Exhibit 10.1





Exhibit 10.1




REGISTRATION RIGHTS AGREEMENT




Dated as of November 23, 2010




By and Among




MOBILE MINI, INC.




and




THE GUARANTORS NAMED HEREIN

as Issuers,




and




DEUTSCHE BANK SECURITIES INC.,




MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,




J.P. MORGAN SECURITIES LLC,




WELLS FARGO SECURITIES, LLC




and




OPPENHEIMER & CO. INC.

as Initial Purchasers




$200,000,000




77/8% SENIOR NOTES DUE 2020




 


 









 







TABLE OF CONTENTS






	 	 	 	 	 
	 	 		Page	 
	 
	1. DEFINITIONS
	 	 	1	 
	 
	2. EXCHANGE OFFER
	 	 	5	 
	 
	3. SHELF REGISTRATION
	 	 	9	 
	 
	4. ADDITIONAL INTEREST
	 	 	10	 
	 
	5. REGISTRATION PROCEDURES
	 	 	12	 
	 
	6. REGISTRATION EXPENSES
	 	 	21	 
	 
	7. INDEMNIFICATION
	 	 	22	 
	 
	8. RULE 144 AND 144A
	 	 	25	 
	 
	9. UNDERWRITTEN REGISTRATIONS
	 	 	25	 
	 
	10. MISCELLANEOUS
	 	 	26	 
	 
	(a) No Inconsistent Agreements
	 	 	26	 
	(b) Adjustments Affecting Registrable Securities
	 	 	26	 
	(c) Amendments and Waivers
	 	 	26	 
	(d) Notices
	 	 	27	 
	(e) Successors and Assigns
	 	 	28	 
	(f) Counterparts
	 	 	28	 
	(g) Headings
	 	 	28	 
	(h) Governing Law
	 	 	28	 
	(i) Severability
	 	 	28	 
	(j) Securities Held by the Issuers or their Affiliates
	 	 	28	 
	(k) Third Party Beneficiaries
	 	 	29	 
	(l) Entire Agreement
	 	 	29	 
	 
	Schedule 1 Guarantors	 	 	 	 








 


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REGISTRATION RIGHTS AGREEMENT




This Registration Rights Agreement (the “Agreement”) is dated as of November 23, 2010 by and
among Mobile Mini, Inc., a Delaware corporation (the “Company”), the Guarantors listed on Schedule
1 hereto (the “Guarantors” and, together with the Company, the “Issuers”) and Deutsche Bank
Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC,
Wells Fargo Securities LLC and Oppenheimer & Co. Inc. (the “Initial Purchasers”).



This Agreement is entered into in connection with the Purchase Agreement, dated as of
November 10, 2010, by and among the Issuers and the Initial Purchasers (the “Purchase Agreement”)
that provides for the sale by the Company to the Initial Purchasers of $200,000,000 aggregate
principal amount of the Company’s 77/8% Senior Notes due 2020 (the “Notes”). The Notes will be
guaranteed (the “Guarantees”) on a senior basis by the Guarantors. The Notes and the Guarantees
together are herein referred to as the “Securities.” In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Issuers have agreed to provide the registration rights set
forth in this Agreement for the benefit of the Initial Purchasers and their direct and indirect
transferees and assigns. The execution and delivery of this Agreement is a condition to the
Initial Purchasers’ obligation to purchase the Securities under the Purchase Agreement.




The parties hereby agree as follows:



1. Definitions





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




Additional Interest: See Section 4(a) hereof.




Advice: See the last paragraph of Section 5 hereof.




Agreement: See the introductory paragraphs hereto.




Applicable Period: See Section 2(b) hereof.



Business Day: Any day that is not a Saturday, Sunday or a day on which banking institutions
in New York are authorized or required by law to be closed.



Company: See the introductory paragraphs hereto.


 


 









 





Consummation Date: the 240th day after the Issue Date; provided, however,
that if the Consummation Date would otherwise fall on a day that is not a Business Day, then the
Consummation Date shall be the next succeeding Business Day.




Effectiveness Period: See Section 3(a) hereof.




Event Date: See Section 4(b) hereof.



Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations
of the SEC promulgated thereunder.




Exchange Notes: See Section 2(a) hereof.




Exchange Offer: See Section 2(a) hereof.




Exchange Offer Registration Statement: See Section 2(a) hereof.




Exchange Securities: See Section 2(a) hereof.




FINRA: See Section 5(t) hereof.




Guarantees: See the introductory paragraphs hereto.




Guarantors: See the introductory paragraphs hereto.




Holder: Any holder of a Registrable Security or Registrable Securities.




Indemnified Person: See Section 7(c) hereof.




Indemnifying Person: See Section 7(c) hereof.



Indenture: The Indenture, dated as of November 23, 2010, by and among the Issuers and Law
Debenture Trust Company of New York, as Trustee, pursuant to which the Securities are being issued,
as amended or supplemented from time to time in accordance with the terms thereof.




Initial Purchasers: See the introductory paragraphs hereto.




Inspectors: See Section 5(o) hereof.



Issue Date: November 23, 2010, or the date on which the Securities were sold to the Initial
Purchasers pursuant to the Purchase Agreement.



Issuers: See the introductory paragraphs hereto.


 


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Notes: See the introductory paragraphs hereto.



Offering Memorandum: The final offering memorandum of the Company dated November 10, 2010, in
respect of the offering of the Securities.




Participant: See Section 7(a) hereof.




Participating Broker-Dealer: See Section 2(a) hereof.



Person: An individual, trustee, corporation, partnership, limited liability company, joint
stock company, trust, unincorporated association, union, business association, firm or other legal
entity.




Private Exchange: See Section 2(b) hereof.




Private Exchange Notes: See Section 2(b) hereof.




Private Exchange Securities: See Section 2(b) hereof.



Prospectus: The prospectus included in any Registration Statement (including, without
limitation, any prospectus subject to completion and a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the Prospectus, with respect to
the terms of the offering of any portion of the Registrable Securities covered by such Registration
Statement including post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.




Purchase Agreement: See the introductory paragraphs hereto.




Records: See Section 5(o) hereof.



Registrable Securities: Each Security upon original issuance of the Securities and at all
times subsequent thereto, each Exchange Security (and the related Guarantee) as to which Section
2(c)(v) hereof is applicable upon original issuance and at all times subsequent thereto and each
Private Exchange Security (and the related Guarantee) upon original issuance thereof and at all
times subsequent thereto, until in the case of any such Security, Exchange Security or Private
Exchange Security, as the case may be, the earliest to occur of (i) a Registration Statement (other
than, with respect to any Exchange Security as to which Section 2(c)(v) hereof is applicable, the
Exchange Offer Registration Statement) covering such Security, Exchange Security or Private
Exchange Security (and the related Guarantees), as the case may be, has been declared effective by
the SEC and such Security, Exchange Security or Private Exchange Security (and the related Guarantees), as the case may be, has been disposed of
in accordance with such effective Registration Statement, (ii) such Security has been exchanged for
an Exchange Security or Exchange Securities pursuant to an Exchange Offer and is entitled to be
resold without complying with the prospectus delivery requirements of the Securities Act and
(iii) such Security, Exchange Security or Private Exchange Security (and the related Guarantees),
as the case may be, ceases to be outstanding for purposes of the Indenture.


 


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Registration Statement: Any registration statement of the Company, including, but not limited
to, the Exchange Offer Registration Statement and any registration statement filed in connection
with a Shelf Registration Statement, filed with the SEC pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits and all material incorporated by reference or
deemed to be incorporated by reference in such registration statement.



Rule 144: Rule 144 promulgated under the Securities Act, as such Rule may be amended from
time to time, or any similar rule (other than Rule 144A) or regulation hereafter adopted by the SEC
providing for offers and sales of securities made in compliance therewith resulting in offers and
sales by subsequent holders that are not affiliates of an issuer of such securities being free of
the registration and prospectus delivery requirements of the Securities Act.



Rule 144A: Rule 144A promulgated under the Securities Act, as such Rule may be amended from
time to time, or any similar rule (other than Rule 144) or regulation hereafter adopted by the SEC.



Rule 415: Rule 415 promulgated under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the SEC.




SEC: The Securities and Exchange Commission.




Securities: See the introductory paragraphs hereto.



Securities Act: The Securities Act of 1933, as amended, and the rules and regulations of the
SEC promulgated thereunder.




Shelf Notice: See Section 2(c) hereof.




Shelf Registration Statement: See Section 3(a) hereof.



TIA: The Trust Indenture Act of 1939, as amended.


 


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Trustee: The trustee under the Indenture and the trustee (if any) under any indenture
governing the Exchange Securities and Private Exchange Securities.



Underwritten registration or underwritten offering: A registration in which securities of the
Company are sold to an underwriter for reoffering to the public.



Except as otherwise specifically provided, all references in this Agreement to acts, laws,
statutes, rules, regulations, releases, forms, no-action letters and other regulatory requirements
(collectively, “Regulatory Requirements”) shall be deemed to refer also to any amendments thereto
and all subsequent Regulatory Requirements adopted as a replacement thereto having substantially
the same effect therewith; provided that Rule 144 shall not be deemed to amend or replace Rule
144A.



2. Exchange Offer





(a) On or prior to the Consummation Date, the Issuers shall:




(1) file with the SEC, to the extent not prohibited by any applicable law or applicable
interpretation of the staff of the SEC, a Registration Statement on an appropriate
registration form (the “Exchange Offer Registration Statement”) with respect to a registered
offer (the “Exchange Offer”) to exchange any and all of the Registrable Securities (other
than the Private Exchange Securities, if any) for a like aggregate principal amount of debt
securities of the Company that are identical in all material respects to the Securities (
the “Exchange Notes” and, together with the guarantees thereon, the “Exchange Securities”)
(and that are entitled to the benefits of the Indenture or a trust indenture that is
identical in all material respects to the Indenture (other than such changes to the
Indenture or any such identical trust indenture as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification thereof under the TIA) and
that, in either case, has been qualified under the TIA), except that the Exchange Securities
(other than Private Exchange Securities, if any) shall have been registered pursuant to an
effective Registration Statement under the Securities Act and shall contain no restrictive
legend thereon. The Exchange Offer shall comply with all applicable tender offer rules and
regulations under the Exchange Act;




(2) use its best efforts to cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act within 210 days following the Issue Date;




(3) keep the Exchange Offer open for not less than 30 days (or longer if required by
applicable law) after the date that notice of the Exchange Offer is mailed to Holders; and


 


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(4) consummate the Exchange Offer.



If after such Exchange Offer Registration Statement is declared effective by the SEC, the Exchange
Offer or the issuance of the Exchange Securities thereunder is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental agency or court, such
Exchange Offer Registration Statement shall be deemed not to have become effective for purposes of
this Agreement during the period of such interference until the Exchange Offer may legally resume.



Each Holder (including, without limitation, each Participating Broker-Dealer) who participates
in the Exchange Offer will be required to represent to the Issuers in writing (i) that any Exchange
Securities received by it will be acquired in the ordinary course of its business, (ii) that at the
time of the commencement of the Exchange Offer such Holder has no arrangement or understanding with
any Person to participate in the distribution (within the meaning of the Securities Act) of the
Exchange Securities in violation of the provisions of the Securities Act, (iii) that such Holder is
not an “affiliate” (as defined in Rule 405 promulgated under the Securities Act) of the Company or
the Guarantors within the meaning of the Securities Act and is not acting on behalf of any persons
or entities who could not truthfully make the foregoing representations, (iv) if such Holder is not
a broker-dealer, that it is not engaged in, and does not intend to engage in, the distribution of
Exchange Securities, and (v) if such Holder is a broker-dealer (a “Participating Broker-Dealer”),
that it will receive Exchange Securities for its own account in exchange for Securities that were
acquired as a result of market-making or other trading activities and that it will deliver a
prospectus in connection with any resale of such Exchange Securities.



Upon consummation of the Exchange Offer in accordance with this Section 2, the provisions of
this Agreement shall continue to apply, mutatis mutandis, solely with respect to Registrable
Securities that are Private Exchange Securities and Exchange Securities held by Participating
Broker-Dealers, and the Company shall have no further obligation to register Registrable Securities
(other than Private Exchange Securities and other than in respect of any Exchange Securities as to
which clause 2(c)(v) hereof applies) pursuant to Section 3 hereof. No securities other than the
Exchange Securities shall be included in the Exchange Offer Registration Statement.


 


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(b) The Issuers shall include within the Prospectus contained in the Exchange Offer
Registration Statement a section entitled “Plan of Distribution,” reasonably acceptable to the
Initial Purchasers, that 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 Participating
Broker-Dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Securities received by such Participating 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 judgment of the Initial Purchasers, represent the prevailing views of the staff of the SEC. Such “Plan of
Distribution” section shall also expressly permit, to the extent permitted by applicable policies
and regulations of the SEC, the use of the Prospectus by all Persons subject to the prospectus
delivery requirements of the Securities Act, including to the extent permitted by applicable
policies and regulations of the SEC, all Participating Broker-Dealers, and include a statement
describing the means by which Participating Broker-Dealers may resell the Exchange Securities in
compliance with the Securities Act.



The Issuers shall use their respective reasonable best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the Prospectus contained therein in
order to permit such Prospectus to be lawfully delivered by all Persons subject to the prospectus
delivery requirements of the Securities Act for such period of time as is necessary to comply with
applicable law in connection with any resale of the Exchange Securities covered thereby; provided,
however, that such period shall not be required to exceed 90 days or such longer period if extended
pursuant to the last paragraph of Section 5 hereof (the “Applicable Period”).



If, prior to consummation of the Exchange Offer, any Initial Purchaser holds any Securities
acquired by it and having, or that are reasonably likely to be determined to have, the status of an
unsold allotment in the initial distribution, the Issuers, upon the request of such Initial
Purchaser simultaneously with the delivery of the Exchange Securities in the Exchange Offer, shall
issue and deliver to such Initial Purchaser in exchange (the “Private Exchange”) for such
Securities held by such Initial Purchaser a like principal amount of debt securities of the Issuers
that are identical in all material respects to the Exchange Securities (the “Private Exchange
Notes” and, together with the guarantees thereon, the “Private Exchange Securities”), except for
the placement of a restrictive legend on such Private Exchange Securities. The Private Exchange
Securities shall be issued pursuant to the same indenture as the Exchange Securities and bear the
same CUSIP number as the Exchange Securities if permitted by the CUSIP Service Bureau.



Interest on each Exchange Note will accrue (A) from the later of (i) the last interest payment
date on which interest was paid on the Note surrendered in exchange therefor, or (ii) if the Note
is surrendered for exchange on a date in a period that includes the record date for an interest
payment date to occur on or after the date of such exchange and as to which interest will be paid,
the date of such interest payment date or (B) if no interest has been paid on such Note, from the
Issue Date.


 


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In connection with the Exchange Offer, the Issuers shall:




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




(2) use their respective reasonable best efforts to keep the Exchange Offer open for
not less than 30 days after the date that notice of the Exchange Offer is mailed to Holders
(or longer if required by applicable law);




(3) utilize the services of a depositary for the Exchange Offer with an address in the
Borough of Manhattan, The City of New York;




(4) permit Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last Business Day on which the Exchange Offer shall remain
open; and




(5) otherwise comply in all material respects with all applicable laws, rules and
regulations.



As soon as practicable after the close of the Exchange Offer or the Private Exchange, as the
case may be, the Issuers shall:




(1) accept for exchange all Registrable Securities properly tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange;




(2) deliver to the Trustee for cancellation all Registrable Securities so accepted for
exchange; and




(3) cause the Trustee to authenticate and deliver promptly to each Holder of
Securities, Exchange Securities or Private Exchange Securities, as the case may be, equal in
principal amount to the Securities of such Holder so accepted for exchange; provided that,
in the case of any Notes held in global form by a depositary, authentication and delivery to
such depositary of one or more replacement Notes in global form in an equivalent principal
amount thereto for the account of such Holders in accordance with the Indenture shall
satisfy such authentication and delivery requirement.



The Exchange Securities and the Private Exchange Securities may be issued under (i) the
Indenture or (ii) an indenture identical in all material respects to the Indenture, which in either
event has been qualified under the TIA or is exempt from such qualification and shall provide that
(1) the Exchange Securities shall not be subject to the transfer restrictions set forth in the
Indenture and (2) the Private Exchange Securities shall be subject to the transfer restrictions set
forth in the Indenture. The Indenture or such indenture described in (ii) above 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.


 


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(c) If, (i) because of any change in law or in currently prevailing interpretations of the
staff of the SEC, the Issuers are not permitted to effect an Exchange Offer, (ii) the Exchange
Offer is not consummated by the Consummation Date, (iii) the holder of Private Exchange Securities
so requests at any time within 90 days after the consummation of the Private Exchange, (iv) because
of any changes in law or in currently prevailing interpretations of the staff of the SEC, a Holder
(other than an Initial Purchaser holding Securities acquired directly from the Issuers) is not
permitted to participate in the Exchange Offer or (v) in the case of any Holder that participates
in the Exchange Offer, such Holder does not receive Exchange Securities on the date of the exchange
that may be sold without restriction under state and federal securities laws (other than due solely
to the status of such Holder as an affiliate of the Company or any of the Guarantors within the
meaning of the Securities Act), then the Company shall promptly deliver written notice thereof (the
“Shelf Notice”) to the Trustee and in the case of clauses (i), (ii) and (iv), all Holders, in the
case of clause (iii), the Holders of the Private Exchange Securities and in the case of clause (v),
the affected Holder, shall file a Shelf Registration Statement pursuant to Section 3 hereof.



3. Shelf Registration





If a Shelf Notice is delivered as contemplated by Section 2(c) hereof, then:




(a)
Shelf Registration. The Issuers shall file with the SEC a Registration Statement for
an offering to be made on a continuous basis pursuant to Rule 415 covering all of the
Registrable Securities not exchanged in the Exchange Offer, Private Exchange Notes and
Exchange Notes as to which Section 2(c)(iv) is applicable (the “Shelf Registration
Statement”). The Issuers shall use their respective reasonable best efforts to file with
the SEC the Shelf Registration Statement as promptly as practicable after such Shelf Notice.
The Shelf Registration Statement shall be on Form S-1 or another appropriate form
permitting registration of such Registrable Securities for resale by Holders in the manner
or manners designated by them (including, without limitation, one or more underwritten
offerings). The Issuers shall not permit any securities other than the Registrable
Securities to be included in the Shelf Registration Statement.




The Issuers shall use their respective reasonable best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act on or prior to the
120th day following the date of the filing of the Shelf Registration Statement and to keep
the Shelf Registration Statement continuously effective under the Securities Act until the
date that is two years from the Issue Date or such shorter period ending when all
Registrable Securities covered by the Shelf Registration Statement have been sold in the
manner set forth and as contemplated in the Shelf Registration Statement or cease to be
outstanding (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 Securities Act and as otherwise provided herein.


 


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In the event that a Shelf Registration Statement is filed, the Issuer shall provide to
each Holder copies of the prospectus that is part of the Shelf Registration Statement,
notify each such Holder when the Shelf Registration Statement for the Registrable Securities
covered by the Shelf Registration Statement has become effective and take certain other
actions as are required to permit unrestricted resales of the Registrable Securities covered
by the Shelf Registration Statement. A Holder that sells Registrable Securities covered by
the Shelf Registration Statement pursuant to the Shelf Registration Statement will be (x)
required to be named as a selling security holder in the related prospectus and to deliver a
prospectus to purchasers, (y) subject to certain of the civil liability provisions under the
Securities Act in connection with such sales and (z) bound by the provisions of this
Agreement that are applicable to such a Holder (including Section 7 hereof).




(b)
Withdrawal of Stop Orders. If the Shelf Registration Statement ceases to be effective
for any reason at any time during the Effectiveness Period (other than because of the sale
of all of the securities registered thereunder), the Issuers shall use their reasonable best
efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof.




(c)
Supplements and Amendments. The Issuers shall promptly supplement and amend the Shelf
Registration Statement if required by the rules, regulations or instructions applicable to
the registration form used for such Shelf Registration Statement, if required by the
Securities Act, or if reasonably requested by the Holders of a majority in aggregate
principal amount of the Registrable Securities covered by such Registration Statement or by
any underwriter of such Registrable Securities.



4. Additional Interest




(a) The Issuers and the Initial Purchasers agree that the Holders of Registrable Securities
will suffer damages if the Issuers fail to fulfill their respective obligations under Section 2 or
Section 3 hereof and that it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Issuers agree to pay, as liquidated damages, additional interest on
the Securities (“Additional Interest”) under the circumstances and to the extent set forth below
(without duplication):




(i) if (A) neither the Exchange Offer Registration Statement nor the Shelf Registration
Statement has been declared effective on or prior to 210 days after the Issue Date or
(B) notwithstanding that the Issuers have consummated or will consummate the Exchange Offer,
the Issuers are required to file a Shelf Registration Statement and such Shelf Registration
Statement is not declared effective on or prior to the 120th day following the date such Shelf Registration Statement was filed, then, in each
case, commencing on the day thereafter, Additional Interest shall accrue on the Securities
over and above the stated interest at a rate of 0.25% per annum for the first 90 days
immediately following such date, such Additional Interest rate increasing by an additional
0.25% per annum at the beginning of each subsequent 90-day period;


 


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(ii) if either (A) the Issuers have not exchanged Exchange Notes for all Notes validly
tendered in accordance with the terms of the Exchange Offer on or prior to the Consummation
Date or (B) if applicable, a Shelf Registration Statement has been declared effective and
such Shelf Registration Statement ceases to be effective at any time prior to the second
anniversary of the Issue Date (other than after such time as all Notes have been disposed of
thereunder), then Additional Interest shall accrue on the principal amount of the Notes at a
rate of 0.25% per annum for the first 90 days commencing on (x) the 241st day after such
effective date, in the case of (A) above, or (y) the day such Shelf Registration Statement
ceases to be effective, in the case of (B) above, such Additional Interest rate increasing
by an additional 0.25% per annum at the beginning of each such subsequent 90-day period;



provided, however, that the Additional Interest rate on the Securities may not accrue under more
than one of the foregoing clauses (i) through (ii) of this Section 4(a) at the same time and at no
time shall the aggregate amount of Additional Interest accruing exceed at any one time in the
aggregate 0.50% per annum; and provided, further, however, that (1) upon the filing of the Exchange
Offer Registration Statement or a Shelf Registration Statement (in the case of clause (i) of this
Section 4(a)), (2) upon the effectiveness of the Exchange Offer Registration Statement or the Shelf
Registration Statement (in the case of clause (ii) of this Section 4(a)), or (3) upon the exchange
of Exchange Securities for all Securities tendered (in the case of clause (iii)(A) of this
Section 4(a)), or upon the effectiveness of the applicable Shelf Registration Statement that had
ceased to remain effective (in the case of (iii)(B) of this Section 4(a)), Additional Interest on
the Securities as a result of such clause (or the relevant subclause thereof), as the case may be,
shall cease to accrue.



(b) The Issuers shall notify the Trustee within one Business Day after each and every date on
which an event occurs in respect of which Additional Interest is required to be paid (an “Event
Date”). Any amounts of Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this
Section 4 will be payable in cash semi-annually on each June 1 and December 1, commencing June 1,
2011, (to the holders of record on the May 15 and November 15 immediately preceding such dates),
the same original interest dates as the Securities, commencing with the first such date occurring
after any such Additional Interest commences to accrue. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate by the principal amount of the
Registrable Securities, multiplied by a fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period (determined on the basis of a 360-day
year consisting of twelve 30-day months and, in the case of a partial month, the actual number of days elapsed) and the
denominator of which is 360.


 


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5. Registration Procedures




In connection with the filing of any Registration Statement pursuant to Sections 2 or 3
hereof, the Issuers shall effect such registrations to permit the sale of the securities covered
thereby in accordance with the intended method or methods of disposition thereof, and pursuant
thereto and in connection with any Registration Statement filed by the Issuers hereunder, the
Issuers shall:




(a) Prepare and file with the SEC a Registration Statement or Registration Statements
as prescribed by Sections 2 or 3 hereof, and use their respective best efforts (in the case
of an Exchange Offer Registration Statement) and reasonable best efforts (in the case of a
Shelf Registration Statement) to cause such Registration Statement to become effective and
use their respective reasonable best efforts to cause each such Registration Statement to
remain effective as provided herein; provided, however, that, if (1) such filing is pursuant
to Section 3 hereof or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Issuers shall furnish to and afford the Holders of
the Registrable Securities covered by such Registration Statement or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all exhibits thereto) proposed to be
filed (in each case at least three Business Days prior to such filing). The Issuers shall
not file any Registration Statement or Prospectus or any amendments or supplements thereto
if the Holders of a majority in aggregate principal amount of the Registrable Securities
covered by such Registration Statement, or any such Participating Broker-Dealer, as the case
may be, or their counsel, or the managing underwriters, if any, shall reasonably object on a
timely basis.




(b) Prepare and file with the SEC such amendments and post-effective amendments to each
Shelf Registration Statement or Exchange Offer Registration Statement, as the case may be,
as may be necessary to keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be; cause the related
Prospectus to be supplemented by any prospectus supplement required by applicable law, and
as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in
force) promulgated under the Securities Act; and comply in all material respects with the
provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all securities


 


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covered by such Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus; the Issuers shall be deemed not
to have used their respective reasonable best efforts to keep a Registration Statement
effective during the Applicable Period if each of the Issuers voluntarily takes any action
that would result in selling Holders of the Registrable Securities covered thereby or
Participating Broker-Dealers seeking to sell Exchange Securities not being able to sell such
Registrable Securities or such Exchange Securities during that period, unless such action is
required by applicable law or unless the Issuers comply in all material respects with this
Agreement, including without limitation, the provisions of paragraph 5(k) hereof and the
last paragraph of this Section 5.




(c) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof or (2)
a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section
2 hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, the
Company shall notify the selling Holders of Registrable Securities, or each such
Participating Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, promptly (but in any event within two Business Days) and confirm such
notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon request, obtain, at
the sole expense of the Issuers, one conformed copy of such Registration Statement or
post-effective amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits), (ii) of the issuance
by the SEC of any stop order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus or the initiation
of any proceedings for that purpose, (iii) if at any time when a prospectus is required by
the Securities Act to be delivered in connection with sales of the Registrable Securities or
resales of Exchange Securities by Participating Broker-Dealers the representations and
warranties of the Issuers contained in any agreement (including any underwriting agreement),
contemplated by Section 5(n) hereof cease to be true and correct, (iv) of the receipt by the
Issuers of any notification with respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of the Registrable Securities or the
Exchange Securities to be sold by any Participating Broker-Dealer for offer or sale in any
jurisdiction, or the initiation or written threat of any proceeding for such purpose, (v) of
the happening of any event, the existence of any condition or any information becoming known
that makes any statement made in such Registration Statement or related


 


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Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue in any material respects or that requires the making of any
material changes in or amendments or supplements to such Registration Statement, Prospectus
or documents so that, in the case of the Registration Statement, it will not contain any
untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading and (vi) of the
Issuers’ determination that a post-effective amendment to a Registration Statement would be
appropriate.




(d) Use their respective reasonable best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Securities or the Exchange Securities for sale in
any jurisdiction and, if any such order is issued, to use their reasonable best efforts to
obtain the withdrawal of any such order at the earliest possible moment.




(e) If a Shelf Registration Statement is filed pursuant to Section 3 and if requested
by the managing underwriter or underwriters, if any, or the Holders of a majority in
aggregate principal amount of the Registrable Securities being sold in connection with an
underwritten offering, (i) promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or underwriters, if any, such Holders
or counsel for any of them determine is reasonably necessary to be included therein,
(ii) make all required filings of such prospectus supplement or such post-effective
amendment as soon as practicable after the Issuers have received notification of the matters
to be incorporated in such prospectus supplement or post-effective amendment and
(iii) supplement or make amendments to such Registration Statement; provided, however, that
the Issuers shall not be required to take any action pursuant to this Section 5(e) that
would, in the opinion of counsel for the Issuers, violate applicable law.




(f) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof or (2)
a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section
2 hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, furnish to
each selling Holder of Registrable Securities and to each such Participating Broker-Dealer
who so requests and to their respective counsel and each managing underwriter, if any, at
the sole expense of the Issuers, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto, including financial
statements and schedules and, if requested, all documents incorporated or deemed to be incorporated therein by reference and all
exhibits.


 


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(g) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof or (2)
a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section
2 hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, deliver to
each selling Holder of Registrable Securities, or each such Participating Broker-Dealer, as
the case may be, their respective counsel and the underwriters, if any, at the sole expense
of the Issuers, as many copies of the Prospectus or Prospectuses (including each form of
preliminary prospectus) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may reasonably request; and, subject to
the last paragraph of this Section 5, the Issuers hereby consent to the use of such
Prospectus and each amendment or supplement thereto by each of the selling Holders of
Registrable Securities or each such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers, if any, in connection with the offering and
sale of the Registrable Securities covered by, or the sale by Participating Broker-Dealers
of the Exchange Securities pursuant to, such Prospectus and any amendment or supplement
thereto.




(h) Prior to any public offering of Registrable Securities or Exchange Securities or
any delivery of a Prospectus contained in the Exchange Offer Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable
Period, to use their reasonable best efforts to register or qualify and to cooperate with
the selling Holders of Registrable Securities or each such Participating Broker-Dealer, as
the case may be, the managing underwriter or underwriters, if any, and their respective
counsel in connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as any selling
Holder, Participating Broker-Dealer or the managing underwriter or underwriters reasonably
request in writing; provided, however, that where Exchange Securities held by Participating
Broker-Dealers or Registrable Securities are offered other than through an underwritten
offering, the Issuers agree to cause their counsel to perform Blue Sky investigations and
file registrations and qualifications required to be filed pursuant to this Section 5(h);
use their reasonable best efforts to keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is required to
be kept effective and do any and all other acts or things reasonably necessary or advisable
to enable the disposition in such jurisdictions of the Exchange Securities held by
Participating Broker-Dealers or the Registrable Securities covered by the applicable
Registration Statement; provided, however, that none of the Issuers shall be required to (A)
qualify generally to do business in any jurisdiction where it is not then so qualified, (B)
take any action that would subject it to general service of process in any such jurisdiction
where it is not then so subject or (C) subject itself to taxation in any such jurisdiction
where it is not then so subject.


 


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(i) If a Shelf Registration Statement is filed pursuant to Section 3 hereof, cooperate
with the selling Holders of Registrable Securities and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with The Depository Trust
Company; and enable such Registrable Securities to be in such denominations and registered
in such names as the managing underwriter or underwriters, if any, or Holders may reasonably
request.




(j) Use their respective reasonable best efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the Holders thereof or
the underwriter or underwriters, if any, to consummate the disposition of such Registrable
Securities, except as may be required solely as a consequence of the nature of such selling
Holder’s business, in which case the Issuers will cooperate in all reasonable respects with
the filing of such Registration Statement and the granting of such approvals.




(k) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof or (2)
a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section
2 hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, upon the
occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as
practicable, prepare and (subject to Section 5(a) hereof) file with the SEC, at the Issuers’
sole expense, a supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities being sold thereunder
or to the purchasers of the Exchange Securities to whom such Prospectus will be delivered by
a Participating Broker-Dealer, any such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they were made,
not misleading.




(l) Use its respective reasonable best efforts to cause the Registrable Securities
covered by a Registration Statement or the Exchange Securities, as the case may be, to be
rated with the appropriate rating agencies, if so requested by the Holders of a majority in
aggregate principal amount of Registrable Securities covered by such Registration Statement or the Exchange Securities, as the case may be, or the managing
underwriter or underwriters, if any.


 


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(m) Prior to the effective date of the first Registration Statement relating to the
Registrable Securities, (i) provide the Trustee with certificates for the Registrable
Securities or Exchange Securities, as the case may be, in a form eligible for deposit with
Euroclear and Clearstream and (ii) provide a CUSIP number for the Registrable Securities or
Exchange Securities, as the case may be.




(n) In connection with any underwritten offering of Registrable Securities pursuant to
a Shelf Registration Statement, enter into an underwriting agreement as is customary in
underwritten offerings of debt securities similar to the Securities and take all such other
actions as are reasonably requested by the managing underwriter or underwriters in order to
expedite or facilitate the registration or the disposition of such Registrable Securities
and, in such connection, (i) make such representations and warranties to, and covenants
with, the underwriters with respect to the business of the Issuers and their subsidiaries
(including any acquired business, properties or entity, if applicable) and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Securities, and confirm the same in
writing if and when requested; (ii) obtain the written opinion of counsel to the Issuers and
written updates thereof in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings of debt similar to the Securities
and such other matters as may be reasonably requested by the managing underwriter or
underwriters; (iii) obtain “cold comfort” letters and updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or underwriters from the
independent certified public accountants of the Issuers (and, if necessary, any other
independent certified public accountants of any subsidiary of the Issuers or of any business
acquired by the Issuers for which financial statements and financial data are, or are
required to be, included or incorporated by reference in the Registration Statement),
addressed to each of the underwriters, such letters to be in customary form and covering
matters of the type customarily covered in “cold comfort” letters in connection with
underwritten offerings of debt securities similar to the Securities and such other matters
as reasonably requested by the managing underwriter or underwriters; and (iv) if an
underwriting agreement is entered into, the same shall contain indemnification provisions
and procedures no less favorable than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority in aggregate principal amount
of Registrable Securities covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to be indemnified pursuant to said Section. The above shall be done at each closing under
such underwriting agreement, or as and to the extent required thereunder.


 


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(o) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof or (2)
a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section
2 hereof is required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, upon
reasonable advance notice make available for inspection by any selling Holder of such
Registrable Securities being sold, or each such Participating Broker-Dealer, as the case may
be, any underwriter participating in any such disposition of Registrable Securities, if any,
and any attorney, accountant or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or underwriter (collectively, the
“Inspectors”), at the offices where normally kept, during reasonable business hours without
interfering in the orderly business of the Issuers, all financial and other relevant
records, pertinent corporate documents and instruments of the Issuers and their subsidiaries
(collectively, the “Records”) as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the respective officers, directors
and employees of the Issuers and their subsidiaries to supply all information reasonably
requested by any such Inspector in connection with such Registration Statement. Any such
access granted to the Inspectors under this Section 5(o) shall be subject to the prior
receipt by the Issuers of written undertakings, in form and substance reasonably
satisfactory to the Issuers, to preserve the confidentiality of any information deemed by
the Issuers to be confidential. Records that the Issuers determine, in good faith, to be
confidential and any Records that they notify the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the Issuers based upon advice of counsel determine
that disclosure of such Records is necessary to avoid or correct a material misstatement or
omission in such Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) after
giving reasonable prior notice to the Company, disclosure of such information is, in the
opinion of counsel for any Inspector, necessary or advisable in connection with any action,
claim, suit or proceeding, directly or indirectly, involving or potentially involving such
Inspector and arising out of, based upon, relating to or involving this Agreement or any
transactions contemplated hereby or arising hereunder or (iv) the information in such
Records has been made generally available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will be required to agree
that information obtained by it as a result of such inspections shall be deemed confidential
and shall not be used by it as the basis for any market transactions in the securities of
the Company unless and until such information is generally available to the public. Each
selling Holder of such Registrable Securities and each such Participating Broker-Dealer will
be required to further agree that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company and allow the Company to undertake appropriate
action to prevent disclosure of the Records deemed confidential at the Issuers’ sole
expense.


 


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(p) Provide an indenture trustee for the Registrable Securities or the Exchange
Securities, as the case may be, and cause the Indenture or the trust indenture provided for
in Section 2(a) hereof, as the case may be, to be qualified under the TIA not later than the
effective date of the Exchange Offer or the first Registration Statement relating to the
Registrable Securities; and in connection therewith, cooperate with the trustee under any
such indenture and the Holders of the Registrable Securities, to effect such changes to such
indenture as may be required for such indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use its reasonable best efforts to cause such trustee to
execute, all documents as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable such indenture to be so qualified in a
timely manner.




(q) Comply in all material respects with all applicable rules and regulations of the
SEC and make generally available to its securityholders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable Securities are
sold to underwriters in a firm commitment or reasonable best efforts underwritten offering
and (ii) if not sold to underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Issuers after the effective date of a Registration Statement,
which statements shall cover said 12-month periods.




(r) Upon consummation of an Exchange Offer or a Private Exchange, obtain an opinion of
counsel to the Issuers, who may, at the Issuers’ election, be internal counsel to the
Issuers, in a form customary for underwritten transactions, addressed to the Trustee for the
benefit of all Holders of Registrable Securities participating in the Exchange Offer or the
Private Exchange, as the case may be, that the Exchange Securities or Private Exchange
Securities, as the case may be, and the related indenture constitute legal, valid and
binding obligations of the Issuers, enforceable against the Issuers in accordance with its
respective terms, subject to customary exceptions and qualifications.


 


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(s) If an Exchange Offer or a Private Exchange is to be consummated, upon delivery of
the Registrable Securities by Holders to the Company (or to such other Person as directed by
the Company) in exchange for the Exchange Securities or the Private Exchange Securities, as
the case may be, the Company shall mark, or cause to be marked, on such Registrable Securities that such Registrable Securities are being
cancelled in exchange for the Exchange Securities or the Private Exchange Securities, as the
case may be; in no event shall such Registrable Securities be marked as paid or otherwise
satisfied.




(t) Cooperate with each seller of Registrable Securities covered by any Registration
Statement and each underwriter, if any, participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required to be made
with the Financial Industry Regulatory Authority (“FINRA”).




(u) Use their respective reasonable best efforts to take all other steps necessary or
advisable to effect the registration of the Registrable Securities covered by a Registration
Statement contemplated hereby.



The Issuers may require each seller of Registrable Securities as to which any registration is
being effected to furnish to the Issuers such information regarding such seller and the
distribution of such Registrable Securities as the Issuers may, from time to time, reasonably
request. The Issuers may exclude from such registration the Registrable Securities of any seller
who unreasonably fails to furnish such information within a reasonable time after receiving such
request and in such event shall have no further obligation under this Agreement (including, without
limitation, obligations under Section 4 hereof) with respect to such seller or any subsequent
holder of such Registrable Securities. Each seller as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to the Issuers all information required to be disclosed
in order to make the information previously furnished to the Issuers by such seller not materially
misleading.



Each Holder of Registrable Securities and each Participating Broker-Dealer agrees by
acquisition of such Registrable Securities or Exchange Securities to be sold by such Participating
Broker-Dealer, as the case may be, that, upon actual receipt of any notice from the Company of the
happening of any event of the kind described in Sections 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi)
hereof, such Holder will forthwith discontinue disposition of such Registrable Securities covered
by such Registration Statement or Prospectus or Exchange Securities to be sold by such Holder or
Participating Broker-Dealer, as the case may be, until such Holder’s or Participating
Broker-Dealer’s receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k) hereof, or until it is advised in writing (the “Advice”) by the Company that the use
of the applicable Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. During any such discontinuance, no Additional Interest shall accrue or
otherwise be payable on the Registrable Securities. In the event that the Company shall give any
such notice, each of the Effectiveness Period and the Applicable Period shall be extended by the
number of days during such periods from and including the date of the giving of such notice to and
including the date when each seller of Registrable Securities covered by such Registration
Statement or Exchange Securities to be sold by such Participating Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k) hereof or (y) the
Advice.


 


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6. Registration Expenses




(a) All fees and expenses incident to the performance of or compliance with this Agreement by
the Issuers shall be borne by the Issuers whether or not the Exchange Offer or a Shelf Registration
Statement is filed or becomes effective, including, without limitation, (i) all registration and
filing fees (including, without limitation, (A) fees with respect to filings required to be made
with the FINRA in connection with an underwritten offering and (B) fees and expenses of compliance
with state securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel (not to exceed $5,000) in connection with Blue Sky qualifications of the
Registrable Securities or Exchange Securities and determination of the eligibility of the
Registrable Securities or Exchange Securities for investment under the laws of such jurisdictions
(x) where the holders of Registrable Securities are located, in the case of the Exchange
Securities, or (y) as provided in Section 5(h) hereof, in the case of Registrable Securities or
Exchange Securities to be sold by a Participating Broker-Dealer during the Applicable Period)),
(ii) printing expenses, including, without limitation, expenses of printing certificates for
Registrable Securities or Exchange Securities in a form eligible for deposit with The Depository
Trust Company and of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Holders of a majority in aggregate principal
amount of the Registrable Securities included in any Registration Statement or sold by any
Participating Broker-Dealer, as the case may be, (iii) reasonable messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for the Company and reasonable fees and
disbursements of special counsel for the sellers of Registrable Securities (subject to the
provisions of Section 6(b) hereof), (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(n)(iii) hereof (including, without limitation, the expenses of
any special audit and “cold comfort” letters required by or incident to such performance),
(vi) rating agency fees, if any, and any fees associated with making the Registrable Securities or
Exchange Securities eligible for trading through The Depository Trust Company, (vii) Securities Act
liability insurance, if the Company desires such insurance, (viii) fees and expenses of all other
Persons retained by the Company, (ix) internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees of the Company performing legal or
accounting duties), (x) the expense of any annual audit, (xi) the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities exchange, if
applicable, and (xii) the expenses relating to printing, word processing and distributing of all
Registration Statements, underwriting agreements, securities sales agreements, indentures and any
other documents necessary to comply with this Agreement.


 


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(b) The Issuers shall reimburse the Holders of the Registrable Securities being registered in
a Shelf Registration Statement for the reasonable fees and disbursements of not more than one
counsel chosen by the Holders of a majority in aggregate principal amount of the Registrable
Securities to be included in such Registration Statement; provided that the Issuers shall not be
liable for any fees and disbursements of such counsel in excess of $25,000 in the aggregate.



7. Indemnification




(a) Each of the Issuers agrees to indemnify and hold harmless each Holder of Registrable
Securities offered pursuant to a Shelf Registration Statement and each Participating Broker-Dealer
selling Exchange Securities during the Applicable Period, the officers and directors of each such
Person or its affiliates, and each other Person, if any, who controls any such Person or its
affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act (each, a “Participant”), from and against any and all losses, claims, damages and
liabilities (including, without limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any claim asserted) caused by,
arising out of or based upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement pursuant to which the offering of such Registrable
Securities or Exchange Securities, as the case may be, is registered (or any amendment thereto) or
related Prospectus (or any amendments or supplements thereto) or any related preliminary
prospectus, or caused by, arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided, however,
that none of the Issuers will be required to indemnify a Participant if (i) such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information relating to any Participant
furnished to the Company in writing by or on behalf of such Participant expressly for use therein
or (ii) if such Participant sold to the person asserting the claim the Registrable Securities or
Exchange Securities that are the subject of such claim and such untrue statement or omission or
alleged untrue statement or omission was contained or made in any preliminary prospectus and
corrected in the Prospectus or any amendment or supplement thereto and the Prospectus does not
contain any other untrue statement or omission or alleged untrue statement or omission of a
material fact that was the subject matter of the related proceeding and such Participant failed to
deliver or provide a copy of the Prospectus (as amended or supplemented) to such Person with or
prior to the confirmation of the sale of such Registrable Securities or Exchange Securities sold to
such Person if required by applicable law, unless such failure to deliver or provide a copy of the
Prospectus (as amended or supplemented) was a result of noncompliance by the Company with Section 5
of this Agreement.


 


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(b) Each Participant agrees, severally and not jointly, to indemnify and hold harmless the
Company and each of the Guarantors, the Company’s directors and officers, each Guarantor’s
directors and officers and each Person who controls the Issuers within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to each Participant, but only (i) with reference to information relating to such
Participant furnished to the Company in writing by or on behalf of such Participant expressly for
use in any Registration Statement or Prospectus, any amendment or supplement thereto or any
preliminary prospectus or (ii) with respect to any untrue statement or representation made by such
Participant in writing to the Company. The liability of any Participant under this paragraph shall
in no event exceed the proceeds received by such Participant from sales of Registrable Securities
or Exchange Securities giving rise to such obligations.



(c) If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any Person in respect of which indemnity may
be sought pursuant to either of the two preceding paragraphs, such Person (the “Indemnified
Person”) shall promptly notify the Person against whom such indemnity may be sought (the
“Indemnifying Person”) in writing, and the Indemnifying Person, upon request of the Indemnified
Person, shall retain counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may reasonably designate in such
proceeding and shall pay the reasonable fees and expenses actually incurred by such counsel related
to such proceeding; provided, however, that the failure to so notify the Indemnifying Person shall
not relieve it of any obligation or liability that it may have hereunder or otherwise (unless and
only to the extent that such failure directly results in the loss or compromise of any material
rights or defenses by the Indemnifying Person and the Indemnifying Person was not otherwise aware
of such action or claim). In any such proceeding, any Indemnified Person shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed in writing to the contrary, (ii) the Indemnifying Person shall have failed within a
reasonable period of time to retain counsel reasonably satisfactory to the Indemnified Person or
(iii) the named parties in any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests between them. It is
understood that, unless there exists a conflict among Indemnified Persons, the Indemnifying Person
shall not, in connection with any one such proceeding or separate but substantially similar related
proceeding in the same jurisdiction arising out of the same general allegations, be liable for the
fees and expenses of more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed promptly as they are
incurred. Any such separate firm for the Participants and such control



 


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Persons of Participants
shall be designated in writing by Participants who sold a majority in interest of Registrable
Securities and Exchange Securities sold by all such Participants and
any such separate firm for the Company, its directors, its officers and such control Persons of the Company
shall be designated in writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its prior written consent, but if settled with such
consent or if there be a final non-appealable judgment for the plaintiff for which the Indemnified
Person is entitled to indemnification pursuant to this Agreement, the Indemnifying Person agrees to
indemnify and hold harmless each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person (which consent shall not be unreasonably withheld or delayed),
effect any settlement or compromise of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party, and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement (A) includes an unconditional written release of
such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person,
from all liability on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act by or on behalf of
any Indemnified Person.



(d) If the indemnification provided for in the first and second paragraphs of this Section 7
is for any reason unavailable to, or insufficient to hold harmless, an Indemnified Person in
respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraphs, in lieu of indemnifying such Indemnified Person thereunder and in
order to provide for just and equitable contribution, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative fault of the Indemnifying Person or
Persons on the one hand and the Indemnified Person or Persons on the other in connection with the
statements or omissions or alleged statements or omissions that resulted in such losses, claims,
damages or liabilities (or actions in respect thereof). The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Issuers on the one hand or such Participant or such other Indemnified Person, as
the case may be, on the other, the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances.




 


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(e) The parties agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation (even if the Participants were treated as one
entity for such purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The amount paid or
payable by an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any reasonable legal or other expenses actually incurred by such Indemnified Person in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by which proceeds received
by such Participant from sales of Registrable Securities or Exchange Securities, as the case may
be, exceeds the amount of any damages that such Participant has otherwise been required to pay or
has paid by reason of such untrue or alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.



(f) The indemnity and contribution agreements contained in this Section 7 will be in addition
to any liability that the Indemnifying Persons may otherwise have to the Indemnified Persons
referred to above.



8. Rule 144 and 144A




The Issuers covenant that they will file the reports required to be filed by it under the
Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder in
a timely manner in accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time the Issuers not required to file such reports, they will, upon the request of any
Holder of Registrable Securities, make publicly available annual reports and such information,
documents and other reports of the type specified in Sections 13 and 15(d) of the Exchange Act.
The Issuers further covenant for so long as any Registrable Securities remain outstanding, to make
available to any Holder or beneficial owner of Registrable Securities in connection with any sale
thereof and any prospective purchaser of such Registrable Securities from such Holder or beneficial
owner the information required by Rule 144A(d)(4) under the Securities Act in order to permit
resales of such Registrable Securities pursuant to Rule 144A.



9. Underwritten Registrations




If any of the Registrable Securities covered by any Shelf Registration Statement are to be
sold in an underwritten offering, the investment banker or investment bankers and manager or
managers that will manage the offering will be selected by the Holders of a majority in aggregate
principal amount of such Registrable Securities included in such offering and reasonably acceptable
to the 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.


 


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10. Miscellaneous




(a) No Inconsistent Agreements. The Issuers have not entered into, as of the date hereof, and
shall not, after the date of this Agreement, enter into any agreement with respect to any of the
Company’s securities that is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof. The Issuers have
not entered and will not enter into any agreement with respect to any of the Company’s securities
that will grant to any Person piggy-back registration rights with respect to a Registration
Statement.



(b) Adjustments Affecting Registrable Securities. The Issuers shall not, directly or indirectly,
take any action with respect to the Registrable Securities as a class that would adversely affect
the ability of the Holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement.



(c) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof may not be given,
otherwise than with the prior written consent of the Holders of not less than a majority in
aggregate principal amount of the then outstanding Registrable Securities. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Securities whose securities are being
sold pursuant to a Registration Statement and that does not directly or indirectly affect, impair,
limit or compromise the rights of other Holders of Registrable Securities may be given by Holders
of at least a majority in aggregate principal amount of the Registrable Securities being sold by
such Holders pursuant to such Registration Statement; provided, however, that the provisions of
this sentence may not be amended, modified or supplemented except in accordance with the provisions
of the immediately preceding sentence.



 


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(d) Notices. All notices and other communications (including without limitation any notices or
other communications to the Trustee) provided for or permitted hereunder shall be made in writing
by hand-delivery, registered first-class mail, next-day air courier or facsimile:



1. if to a Holder of the Registrable Securities or any Participating Broker-Dealer, at
the most current address of such Holder or Participating Broker-Dealer, as the case may be,
set forth on the records of the registrar under the Indenture, with a copy in like manner to
the Initial Purchasers as follows:




Deutsche Bank Securities Inc.

60 Wall Street

New York, NY 10005

Facsimile No.: (212) 797-4873

Attention: Corporate Finance Department




with a copy to:




Cahill Gordon & Reindel LLP

80 Pine Street

New York, New York 10005

Facsimile No.: (212) 269-5420

Attention: William M. Hartnett, Esq.




2. if to the Initial Purchasers, at the addresses specified in Section 10(d)(1)




3. if to the Issuer, at the address as follows:




Mobile Mini, Inc.

7420 South Kyrene Road, Suite 101

Tempe, AZ 85283

Facsimile No.: (480) 894-6433

Attention: Christopher Miner




with a copy to:




DLA Piper LLP (US)

2525 East Camelback Road, Suite 1000

Phoenix, AZ 85016-4232

Facsimile No.: (480) 606-5528

Attention: Gregory R. Hall, Esq.



All such notices and communications shall be deemed to have been duly given: when delivered
by hand, if personally delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; one Business Day after being timely delivered to a next-day air courier; and
when receipt is acknowledged by the addressee, if sent by facsimile.



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


 


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(e) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto; provided, however, that this Agreement shall
not inure to the benefit of or be binding upon a successor or assign of a Holder unless and to the
extent such successor or assign holds Registrable Securities.



(f) 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.



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



(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.



(i) Severability. If any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use
their reasonable best efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions without including
any of such that may be hereafter declared invalid, illegal, void or unenforceable.



(j) Securities Held by the Issuers or their Affiliates. Whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Issuers or their affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or approval was given by
the Holders of such required percentage.


 


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(k) Third Party Beneficiaries. Holders of Registrable Securities and Participating Broker-Dealers
are intended third party beneficiaries of this Agreement and this Agreement may be enforced by such
Persons.



(l) Entire Agreement. This Agreement, together with the Purchase Agreement and the Indenture, is
intended by the parties as a final and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein and therein and any and all
prior oral or written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial Purchasers on the one hand and the
Issuers on the other, or between or among any agents, representatives, parents, subsidiaries,
affiliates, predecessors in interest or successors in interest with respect to the subject matter
hereof and thereof are merged herein and replaced hereby.


 


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



	 	 	 	 	 
	 	MOBILE MINI, INC.

 	 
	 	By:  	/s/
Mark E. Funk	 
	 	 	Name:  	Mark E. Funk 	 
	 	 	Title:  	Executive Vice President and


Chief Financial Officer 	 
	 
	 	EACH GUARANTOR LISTED IN SCHEDULE 1 HERETO

 	 
	 	By:  	/s/
Mark E. Funk	 
	 	 	Name:  	Mark E. Funk 	 
	 	 	Title:  	Executive Vice President and


Chief Financial Officer 	 



	 	 	 	 	 	 	 
	DEUTSCHE BANK SECURITIES INC., 


on behalf of the several Initial Purchasers named 


on Schedule II to the Purchase Agreement	 	 
	 
	 	 	 	 	 	 
	By:
	 	/s/ Nicholas Hayes	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Nicholas Hayes	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	By:
	 	/s/ Scott Sartorius	 	 
	 	 	 	 	 
	 

	 	Name:
	 	Scott Sartorius	 	 
	 

	 	Title:
	 	Managing Director	 	 





 


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SCHEDULE 1




Guarantors




	 	 	 
	 	 	Jurisdiction of
	Name	 	Incorporation
	 
	Mobile Mini Dealer, Inc.
	 	Arizona
	 
	Mobile Mini, LLC
	 	California
	 
	Mobile Mini, LLC
	 	Delaware
	 
	Mobile Mini I, Inc.
	 	Arizona
	 
	A Royal Wolf Portable Storage, Inc.
	 	California
	 
	Temporary Mobile Storage, Inc.
	 	California
	 
	Mobile Storage Group (Texas), L.P.
	 	Texas
	 
	Mobile Storage Group, Inc.
	 	Delaware
	 
	A Better Mobile Storage Company
	 	California
	 
	MSG Investments, Inc.
	 	California







 


S-1