsel designated by the Holders of a majority in principal amount of the
Securities covered thereby and of the independent public accountants of the
Company, including the expense of any special audits or "cold comfort" letters
required by or incident to such performance and compliance, but excluding fees
and expenses of counsel to the underwriters and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
Securities by a Holder.
SECTION 5. Indemnification. (a) The Company and each of the
Guarantors jointly and severally agree to indemnify and hold harmless each
Holder of the Securities, any Participating Broker-Dealer, and each person, if
any, who controls such Holder or such Participating Broker-Dealer within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, or is under common control with, or is controlled by, such Holder or such
Participating Broker-Dealer, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement or prospectus (as
amended or supplemented if the Company or any Guarantor shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged untrue statement
or omission based upon information relating to such Holder or Participating
Broker-Dealer furnished to the Company or any Guarantor in writing by such
Holder or Participating Broker-Dealer expressly for use therein; provided that
the foregoing indemnity with respect to any preliminary prospectus shall not
inure to the benefit of any Holder or Participating Broker-Dealer from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling or affiliated with such Holder or
Participating Broker-Dealer, if a copy of the final prospectus (as then amended
or supplemented if the Company or any Guarantor shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Holder or Participating Broker-Dealer to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the sale of the
Securities to such person, and if the final prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
15
(b) Each Holder of the Securities, severally and not jointly, agrees
to indemnify and hold harmless the Company, each of the Guarantors, other
selling Holders, directors of the Company, directors of the Guarantors, the
officers of the Company or any Guarantor who sign a Registration Statement and
each person, if any, who controls the Company or any Guarantor or any selling
Holders, within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company and the Guarantors to such Holder, but only with reference to
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in a Registration Statement, any preliminary
prospectus, prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified 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 BT Securities Corporation or (y) Holders of Securities
(other than the Purchasers) or controlling persons of such Holders, such firm
shall be designated in writing by Holders of a majority-in aggregate principal
amount of such Securities. In all other cases, such firm shall be designated by
the Company. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such
16
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 Company and the Guarantors
on the one hand and any such Holder, Participating Broker-Dealer or other party
on the other hand shall be deemed to be in the same respective proportions as
the net proceeds from the offering of the Notes (before deducting expenses)
received by the Company and the Guarantors and the total discounts and
commissions received or realized by such Holder, Participating Broker-Dealer or
other party in respect thereof, in each case as set forth in the Final
Memorandum, bear to the aggregate offering price of such Securities. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Guarantors or by such Holder, Participating
Broker-Dealer or other party and the parties relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Holders respective obligations to contribute pursuant to this Section 5 are
several in proportion to the respective amount of Notes they have purchased, not
joint.
(e) The Company and the Guarantors and each Holder agree that it
would not be just or equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (d) of
this Section 5. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages and liabilities referred to in paragraph (d)
above shall be
17
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder of Securities shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities were sold by such Holder pursuant to a Registration Statement
exceeds the amount of any damages that such Holders have otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder or Participating Broker-Dealer or any person controlling such
Holder or Participating Broker-Dealer or by or on behalf of the Company, its
officers or directors or any person controlling the Company and (iii) the sale
of the Securities. The remedies provided for in this Section 5 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
SECTION 6. Additional Interest Under Certain Circumstances. (a)
Additional interest (the "Additional Interest") with respect to the Securities
shall be assessed as follows if any of the following events occur (each such
event in clauses (i) through (iii) below a "Failure to Register"):
(i) if by July 6, 1997, neither the Exchange Offer Registration
Statement nor a Shelf Registration Statement has been filed with the
Commission;
(ii) If by October 19, 1997, 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 November 18, 1997, 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 2(j) hereof or as permitted in paragraph (b)
of this Section 6); 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 in paragraph (b) of this Section 6) because either (1) any event
occurs as a result of which the related prospectus forming part of such
Registration Statement would include any
18
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 Company and the Guarantors where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related prospectus or (y) the occurrence of other material events or
developments with respect to the Company or any Guarantor that would need to be
described in such Registration Statement or the related prospectus and (ii) in
the case of clause (y), the Company and the Guarantors are proceeding promptly
and in good faith to amend or supplement such Registration Statement and related
prospectus to describe such events or, in the case of material developments that
the Company and the Guarantors determine in good faith must remain confidential
for business reasons, the Company and the Guarantors are proceeding promptly and
in good faith to take such steps as are necessary so that such developments need
no longer remain confidential; provided, however, that in any case, if such
Failure to Register occurs for a continuous period in excess of 45 days,
Additional Interest shall be payable in accordance with the above paragraph from
the day following such 45 day period until the date on which such Failure to
Register is cured.
(c) Any amounts of Additional Interest due pursuant to clause
(a)(i), (a)(ii) or (a)(iii) of Section 6 above will be payable in cash on the
regular interest payment dates with respect to the Notes. The amount of
Additional Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the Notes, multiplied by a fraction,
the numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360.
(d) "Transfer Restricted Notes" means each Security until (i) the
date on which such Transfer Restricted Note has been exchanged by a person other
than a broker-dealer for a freely transferable Exchange Note in the Registration
Exchange Offer, (ii) following the exchange by a broker-dealer in the
Registration Exchange Offer of a Transfer Restricted Note for an Exchange Note,
the date on which such Exchange Note is sold to a purchaser who receives from
such
19
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 Company and the Guarantors shall
use their respective best efforts to file the reports required to be filed by it
under the Securities Act and the Exchange Act in a timely manner (except to the
extent that any Guarantor is permitted to omit filing such reports in accordance
with the terms of any ruling or no-action letter issued by the Securities and
Exchange Commission) and, if at any time the Company or any Guarantor is not
required to file such reports, it will, upon the request of any Holder of
Transfer Restricted Notes, make publicly available other information so long as
necessary to permit sales of Securities pursuant to Rules 144 and 144A. The
Company and the Guarantors covenant that they will take such further action as
any Holder of Transfer Restricted Notes may reasonably request, all to the
extent required from time to time to enable such Holder to sell Transfer
Restricted Notes without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company and the Guarantors will provide a
copy of this Agreement to prospective purchasers of Notes identified to the
Company and the Guarantors by the Purchasers upon request. Upon the request of
any Holder of Transfer Restricted Notes, the Company and the Guarantors shall
deliver to such Holder a written statement as to whether it has complied with
such requirements. Notwithstanding the foregoing, nothing in this Section 7
shall be deemed to require the Company to register any of its securities
pursuant to the Exchange Act.
SECTION 8. Underwritten Registrations. If any of the Transfer
Restricted Notes covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will administer the offering ("Managing Underwriters") will be
selected by the holders of a majority in aggregate principal amount of such
Transfer Restricted Notes and any Additional Notes included in such offering;
provided, however, that the Managing Underwriters shall be reasonably
satisfactory to the Company and the Guarantors.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted Notes on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other: documents reasonably required under the terms of such
underwriting arrangements.
SECTION 9. Miscellaneous. (a) Amendments and Waivers. The
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
except
20
by the Company, each of the Guarantors and the written consent of the Holders of
a majority in principal amount of the Securities affected by such amendment,
modification, supplement, waiver or consent.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current address
given by such Holder to the Company and the Guarantors in accordance with
the provisions of this Section 9(b), which address initially is, with
respect to each Holder, the address of such Holder to which confirmation
of the sale of the Notes to such Holder was first sent by the Purchasers,
with a copy in like manner to you as follows:
BT Securities Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile:(▇▇▇) ▇▇▇-▇▇▇▇
Attention:▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile:(▇▇▇) ▇▇▇-▇▇▇▇
Attention:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(2) if to the Company or any Guarantor, at the following
address:
▇▇▇▇▇▇▇▇ Scotsman, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
with a copy to:
The Cypress Group, L.L.C.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Vice Chairman
21
Scotsman Partners, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇
- and -
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇▇ ▇▇▇▇▇▇
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(c) No Inconsistent Agreements. Neither the Company nor any
Guarantor has, as of the date hereof, entered into, nor shall it, on or after
the date hereof, enter into, any agreement with respect to its Securities that
is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(d) Successors and Assigns. This Agreement shall be binding upon
the Company and the Guarantors and their respective successors and assigns.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in 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
22
other respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
(i) Securities Held by the Company. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates (including
the Guarantors) (other than subsequent Holders of Securities if such subsequent
Holders are deemed to be affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Guarantors a
counterpart hereof, whereupon this instrument, along with all counterparts, will
become a binding agreement between the Purchasers and the Company and the
Guarantors in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇▇ SCOTSMAN, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Corporate
Counsel & Secretary
MOBILE FIELD OFFICE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
WILLSCOT EQUIPMENT, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President, Corporate
Counsel & Secretary of
Member
Accepted as of the date hereof
BT Securities Corporation
Alex. ▇▇▇▇▇ & Sons Incorporated
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation
Acting severally on behalf of
themselves and the several
Purchasers
By BT SECURITIES CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Senior Managing Director
24
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Existing Notes where
such Existing Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 120 days after the Expiration Date (as definer herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account
in exchange for Notes, where such Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such Exchange
Notes. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Existing Notes where such Existing Notes were acquired as a result
of market-making activities or other trading activities. The Company, the
Guarantor 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 ____________, 1997, all dealers effecting
transactions in the Exchange Notes may be required to deliver a prospectus.(1)
The Company, the Guarantor 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 Company, the
Guarantor and the Subordinated Guarantor will promptly send additional copies of
this Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Company, the
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(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
Guarantor and the Subordinated Guarantor have agreed to pay all expenses
incident to the Exchange Offer other than commissions or concessions of any
brokers or dealers and will indemnify the Holders of the Securities (including
any broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
ANNEX D
____ CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Notes. If the undersigned is a broker-dealer that will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a result of
market-making activities or other trading activities, it acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
