<PAGE>
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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<PAGE>
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.
2
<PAGE>
"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
<PAGE>
"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
<PAGE>
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
<PAGE>
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"),
8
<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
Regis
