exv10w1






Exhibit 10.1




 






Registration Rights Agreement




Dated as of October 21, 2010



among



NAVIOS MARITIME ACQUISITION CORPORATION

NAVIOS ACQUISITION FINANCE (US) INC.



and



Banc of America Securities LLC



J.P. Morgan Securities LLC



Citigroup Global Markets Inc.



S. Goldman Advisors LLC



Commerz Markets LLC



DVB Capital Markets LLC



and



DnB NOR Markets Inc.



 





 









 





REGISTRATION RIGHTS AGREEMENT




          THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of
October 21, 2010 by and among NAVIOS MARITIME ACQUISITION CORPORATION, a Marshall Islands
corporation (the “Company”), NAVIOS ACQUISITION FINANCE (US) INC., a Delaware corporation
(“Navios Acquisition Finance” and, together with the Company, the “Co-Issuers”),
each of the guarantors listed in Schedule A attached hereto (the “Guarantors”), and
Banc of America Securities LLC (“BofA Merrill Lynch”) and each other Initial Purchaser set
forth on Schedule B attached hereto collectively, the “Initial Purchasers”), for
whom BofA Merrill Lynch is acting as representative (the “Representative”).




          This Agreement is made pursuant to the Purchase Agreement, dated as of October 6, 2010, among
the Co-Issuers, the Guarantors and the Initial Purchasers (the “Purchase Agreement”), which
provides for the sale by the Co-Issuers to the Initial Purchasers of an aggregate of $400,000,000
principal amount of the Co-Issuers’ 85/8% First Priority Ship Mortgage Notes due 2017 (the
“Notes”), unconditionally guaranteed on a senior basis by each of the Guarantors (the
“Guarantees” and together with the Notes, the “Securities”). In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the Co-Issuers and the Guarantors have
agreed to provide to the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution of this Agreement is a condition to
the closing under the Purchase Agreement.




          In consideration of the foregoing, the parties hereto agree as follows:




          1. Definitions.




          As used in this Agreement, the following capitalized defined terms shall have the following
meanings:




          “1933 Act” shall mean the Securities Act of 1933, as amended from time to time.




          “1934 Act” shall mean the Securities Exchange Act of 1934, as amended from time to
time.




          “Additional Interest” shall have the meaning set forth in Section 2.5 hereof,




          “Business Day” shall mean any day other than a Saturday, Sunday, U.S. Federal holiday
or a day on which banking institutions or trust companies located in the city of New York, New
York, are authorized or obligated by law or executive order to close.




          “Closing Date” shall mean the day of the Closing Time as defined in the Purchase
Agreement.




          “Co-Issuer” shall have the meaning set forth in the preamble.




          “Company” shall have the meaning set forth in the preamble and shall also include the
Company’s successors.







 









 








          “Depositary” shall mean The Depository Trust Company, or any other depositary
appointed by the Co-Issuers, provided, however, that such depositary must have an address in the
Borough of Manhattan, in the City of New York.




          “Effectiveness Period” shall have the meaning set forth in Section 2.2 hereof.




          “Exchange Offer” shall mean the exchange offer by the Co-Issuers and the Guarantors of
Exchange Securities for Registrable Securities pursuant to Section 2.1 hereof.




          “Exchange Offer Registration” shall mean a registration under the 1933 Act effected
pursuant to Section 2.1 hereof.




          “Exchange Offer Registration Statement” shall mean an exchange offer registration
statement on Form F-4 (or, if applicable, on another appropriate form), and all amendments and
supplements to such registration statement, including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein. For the avoidance of doubt,
all guarantors in respect of the Notes (regardless of whether each such person is a Guarantor on
the date hereof) shall be included as registrants in any Exchange Offer Registration Statement.




          “Exchange Period” shall have the meaning set forth in Section 2.1 hereof.




          “Exchange Securities” shall mean the 85/8% First Priority Ship Mortgage Notes due 2017,
issued by the Co-Issuers under the Indenture containing terms identical to the Securities in all
material respects (except that the additional interest rate, restrictions on transfers and
restrictive legends provisions thereof shall be eliminated), to be offered to Holders of Securities
in exchange for Securities pursuant to the Exchange Offer.




          “First Priority Ship Mortgage Notes” shall mean the $400,000,000 85⁄8% Notes due 2017.




          “Guarantor” shall have the meaning set forth in the preamble and shall also include
any additional guarantors in respect of the Notes (regardless of whether each such person is listed
as a Guarantor on Schedule A on the date hereof).




          “Holder” shall mean an Initial Purchaser, for so long as it owns any Registrable
Securities, and each of its successors, assigns and direct and indirect transferees who become
registered owners of Registrable Securities under the Indenture and each Participating
Broker-Dealer that holds Exchange Securities for so long as such Participating Broker-Dealer is
required to deliver a prospectus meeting the requirements of the 1933 Act in connection with any
resale of such Exchange Securities.




          “Indenture” shall mean the Indenture relating to the Securities, dated as of October
21, 2010, among the Co-Issuers, the Guarantors and Wells Fargo Bank, National Association, as
trustee, as the same may be amended, supplemented, waived or otherwise modified from time to time
in accordance with the terms thereof.







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          “Initial Purchaser” or “Initial Purchasers” shall have the meaning set forth
in the preamble.




          “Majority Holders” shall mean the Holders of a majority of the aggregate principal
amount of outstanding Registrable Securities; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required hereunder, Registrable
Securities held by either Co-Issuer, the Guarantors and any other guarantors of the Notes or any
Affiliate (as defined in the Indenture) of the Co-Issuers or the Guarantors (or any other guarantor
of the Notes) shall be disregarded in determining whether such consent or approval was given by the
Holders of such required percentage amount.




          “Participating Broker-Dealer” shall mean any of BofA Merrill Lynch, J.P. Morgan
Securities LLC, Citigroup Global Markets Inc., S. Goldman Advisors LLC, Commerz Markets LLC, DVB
Capital Markets LLC and DnB NOR Markets, Inc. and any other broker-dealer which makes a market in
the Securities and exchanges Registrable Securities in the Exchange Offer for Exchange Securities.




          “Person” shall mean an individual, partnership (general or limited), corporation,
limited liability company, trust or unincorporated organization, or a government or agency or
political subdivision thereof.




          “Private Exchange” shall have the meaning set forth in Section 2.1 hereof.




          “Private Exchange Securities” shall have the meaning set forth in Section 2.1 hereof.




          “Prospectus” shall mean the prospectus included in a Registration Statement, including
any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus
supplement, including any such prospectus supplement with respect to the terms of the offering of
any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective amendments, and in each
case including all material incorporated by reference therein.




          “Purchase Agreement” shall have the meaning set forth in the preamble.




          “Registrable Securities” shall mean the Securities and, if issued, the Private
Exchange Securities; provided that, such Securities and, if issued, such Private Exchange
Securities shall cease to be Registrable Securities on the earliest to occur of (i) the date on
which a Registration Statement with respect to such Securities or such Private Exchange Securities
has become effective under the 1933 Act and such Securities or such Private Exchange Securities
have been exchanged or disposed of pursuant to such Registration Statement, (ii) the date on which
such Securities or Private Exchange Securities shall have ceased to be outstanding or (iii) the
date on which the Exchange Offer is consummated (except in the case of Private Exchange Securities
and Securities purchased from the Co-Issuers and continued to be held by the Initial Purchasers).




          “Registration Default” shall have the meaning set forth in Section 2.5 hereof.







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          “Registration Expenses” shall mean any and all expenses incident to or incurred in
connection with the performance by the Co-Issuers and the Guarantors of, or compliance by the
Co-Issuers and the Guarantors with, this Agreement, including without limitation: (i) all SEC,
stock exchange or Financial Industry Regulatory Authority, Inc. (“FINRA”) registration and
filing fees, including, if applicable, the fees and expenses of any “qualified independent
underwriter” (and its counsel) that is required to be retained by any holder of Registrable
Securities in accordance with the rules and regulations of FINRA, (ii) all fees and expenses
incurred in connection with compliance with state securities or blue sky laws and compliance with
the rules of FINRA (including reasonable fees and disbursements of counsel for any underwriters or
Holders in connection with blue sky qualification of any of the Exchange Securities or Registrable
Securities and any filings with FINRA), (iii) all expenses of any Persons in preparing or assisting
in preparing, word processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and compliance with this Agreement,
(iv) all fees and expenses incurred in connection with the listing, if any, of any of the
Registrable Securities on any securities exchange or exchanges, (v) all rating agency fees, (vi)
the fees and disbursements of counsel for the Co-Issuers and the Guarantors and of the independent
public accountants of the Co-Issuers and the Guarantors, including the expenses of any special
audits or “cold comfort” letters required by or incident to such performance and compliance, (vii)
the fees and expenses of the Trustee, and any escrow agent or custodian, (viii) the reasonable fees
and expenses of the Initial Purchasers in connection with the Exchange Offer, (ix) in the case of a
Shelf Registration Statement, the reasonable fees and disbursements of one special counsel (and any
reasonably requested local counsel) representing the Holders of Registrable Securities (which
counsel shall be elected by the Majority Holders and which counsel may also be the counsel for the
Initial Purchasers) and (x) any fees and disbursements of the underwriters customarily required to
be paid by issuers or sellers of securities and the fees and expenses of any special experts
retained by the Co-Issuers and the Guarantors in connection with any Registration Statement, but
excluding underwriting discounts and commissions and transfer taxes, if any, relating to the sale
or disposition of Registrable Securities by a Holder.




          “Registration Statement” shall mean any registration statement of the Co-Issuers and
the Guarantors which covers any of the Exchange Securities or Registrable Securities pursuant to
the provisions of this Agreement, and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference therein.




          “SEC” shall mean the Securities and Exchange Commission or any successor agency or
government body performing the functions currently performed by the United States Securities and
Exchange Commission.




          “Shelf Registration” shall mean a registration effected pursuant to Section 2.2
hereof.




          “Shelf Registration Statement” shall mean a “shelf” registration statement of the
Co-Issuers and the Guarantors pursuant to the provisions of Section 2.2 of this Agreement which
covers all of the Registrable Securities or all of the Private Exchange Securities on an
appropriate




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form under Rule 415 under the 1933 Act, or any similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein. For the avoidance of doubt, all guarantors in respect
of the Notes (regardless of whether each such person is a Guarantor on the date hereof) shall be
included as registrants in any Shelf Registration Statement.




          “Shelf Suspension Period” shall have the meaning set forth in Section 2.2 hereof.




          “Trustee” shall mean the trustee with respect to the Securities under the Indenture.




          2. Registration Under the 1933 Act.




          2.1. Exchange Offer. The Co-Issuers and the Guarantors shall, for the benefit of the
Holders, at the Co-Issuers’ and the Guarantors’ cost, (A) prepare and file with the SEC no later
than 210 days after the Closing Date, an Exchange Offer Registration Statement on an appropriate
form under the 1933 Act with respect to a proposed Exchange Offer and the issuance and delivery to
the Holders, in exchange for the Registrable Securities (other than Private Exchange Securities),
of a like principal amount of Exchange Securities, (B) use their commercially reasonable efforts to
cause the Exchange Offer Registration Statement to be declared effective, under the 1933 Act not
later than 330 days after the Closing Date, (C) use their commercially reasonable efforts to keep
the Exchange Offer Registration Statement effective until the closing of the Exchange Offer, (D)
use their commercially reasonable efforts to cause the Exchange Offer to be consummated not later
than 395 days after the Closing Date, and (E) upon the effectiveness of the Exchange Offer
Registration Statement, promptly commence the Exchange Offer, it being the objective of such
Exchange Offer to enable each Holder eligible and electing to exchange Registrable Securities for
Exchange Securities (provided that such Holder (a) is not an affiliate of either Co-Issuer within
the meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer tendering Registrable
Securities acquired directly from the Co-Issuers for its own account, (c) acquired the Exchange
Securities in the ordinary course of such Holder’s business and (d) has no arrangements or
understandings with any Person to participate in the Exchange Offer for the purpose of distributing
the Exchange Securities) to transfer such Exchange Securities from and after their receipt without
any limitations or restrictions under the 1933 Act and under state securities or blue sky laws.




          In connection with the Exchange Offer, the Co-Issuers and the Guarantors shall:





     (a) mail as promptly as reasonably practicable to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;




     (b) keep the Exchange Offer open for acceptance for a period of not less than 20
Business Days after the date notice thereof is mailed to the Holders (or longer if required
by applicable law) (such period referred to herein as the “Exchange Period”);



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     (c) utilize the services of the Depositary for the Exchange Offer;




     (d) permit Holders to withdraw tendered Registrable Securities at any time prior to
5:00 p.m. (Eastern time), on the last Business Day of the Exchange Period, by sending to the
institution specified in the notice, a telegram, telex, facsimile transmission or letter
setting forth the name of such Holder, the principal amount of Registrable Securities
delivered for exchange, and a statement that such Holder is withdrawing such Holder’s
election to have such Securities exchanged;




     (e) notify each Holder that any Registrable Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any rights under this
Agreement (except in the case of the Initial Purchasers and Participating Broker-Dealers as
provided herein); and




     (f) otherwise comply in all respects with all applicable laws relating to the Exchange
Offer.



          A Holder that wishes to exchange Registrable Securities in the Exchange Offer shall be
required to (a) represent that (i) it is not an affiliate of either Co-Issuer within the meaning of
Rule 405 under the 1933 Act, (ii) all Exchange Securities to be received by it shall be acquired in
the ordinary course of its business and (iii) at the time of the consummation of the Exchange Offer
it shall have no arrangement or understanding with any person to participate in the distribution
(within the meaning of the 1933 Act) of the Exchange Securities and (b) make such other
representations as may be reasonably necessary under applicable SEC rules, regulations or
interpretations.




          If such Holder is a broker-dealer that will receive Exchange Securities for its own account in
exchange for Registrable Securities that were acquired as a result of market-making or other
trading activities, such broker-dealer will be required to acknowledge that it will deliver a
Prospectus in connection with any resale of the Exchange Securities (and the Co-Issuers hereby
agree and undertake to provide any such broker-dealer with such number of Prospectuses as such
broker-dealer may reasonably request for such purpose).




          If, prior to consummation of the Exchange Offer, the Initial Purchasers hold any Securities
acquired by them and having the status of an unsold allotment in the initial distribution, the
Co-Issuers upon the request of any Initial Purchaser shall, simultaneously with the delivery of the
Exchange Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in exchange
(the “Private Exchange”) for the Securities held by such Initial Purchaser, a like
principal amount of debt securities of the Co-Issuers on a senior secured basis, that are identical
to the Exchange Securities, except that such securities shall bear appropriate transfer
restrictions (the “Private Exchange Securities”).




          The Exchange Securities and the Private Exchange Securities shall be issued under (i) the
Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in
either case, has been qualified under the Trust Indenture Act of 1939, as amended (the
“TIA”), or is exempt from such qualification and shall provide that the Exchange Securities
shall




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not be subject to the transfer restrictions or “Additional Interest” provisions set forth in
the Indenture but that the Private Exchange Securities shall be subject to such transfer
restrictions. The Indenture or such indenture shall provide that the Exchange Securities, the
Private Exchange Securities and the Securities shall vote and consent together on all matters as
one class and that none of the Exchange Securities, the Private Exchange Securities or the
Securities will have the right to vote or consent as a separate class on any matter. The Private
Exchange Securities shall be of the same series as and the Co-Issuers shall use all commercially
reasonable efforts to have the Private Exchange Securities bear the same CUSIP number as the
Exchange Securities, if at any time the same is possible. The Co-Issuers shall not have any
liability under this Agreement solely as a result of such Private Exchange Securities not bearing
the same CUSIP number as the Exchange Securities.




          As soon as reasonably practicable after the close of the Exchange Offer and/or the Private
Exchange, as the case may be, the Co-Issuers shall:





     (i) accept for exchange all Registrable Securities duly tendered and not validly
withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer
Registration Statement and the letter of transmittal which shall be an exhibit thereto;




     (ii) accept for exchange all Securities properly tendered pursuant to the Private
Exchange;




     (iii) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Securities so accepted for exchange; and




     (iv) cause the Trustee promptly to authenticate and deliver Exchange Securities or
Private Exchange Securities, as the case may be, to each Holder of Registrable Securities so
accepted for exchange in a principal amount equal to the principal amount of the Registrable
Securities of such Holder so accepted for exchange.



          Interest on each Exchange Security and Private Exchange Security will accrue from the last
date on which interest was paid on the Registrable Securities surrendered in exchange therefor or,
if no interest has been paid on the Registrable Securities, from the date of original issuance.
The Exchange Offer and the Private Exchange shall not be subject to any conditions, other than (i)
that the Exchange Offer or the Private Exchange, or the making of any exchange by a Holder, does
not violate applicable law or any applicable interpretation of the staff of the SEC, (ii) the due
tendering of Registrable Securities in accordance with the Exchange Offer and the Private Exchange,
(iii) that each Holder of Registrable Securities exchanged in the Exchange Offer shall have
represented that all Exchange Securities to be received by it shall be acquired in the ordinary
course of its business and that at the time of the consummation of the Exchange Offer it shall have
no arrangement or understanding with any person to participate in the distribution (within the
meaning of the 1933 Act) of the Exchange Securities and shall have made such other representations
as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render
the use of Form F-4 or other appropriate form under the 1933 Act available and (iv) that no action
or proceeding shall have been instituted or threatened






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in any court or by or before any governmental agency with respect to the Exchange Offer or the
Private Exchange which, in the Co-Issuers’ judgment, would reasonably be expected to impair the
ability of the Co-Issuers to proceed with the Exchange Offer or the Private Exchange. If the
Co-Issuers determine in their reasonable judgment that any of the foregoing conditions are not
satisfied, the Co-Issuers may (a) refuse to accept any Registrable Securities and return all
tendered Registrable Securities to the tendering Holders, (b) extend the Exchange Offer and retain
all Registrable Securities tendered before the expiration of the Exchange Offer, subject, however,
to the rights of holders to withdraw those Registrable Securities, or (c) waive the unsatisfied
conditions with respect to the Exchange Offer or the Private Exchange and accept all properly
tendered Registrable Securities that have not been withdrawn (unless to do so could reasonably be
expected to materially and adversely affect one or more tendering Holders in its capacity as such);
provided that the foregoing shall not limit the right of Holders to receive, or the obligation of
the Co-Issuers to pay, Additional Interest as provided by Section 2.5. The Co-Issuers shall inform
the Initial Purchasers of the names and addresses of the Holders to whom the Exchange Offer is
made, and the Initial Purchasers shall have the right to contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange Offer.




          2.2. Shelf Registration. If, (i) because of any changes in law, SEC rules or
regulations or applicable interpretations thereof by the staff of the SEC, the Co-Issuers are not
permitted to file the Exchange Offer Registration Statement or to consummate the Exchange Offer as
contemplated by Section 2.1 hereof, (ii) for any other reason the Exchange Offer Registration
Statement is not declared effective on or prior to the 330th day after the Closing Date, or the
Exchange Offer is not consummated on or prior to the 395th day after the Closing Date, (iii) upon
the reasonable request of any of the Initial Purchasers that holds Securities or (iv) any Holder of
Securities is not permitted to participate in the Exchange Offer or does not receive fully
tradeable Exchange Securities pursuant to the Exchange Offer, then, in case of each of clauses (i)
through (iv) (each event described in clauses (i) through (iv), a “Shelf Triggering
Event”), the Co-Issuers and the Guarantors shall, at their cost:





     (a) file with the SEC, and thereafter shall use their commercially reasonable efforts
to cause to be declared effective under the 1933 Act, no later than the 150th day after the
occurence of a Shelf Triggering Event, a Shelf Registration Statement relating to the offer
and sale of the Registrable Securities by the Holders from time to time in accordance with
the methods of distribution elected by the Majority Holders participating in the Shelf
Registration and set forth in such Shelf Registration Statement.




     (b) use their commercially reasonable efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part thereof to be usable
by Holders for a period of one year from the date the Shelf Registration Statement is
declared effective by the SEC, or for such shorter period that will terminate when all
Registrable Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement or cease to be outstanding or otherwise to be
Registrable Securities (the “Effectiveness Period”); provided, however, that the
Effectiveness Period in respect of the Shelf Registration Statement shall be extended to the
extent required to permit dealers to comply with the applicable prospectus delivery requirements of Rule 174 under the 1933 Act and as otherwise provided herein. Notwithstanding



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anything to the contrary in this Agreement, at any time, the Co-Issuers and the Guarantors
may delay the filing of the Shelf Registration Statement or delay or suspend the
effectiveness thereof, for a reasonable period of time, but not in excess of 90 consecutive
days nor more than three (3) times during any twelve-month period (each, a “Shelf
Suspension Period”), if (x) the Company’s board of directors determines reasonably and
in good faith that because of valid business reasons (not including avoidance of the
Co-Issuers’ and the Guarantors’ obligations hereunder), including without limitation
proposed or pending corporate developments and similar events or because of filings with the
SEC, it is in the best interests of the Co-Issuers or the Guarantors to delay such filing or
suspend such effectiveness and (y) the Co-Issuers provide prior written notice of such
suspension to the Holders (which notice shall not be required to specify the nature of the
event giving rise to the suspension).




     (c) notwithstanding any other provisions hereof, use their commercially reasonable
efforts to ensure that (i) any Shelf Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any supplement thereto complies in all material
respects with the 1933 Act and the rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading and (iii) any
Prospectus forming part of any Shelf Registration Statement, and any supplement to such
Prospectus (as amended or supplemented from time to time), does not include an untrue
statement of a material fact or omit to state a material fact necessary in order to make the
statements, in light of the circumstances under which they were made, not misleading.



          The Co-Issuers and the Guarantors shall not permit any securities other than Registrable
Securities (and any Additional Notes issued under (and as defined in) the Indenture) to be included
in the Shelf Registration Statement. The Co-Issuers and the Guarantors further agree, if
necessary, to supplement or amend the Shelf Registration Statement, as required by Section 3(b)
below, and to furnish to the Holders of Registrable Securities copies of any such supplement or
amendment promptly after its being used or filed with the SEC.




          2.3. Expenses. The Co-Issuers and the Guarantors shall pay all Registration Expenses
in connection with the registration pursuant to Section 2.1 or 2.2. Each Holder shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.




          2.4. Effectiveness.




          (a) For purposes of Section 5.7, subject to the right of the Co-Issuers to effect a Shelf
Suspension Period as set forth in Section 2.2, the Co-Issuers and the Guarantors will be deemed not
have used their commercially reasonable efforts to cause the Exchange Offer Registration Statement
or the Shelf Registration Statement, as the case may be, to become, or to remain, effective during the requisite period if the Co-Issuers or any Guarantor voluntarily
takes any action that would, or omits to take any commercially practicable action which omission




9









 




would, result in any such Registration Statement not being declared effective or in the Holders of
Registrable Securities covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period as and to the extent contemplated hereby, unless such
action is required by applicable law.




          (b) An Exchange Offer Registration Statement pursuant to Section 2.1 hereof or a Shelf
Registration Statement pursuant to Section 2.2 hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of Registrable Securities pursuant to an Exchange Offer
Registration Statement or a Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental agency or court, such
Registration Statement will be deemed not to have become effective during the period of such
interference, until the offering of Registrable Securities pursuant to such Registration Statement
may legally resume.




          2.5. Additional Interest. In the event that (a) the Exchange Offer Registration
Statement is not filed with the SEC on or prior to the 210th day after the Closing Date, (b) the
Exchange Offer Registration Statement has not been declared effective on or prior to the 330th day
after the Closing Date, (c) the Exchange Offer is not consummated on or prior to the 395th day
after the Closing Date, or (d) the Co-Issuers are required by Section 2.2 to file a Shelf
Registration Statement, and the Shelf Registration Statement, if required, is not declared
effective on or prior to the 150th day following a Shelf Triggering Event (each such event referred
to in clauses (a) through (d) above, a “Registration Default”), the interest rate borne by
the Securities shall be increased (“Additional Interest”) by 0.25% per annum upon the
occurrence of each Registration Default, which rate will increase by an additional 0.25% per annum
for each subsequent 90-day period that such Additional Interest continues to accrue under any such
circumstance, provided that the maximum aggregate increase in the interest rate will in no event
exceed 1.00% per annum in each case until the earlier of the date all Registration Defaults are
cured, at which time the accrual of Additional Interest will cease and the interest rate will
revert to the original rate. Notwithstanding the foregoing, a Holder of Registrable Securities who
participated or could have participated in a consummated Exchange Offer shall not, subsequent to
the consummation of such Exchange Offer in accordance with the terms of this Agreement, be entitled
to Additional Interest with respect to any failure with respect to a Shelf Registration Statement.
Following the cure of all Registration Defaults, the accrual of Additional Interest with respect to
Registration Defaults will cease.




          If the Shelf Registration Statement is unusable by the Holders for any reason, and the
aggregate number of days in any consecutive twelve-month period for which the Shelf Registration
Statement shall not be usable exceeds 45 days in the aggregate (other than as part of a permitted
Shelf Suspension Period), then the interest rate borne by the Securities will be increased by 0.25%
per annum of the principal amount of the Securities for the first 90-day period (or portion
thereof) beginning on the 45th such date that such Shelf Registration Statement ceases to be usable
in such twelve-month period (other than as part of a permitted Shelf Suspension Period), which rate shall be increased by an additional 0.25% per annum of the principal
amount of the Securities at the beginning of each subsequent 90-day period, provided that the
maximum aggregate increase in the interest rate will in no event exceed 1.00% per annum. Any
amounts




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payable under this paragraph shall also be deemed “Additional Interest” for purposes of
this Agreement. Upon the Shelf Registration Statement once again becoming usable, the accrual of
Additional Interest will cease and the interest rate borne by the Notes will be reduced to the
original interest rate if the Co-Issuers are otherwise in compliance with this Agreement at such
time. Additional Interest shall be computed based on the actual number of days elapsed in each
90-day period in which the Shelf Registration Statement is unusable.




          Additional Interest shall not accrue or be payable for more than one outstanding Registration
Default pursuant to the two preceding paragraphs at any given time.




          The Co-Issuers shall notify the Trustee within three Business Days after each and every date
on which an event occurs in respect of which Additional Interest would be required to be paid,
notwithstanding the application of the immediately preceding sentence (an “Event Date”).
Additional Interest shall be paid by depositing with the Trustee, in trust, for the benefit of the
Holders of Registrable Securities, on or before the applicable semiannual interest payment date,
immediately available funds in sums sufficient to pay the Additional Interest then due. The
Additional Interest due shall be payable on each interest payment date to the record Holder of
Registrable Securities entitled to receive the interest payment to be paid on such date as set
forth in the Indenture. Each obligation to pay Additional Interest shall be deemed to accrue from
and including the day following the applicable Event Date.




          3. Registration Procedures.




          In connection with the obligations of the Co-Issuers and the Guarantors with respect to
Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Co-Issuers and the Guarantors
shall:





     (a) prepare and file with the SEC a Registration Statement, within the relevant time
period specified in Section 2, on the appropriate form under the 1933 Act, which form (i)
shall be selected by the Co-Issuers, (ii) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling Holders thereof, (iii)
shall comply as to form in all material respects with the requirements of the applicable
form and include or incorporate by reference all financial statements required by the SEC to
be filed therewith or incorporated by reference therein, and (iv) shall comply in all
respects with the requirements of Regulation S-T under the 1933 Act, and use their
commercially reasonable efforts to cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof;




     (b) prepare and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary under applicable law to keep such Registration
Statement effective for the applicable period in accordance with Section 2 hereof; and cause
each Prospectus to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provision then in force) under the 1933 Act and comply with the provisions of the 1933 Act,
the 1934 Act and the rules and regulations thereunder applicable to them with respect to the
disposition of all securities covered by each Registration Statement during



11









 







the applicable
period in accordance with the intended method or methods of distribution by the selling
Holders thereof (including sales by any Participating Broker-Dealer);




     (c) in the case of a Shelf Registration, (i) notify each Holder of Registrable
Securities for which the Co-Issuers have information, at least five Business Days prior to
filing, that a Shelf Registration Statement with respect to the Registrable Securities is
being filed and advising such Holders that the distribution of Registrable Securities will
be made in accordance with the method selected by the Majority Holders participating in the
Shelf Registration; (ii) furnish to each Holder of Registrable Securities and to each
underwriter of an underwritten offering of Registrable Securities, if any, without charge,
as many copies of each Prospectus, including each preliminary Prospectus, and any amendment
or supplement thereto and such other documents as such Holder or underwriter may reasonably
request, including financial statements and schedules and, if the Holder so requests, all
exhibits in order to facilitate the public sale or other disposition of the Registrable
Securities (for the avoidance of doubt, any such supplement or amendment electronically
filed with the SEC on the EDGAR system shall be deemed furnished to the Holders of
Registrable Securities); and (iii) hereby consent to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of Registrable Securities in
accordance with applicable law in connection with the offering and sale of the Registrable
Securities covered by the Prospectus or any amendment or supplement thereto;




     (d) use their commercially reasonable efforts to register or qualify the Registrable
Securities under all applicable state securities or “blue sky” laws of such jurisdictions as
any Holder of Registrable Securities covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable Securities shall reasonably request
by the time the applicable Registration Statement is declared effective by the SEC, and do
any and all other acts and things which may be reasonably necessary or advisable to enable
each such Holder and underwriter to consummate the disposition in each such jurisdiction of
such Registrable Securities owned by such Holder; provided, however, that neither the
Co-Issuers nor any Guarantor shall be required to (i) qualify as a foreign corporation or as
a dealer in securities in any jurisdiction where it is not then so qualified or would not
otherwise be required to qualify but for this Section 3(d), or (ii) take any action which
would subject it to general service of process or taxation in any such jurisdiction where it
is not then so subject;




     (e) notify promptly each Holder of Registrable Securities under a Shelf Registration
for which the Co-Issuers have information, or any Participating Broker-Dealer who has
notified the Co-Issuers that it is utilizing the Exchange Offer Registration Statement as
provided in paragraph (f) below, and, if requested by such Holder or Participating
Broker-Dealer, confirm such advice in writing promptly (i) when a Registration Statement has
become effective and when any post-effective amendments and supplements thereto become effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments and supplements to a Registration Statement and
Prospectus or for additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of a Registration Statement or the initiation of any
proceedings



12









 







for that purpose, (iv) in the case of a Shelf Registration, if, between the
effective date of a Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the Co-Issuers and the
Guarantors contained in any underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to the offering cease to be true and correct in all
material respects (or, in the case of any representation or warranty that by its terms is
qualified by reference to materiality, a material adverse effect or any term or concept of
similar import, such representation or warranty ceases to be true in all respects), (v) of
the happening of any event or the discovery of any facts during the period a Shelf
Registration Statement is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or which requires the
making of any changes in such Registration Statement or Prospectus in order to make the
statements therein not misleading, (vi) of the receipt by the Co-Issuers of any notification
with respect to the suspension of the qualification of the Registrable Securities or the
Exchange Securities, as the case may be, for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vii) of any determination by the
Co-Issuers that a post-effective amendment to such Registration Statement would be
appropriate;




     (f) (A) in the case of the Exchange Offer Registration Statement (i) include in the
Exchange Offer Registration Statement a section entitled “Plan of Distribution” which
section shall be reasonably acceptable to the Representative on behalf of the Participating
Broker-Dealers, and which shall contain a summary statement of the positions taken or
policies made by the staff of the SEC with respect to the potential “underwriter” status of
any broker-dealer that holds Registrable Securities acquired for its own account as a result
of market-making activities or other trading activities and that will be the beneficial
owner (as defined in Rule 13d-3 under the 1934 Act) of Exchange Securities to be received by
such broker-dealer in the Exchange Offer, whether such positions or policies have been
publicly disseminated by the staff of the SEC or such positions or policies, in the
reasonable judgment of the Representative on behalf of the Participating Broker-Dealers and
their counsel, represent the prevailing views of the staff of the SEC, including a statement
that any such broker-dealer who receives Exchange Securities for Registrable Securities
pursuant to the Exchange Offer may be deemed a statutory underwriter and must deliver a
prospectus meeting the requirements of the 1933 Act in connection with any resale of such
Exchange Securities, (ii) furnish to each Participating Broker-Dealer who has delivered to
the Co-Issuers the notice referred to in Section 3(e), without charge, as many copies of
each Prospectus included in the Exchange Offer Registration Statement, including any
preliminary prospectus, and any amendment or supplement thereto, as such Participating
Broker-Dealer may reasonably request, (iii) hereby consent to the use of the Prospectus
forming part of the Exchange Offer Registration Statement or any amendment or supplement
thereto, by any Person subject to the prospectus delivery
requirements of the SEC, including all Participating Broker-Dealers, in connection with
the sale or transfer of the Exchange Securities covered by the Prospectus or any amendment
or supplement thereto, and (iv) include in the Prospectus forming part of the Exchange Offer
Registration Statement (and in any transmittal letter or similar document to



13









 







be executed by
an exchange offeree in order to participate in the Exchange Offer): (x) the following
provision:




“If the exchange offeree is a broker-dealer holding Registrable Securities
acquired for its own account as a result of market-making activities or
other trading activities, it will deliver a prospectus meeting the
requirements of the Securities Act of 1933, as amended, in connection with
any resale of Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer”; and




(y) a statement to the effect that by a broker-dealer making the acknowledgment described in
clause (x) and by delivering a Prospectus in connection with the exchange of Registrable
Securities, the broker-dealer will not be deemed to admit that it is an underwriter within
the meaning of the 1933 Act;




     (B) to the extent any Participating Broker-Dealer participates in the Exchange Offer,
the Co-Issuers and the Guarantors (to the extent customary for such a transaction) shall use
their reasonable best efforts to cause to be delivered at the request of an entity
representing the Participating Broker-Dealers (which entity shall be one of the Initial
Purchasers, unless it elects not to act as such representative) only one, if any, “cold
comfort” letter with respect to the Prospectus in the form existing on the last date for
which exchanges are accepted pursuant to the Exchange Offer and with respect to each
subsequent amendment or supplement, if any, effected during the period specified in clause
(C) below; and




     (C) to the extent any Participating Broker-Dealer participates in the Exchange Offer,
the Co-Issuers and the Guarantors shall use their best efforts to maintain the effectiveness
of the Exchange Offer Registration Statement for a period of 180 days following the closing
of the Exchange Offer;




     (g) (i) in the case of an Exchange Offer, furnish counsel for the Initial Purchasers
and (ii) in the case of a Shelf Registration, furnish counsel for the Holders of Registrable
Securities copies of any comment letters received from the SEC or any other request by the
SEC or any state securities authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;




     (h) make commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest possible moment;




     (i) in the case of a Shelf Registration, furnish to each Holder of Registrable
Securities, and each underwriter, if any, without charge, at least one conformed copy (or
one electronically reproducible conformed copy) of each Registration Statement and any
post-effective amendment thereto, including financial statements and schedules (without
documents incorporated therein by reference and all exhibits thereto, unless requested);



14









 






     (j) in the case of a Shelf Registration, cooperate with the selling Holders of
Registrable Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the selling Holders or the
underwriters, if any, may reasonably request at least three Business Days prior to the
closing of any sale of Registrable Securities;




     (k) in the case of a Shelf Registration, upon the occurrence of any event or the
discovery of any facts, each as contemplated by Sections 3(e)(v) and 3(e)(vi) hereof, as
promptly as practicable after the occurrence of such an event, use their commercially
reasonable efforts to prepare a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the purchasers of the
Registrable Securities or Participating Broker-Dealers, such Prospectus will not contain at
the time of such delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading or will remain so qualified. At such time as such
public disclosure is otherwise made or the Co-Issuers determine that such disclosure is not
necessary, in each case to correct any misstatement of a material fact or to include any
omitted material fact, the Co-Issuers agree as promptly as practicable to notify each Holder
of such determination and to furnish each Holder such number of copies of the Prospectus as
amended or supplemented, as such Holder may reasonably request;




     (l) in the case of a Shelf Registration, a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus, provide copies of such document to the Initial
Purchasers on behalf of such Holders (without documents incorporated therein by reference or
exhibits thereto, unless so requested by any Initial Purchaser); and make representatives of
the Co-Issuers as shall be reasonably requested by the Holders of Registrable Securities, or
the Initial Purchasers on behalf of such Holders, available for discussion of such document;




     (m) obtain a CUSIP number for all Exchange Securities, Private Exchange Securities or
Registrable Securities, as the case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with printed certificates for the Exchange
Securities, Private Exchange Securities or the Registrable Securities, as the case may be,
in a form eligible for deposit with the Depositary;




     (n) (i) cause the Indenture to be qualified under the TIA in connection with the
registration of the Exchange Securities or Registrable Securities, as the case may be,
(ii) cooperate with the Trustee and the Holders to effect such changes to the Indenture
as may be required for the Indenture to be so qualified in accordance with the terms of the
TIA and (iii) execute, and use their commercially reasonable efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable the Indenture to be so qualified



15









 







in a
timely manner, but only to the extent that registration of the Securities, Exchange
Securities or Private Exchange Securities is required pursuant to the terms of this
Agreement;




     (o) in the case of a Shelf Registration, enter into underwriting agreements and take
all other customary and appropriate actions in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection therewith:




     (i) to the extent practicable, make such representations and warranties to the
Holders of such Registrable Securities and the underwriters, if any, in form,
substance and scope as are customarily made by issuers and guarantors to Holders or
underwriters, as the case may be, in similar underwritten offerings as may be
reasonably requested by them;




     (ii) if requested by any Holder or Holders of Securities being sold, obtain
opinions of counsel to the Co-Issuers and the Guarantors and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably satisfactory
to the managing underwriters, if any, and the holders of a majority in principal
amount of the Registrable Securities being sold) addressed to each selling Holder
(to the extent customary) and the underwriters, if any, covering the matters
customarily covered in opinions requested in sales of securities or underwritten
offerings and such other matters as may be reasonably requested by such Holders and
underwriters;




     (iii) in the case of an underwritten offering, obtain “cold comfort” letters
and updates thereof from the Co-Issuers’ independent certified public accountants
(and, if necessary, any other independent certified public accountants of any
subsidiary of either of the Co-Issuers or of any business acquired by either of the
Co-Issuers for which financial statements are, or are required to be, included in
the Registration Statement) addressed to the underwriters, if any, and use
reasonable efforts to have such letter addressed to the selling Holders of
Registrable Securities (to the extent consistent with Statement on Auditing
Standards No. 72 of the American Institute of Certified Public Accountants), such
letters to be in customary form and covering matters of the type customarily covered
in “cold comfort” letters to underwriters in connection with similar underwritten
offerings;




     (iv) enter into a securities sales agreement with the Holders and an agent of
the Holders providing for, among other things, the appointment of such agent for the
selling Holders for the purpose of soliciting purchases of Registrable
Securities, which agreement shall be in form, substance and scope customary for
similar offerings;




     (v) if an underwriting agreement is entered into, cause the same to set forth
indemnification provisions and procedures substantially equivalent to the
indemnification provisions and procedures set forth in Section 4 hereof with respect
to the underwriters and all other parties to be indemnified pursuant to said



16









 







Section
or, at the request of any underwriters, in the form customarily provided to such
underwriters in similar types of transactions; and




     (vi) deliver such documents and certificates as may be reasonably requested and
as are customarily delivered in similar offerings to the Holders of a majority in
principal amount of the Registrable Securities being sold and the managing
underwriters, if any.




The above shall be done at (i) the effectiveness of such Shelf Registration Statement (and
each post-effective amendment thereto) and (ii) each closing under any underwriting
agreement as and to the extent required thereunder;




     (p) in the case of a Shelf Registration or if a Prospectus is required to be delivered
by any Participating Broker-Dealer in the case of an Exchange Offer, make available for
inspection by representatives of the Holders of the Registrable Securities, any lead
managing underwriters participating in any disposition pursuant to a Shelf Registration
Statement, any Participating Broker-Dealer and any counsel or accountant retained by any of
the foregoing, at reasonable times and in a reasonable manner, all financial and other
records, pertinent corporate documents and properties of the Co-Issuers and the Guarantors
reasonably requested by any such persons, and cause the respective officers, directors,
employees, and any other agents of the Co-Issuers and the Guarantors to supply all
information reasonably requested by any such representative, underwriter, special counsel or
accountant in connection with a Registration Statement, and make such representatives of the
Co-Issuers and the Guarantors available for discussion of such documents as shall be
reasonably requested by the Initial Purchasers or any underwriter; provided that if any such
information is reasonably identified by the Co-Issuers and the Guarantors as being
confidential or proprietary, each person receiving such information shall take such actions
as are reasonably necessary to protect the confidentiality of such information to the extent
such action is otherwise not inconsistent with, an impairment of or a derogation of the
rights, interests or duties of any underwriter;




     (q) (i) in the case of an Exchange Offer Registration Statement, a reasonable time
prior to the filing of any Exchange Offer Registration Statement, any Prospectus forming a
part thereof, any amendment to an Exchange Offer Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the Initial Purchasers and
to counsel to the Holders of Registrable Securities and make such changes in any such
document prior to the filing thereof as the Initial Purchasers or counsel to the Holders of
Registrable Securities may reasonably request in a timely manner
under the circumstances and, except as otherwise required by applicable law, not file
any such document in a form to which the Initial Purchasers on behalf of the Holders of
Registrable Securities and counsel to the Holders of Registrable Securities shall not have
previously been advised and furnished a copy of or to which the Initial Purchasers on behalf
of the Holders of Registrable Securities or counsel to the Holders of Registrable Securities
shall reasonably object within three Business Days of receipt of the applicable document,
and make the representatives of the Co-Issuers and the Guarantors available for



17









 







discussion
of such documents as shall be reasonably requested by the Initial Purchasers; and




     (ii) in the case of a Shelf Registration, a reasonable time prior to filing any Shelf
Registration Statement, any Prospectus forming a part thereof, any amendment to such Shelf
Registration Statement or amendment or supplement to such Prospectus, provide copies of such
document to the Holders of Registrable Securities, to the Initial Purchasers, to counsel for
the Holders and to the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any, make such changes in any such document prior to the filing
thereof as the Initial Purchasers, the counsel to the Holders or the underwriter or
underwriters reasonably request and, except as otherwise required by applicable law, not
file any such document in a form to which the Majority Holders, the Initial Purchasers on
behalf of the Holders of Registrable Securities, counsel for the Holders of Registrable
Securities or any underwriter shall not have previously been advised and furnished a copy of
or to which the Majority Holders, the Initial Purchasers of behalf of the Holders of
Registrable Securities, counsel to the Holders of Registrable Securities or any underwriter
shall reasonably object within three Business Days of receipt of the applicable document,
and make the representatives of the Co-Issuers and the Guarantors available for discussion
of such document as shall be reasonably requested by the Holders of Registrable Securities,
the Initial Purchasers on behalf of such Holders, counsel for the Holders of Registrable
Securities or any underwriter.




     (r) in the case of a Shelf Registration, use its commercially reasonable efforts to
cause all Registrable Securities to be listed on any securities exchange on which similar
debt securities issued by the Co-Issuers or any Guarantor are then listed if requested by
the Majority Holders, or if requested by the underwriter or underwriters of an underwritten
offering of Registrable Securities, if any;




     (s) in the case of a Shelf Registration, use their commercially reasonable efforts to
cause the Registrable Securities to be rated by the appropriate rating agencies, if so
requested by the Majority Holders, or if requested by the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any;




     (t) otherwise comply with all applicable rules and regulations of the SEC and make
available to its security holders, as soon as reasonably practicable, an earnings statement
covering at least 12 months which shall satisfy the provisions of Section 11(a) of the 1933
Act and Rule 158 thereunder;




     (u) reasonably cooperate and assist in any filings required to be made with FINRA and,
in the case of a Shelf Registration, in the performance of any due diligence investigation
by any underwriter and its counsel (including any “qualified independent underwriter” that
is required to be retained in accordance with the rules and regulations of FINRA); and



18









 






     (v) upon consummation of an Exchange Offer or a Private Exchange, obtain a customary
opinion of counsel to the Co-Issuers and the Guarantors addressed to the Trustee as so may
be required under the Indenture.



          In the case of a Shelf Registration Statement, the Co-Issuers may (as a condition to such
Holder’s participation in the Shelf Registration) require each Holder of Registrable Securities to
furnish to the Co-Issuers such information regarding the Holder (including, without limitation, a
customary selling holder questionnaire) and the proposed distribution by such Holder of such
Registrable Securities as the Co-Issuers may from time to time reasonably request in writing.




          In the case of a Shelf Registration Statement, each Holder agrees that, upon receipt of any
notice from the Co-Issuers of the happening of any event or the discovery of any facts, each of the
kind described in Section 3(e)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder’s receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(k) hereof, and, if so
directed by the Co-Issuers, such Holder will deliver to the Co-Issuers (at their expense) all
copies in such Holder’s possession, other than permanent file copies then in such Holder’s
possession, of the Prospectus covering such Registrable Securities current at the time of receipt
of such notice.




          In the event that the Co-Issuers and the Guarantors fail to effect the Exchange Offer or file
any Shelf Registration Statement and maintain the effectiveness of any Shelf Registration Statement
as provided herein, neither the Co-Issuers nor any Guarantor shall file any Registration Statement
with respect to any securities (within the meaning of Section 2(1) of the 1933 Act) of the
Co-Issuers or any Guarantor, other than Registrable Securities.




          If any of the Registrable Securities covered by any Shelf Registration Statement are to be
sold in an underwritten offering, the underwriter or underwriters and manager or managers that will
manage such offering will be selected by the Majority Holders of such Registrable Securities
included in such offering and shall be acceptable to the Co-Issuers. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless such Holder (a) agrees
to sell such Holder’s Registrable Securities on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other
documents required under the terms of such underwriting arrangements.




          4. Indemnification; Contribution.




          (a) The Co-Issuers and the Guarantors agree jointly and severally to indemnify and hold
harmless the Initial Purchasers, each Holder, each Participating Broker-Dealer, each Person who
participates as an underwriter (any such Person being an “Underwriter”) and each Person, if
any, who controls any Holder or Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:




19









 









     (i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment or supplement thereto) pursuant to
which Exchange Securities or Registrable Securities were registered under the 1933 Act,
including all documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading;




     (ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 4(d) below) any such
settlement is effected with the written consent of the Co-Issuers; and




     (iii) against any and all expense whatsoever, as incurred (including the reasonable
fees and disbursements of counsel chosen by any indemnified party), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under subparagraph
(i) or (ii) above;


provided, however, that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written information furnished to
the Co-Issuers by the Holder or Underwriter expressly for use in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto).




          (b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless the
Co-Issuers, the Guarantors, the Initial Purchasers, each Underwriter and the other selling Holders,
and each of their respective directors and officers, and each Person, if any, who controls the
Co-Issuers, a Guarantor, the Initial Purchasers, any Underwriter or any other selling Holder
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any
and all loss, liability, claim, damage and expense described in the indemnity contained in Section
4(a) hereof, as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Shelf Registration Statement (or any amendment thereto)
or any Prospectus included therein (or any amendment or supplement thereto) in reliance upon and in
conformity with written information with respect to such Holder furnished to the Co-Issuers by such
Holder expressly for use in the Shelf Registration Statement (or any amendment




20









 




thereto) or such
Prospectus (or any amendment or supplement thereto); provided, however, that no such Holder shall
be liable for any claims hereunder in excess of the amount of net proceeds received by such Holder
from the sale of Registrable Securities pursuant to such Shelf Registration Statement.




          (c) Each indemnified party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action or proceeding commenced against it in respect of which indemnity
may be sought hereunder, but failure so to notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying party or parties be liable for the reasonable fees and
expenses of more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 4 (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation, investigation, proceeding
or claim and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.




          (d) If at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for reasonable fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature contemplated by Section
4(a)(ii) effected without its written consent if (i) such settlement is entered into more than 60
days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 45 days prior to such
settlement being entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such settlement.




          (e) If the indemnification provided for in this Section 4 is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the Co-Issuers and the Guarantors on the one hand and the Holders and the
Initial Purchasers on the other hand in connection with the statements or omissions which resulted
in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable
considerations.




21









 








          The relative fault of the Co-Issuers and the Guarantors on the one hand and the Holders and
the Initial Purchasers on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Co-Issuers and/or the
Guarantors, the Holders or the Initial Purchasers and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission.




          The Co-Issuers, the Guarantors, the Holders and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 4 were determined by pro rata
allocation (even if the Holders and/or Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 4. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to above in this Section
4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged omission.




          Notwithstanding the provisions of this Section 4, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total discount received by it in
connection with its purchase of the Securities exceeds the amount of any damages which such Initial
Purchaser has otherwise been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission.




          No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.




          For purposes of this Section 4, each Person, if any, who controls an Initial Purchaser or
Holder within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Initial Purchaser or Holder, and each director of the
Co-Issuers or any Guarantor, and each Person, if any, who controls the Co-Issuers or any Guarantor
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Co-Issuers or such Guarantor, as applicable. The Initial Purchasers’
respective obligations to contribute pursuant to this Section 4 are several in proportion to the principal amount of Securities set forth opposite their respective names in
Schedule A to the Purchase Agreement and not joint.




          5. Miscellaneous.




          5.1. Rule 144A. If the Co-Issuers cease to be required to file reports under the 1934
Act, the Co-Issuers covenant that they will, upon the request of any Holder of Registrable
Securities: (a) deliver such information to a prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act, and (b) take such further action that is reasonable in
the circumstances, in each case, to the extent required from time to time to enable such Holder to




22









 




sell its Registrable Securities without registration under the 1933 Act within the limitation of
the exemptions provided by (i) Rule 144A under the 1933 Act, as such Rule may be amended from time
to time, or (ii) any similar rules or regulations hereafter adopted by the SEC. Upon the request
of any Holder of Registrable Securities, the Co-Issuers will deliver to such Holder a written
statement as to whether it has complied with such requirements.




          5.2. No Inconsistent Agreements. Neither of the Co-Issuers nor any Guarantor has
entered into, and neither of the Co-Issuers nor any Guarantor will after the date of this Agreement
enter into, any agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not and will not for the term of this Agreement in any
way conflict with the rights granted to the holders of the Co-Issuers’ or any Guarantor’s other
issued and outstanding securities under any such agreements.




          5.3. Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given unless the Co-Issuers have obtained the
written consent of Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement, waiver or departure.




          5.4. Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, registered first-class mail, telex,
telecopier, or any courier guaranteeing overnight delivery (a) if to a Holder, at the most current
address given by such Holder to the Co-Issuers by means of a notice given in accordance with the
provisions of this Section 5.4, which address initially is the address set forth in the Purchase
Agreement with respect to the Initial Purchasers; and (b) if to the Co-Issuers or any Guarantor,
initially at the Co-Issuers’ address set forth in the Purchase Agreement, and thereafter at such
other address of which notice is given in accordance with the provisions of this Section 5.4.




          All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; two Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if
telecopied; and on the next Business Day if timely delivered to an air courier guaranteeing
overnight delivery.




          Copies of all such notices, demands, or other communications shall be concurrently delivered
by the person giving the same to the Trustee under the Indenture, at the address specified in such
Indenture.




          5.5. Successor and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors, assigns and transferees of each of the parties, including, without
limitation and without the need for an express assignment, subsequent Holders; provided that
nothing herein shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by
operation




23









 




of law or otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such person shall be entitled to receive the benefits
hereof.




          5.6. Third Party Beneficiaries. The Initial Purchasers (even if the Initial
Purchasers are not Holders of Registrable Securities) shall be third party beneficiaries to the
agreements made hereunder between the Co-Issuers and the Guarantors, on the one hand, and the
Holders, on the other hand, and shall have the right to enforce such agreements directly to the
extent they deem such enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder. Each Holder of Registrable Securities shall be a third party beneficiary to the
agreements made hereunder between the Co-Issuers and the Guarantors, on the one hand, and the
Initial Purchasers, on the other hand, and shall have the right to enforce such agreements directly
to the extent it deems such enforcement necessary or advisable to protect its rights hereunder.




          5.7. Specific Enforcement. Without limiting the remedies available to the Initial
Purchasers and the Holders, the Co-Issuers acknowledge that any failure by the Co-Issuers to comply
with their obligations under Sections 2.1 through 2.4 hereof may result in material irreparable
injury to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that
it would not be possible to measure damages for such injuries precisely and that, in the event of
any such failure, the Initial Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Co-Issuers’ obligations under Sections 2.1 through 2.4 hereof.




          5.8. Restriction on Resales. Until the expiration of one year after the original
issuance of the Notes and the Guarantees, the Co-Issuers and the Guarantor will not, and will cause
their “affiliates” (as such term is defined in Rule 144(a)(1) under the 1933 Act) not to, resell
any Securities that are “restricted securities” (as such term is defined under Rule 144(a)(3) under
the 1933 Act) that have been reacquired by any of them and shall immediately upon any purchase of
any such Securities submit such Securities to the Trustee for cancellation.




          5.9. Counterparts. This Agreement may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute one and the same agreement.




          5.10. Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.




          5.11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.





24









 








          5.12. Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.




          5.13. [Reserved].




          5.14. Consent to Jurisdiction. Each of the Co-Issuers and each of the Guarantors
irrevocably consents and agrees that any legal action, suit or proceeding brought against it with
respect to its obligations, liabilities or any other matter arising out of or in connection with
this Agreement or the transactions contemplated hereby may be brought in the courts of the State of
New York or the courts of the United States of America located in the County of New York and, until
all amounts due and to become due hereunder, if any, have been paid, or until any such legal
action, suit or proceeding commenced prior to such payment has been concluded, hereby irrevocably
consents and irrevocably submits to the non-exclusive jurisdiction of each such court in person
and, generally and unconditionally with respect to any action, suit or proceeding for themselves.




          5.15. Appointment of Agent for Service of Process.




          (a) The Co-Issuers and each Guarantor hereby irrevocably consent and agree to the service of
any and all legal process, summons, notices and documents in any such action, suit or proceeding
brought against them with respect to their obligations, liabilities or any other matter arising out
of or in connection with this Agreement, by serving a copy thereof upon any employee of either
Co-Issuer or any Guarantor (in such capacity, the “Co-Issuers’ Process Agent”) at any
business location that either of the Co-Issuers or any Guarantor may maintain from time to time in
the United States including, without limitation, at the offices of Navios Corporation located at
825 Third Avenue, 34th Floor, New York, New York 10022.




          (b) If at any time neither the Co-Issuers nor any Guarantor maintains a bona fide business
location in the State of New York, then the Co-Issuers and the Guarantors shall promptly (and in
any event within 10 days) irrevocably designate, appoint and empower CT Corporation System, with
offices currently at 111 Eighth Avenue, New York, New York 10011 (or such other third party
corporate service provider of national standing as may be reasonably acceptable to the
Representative), as their designee, appointee and agent to receive, accept and acknowledge for and
on their behalf service of any and all legal process, summons, notices and documents that may be
served in any action, suit or proceeding brought against them in any such United States or state
court located in the County of New York with respect to their obligations,
liabilities or any other matter arising out of or in connection with this Agreement and that
may be made on such designee, appointee and agent in accordance with legal procedures prescribed
for such courts (the “Third Party Process Agent”; each of the Co-Issuers’ Process Agent and
the Third Party Process Agent, a “Process Agent”) and pay all fees and expenses required by
the Third Party Process Agent in connection therewith. If for any reason such Third Party Process
Agent hereunder shall cease to be available to act as such, each of the Co-Issuers and each of the
Guarantors agrees to designate a new Third Party Process Agent in the County of New York on the
terms and for the purposes of this Section 5.15 reasonably satisfactory to the Representative.




25









 








          (c) Each of the Co-Issuers and each of the Guarantors further hereby irrevocably consents and
agrees to the service of any and all legal process, summons, notices and documents in any such
action, suit or proceeding against them arising out of or in connection with this Agreement by (i)
serving a copy thereof upon any of the relevant Process Agents specified in clauses (a) and (b)
above, or (ii) or by mailing copies thereof by registered or certified air mail, postage prepaid,
to the Co-Issuers, at the address specified in or designated pursuant to this Agreement (including
by reference pursuant to Section 5.4). Each of the Co-Issuers and each of the Guarantors agrees
that the failure of any Process Agent, to give any notice of such service to it shall not impair or
affect in any way the validity of such service or any judgment rendered in any action or proceeding
based thereon.




          (d) Nothing herein shall in any way be deemed to limit the ability of any Initial Purchaser
(or Holder or other third party beneficiary hereunder) to serve any such legal process, summons,
notices and documents in any other manner permitted by applicable law or to obtain jurisdiction
over the Co-Issuers or the Guarantors or bring actions, suits or proceedings against them in such
other jurisdictions, and in such manner, as may be permitted by applicable law.




          (e) Each of the Co-Issuers and each of the Guarantors hereby irrevocably and unconditionally
waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to
the laying of venue of any of the aforesaid actions, suits or proceedings arising out of or in
connection with this Agreement brought in the United States federal courts located in the County of
New York or the courts of the State of New York located in the County of New York and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.




          (f) The provisions of this Section 5.15 shall survive any termination of this Agreement, in
whole or in part.




          5.16. Waiver of Immunities. To the extent that a Co-Issuer, a Guarantor or any of
their respective properties, assets or revenues may have or may hereafter become entitled to, or
have attributed to them, any right of immunity, on the grounds of sovereignty, from any legal
action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, or from attachment in aid of
execution of judgment, or from execution of judgment, or other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to their obligations, liabilities or any
other matter under or arising out of or in connection with this Agreement, each of the Co-Issuers
and each of the Guarantors hereby irrevocably and unconditionally, to the extent permitted by
applicable law, waives and agrees not to plead or claim any such immunity and consents to such
relief and enforcement.




          5.17. Foreign Taxes. All payments by the Co-Issuers or a Guarantor to each of the
Initial Purchasers hereunder shall be made free and clear of, and without deduction or withholding
for or on account of, any and all present and future income, stamp or other taxes, levies,




26









 




imposts,
duties, charges, fees, deductions or withholdings, now or hereinafter imposed, levied, collected,
withheld or assessed by any jurisdiction of formation of the Co-Issuers and the Guarantors or any
other jurisdiction in which the Co-Issuers or a Guarantor has an office from which payment is made
or deemed to be made, excluding (i) any such tax imposed by reason of such Initial Purchaser having
some connection with any such jurisdiction other than its participation as Initial Purchaser
hereunder, and (ii) any income or franchise tax on the overall net income of such Initial Purchaser
imposed by the United States or by the State of New York or any political subdivision of the United
States or of the State of New York (all such non-excluded taxes, “Foreign Taxes”). If
either of the Co-Issuers or a Guarantor is prevented by operation of law or otherwise from paying,
causing to be paid or remitting that portion of amounts payable hereunder represented by Foreign
Taxes withheld or deducted, then amounts payable under this Agreement shall, to the extent
permitted by law, be increased to such amount as is necessary to yield and remit to each Initial
Purchaser an amount which, after deduction of all Foreign Taxes (including all Foreign Taxes
payable on such increased payments) equals the amount that would have been payable if no Foreign
Taxes applied. For avoidance of doubt, this Section 5.17 shall not apply to the repayment of
Additional Interest under Section 2.5, which shall be governed by Section 4.20 of the Indenture.




          5.18. Judgment Currency. Each of the Co-Issuers and each of the Guarantors agrees to
indemnify the Initial Purchasers (or any third party beneficiary hereunder) against any loss
incurred by any such person as a result of any judgment or order being given or made against the
Co-Issuers or a Guarantor for any amount due hereunder and such judgment or order being expressed
and paid in a currency (the “Judgment Currency”) other than United States dollars and as a
result of any variation as between (i) the rate of exchange at which the United States dollar
amount is converted into the Judgment Currency for the purpose of such judgment or order, and (ii)
the rate of exchange in The City of New York at which such party on the date of payment of such
judgment or order is able to purchase United States dollars with the amount of the Judgment
Currency actually received by such party if such party had utilized such amount of Judgment
Currency to purchase United States dollars as promptly as practicable upon such party’s receipt
thereof. The foregoing indemnity shall constitute a separate and independent obligation of the
Co-Issuers and the Guarantors and shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs
of exchange payable in connection with the purchase of, or conversion into, the relevant currency.







27









 








          IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.




	 	 	 	 	 
	 	NAVIOS MARITIME ACQUISITION CORPORATION

 	 
	 	By:  	/s/
Leonidas Korres 	 
	 	 	Name:  	Leonidas Korres	 
	 	 	Title:  	Chief Financial Officer	 
	 
	 	NAVIOS ACQUISITION FINANCE (US) INC.

 	 
	 	By:  	/s/ Vasiliki Papaefthymiou	 
	 	 	Name:  	Vasiliki Papaefthymiou	 
	 	 	Title:  	President/Secretary	 
	 




28









 





	 	 	 	 	 
	 	GUARANTORS:



SHINYO DREAM LIMITED

SHINYO KANNIKA LIMITED

SHINYO LOYALTY LIMITED

SHINYO NAVIGATOR LIMITED

SHINYO OCEAN LIMITED

SHINYO SAOWALAK LIMITED

 	 
	 	By:  	/s/ Alexandros Laios	 
	 	 	Name:  	Alexandros Laios	 
	 	 	Title:  	Director	 
	 
	 	THERA SHIPPING CORPORATION

TINOS SHIPPING CORPORATION

 	 
	 	By:  	/s/ George Achniotis	 
	 	 	Name:  	George Achniotis	 
	 	 	Title:  	President/Director	 
	 
	 	AEGEAN SEA MARITIME HOLDINGS INC.

 	 
	 	By:  	/s/ George Achniotis	 
	 	 	Name:  	George Achniotis	 
	 	 	Title:  	President/Director	 
	 




29









 





	 	 	 	 	 
	 	AMORGOS SHIPPING CORPORATION

ANDROS SHIPPING CORPORATION

ANTIPAROS SHIPPING CORPORATION

CRETE SHIPPING CORPORATION

IKARIA SHIPPING CORPORATION

IOS SHIPPING CORPORATION

KOS SHIPPING CORPORATION

MYTILENE SHIPPING CORPORATION

RHODES SHIPPING CORPORATION

SIFNOS SHIPPING CORPORATION

SKIATHOS SHIPPING CORPORATION

SKOPELOS SHIPPING CORPORATION

SYROS SHIPPING CORPORATION,

 	 
	 	BY:  	/s/ George Achniotis	 
	 	 	NAME:  	George Achniotis	 
	 	 	TITLE:  	President/Director	 
	 
	 	SHINYO KIERAN LIMITED

 	 
	 	BY:  	/s/ Alexandros Laios	 
	 	 	NAME:  	Alexandros Laios	 
	 	 	TITLE:  	Director	 








30









 











Confirmed and accepted as

   of the date first above written:




BANC OF AMERICA SECURITIES LLC




For itself and as Representative of the other

Initial Purchasers named in Schedule B hereto.




	 	 	 	 	 

	By:
	 	/s/ Heather Lamberton	 	 
	 

	 	 

Name: Heather Lamberton
	 	 
	 

	 	Title: Director	 	 






31









 





Schedule A




Guarantors




AEGEAN SEA MARITIME HOLDINGS INC.

SHINYO DREAM LIMITED

SHINYO KANNIKA LIMITED

SHINYO LOYALTY LIMITED

SHINYO NAVIGATOR LIMITED

SHINYO OCEAN LIMITED

SHINYO SAOWALAK LIMITED

THERA SHIPPING CORPORATION

TINOS SHIPPING CORPORATION




AMORGOS SHIPPING CORPORATION*

ANDROS SHIPPING CORPORATION*

ANTIPAROS SHIPPING CORPORATION*

CRETE SHIPPING CORPORATION*

IKARIA SHIPPING CORPORATION*

IOS SHIPPING CORPORATION*

KOS SHIPPING CORPORATION*

MYTILENE SHIPPING CORPORATION*

RHODES SHIPPING CORPORATION*

SHINYO KIERAN LIMITED*

SIFNOS SHIPPING CORPORATION*

SKIATHOS SHIPPING CORPORATION*

SKOPELOS SHIPPING CORPORATION*

SYROS SHIPPING CORPORATION*




 









 





Schedule B




Initial Purchasers



Banc of America Securities LLC



J.P. Morgan Securities LLC



Citigroup Global Markets Inc.



S. Goldman Advisors LLC



Commerz Markets LLC



DVB Capital Markets LLC



DnB NOR Markets Inc.