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EXHIBIT 4.2
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REGISTRATION RIGHTS AGREEMENT
Dated as of February 11, 2005
By and Among
AMERICAN COMMERCIAL LINES LLC
ACL FINANCE CORP.
as Issuers,
THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO
and
UBS SECURITIES LLC
BANC OF AMERICA SECURITIES LLC
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
as Initial Purchasers
9 1/2% Senior Notes due 2015
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TABLE OF CONTENTS
<TABLE>
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Page
----
<S> <C>
1.
Definitions..................................................................
1
2. Exchange
Offer...............................................................
4
3. Shelf
Registration...........................................................
7
4. Liquidated
Damages...........................................................
8
5. Registration
Procedures......................................................
10
6. Registration
Expenses........................................................
18
7.
Indemnification..............................................................
18
8. Rules 144 and
144A...........................................................
21
9. Underwritten
Registrations...................................................
22
10.
Miscellaneous...............................................................
22
(a) No Inconsistent
Agreements.............................................. 22
(b) Adjustments Affecting Registrable
Notes................................. 22
(c) Amendments and
Waivers.................................................. 22
(d)
Notices.................................................................
23
(e) Successors and
Assigns.................................................. 24
(f)
Counterparts............................................................
24
(g)
Headings................................................................
24
(h) Governing
Law...........................................................
24
(i)
Severability............................................................
24
(j) Securities Held by the Issuers, the Guarantors or their
Affiliate....... 25
(k) Third-Party
Beneficiaries............................................... 25
(l) Attorneys'
Fees.........................................................
25
(m) Entire
Agreement........................................................
25
SIGNATURES......................................................................
S-1
</TABLE>
-i-
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated
as of
February 11, 2005, by and among American Commercial Lines LLC, a
Delaware
limited liability company (the "Company"), ACL Finance Corp., a
Delaware
corporation ("ACL Finance," and together with the Company, the
"Issuers"), and
the guarantors listed on the signature pages attached hereto
(each a
"Guarantor," and collectively, the "Guarantors"), on the one
hand, and UBS
Securities LLC, Banc of America Securities LLC and Merrill
Lynch, Pierce, Fenner
& Smith Incorporated (each an "Initial Purchaser," and
collectively, the
"Initial Purchasers"), on the other hand.
This Agreement is entered into in connection with the
Purchase
Agreement, dated as of February 8, 2005, by and among the
Issuers, the
Guarantors and the Initial Purchasers (the "Purchase
Agreement"), relating to
the offering of $200 million aggregate principal amount of the
Issuers' 9-1/2%
Senior Notes due 2015 (the "Notes"). The execution and delivery
of this
Agreement is a condition to the Initial Purchasers' obligation
to purchase the
Notes under the Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions
As used in this Agreement, the following terms shall have
the
following meanings:
"ACTION" shall have the meaning set forth in Section 7(c)
hereof.
"ADVICE" shall have the meaning set forth in Section 5
hereof.
"AGREEMENT" shall have the meaning set forth in the first
introductory paragraph hereto.
"APPLICABLE PERIOD" shall have the meaning set forth in Section
2(b)
hereof.
"BOARD OF MANAGERS" shall have the meaning set forth in Section
5
hereof.
"BUSINESS DAY" shall mean a day that is not a Legal Holiday.
"COMMISSION" shall mean the Securities and Exchange
Commission.
"COMPANY" shall have the meaning set forth in the
introductory
paragraph hereto and shall also include the Company's permitted
successors and
assigns.
"DAY" shall mean a calendar day.
"DAMAGES PAYMENT DATE" shall have the meaning set forth in
Section
4(b) hereof.
"DELAY PERIOD" shall have the meaning set forth in Section 5
hereof.
<PAGE>
"EFFECTIVENESS PERIOD" shall have the meaning set forth in
Section
3(b) hereof.
"EFFECTIVENESS TARGET DATE" shall have the meaning set forth
in
Section 4(a)(ii) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as
amended, and the rules and regulations of the Commission
promulgated thereunder.
"EXCHANGE NOTES" shall have the meaning set forth in Section
2(a)
hereof.
"EXCHANGE OFFER" shall have the meaning set forth in Section
2(a)
hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning
set
forth in Section 2(a) hereof.
"HOLDER" shall mean any holder of a Registrable Note or
Registrable
Notes.
"GUARANTORS" shall have the meaning set forth in the
introductory
paragraph hereto and shall also include each Guarantor's
permitted successors
and assigns.
"INDENTURE" shall mean the Indenture, dated as of February 11,
2005,
by and among the Issuers, the Guarantors and Wilmington Trust
Company, as
trustee, pursuant to which the Notes are being issued, as
amended or
supplemented from time to time in accordance with the terms
thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the
first
introductory paragraph hereof.
"INSPECTORS" shall have the meaning set forth in Section
5(n)
hereof.
"ISSUE DATE" shall mean February 11, 2005, the date of
original
issuance of the Notes.
"ISSUERS" shall have the meaning set forth in the
introductory
paragraph hereto and shall also include each Issuer's permitted
successors and
assigns.
"LEGAL HOLIDAY" shall mean a Saturday, a Sunday or a day on
which
banking institutions in New York, New York are required by law,
regulation or
executive order to remain closed.
"LIQUIDATED DAMAGES" shall have the meaning set forth in
Section
4(a) hereof.
"LOSSES" shall have the meaning set forth in Section 7(a)
hereof.
"NASD" shall have the meaning set forth in Section 5(s)
hereof.
"NOTES" shall have the meaning set forth in the second
introductory
paragraph hereto.
"PARTICIPANT" shall have the meaning set forth in Section
7(a)
hereof.
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"PARTICIPATING BROKER-DEALER" shall have the meaning set forth
in
Section 2(b) hereof.
"PERSON" shall mean an individual, corporation, partnership,
joint
venture association, joint stock company, trust, unincorporated
limited
liability company, government or any agency or political
subdivision thereof or
any other entity.
"PRIVATE EXCHANGE" shall have the meaning set forth in Section
2(b)
hereof.
"PRIVATE EXCHANGE NOTES" shall have the meaning set forth in
Section
2(b) hereof.
"PROSPECTUS" shall mean the prospectus included in any
Registration
Statement (including, without limitation, any prospectus subject
to completion
and a prospectus that includes any information previously
omitted from a
prospectus filed as part of an effective registration statement
in reliance upon
Rule 430A promulgated under the Securities Act), as amended or
supplemented by
any prospectus supplement, and all other amendments and
supplements to the
Prospectus, including post-effective amendments, and all
material incorporated
by reference or deemed to be incorporated by reference in such
Prospectus.
"PURCHASE AGREEMENT" shall have the meaning set forth in the
second
introductory paragraph hereof.
"RECORDS" shall have the meaning set forth in Section 5(n)
hereof.
"REGISTRABLE NOTES" shall mean each Note upon its original
issuance
and at all times subsequent thereto, each Exchange Note as to
which Section
2(c)(iii) hereof is applicable upon original issuance and at all
times
subsequent thereto and each Private Exchange Note upon original
issuance thereof
and at all times subsequent thereto, in each case until (i) a
Registration
Statement (other than, with respect to any Exchange Note as to
which Section
2(c)(iii) hereof is applicable, the Exchange Offer Registration
Statement)
covering such Note, Exchange Note or Private Exchange Note has
been declared
effective by the Commission and such Note, Exchange Note or such
Private
Exchange Note, as the case may be, has been disposed of in
accordance with such
effective Registration Statement, (ii) such Note has been
exchanged pursuant to
the Exchange Offer for an Exchange Note or Exchange Notes that
may be resold
without restriction under state and federal securities laws
(other than due
solely to the status of such holder as an affiliate of the
Issuers or any
Guarantor within the meaning of the Securities Act), (iii) such
Note, Exchange
Note or Private Exchange Note, as the case may be, ceases to be
outstanding for
purposes of the Indenture or (iv) such Note, Exchange Note or
Private Exchange
Note has been sold in compliance with Rule 144 or is salable
pursuant to Rule
144(k).
"REGISTRATION DEFAULT" shall have the meaning set forth in
Section
4(a) hereof.
"REGISTRATION STATEMENT" shall mean any appropriate
registration
statement of the Issuers and the Guarantors covering any of the
Registrable
Notes filed with the Commission under the Securities Act, and
all amendments and
supplements to any such Registration Statement, including
post-effective
amendments, in each case including the Prospectus contained
therein, all
exhibits thereto and all material incorporated by reference
therein.
3
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"REQUESTING PARTICIPATING BROKER-DEALER" shall have the meaning
set
forth in Section 2(b) hereof.
"RULE 144" shall mean Rule 144 promulgated under the Securities
Act,
as such Rule may be amended from time to time, or any similar
rule (other than
Rule 144A) or regulation hereafter adopted by the Commission
providing for
offers and sales of securities made in compliance therewith
resulting in offers
and sales by subsequent holders that are not affiliates of an
issuer of such
securities being free of the registration and prospectus
delivery requirements
of the Securities Act.
"RULE 144A" shall mean 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
Commission.
"RULE 415" shall mean Rule 415 promulgated under the Securities
Act,
as such Rule may be amended from time to time, or any similar
rule or regulation
hereafter adopted by the Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended,
and the rules and regulations of the Commission promulgated
thereunder.
"SHELF FILING EVENT" shall have the meaning set forth in
Section
2(c) hereof.
"SHELF REGISTRATION" shall have the meaning set forth in
Section
3(a) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a Registration
Statement
filed in connection with a Shelf Registration.
"TIA" shall mean the Trust Indenture Act of 1939, as
amended.
"TRUSTEE" shall mean the trustee under the Indenture and the
trustee
(if any) under any indenture governing the Exchange Notes and
Private Exchange
Notes.
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING" shall mean
a
registration in which securities of the Issuers are sold to an
underwriter for
reoffering to the public.
Section 2. Exchange Offer
(a) The Issuers and the Guarantors shall (i) file a
Registration
Statement (the "Exchange Offer Registration Statement") within
90 days after the
Issue Date with the Commission on an appropriate registration
form with respect
to a registered offer (the "Exchange Offer") to exchange any and
all of the
Registrable Notes for a like aggregate principal amount of notes
(the "Exchange
Notes") that are identical in all material respects to the Notes
(except that
the Exchange Notes shall not contain terms with respect to
transfer restrictions
or Liquidated Damages upon a Registration Default), (ii) use
their reasonable
best efforts to cause the Exchange Offer Registration Statement
to be declared
effective under the Securities Act within 180 days after the
Issue Date and
(iii) use their reasonable best efforts to consummate the
Exchange Offer within
240 days after the Issue Date. Upon the Exchange Offer
Registration Statement
being declared effective by the Commission, the Issuers and the
Guarantors will
offer
4
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the Exchange Notes in exchange for surrender of the Notes. The
Issuers and the
Guarantors shall keep the Exchange Offer open for not less than
30 days (or
longer if required by applicable law) after the date notice of
the Exchange
Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be
required
to represent to the Issuers and the Guarantors in writing that
(i) any Exchange
Notes to be received by it will be acquired in the ordinary
course of its
business, (ii) it has no arrangement or understanding with any
Person to
participate in the distribution (within the meaning of the
Securities Act) of
the Exchange Notes in violation of the provisions of the
Securities Act or, if
it is an affiliate, it will comply with the registration and
prospectus delivery
requirements of the Securities Act to the extent applicable,
(iii) if such
Holder is not a broker-dealer, it is not engaged in, and does
not intend to
engage in, a distribution of Exchange Notes, (iv) if such Holder
is a
broker-dealer that will receive Exchange Notes for its own
account in exchange
for Notes that were acquired as a result of market-making or
other trading
activities, it will deliver a prospectus in connection with any
resale of such
Exchange Notes and (v) such Holder has full power and authority
to transfer the
Notes in exchange for the Exchange Notes and that the Issuers
and Guarantors
will acquire good and unencumbered title thereto free and clear
of any liens,
restrictions, charges or encumbrances and not subject to any
adverse claims.
(b) The Issuers, the Guarantors and the Initial Purchasers
acknowledge that the staff of the Commission has taken the
position that any
broker-dealer that elects to exchange Notes that were acquired
by such
broker-dealer for its own account as a result of market-making
or other trading
activities for Exchange Notes in the Exchange Offer (a
"Participating
Broker-Dealer") may be deemed to be an "underwriter" within the
meaning of the
Securities Act and must deliver a prospectus meeting the
requirements of the
Securities Act in connection with any resale of such Exchange
Notes (other than
a resale of an unsold allotment resulting from the original
offering of the
Notes).
The Issuers, the Guarantors and the Initial Purchasers also
acknowledge that the staff of the Commission has taken the
position that if the
Prospectus contained in the Exchange Offer Registration
Statement includes a
plan of distribution containing a statement to the above effect
and the means by
which Participating Broker-Dealers may resell the Exchange
Notes, without naming
the Participating Broker-Dealers or specifying the amount of
Exchange Notes
owned by them, such Prospectus may be delivered by Participating
Broker-Dealers
to satisfy their prospectus delivery obligations under the
Securities Act in
connection with resales of Exchange Notes for their own
accounts, so long as the
Prospectus otherwise meets the requirements of the Securities
Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "Requesting Participating Broker-Dealer"), the
Issuers and
Guarantors agree to use their reasonable best efforts to keep
the Exchange Offer
Registration Statement continuously effective for a period not
to exceed 180
days after the date on which the Exchange Registration Statement
is declared
effective, or such longer period if extended pursuant to the
last paragraph of
Section 5 hereof (such period, the "Applicable Period"), or such
earlier date as
all Requesting Participating Broker-Dealers shall have notified
the Company in
writing that such Requesting Participating Broker-Dealers have
resold all
Exchange Notes acquired in the Exchange Offer. The Issuers and
Guarantors shall
include a plan of distribution in such Exchange Offer
Registration Statement
that meets the requirements set forth in the preceding
paragraph.
5
<PAGE>
If, prior to consummation of the Exchange Offer, the Initial
Purchasers or any Holder, as the case may be, holds any Notes
acquired by it
that have, or that are reasonably likely to be determined to
have, the status of
an unsold allotment in an initial distribution, or if any Holder
is not entitled
to participate in the Exchange Offer, the Issuers and Guarantors
upon the
request of the Initial Purchasers or any such Holder, as the
case may be, shall
simultaneously with the delivery of the Exchange Notes in the
Exchange Offer,
issue and deliver to the Initial Purchasers or any such Holder,
as the case may
be, in exchange (the "Private Exchange") for such Notes held by
the Initial
Purchasers or any such Holder, as the case may be, a like
principal amount of
notes (the "Private Exchange Notes") of the Issuers and the
Guarantors that are
identical in all material respects to the Exchange Notes except
that the Private
Exchange Notes may be subject to restrictions on transfer and
bear a legend to
such effect. The Private Exchange Notes shall be issued pursuant
to the same
indenture as the Exchange Notes and bear the same CUSIP number
as the Exchange
Notes.
For each Note surrendered in the Exchange Offer, the Holder
will
receive an Exchange Note having a principal amount equal to that
of the
surrendered Note. Interest on each Exchange Note and Private
Exchange Note
issued pursuant to the Exchange Offer and in the Private
Exchange will accrue
from the last interest payment date on which interest was paid
on the Notes
surrendered in exchange therefor or, if no interest has been
paid on the Notes,
from the Issue Date.
Upon consummation of the Exchange Offer in accordance with
this
Section 2, the Issuers and Guarantors shall have no further
registration
obligations other than the Issuers' and Guarantors' continuing
registration
obligations with respect to (i) Private Exchange Notes, (ii)
Exchange Notes held
by Participating Broker-Dealers and (iii) Notes or Exchange
Notes as to which
clause (c)(iii) of this Section 2 applies.
In connection with the Exchange Offer, the Issuers and
Guarantors
shall:
(1) mail or cause to be mailed to each Holder entitled to
participate in the Exchange Offer a copy of the Prospectus
forming part of
the Exchange Offer Registration Statement, together with an
appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange
Offer
with an address in the Borough of Manhattan, The City of New
York;
(3) permit Holders to withdraw tendered Notes at any time prior
to
the close of business, New York time, on the last Business Day
on which
the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and
the
Private Exchange, if any, the Issuers and Guarantors shall:
(1) accept for exchange all Notes validly tendered and not
validly
withdrawn by the Holders pursuant to the Exchange Offer and the
Private
Exchange, if any;
6
<PAGE>
(2) deliver or cause to be delivered to the Trustee for
cancellation all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each
such Holder of Notes, Exchange Notes or Private Exchange Notes,
as the
case may be, equal in principal amount to the Registrable Notes
of such
Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be subject
to
any conditions, other than that (i) the Exchange Offer or
Private Exchange, as
the case may be, does not violate applicable law or any
applicable
interpretation of the staff of the Commission, (ii) no action or
proceeding
shall have been instituted or threatened in any court or by any
governmental
agency which might materially impair the ability of the Issuers
or Guarantors to
proceed with the Exchange Offer or the Private Exchange, and no
material adverse
development shall have occurred in any existing action or
proceeding with
respect to the Issuers and the Guarantors and (iii) all
governmental approvals
shall have been obtained, which approvals the Issuers deem
necessary for the
consummation of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be
issued
under (i) the Indenture or (ii) an indenture identical in all
material respects
to the Indenture (in either case, with such changes as are
necessary to comply
with any requirements of the Commission to effect or maintain
the qualification
thereof under the TIA) and which, in either case, has been
qualified under the
TIA and shall provide that (a) the Exchange Notes shall not be
subject to the
transfer restrictions set forth in the Indenture and (b) the
Private Exchange
Notes shall be subject to the transfer restrictions set forth in
the Indenture.
The Indenture or such indenture shall provide that the Exchange
Notes, the
Private Exchange Notes and the Notes shall vote and consent
together on all
matters as one class and that none of the Exchange Notes, the
Private Exchange
Notes or the Notes will have the right to vote or consent as a
separate class on
any matter.
(c) In the event that (i) any changes in law or the
applicable
interpretations of the staff of the Commission do not permit the
Issuers and the
Guarantors to effect the Exchange Offer, (ii) for any reason the
Exchange Offer
is not consummated within 240 days after the Issue Date, (iii)
any Holder, other
than the Initial Purchasers, is prohibited by law or the
applicable
interpretations of the staff of the Commission from
participating in the
Exchange Offer or does not receive Exchange Notes on the date of
the exchange
that may be sold without restriction under state and federal
securities laws
(other than due solely to the status of such holder as an
affiliate of the
Issuers or any Guarantor within the meaning of the Securities
Act) or (iv) an
Initial Purchaser so requests with respect to Notes or Private
Exchange Notes
that have, or that are reasonably likely to be determined to
have, the status of
unsold allotments in an initial distribution (each such event
referred to in
clauses (i) through (iv) of this sentence, a "Shelf Filing
Event"), then the
Issuers and Guarantors shall file a Shelf Registration pursuant
to Section 3
hereof.
Section 3. Shelf Registration
If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuers and Guarantors shall file
with
the Commission a Registration Statement for an offering to be
made on a
continuous basis pursuant to Rule 415 covering all of the
Registrable Notes not
exchanged in the Exchange Offer, Private Exchange Notes and
Exchange
7
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Notes as to which Section 2(c)(iii) is applicable (the "Shelf
Registration").
The Issuers and Guarantors shall use their reasonable best
efforts to file with
the Commission the Shelf Registration as promptly as
practicable. The Shelf
Registration shall be on Form S-1 or another appropriate form
permitting
registration of such Registrable Notes for resale by Holders in
the manner or
manners designated by them (including, without limitation, one
or more
underwritten offerings). The Issuers and Guarantors shall not
permit any
securities other than the Registrable Notes to be included in
the Shelf
Registration.
(b) The Issuers and Guarantors shall use their reasonable
best
efforts (x) to cause the Shelf Registration to be declared
effective under the
Securities Act on or prior to the later of 180 calendar days
after the Issue
Date or 90 days after the Shelf Registration is required to be
filed with the
Commission and (y) to keep the Shelf Registration continuously
effective under
the Securities Act for the period ending on the date which is
two years from the
Issue Date, subject to extension pursuant to the penultimate
paragraph of
Section 5 hereof (the "Effectiveness Period"), or such shorter
period ending
when all Registrable Notes covered by the Shelf Registration
have been sold in
the manner set forth and as contemplated in the Shelf
Registration; provided,
however, that (i) the Effectiveness Period in respect of the
Shelf Registration
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 and (ii) the Issuers may
suspend the
effectiveness of the Shelf Registration Statement by written
notice to the
Holders solely as a result of the filing of a post-effective
amendment to the
Shelf Registration Statement to incorporate annual audited
financial information
with respect to the Issuers where such post-effective amendment
is not yet
effective and needs to be declared effective to permit Holders
to use the
related Prospectus.
(c) Supplements and Amendments. The Issuers and the
Guarantors
agree to supplement or make amendments to the Shelf Registration
Statement as
and when required by the rules, regulations or instructions
applicable to the
registration form used for such Shelf Registration Statement or
by the
Securities Act or rules and regulations thereunder for shelf
registration, or if
reasonably requested by the Holders of a majority in aggregate
principal amount
of the Registrable Notes covered by such Registration Statement
or by any
underwriter of such Registrable Notes.
Section 4. Liquidated Damages
(a) The Issuers, the Guarantors and the Initial Purchasers
agree
that the Holders will suffer damages if the Issuers or
Guarantors fail to
fulfill their obligations under Section 2 or Section 3 hereof
and that it would
not be feasible to ascertain the extent of such damages with
precision.
Accordingly, the Issuers and the Guarantors hereby jointly and
severally agree
that if:
(i) the Exchange Offer Registration Statement is not filed
with
the Commission on or prior to the 90th day following the Issue
Date or, if
that day is not a Business Day, the next day that is a Business
Day,
(ii) the Exchange Offer Registration Statement is not
declared
effective on or prior to the 180th day following the Issue Date
or, if
that day is not a Business Day, the next day that is a Business
Day (such
date, the "Effectiveness Target Date"),
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<PAGE>
(iii) the Exchange Offer is not consummated within 60 days after
the
Effectiveness Target Date, or, if that day is not a Business
Day, the next
day that is a Business Day; or
(iv) the Shelf Registration Statement is required to be filed
but
is not declared effective by the later of 180 calendar days
after the
Issue Date or 90 days after the Shelf Registration is required
to be filed
with the Commission, or, if either such day is not a Business
Day, the
next day that is a Business Day or is declared effective by such
date but
thereafter ceases to be effective or usable, except if the
Shelf
Registration ceases to be effective or usable as specifically
permitted by
the penultimate paragraph of Section 5 hereof
(each such event referred to in clauses (i) through (iv) a
"Registration
Default"), liquidated damages in the form of additional cash
interest
("Liquidated Damages") will accrue on the affected Notes and the
affected
Exchange Notes, as applicable. The rate of Liquidated Damages
will be 0.25% per
annum for the first 90-day period immediately following the
occurrence of a
Registration Default, increasing by an additional 0.25% per
annum with respect
to each subsequent 90-day period up to a maximum amount of
additional interest
of 1.0% per annum, from and including the date on which any such
Registration
Default shall occur to, but excluding, the earlier of (1) the
date on which all
Registration Defaults have been cured or (2) the date on which
all the Notes and
Exchange Notes otherwise become freely transferable by Holders
other than
affiliates of the Issuers and the Guarantors without further
registration under
the Securities Act.
Notwithstanding the foregoing, (1) the amount of Liquidated
Damages payable
shall not increase because more than one Registration Default
has occurred and
is pending and (2) a Holder of Notes or Exchange Notes who is
not entitled to
the benefits of the Shelf Registration Statement (i.e., such
Holder has not
elected to include information) shall not be entitled to
Liquidated Damages with
respect to a Registration Default that pertains to the Shelf
Registration
Statement.
(b) So long as Notes remain outstanding, the Issuers shall
notify
the Trustee within five Business Days after each and every date
on which an
event occurs in respect of which Liquidated Damages is required
to be paid. Any
amounts of Liquidated Damages due pursuant to clauses (a)(i),
(a)(ii), (a)(iii)
or (a)(iv) of this Section 4 will be payable in cash
semi-annually on each [ ]
and [ ] (each a "Damages Payment Date"), commencing with the
first such date
occurring after any such Liquidated Damages commence to accrue,
to Holders to
whom regular interest is payable on such Damages Payment Date
with respect to
Notes that are Registrable Securities. The amount of Liquidated
Damages for
Registrable Notes will be determined by multiplying the
applicable rate of
Liquidated Damages by the aggregate principal amount of all such
Registrable
Notes outstanding on the Damages Payment Date following such
Registration
Default in the case of the first such payment of Liquidated
Damages with respect
to a Registration Default (and thereafter at the next succeeding
Damages Payment
Date until the cure of such Registration Default), multiplied by
a fraction, the
numerator of which is the number of days such Liquidated Damages
rate was
applicable during such period (determined on the basis of a
360-day year
comprised of twelve 30-day months and, in the case of a partial
month, the
actual number of days elapsed), and the denominator of which is
360.
9
<PAGE>
Section 5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant
to Section 2 or 3 hereof, the Issuers and the Guarantors 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 and
Guarantors hereunder, the Issuers and the Guarantors shall:
(a) Prepare and file with the Commission the Registration
Statement or Registration Statements prescribed by Section 2 or
3 hereof,
and use their reasonable best efforts to cause each such
Registration
Statement to become effective and remain effective as provided
herein;
provided, however, that if (1) such filing is pursuant to
Section 3
hereof, or (2) a Prospectus contained in the 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 Notes during the Applicable Period relating
thereto, before
filing any Registration Statement or Prospectus or any
amendments or
supplements thereto, the Issuers and the Guarantors shall
furnish to and
afford the Holders of the Registrable Notes covered by such
Registration
Statement or each such Participating Broker-Dealer, as the case
may be,
its counsel (if such counsel is known to the Issuers) and the
managing
underwriters, if any, a reasonable opportunity to review copies
of all
such documents (including copies of any documents to be
incorporated by
reference therein and all exhibits thereto) proposed to be filed
(in each
case at least five Business Days prior to such filing or such
later date
as is reasonable under the circumstances). The Issuers and the
Guarantors
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 Notes covered by such Registration
Statement, or
any such Participating Broker-Dealer, as the case may be, its
counsel, or
the managing underwriters, if any, shall reasonably object on a
timely
basis.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement
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 with the provisions of the Securities
Act and
the Exchange Act applicable to it with respect to the
disposition of all
securities 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, in each case, in accordance with the intended
methods of
distribution set forth in such Registration Statement or
Prospectus, as so
amended.
(c) If (1) a Shelf Registration is filed pursuant to Section
3
hereof, or (2) a Prospectus contained in the 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 Notes during the Applicable Period relating
thereto from
whom the Issuers and
10
<PAGE>
Guarantors have received written notice that such Broker-Dealer
will be a
Participating Broker-Dealer in the applicable Exchange Offer,
notify the
selling Holders of Registrable Notes, or each such
Participating
Broker-Dealer, as the case may be, their counsel and the
managing
underwriters, if any, as promptly as possible, and, if requested
by any
such Person, confirm such notice in writing, (i) when a
Prospectus or any
Prospectus supplement or post-effective amendment has been
filed, and,
with respect to a Registration Statement or any post-effective
amendment,
when the same has become effective under the Securities Act
(including in
such notice a written statement that any Holder may, upon
request, obtain,
at the sole expense of the 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
Commission of any stop order suspending the effectiveness of
a
Registration Statement or of any order preventing or suspending
the use of
any preliminary prospectus or the initiation of any proceedings
for that
purpose, (iii) if at any time when a Prospectus is required by
the
Securities Act to be delivered in connection with sales of the
Registrable
Notes or resales of Exchange Notes by Participating
Broker-Dealers the
representations and warranties of the Issuers and Guarantors
contained in
any agreement (including any underwriting agreement)
contemplated by
Section 5(m)(i) hereof cease to be true and correct in all
material
respects, (iv) of the receipt by the Issuers or any Guarantor of
any
notification with respect to the suspension of the qualification
or
exemption from qualification of a Registration Statement or any
of the
Registrable Notes or the Exchange Notes for offer or sale in
any
jurisdiction, or the initiation or threatening of any proceeding
for such
purpose, (v) of the happening of any event, the existence of any
condition
or any information becoming known to the Issuers or Guarantors
that makes
any statement made in such Registration Statement or related
Prospectus or
any document incorporated or deemed to be incorporated therein
by
reference untrue in any material respect or that requires the
making of
any changes in or amendments or supplements to such
Registration
Statement, Prospectus or documents so that, in the case of
the
Registrat
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