Exhibit 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated as of December 17, 1996
Among
ILLINOIS CENTRAL RAILROAD COMPANY
as Issuer
and
▇▇▇▇▇▇ BROTHERS INC.
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
as Initial Purchasers
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TABLE OF CONTENTS
Page
1. Definitions.............................................. 1
2. Exchange Offer........................................... 4
3. Shelf Registration....................................... 9
4. Liquidated Damages....................................... 11
5. Registration Procedures.................................. 13
6. Registration Expenses.................................... 23
7. Indemnification.......................................... 24
8. Rules 144 and 144A......................................... 28
9. Underwritten Registrations................................. 28
10. Miscellaneous............................................. 29
(a) No Inconsistent Agreements.......................... 29
(b) Adjustments Affecting Registrable
Debentures....................................... 29
(c) Amendments and Waivers.............................. 29
(d) Notices............................................. 29
(e) Successors and Assigns.............................. 31
(f) Counterparts........................................ 31
(g) Headings............................................ 31
(h) Governing Law....................................... 31
(i) Severability........................................ 31
(j) Third Party Beneficiaries........................... 32
(k) Entire Agreement.................................... 32
(l) Underwriting A.greement............................. 32
(m) Termination......................................... 32
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as
of December 17, 1996 among Illinois Central Railroad Company, a Delaware
corporation (the "Company"), ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated December 12, 1996, among the Company and the Initial
Purchasers (the "Purchase Agreement") which provides for the sale by the
Company to the Initial Purchasers of $125,000,000 aggregate principal amount
of the Company's 7.70% Debentures due 2096 (the "Debentures"). In order to
induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has 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
Debentures 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:
Advice: As defined in the last paragraph of Section 5 hereof.
Agreement: As defined in the introductory paragraphs hereto.
Applicable Period: As defined in Section 2(b) hereof.
Company: As defined in the introductory paragraphs hereto.
Effectiveness Date: The 180th day after the Issue Date.
Effectiveness Period: As defined in Section 3(a) hereof.
Event Date: As defined in 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 Debentures: As defined in Section 2(a) hereof.
Exchange Offer: As defined in Section 2(a) hereof.
Exchange Offer Registration Statement: As defined in Section 2(a)
hereof.
Filing Date: The 90th day after the Issue Date.
Holder: Any holder of a Registrable Debenture or Registrable
Debentures.
Indemnified Person: As defined in Section 7(c) hereof.
Indemnifying Person: As defined in Section 7(c) hereof.
Indenture: The Indenture, dated as of July 25, 1996, as
supplemented by the First Supplemental Indenture dated as of December 17,
1996, between the Company and The Chase Manhattan Bank, as Trustee, pursuant
to which the Debentures are being issued, and as further amended or
supplemented from time to time in accordance with the terms thereof.
Initial Purchasers: As defined in the introductory paragraphs
hereto.
Inspectors: As defined in Section 5(o) hereof.
Issue Date: The date on which the Debentures were originally
issued under the Indenture.
Liquidated Damages: As defined in Section 4(a) hereof.
NASD: As defined in Section 5(t) hereof.
Debentures: As defined in the introductory paragraphs hereto.
Participant: As defined in Section 7(a) hereof.
Participating Broker-Dealer: As defined in Section 2(b) 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: As defined in Section 2(b) hereof.
Private Exchange Debentures: As defined in 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, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: As defined in the introductory paragraphs
hereto.
Records: As defined in Section 5(o) hereof.
Registrable Debentures: Each Debenture upon original issuance of
the Debentures and at all times subsequent thereto, each Exchange Debenture as
to which Section 2(c)(iv) hereof is applicable upon original issuance and at
all times subsequent thereto and each Private Exchange Debenture upon original
issuance thereof and at all times subsequent thereto, until in the case of any
such Debenture, Exchange Debenture or Private Exchange Debenture, as the case
may be, the earliest to occur of (i) a Registration Statement (other than,
with respect to any Exchange Debenture as to which Section 2(c)(iv) hereof is
applicable, the Exchange Offer Registration Statement) covering such
Debenture, Exchange Debenture or such Private Exchange Debenture having been
declared effective by the SEC and such Debenture or such Private Exchange
Debenture, as the case may be, having been disposed of in accordance with such
effective Registration Statement, (ii) such Debenture, Exchange Debenture or
Private Exchange Debenture, as the case may be, being eligible for sale to the
public pursuant to Rule 144, (iii) such Debenture having been exchanged for an
Exchange Debenture pursuant to an Exchange Offer which may be resold without
restriction under state and federal securities laws, or (iv) such Debenture,
Exchange Debenture or Private Exchange Debenture, as the case may be, ceasing
to be outstanding for purposes of the Indenture.
Registration Default: As defined in Section 4(a) hereof.
Registration Statement: Any registration statement of the
Company, including, but not limited to, the Exchange Offer Registration
Statement and the 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 materials 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 Act: The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Shelf Notice: As defined in Section 2(c) hereof.
Shelf Registration Statement: As defined in Section 3(a) hereof.
Subsequent Shelf Registration Statement: As defined in Section
3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if applicable, the
trustee under any subsequent indenture governing the Exchange Debentures and
Private Exchange Debentures (if any).
Underwritten registration or underwritten offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Exchange Offer.
(a) The Company shall file with the SEC no later than the
Filing Date, a registration statement under the Securities Act with respect to
a registered offer to exchange (the "Exchange Offer") any and all of the
Registrable Debentures (other than Private Exchange Debentures, if any) for a
like aggregate principal amount of debt securities of the Company which are
substantially similar in all material respects to the Debentures (the
"Exchange Debentures"), except that the Exchange Debentures shall have been
registered pursuant to an effective Registration Statement under the
Securities Act and shall contain no restrictive legend thereon, and which are
entitled to the benefits of the Indenture or a trust indenture which 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 which, in either case, has been
qualified under the TIA. The Exchange Offer shall be registered under the
Securities Act on an appropriate form (the "Exchange Offer Registration
Statement") and shall comply with all applicable tender offer rules and
regulations under the Exchange Act. The Company shall use reasonable best
efforts to cause the Exchange Offer Registration Statement to be declared
effective under the Securities Act on or before the Effectiveness Date. Upon
the Exchange Offer Registration Statement being declared effective, the
Company will offer the Exchange Debentures in exchange for surrender of the
Debentures. The Company will keep the Exchange Offer open for at least 20
business days (or longer if required by applicable law) after the date that
notice of the Exchange Offer is mailed to Holders. For purposes of this
Section 2(a) only, if after such Exchange Offer Registration Statement is
initially declared effective by the SEC, the Exchange Offer or the issuance of
the Exchange Debentures 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. Each Holder who
participates in the Exchange Offer will be required to represent that (i) any
Exchange Debentures received by it will be acquired in the ordinary course of
its business, (ii) at the time of the consummation of the Exchange Offer such
Holder will have no arrangement or understanding with any Person to
participate in the distribution of the Exchange Debentures in violation of the
provisions of the Securities Act, and (iii) such Holder is not an affiliate of
the Company within the meaning of the Securities Act. 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 Debentures that are Private Exchange Debentures and Exchange
Debentures held by Participating Broker-Dealers, and the Company shall have no
further obligations to register Registrable Debentures pursuant to Section 3
hereof (other than Private Exchange Debentures and other than in respect of
any Exchange Debentures as to which clause 2(c)(iv) hereof applies). No
securities other than the Exchange Debentures shall be included in the
Exchange Offer Registration Statement.
(b) The Company shall include within the Prospectus contained in
the Exchange Offer Registration Statement certain information necessary to
allow a broker-dealer who holds Debentures that were acquired for its own
account as a result of market-making activities or other ordinary course
trading activities (other than Debentures acquired directly from the Company
or one of the Company's affiliates) to exchange such Debentures pursuant to
the Exchange Offer and to satisfy the prospectus delivery requirements in
connection with resales of Exchange Debentures received by such broker-dealer
in the Exchange Offer, including a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, which shall contain a summary
statement of the positions taken or policies made by the Staff of the Division
of Corporation Finance of the SEC (the "Staff") with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Debentures received
by such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"),
whether such positions or policies have been publicly disseminated by the
Staff or such positions or policies, in the judgment of the Initial
Purchasers, represent the prevailing views of the Staff. Such "Plan of
Distribution" section shall also expressly permit the use of the Prospectus by
all Persons subject to the prospectus delivery requirements of the Securities
Act, including all Participating Broker-Dealers, and include a statement
describing the means by which Participating Broker-Dealers may resell the
Exchange Debentures. Each broker-dealer that receives Exchange Debentures for
its own account in exchange for Debentures where such Debentures were acquired
by such broker-dealer as a result of market-making activities must acknowledge
that it will comply with any prospectus delivery requirements under the
Securities Act in connection with any resale of Exchange Debentures.
The Company shall use its 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 Debentures;
provided, however, that such period shall not exceed 120 days after the
Exchange Offer Registration Statement is declared effective (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, the Initial
Purchasers hold any Debentures acquired by them and having, or which are
reasonably likely to be determined to have, the status of any unsold allotment
in the initial distribution, or any other Holder is not entitled to
participate in the Exchange Offer, the Company upon the request of the Initial
Purchasers or any such Holder shall simultaneously with the delivery of the
Exchange Debentures in the Exchange Offer, issue and deliver to the Initial
Purchasers and any such Holder, in exchange (the "Private Exchange") for such
Debentures held by the Initial Purchasers and any such Holder, a like
principal amount of debt securities of the Company that are substantially
similar in all material respects to the Exchange Debentures except for any
such restrictions on transfer that, in the opinion of counsel for the Company,
are required under the Securities Act (the "Private Exchange Debentures") (and
which are issued pursuant to the same indenture as the Exchange Debentures);
provided, however, the Company shall not be required to effect such exchange
if, in the written opinion of counsel for the Company (a copy of which shall
be delivered to the Initial Purchasers and any Holder affected thereby), such
exchange cannot be effected without registration under the Securities Act.
The Private Exchange Debentures shall bear the same CUSIP number as the
Exchange Debentures.
Interest on the Exchange Debentures and the Private Exchange
Debentures will accrue (A) from the last interest payment date on which
interest was paid on the Debentures surrendered in exchange therefor or (B) if
no interest has been paid on the Debentures, from the Issue Date.
In connection with the Exchange Offer, the Company 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) 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 Debentures 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 or
the Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all Debentures tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange;
(2) deliver to the Trustee for cancellation all Debentures so
accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each Holder of Debentures, Exchange Debentures or Private Exchange
Debentures, as the case may be, equal in principal amount to the
Debentures 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 the Private
Exchange, as the case may be, does not violate applicable law or any
applicable interpretation of the Staff, (ii) no action or proceeding is
instituted or threatened in any court or by any governmental agency which
might materially impair the ability of the Company to proceed with the Exchange
Offer or the Private Exchange and no material adverse development has occurred
in any existing action or proceeding with respect to the Company and (iii) all
governmental approvals have been obtained, which approvals the Company deems
necessary for the consummation of the Exchange Offer or Private Exchange.
The Exchange Debentures and the Private Exchange Debentures may be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, which in either event shall provide that the
Exchange Debentures shall not be subject to the transfer restrictions set
forth in the Indenture. The Indenture or such indenture shall provide that
the Exchange Debentures, the Private Exchange Debentures and the Debentures
shall vote and consent together on all matters as one series and that neither
the Exchange Debentures, the Private Exchange Debentures or the Debentures
will have the right to vote or consent as a separate series on any matter.
(c) If (i) the Company determines in reasonably good faith that
(x) any changes in law or in the applicable interpretations of the Staff of
the SEC do not permit the Company to effect an Exchange Offer prior to the
Effectiveness Date, or (y) that the Exchange Debentures would not be tradeable
upon receipt by the Holders that participate in the Exchange Offer without
restriction under applicable state and federal securities laws (other than due
solely to the status of a Holder as an affiliate of the Company within the
meaning of the Securities Act), (ii) the Exchange Offer is not consummated
within 210 days of the Issue Date, (iii) any holder of Private Exchange
Debentures so requests within 180 days after the consummation of the Private
Exchange, or (iv) in the case of any Holder that participates in the Exchange
Offer, such Holder does not receive Exchange Debentures 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 within the meaning of the Securities Act) and so
notifies the Company within 60 days after such Holder first becomes aware of
any such restriction and provides the Company with a reasonable basis for its
conclusion, in the case of each of clauses (i), (ii), (iii) and (iv) of this
sentence, then the Company shall promptly deliver to the Holders of
Registrable Debentures and the Trustee written notice thereof (the "Shelf
Notice") and, at the Company's cost, shall, as promptly as practicable, file
a Shelf Registration 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 Company, at its cost, shall, as
promptly as practicable, 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 Debentures (the "Shelf Registration Statement"). If the
Company shall not have filed an Exchange Offer Registration Statement, the
Company shall use its diligent best efforts to file with the SEC the Shelf
Registration Statement as promptly as practicable, but no later than 30 days
from the delivery of the Shelf Notice. The Shelf Registration Statement shall
be on Form S-3 or another appropriate form permitting registration of such
Registrable Debentures for resale by Holders in the manner or manners
designated by them (including, without limitation, one or more underwritten
offerings). The Company shall not permit any securities other than the
Registrable Debentures to be included in the Shelf Registration Statement or
any Subsequent Shelf Registration Statement.
The Company shall use its diligent best efforts to cause the
initial Shelf Registration Statement to be declared effective under the
Securities Act by the 210th day after the Issue Date and to keep the Shelf
Registration Statement continuously effective under the Securities Act until
the date which is three years after its effective date, subject to extension
pursuant to the last paragraph of Section 5 hereof (the "Effectiveness
Period"), or such shorter period ending when (i) all Registrable Debentures
covered by the Shelf Registration Statement have been sold in the manner set
forth and as contemplated in the initial Shelf Registration Statement or (ii)
a Subsequent Shelf Registration Statement covering all of the Registrable
Debentures has been declared effective under the Securities Act. The Company
will be permitted to suspend the use of the Prospectus which is part of the
Shelf Registration Statement for a period not to exceed 30 days in any
three-month period or two periods not to exceed an aggregate of 60 days in any
12-month period under certain circumstances relating to pending corporate
developments, public filing with the SEC and similar events
(b) Subsequent Shelf Registrations. If the initial Shelf
Registration Statement or any Subsequent 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 Company shall use all reasonable efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall, within 30 days after such cessation of the effectiveness, amend the
Shelf Registration Statement in a manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the Registrable
Debentures (a "Subsequent Shelf Registration Statement"). If a Subsequent
Shelf Registration Statement is filed, the Company shall use its best efforts
to cause the Subsequent Shelf Registration to be declared effective under the
Securities Act as soon as practicable after such filing and to keep such
Registration Statement continuously effective for a period equal to the number
of days in the Effectiveness Period less the aggregate number of days during
which the Shelf Registration Statement or any Subsequent Shelf Registration
Statement was previously continuously effective. As used hereinafter the term
"Shelf Registration Statement" means the Shelf Registration Statement and any
Subsequent Shelf Registration Statement.
(c) Supplements and Amendments. The Company 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 Debentures covered by such Registration Statement or
by any underwriter of such Registrable Debentures.
(d) Hold-Back Agreements
(1) Restrictions on Public Sale by Holders of Registrable
Debentures. Each Holder of Registrable Debentures whose Registrable
Debentures are covered by a Shelf Registration Statement filed pursuant
to this Section 3 (which Registrable Debentures are not being sold in the
underwritten offering described below) agrees, if requested (pursuant to
a timely written notice) by the Company or the managing underwriter or
underwriters in an underwritten offering, not to effect any public sale
or distribution of any of the Registrable Debentures or a similar
security of the Company, including a sale pursuant to Rule 144 or Rule
144A (except as part of such underwritten offering), during the period
beginning 20 days prior to, and ending 90 days after, the closing date
of each underwritten offering made pursuant to such Shelf Registration
Statement, to the extent timely notified in writing by the Company or by
the managing underwriter or underwriters; provided, however, that each
holder of Registrable Debentures shall be subject to the hold-back
restrictions of this Section 3(d)(1) only once during the term of this
Agreement.
The foregoing provisions shall not apply to any Holder if
such Holder is prevented by applicable statute or regulation from
entering into any such agreement; provided, however, that any such
Holder shall undertake, in its request to participate in any such
underwritten offering, not to effect any public sale or distribution of
the class of securities covered by such Shelf Registration Statement
(except as part of such underwritten offering) during such period unless
it has provided 30 days' prior written notice of such sale or
distribution to the Company or the managing underwriter or underwriters,
as the case may be.
(2) Restrictions on the Company and Others. The Company agrees
(A) not to effect any public or private sale or distribution (including,
without limitation, a sale pursuant to Regulation D under the Securities
Act) of any securities the same as or similar to those covered by a
Shelf Registration Statement filed pursuant to this Section 3, or any
securities convertible into or exchangeable or exercisable for such
securities, during the 10 days prior to, and during the 90-day period
beginning on, the commencement of an underwritten public distribution of
Registrable Debentures, where the managing underwriter or underwriters
so requests; (B) to include in any agreements entered into by the
Company on or after the date of this Agreement (other than any
underwriting agreement relating to a public offering registered under
the Securities Act) pursuant to which the Company issues or agrees to
issue securities the same as or similar to the Debentures a provision
that each holder of such securities that are the same as or similar to
Debentures issued at any time on or after the date of this Agreement
agrees not to effect any public or private sale or distribution, or
request or demand the registration, of any such securities (or any
securities convertible into or exchangeable or exercisable for such
securities) during the period referred to in clause (A) of this Section
3(d)(2), including any sale pursuant to Rule 144 or Rule 144A; and (C)
not to grant or agree to grant any "piggy-back registration" or other
similar rights to any holder of the Company's or any of their respective
subsidiaries' securities issued on or after the date of this Agreement
with respect to any Registration Statement.
4. Liquidated Damages
(a) The Company and the Initial Purchasers agree that the
Holders of Debentures will suffer damages if the Company fails to fulfill its
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 Company agrees to pay to each Holder of Debentures liquidated damages
("Liquidated Damages"), accruing after the occurrence of a Registration
Default (as defined below) in the manner set forth below, at a rate per annum
equal to 0.5% of the principal amount of Debentures held by such Holder. Each
event referred to in clauses (i) through (iii) below will constitute a
"Registration Default" and each such event shall be given independent effect:
(i) if the Exchange Offer Registration Statement has not
been filed on or prior to the 90th calendar day following the
Issue Date and a Shelf Notice has not been delivered with respect
to all Debentures eligible for exchange in the Exchange Offer on
or prior to such 90th calendar day, then commencing on the 91st day
after the Issue Date, the Company shall pay Liquidated Damages
over and above the accrued interest on the Debentures;
(ii) if the Exchange Offer Registration Statement is not
declared effective by the SEC on or prior to the 180th calendar
day following the Issue Date and a Shelf Notice has not been
delivered with respect to all Debentures eligible for exchange in
the Exchange Offer on or prior to such 180th calendar day, then
commencing on the 181st day after the Issue Date, the Company
shall pay Liquidated Damages on the Debentures to be exchanged for
Exchange Debentures included or which should have been included in
such Exchange Offer Registration Statement over and above the
accrued interest on the Debentures; and
(iii) if (A) the Exchange Offer is not consummated on or
prior to the 210th calendar day following the Issue Date and a
Shelf Notice has not been delivered with respect to all Debentures
eligible for exchange in the Exchange Offer on or prior to such
210th calendar day, (B) the Shelf Registration Statement is not
declared effective on or prior to the 210th calendar day following
the Issue Date or (C) if applicable, the Shelf Registration
Statement has been declared effective and ceases to be effective
(except as specifically permitted therein) without being succeeded
immediately by an additional registration statement filed and
declared effective, then commencing on the day immediately
following the date of such Registration Default, the Company shall
pay Liquidated Damages over and above the accrued interest on the
Debentures;
provided, however, that (1) upon the filing of the Exchange Offer Registration
Statement or the delivery of a Shelf Notice with respect to all Debentures
eligible for exchange in the Exchange Offer (in the case of clause (i) of this
Section 4(a)), (2) upon the effectiveness of the Exchange Offer Registration
Statement or the delivery of a Shelf Notice with respect to all Debentures
eligible for exchange in the Exchange Offer (in the case of clause (ii) of
this Section 4(a)), or (3) upon the consummation of the Exchange Offer or the
delivery of a Shelf Notice with respect to all Debentures eligible for
exchange in the Exchange Offer (in the case of clause (iii)(A) of this Section
4(a)), or upon the effectiveness of the Shelf Registration Statement (in the
case of clause (iii)(B) of this Section 4(a)), or upon the effectiveness of
the Shelf Registration Statement which had ceased to remain effective (except
as specifically permitted therein) without being succeeded immediately by an
additional registration statement filed and declared effective (in the case
of clause (iii)(C) of this Section 4(a)), Liquidated Damages on the Debentures
as a result of such clause (or the relevant subclause thereof), as the case
may be, shall cease to accrue; and provided further, that no Liquidated
Damages shall accrue with respect to any Debenture (i) subsequent to the time
of the consummation of the Exchange Offer with respect to such Debenture, or
(ii) at any time that a Shelf Registration Statement is available with respect
to such Debenture. Notwithstanding the foregoing, the Company shall not be
required to pay Liquidated Damages with respect to the Debentures of a Holder
if the applicable Registration Default arises from the Company's failure to
file, or cause to become effective, a Shelf Registration Statement within the
time periods specified in this Section 4 by reason of the failure of such
Holder to provide such information as (i) the Company may reasonably request,
with reasonable prior written notice, for use in the Shelf Registration
Statement or any Prospectus included therein to the extent the Company
reasonably determines that such information is required to be included therein
by applicable law, (ii) the NASD or the SEC may request in connection with
such Shelf Registration Statement or (iii) is required to comply with the
agreements of such Holder as contained in the penultimate paragraph of Section
5 to the extent compliance thereof is necessary for the Shelf Registration
Statement to be declared effective. Notwithstanding anything contained
herein, (x) no Liquidated Damages shall accrue on Exchange Debentures with
respect to periods following the issuance thereof upon exchange for
Debentures, and (y) no Liquidated Damages shall accrue on Private Exchange
Debentures.
(b) The Company shall notify the Trustee within one business day
after each Registration Default (an "Event Date"). Any amounts of Liquidated
Damages due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 on any
Debenture or any Exchange Debenture issued in exchange therefor will be
payable in cash on each date for the payment of interest on such Debenture or
such Exchange Debenture (to the Person entitled to receive the payment of
interest payable on such Debenture or Exchange Debenture on such date),
commencing with the first such date occurring after any such Liquidated
Damages commence to accrue. Any such Liquidated Damages will be paid by the
Company to the Holder of Registered Global Securities (as defined in the
Indenture) by wire transfer of same day funds and to Holders of certificated
Securities by wire transfer to the accounts specified by them or by mailing
checks to their registered addresses if no such accounts have been specified.
Following the cure of all Registration Defaults, the accrual of Liquidated
Damages will cease.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Company 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 Company hereunder the Company shall:
(a) Prepare and file with the SEC, a Registration Statement or
Registration Statements as prescribed by, and within the time periods
specified by, Sections 2 or 3 hereof, and use its diligent 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 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 Debentures during the Applicable Period, before filing
any Registration Statement or Prospectus or any amendments or supplements
thereto, the Company shall furnish to and afford the Holders of the
Registrable Debentures covered by such Registration Statement or each such
Participating Broker-Dealer, as the case may be, one counsel selected by the
Holders of a majority in aggregate principal amount of the Registrable
Debentures (the "Holders' Counsel"), counsel for such Participating
Broker-Dealer and counsel for 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
Company 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 Debentures covered by such Registration
Statement and the Holders' Counsel, or any such Participating Broker-Dealer
and its counsel, as the case may be, or the managing underwriters, if any,
shall reasonably object.
(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 (including any documents to
be incorporated by reference therein and all exhibits thereto), as may be
necessary to keep such Registration Statement continuously effective for the
Effective 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;
prior to making any amendment or supplement to such Registration Statement or
such Prospectus or filing any document incorporated by reference therein, to
furnish a copy thereof to the Initial Purchasers and counsel to the Initial
Purchasers and obtain the consent of the Initial Purchasers to such amendment,
supplement or filing, 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. The Company shall be deemed not to have used its diligent best
efforts to keep a Registration Statement effective during the Applicable
Period if it voluntarily takes any action that would result in selling Holders
of the Registrable Debentures covered thereby or Participating Broker-Dealers
seeking to sell Exchange Debentures not being able to sell such Registrable
Debentures or such Exchange Debentures during that period unless (i) such
action is required by applicable law or (ii) such action is taken by the
Company in good faith and for valid business reasons (not including avoidance
of the Company's obligations hereunder), including the acquisition or
divestiture of assets.
(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 Debentures during the Applicable Period, notify the
selling Holders of Registrable Debentures and Holders' Counsel, or each such
Participating Broker-Dealer and their counsel, as the case may be, and the
managing underwriters, if any, promptly (but in any event within two business
days), (i) when a Prospectus or any Prospectus supplement or post-effective
amendment (including any documents to be incorporated by reference therein and
all exhibits thereto) 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 Company, 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 Debentures or resales of Exchange Debentures by
Participating Broker-Dealers the representations and warranties of the Company
contained in any agreement (including any underwriting agreement),
contemplated by Section 5(n) hereof, to the knowledge of the Company, cease to
be true and correct in all material respects, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of a Registration Statement or any of the
Registrable Debentures or the Exchange Debentures to be sold by any
Participating Broker-Dealer 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, or any information becoming known 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 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, in the light of the circumstances under which they were made, 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
light of the circumstances under which they were made, not misleading, and
(vi) of the Company's determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) 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 Debentures during the Applicable Period, use its
reasonable best efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending to use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Registrable Debentures or the
Exchange Debentures to be sold by any Participating Broker-Dealer, for sale in
any jurisdiction, and, if any such order is issued, the use its 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), the Holders of a majority in aggregate principal amount of the
Registrable Debentures being sold in connection with an underwritten offering
or any Participating Broker-Dealer, (i) promptly incorporate in a prospectus
supplement or post-effective amendment such information as the managing
underwriter or underwriters (if any), their counsel, such Holders, Holders'
Counsel, any Participating Broker-Dealer or their counsel 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 Company has 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.
(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 Debentures during the Applicable Period, furnish to
each selling Holder of Registrable Debentures, Holders' Counsel and to each
such Participating Broker-Dealer who so requests and its counsel and each
managing underwriter, if any, at the sole expense of the Company, 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.
(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 Debentures during the Applicable Period, deliver to
each selling Holder of Registrable Debentures and Holders' Counsel, or each
such Participating Broker-Dealer and its counsel, as the case may be, and the
underwriters, if any, at the sole expense of the Company, 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 Company hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of the
selling Holders of Registrable Debentures 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
Debentures covered by, or the sale by Participating Broker-Dealers of the
Exchange Debentures pursuant to, such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Debentures or any
delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Debentures during the Applicable Period, use its best efforts to cooperate
with the selling Holders of Registrable Debentures and Holders' Counsel or
each such Participating Broker-Dealer and its counsel, as the case may be, the
managing underwriter or underwriters, if any, and their counsel in connection
with the registration or qualification (or exemption from such registration or
qualification) of such Registrable Debentures 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; provided, however, that where Exchange
Debentures held by Participating Broker-Dealers or Registrable Debentures are
offered other than through an underwritten offering, the Company agrees to
cause the Company's counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this Section
5(h); 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
Debentures held by Participating Broker-Dealers or the Registrable Debentures
covered by the applicable Registration Statement.
(i) If a Shelf Registration Statement is filed pursuant to
Section 3 hereof, cooperate with the selling Holders of Registrable Debentures
and the managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Debentures 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 or its
nominee; and enable such Registrable Debentures to be in such denominations
and registered in such names as the managing underwriter or underwriters, if
any, or Holders may request.
(j) Use its best efforts to cause the Registrable Debentures
covered by the Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be reasonably necessary
to enable the seller or sellers thereof or the underwriter or underwriters, if
any, to consummate the disposition of such Registrable Debentures, except as
may be required solely as a consequence of the nature of such selling Holder's
business, in which case the Company will cooperate in all reasonable respects
with the filing of such registration statement and the granting of such
approvals; provided, however, that the Company shall not be required (A) to
qualify generally to do business in any jurisdiction where it is not then so
qualified, (B) to 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) to
subject itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
(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 Debentures 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 sole expense of the Company, 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 Debentures being
sold thereunder or to the purchasers of the Exchange Debentures 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 light of the circumstances under which they were made,
not misleading.
(l) Use its best efforts to cause the Registrable Debentures
covered by a Registration Statement or the Exchange Debentures, 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
Debentures covered by such Registration Statement or the Exchange Debentures,
as the case may be, or the managing underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Debentures, (i) provide the Trustee with
certificates for the Registrable Debentures in a form eligible for deposit
with The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Debentures.
(n) In connection with any underwritten offering of Registrable
Debentures pursuant to a Shelf Registration Statement, enter into an
underwriting agreement as is customary in underwritten offerings of debt
securities similar to the Debentures 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
Debentures and, in such connection, (i) make such representations and
warranties to, and covenants with, the underwriters with respect to the
business of the Company and its 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 corporate debt securities, and confirm the same in
writing if and when requested; (ii) use reasonable best efforts to obtain the
written opinions of counsel to the Company 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 and such
other matters as may be reasonably requested by the managing underwriter or
underwriters; (iii) use reasonable best efforts to 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 Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or
of any business acquired by the Company 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 and such other matters as reasonably requested by the
managing underwriter or underwriters as permitted by the Statement on Auditing
Standards No. 72 of Auditing Standards Board of the American Institute of
Certified Public Accountants, or any successor statement; 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 Debentures 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.
(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 Debentures during the Applicable Period, make available
for inspection by any selling Holder of such Registrable Debentures being
sold, or each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Registrable Debentures,
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, all financial and other records,
pertinent corporate documents and instruments of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities, and
cause the officers, directors and employees of the Company and its
subsidiaries to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement; provided, however,
that all information shall be kept confidential by each such Inspector, except
to the extent that (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Registration Statement or
Prospectus, (ii) the release of such Records is ordered pursuant to a subpoena
or other order from a court of competent jurisdiction, (iii) 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; provided, however, that
prior notice shall be provided as soon as practicable to the Company of the
potential disclosure of any information by such Inspector pursuant to clause
(ii) or this clause (iii) to permit the Company to obtain a protective order
(or waive the provisions of this paragraph (o)) and that such Inspector shall
take such actions as are reasonably necessary to protect the confidentiality
of such information to the extent such action is otherwise not inconsistent
with, an impairment of or in derogation of the rights and interests of the
Holders or any Inspector, or (iv) the information in such Records has been
made generally available to the public by the Company. 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, shall be used only for due diligence
purposes pursuant to this Section 5(o) 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 Debentures 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 Company's sole expense.
(p) Provide an indenture trustee for the Registrable Debentures
or the Exchange Debentures, 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 Debentures;
and in connection therewith, cooperate with the trustee under any such
indenture and the Holders of the Registrable Debentures, 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 with all applicable rules and regulations of the SEC
and make generally available to its 1
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 Debentures are sold to underwriters in a firm commitment or 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
Company 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 Company, in a form customary for
underwritten transactions, addressed to the Trustee for the benefit of all
Holders of Registrable Debentures participating in the Exchange Offer or the
Private Exchange, as the case may be, that the Exchange Debentures or Private
Exchange Debentures, as the case may be, and the related indenture constitute
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to customary
exceptions and qualifications.
(s) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Debentures by Holders to the
Company (or to such other Person as directed by the Company) in exchange for
the Exchange Debentures or the Private Exchange Debentures, as the case may
be, the Company shall ▇▇▇▇, or cause to be marked, on such Registrable
Debentures that such Registrable Debentures are being cancelled in exchange
for the Exchange Debentures or the Private Exchange Debentures, as the case
may be; in no event shall such Registrable Debentures be marked as paid or
otherwise satisfied.
(t) Cooperate with each seller of Registrable Debentures covered
by any Registration Statement, Holders' Counsel and each underwriter, if any,
participating in the disposition of such Registrable Debentures and its
counsel in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(u) Use its diligent best efforts to take all other steps
necessary or advisable to effect the registration of the Exchange Debentures
and/or Registrable Debentures covered by a Registration Statement contemplated
hereby.
The Company may require each seller of Registrable Debentures as
to which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable
Debentures as the Company may, from time to time, reasonably request. The
Company may exclude from such registration the Registrable Debentures of any
seller who fails to furnish such information within a reasonable time after
receiving such request. Each seller as to which any registration pursuant to
a Shelf Registration Statement is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such seller not materially
misleading.
Each Holder of Registrable Debentures and each Participating
Broker-Dealer agrees by acquisition of such Registrable Debentures or Exchange
Debentures 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 Section 5(c)(ii), 5(c)(iv), 5(c)(v),
5(c)(vi) hereof, such Holder will forthwith discontinue disposition of such
Registrable Debentures covered by such Registration Statement or Prospectus or
Exchange Debentures 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 and, if so directed
by the Company, such Holder or Participating Broker-Dealer, as the case may
be, will deliver to the Company all copies, other than permanent file copies,
then in such Holder's or Participating Broker-Dealer's possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice. In the event 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
Debentures covered by such Registration Statement or Exchange Debentures 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.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
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 NASD 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 in
connection with Blue Sky qualifications of the Registrable Debentures or
Exchange Debentures and determination of the eligibility of the Registrable
Debentures or Exchange Debentures for investment under the laws of such
jurisdictions (x) where the holders of Registrable Debentures are located, in
the case of the Exchange Debentures, or (y) as provided in Section 5(h) hereof,
in the case of Registrable Debentures or Exchange Debentures to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses, including, without limitation, expenses of printing certificates for
Registrable Debentures or Exchange Debentures 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, or by the Holders of a majority in aggregate principal amount of the
Registrable Debentures included in any Registration Statement or in respect of
Registrable Debentures or Exchange Debentures to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be, (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company and reasonable fees and disbursements of Holders'
Counsel, (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, (vii)
Securities Act liability insurance, if the Company desires such insurance,
(viii) fees and expenses of all other Persons retained by the Company, (ix)
the expense of any annual audit, (x) the fees and expenses incurred in
connection with the listing of the securities to be registered on any
securities exchange, if applicable, and (xi) the expenses relating to
printing, word processing and distributing of all Registration Statements,
underwriting agreements, securities sales agreements, indentures and any other
documents necessary in order to comply with this Agreement.
(b) The Company shall reimburse the Holders of the Registrable
Debentures being registered in a Shelf Registration Statement for the
reasonable fees and disbursements of Holders' Counsel (in addition to
appropriate local counsel) and other out-of-pocket expenses of such Holders of
Registrable Debentures incurred in connection with the registration and sale
of the Registrable Debentures.
7. Indemnification
(a) In the event of a Shelf Registration Statement or in
connection with any delivery by any Participating Broker-Dealer who seeks to
sell Exchange Debentures during the Applicable Period, the Company agrees to
indemnify and hold harmless each Holder of Registrable Debentures and each
Participating Broker-Dealer selling Exchange Debentures during the Applicable
Period, and each Person, if any, who controls any such Person within the
meaning of the Securities Act (each, a "Participant"), from and against any
loss, claim, damage or liability, joint or several, and any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Registrable Debentures or Exchange
Debentures), to which that Participant or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary Prospectus, the Registration Statement, the Prospectus, or the
Registration Statement or Prospectus as amended or supplemented, or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse each such Participant promptly upon demand for any legal and
other expenses reasonably incurred as incurred by that Participant in
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary Prospectus,
the Registration Statement or the Prospectus or any amendment thereof or
supplement thereto, made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Participant
specifically for inclusion therein; and provided further that as to any
preliminary Prospectus this indemnity agreement shall not inure to the benefit
of any Participant on account of any loss, claim, damage, liability or action
arising from the sale of Debentures to any Person by that Participant if that
Participant failed to send or give a copy of the Prospectus (or the Prospectus
as amended or supplemented) to such Person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the
Debentures to such Person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability, unless such failure resulted from non-compliance by the
Company with Section 5(b) hereof. For purposes of the last proviso to the
immediately preceding sentence, the term "Prospectus" shall not be deemed to
include the documents incorporated or deemed incorporated therein by
reference, and no Participant shall be obligated to send or give any
supplement or amendment to any document incorporated by reference in any
preliminary Prospectus or the Prospectus to any Person other than a Person to
whom such Participant had delivered such incorporated document or documents in
response to a written request therefor. The foregoing indemnity agreement is
in addition to any liability which the Company may otherwise have to any
Participant.
(b) Each Participant severally, and not jointly, shall indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, and each Person, if any, who controls the
Company within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, and any action in respect
thereof, to which the Company, or any such director or officer or controlling
Person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement of a material fact contained
in any preliminary Prospectus, the Registration Statement, the Prospectus or
the Registration Statement or Prospectus as amended or supplemented, or arises
out of, or is based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of that Participant
specifically for inclusion therein, and shall reimburse the Company, or any
such director or officer or controlling Person promptly upon demand for any
legal and other expenses reasonably incurred by the Company or any such
director or officer or controlling Person in investigating or defending or
preparing to defend against, or appearing as a third party witness in
connection with, any such loss, claim, damage, liability or action. The
foregoing indemnity agreement is in addition to any liability which any
Participant may otherwise have to the Company or any such director, officer or
controlling Person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party (the "Indemnified Person") shall, if a claim in respect
thereof is to be made against the indemnifying party (the "Indemnifying
Person") under this Section 7, notify the Indemnifying Person in writing of
the claim or the commencement of that action; provided, however, that the
failure to notify the Indemnifying Person shall not relieve it from its
obligations hereunder, except to the extent that the Indemnifying Person is
materially prejudiced by such failure to notify, or from any liability which
it may have to an Indemnified Person otherwise than under this Section 7. If
any such claim or action shall be brought against an Indemnified Person, and
it shall notify the Indemnifying Person thereof, the Indemnifying Person shall
be entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified Indemnifying Person, to assume the defense
thereof with counsel reasonably satisfactory to the Indemnified Person. After
notice from the Indemnifying Person to the Indemnified Person of its election
to assume the defense of such claim or action, the Indemnifying Person shall
not be liable to the Indemnified Person under this Section 7 for any legal or
other expenses subsequently incurred by the Indemnified Person in connection
with the defense thereof other than reasonable investigation, provided,
however, that the Participants shall have the right to employ counsel to
represent them in an action arising out of any claim in respect of which
indemnity may be sought by the Participants against the Company under this
Section 7 if, in the reasonable judgment of the Participants, it is advisable
for the Participants to be represented by separate counsel, and in that event
the fees and expenses of such separate counsel shall be paid by the
Indemnifying Person. Except as provided above, it is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
Indemnified Persons. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiffs,
the Indemnifying Person agrees to indemnify the Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person
shall have requested an Indemnifying Person to reimburse the Indemnified
Person for fees and expenses of counsel with respect to any proceeding, the
Indemnifying Person agrees that it shall be liable for any settlement of any
such proceeding effected without its consent if (i) such settlement is entered
into more than 30 days after receipt by such Indemnifying Person of the
aforesaid request and (ii) such Indemnifying Person shall not have reimbursed
the Indemnified Person in accordance with such request prior to the date of
such settlement.
(d) If the indemnification provided for in this Section 7 shall
be for any reason unavailable or insufficient to hold the Indemnified Person
harmless, then each Indemnifying Person, with respect to its obligations as
provided in Section 7(a) or 7(b), shall, in lieu of indemnifying such
Indemnified Person, contribute to the amount paid or payable by such
Indemnified Person as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Participants on the other hand from the offering of the Debentures, or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Participants on the other hand with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and any Participant on the other hand with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the sale of the Debentures (before deducting expenses) received
by the Company bear to the total discounts and commissions received by such
Participant with respect to such offering. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or any Participant, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Participants agree that it would not be just and equitable if contributions
pursuant to this Section 7(d) were to be determined by pro rata allocation
(even if the Participants were treated as one entity for such purpose) or by
any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
Indemnified Person as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d) and subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Person in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7(d), no
Participant shall be required to contribute any amount in excess of the amount
by which the total price at which the Debentures sold through such Participant
and distributed to the public was offered to the public exceeds the amount of
any damages which such Participant has otherwise paid or become liable to pay
by reason of any 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. The Participants' obligations to contribute under this
Section 7(d) shall be several and not joint.
(e) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the indemnified Persons referred to above.
8. Rules 144 and 144A
The Company covenants to file with Trustee, within 15 days after
the Company is required to file the same with the SEC, copies of the annual,
quarterly and current reports and of the information, documents and other
reports which the Company may be required to file with the SEC pursuant to
Section 13 or Section 15(d) of the Exchange Act. The Company further
covenants, for so long as any Registrable Debentures remain outstanding, to
make available to any Holder or beneficial owner of Registrable Debentures in
connection with any sale thereof and any prospective purchaser of such
Registrable Debentures 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 Debentures pursuant to Rule 144A, unless the
Company is then subject to Section 13 or 15(d) of the Exchange Act and reports
filed thereunder satisfy the information requirements of Rule 144A(d)(4) as
then in effect.
9. Underwritten Registrations
If any of the Registrable Debentures 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 Debentures included in such offering and
reasonably acceptable to the Company.
No Holder of Registrable Debentures may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Debentures 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.
10. Miscellaneous
(a) No Inconsistent Agreements. The Company has not, as of the
date hereof, and the Company shall not after the date of this Agreement, enter
into any agreement with respect to any of its securities that is inconsistent
with the rights granted to the Holders of Registrable Debentures in this
Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities under any such agreements. The Company has
not entered and will not enter into any agreement with respect to any of its
securities which will grant to any Person piggy-back registration rights with
respect to a Registration Statement.
(b) Adjustments Affecting Registrable Debentures. The Company
shall not, directly or indirectly, take any action with respect to the
Registrable Debentures as a class that would adversely affect the ability of
the Holders of Registrable Debentures to include such Registrable Debentures
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 (A) the Holders of not less than a majority in
aggregate principal amount of the then outstanding Registrable Debentures and
(B) in circumstances that would adversely affect the Participating
Broker-Dealers, the Participating Broker-Dealers holding not less than a
majority in aggregate principal amount of the Exchange Debentures held by all
Participating Broker-Dealers; provided, however, that Section 7 and this
Section 10(c) may not be amended, modified or supplemented without the prior
written consent of each Holder and each Participating Broker-Dealer (including
any person who was a Holder or Participating Broker-Dealer of Registrable
Debentures or Exchange Debentures, as the case may be, disposed of pursuant to
any Registration Statement). 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 Debentures 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 Debentures may be given by Holders of at least a
majority in aggregate principal amount of the Registrable Debentures being
sold by such Holders pursuant to such Registration Statement.
(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 Debentures 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:
▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Syndicate Department
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center - ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Director of Litigation,
Office of the General
Counsel
and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(2) if to the Initial Purchasers, at the address specified in
Section 10(d)(1);
(3) if to the Company, at the addresses as follows:
Illinois Central Railroad Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., 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.
(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, the Holders and the Participating Broker-Dealers; provided,
however, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless such successor or assign holds
Registrable Debentures.
(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 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) Third Party Beneficiaries. Holders of Registrable Debentures
and Participating Broker-Dealers are intended third party beneficiaries of
this Agreement and this Agreement may be enforced by such Persons.
(k) 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,
understanding, correspondence, conversations and memoranda between the Initial
Purchasers on the one hand and the Company 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.
(l) Underwriting Agreement. Notwithstanding the provisions of
Sections 3(d), 5, 6 and 7, in the event of a Shelf Registration pursuant to
Section 3 hereof, to the extent that the Holders of Registrable Debentures
shall enter into an underwriting or similar agreement, which agreement contains
provisions covering one or more issues addressed in such Sections with
substantially similar effect, the provisions contained in such Sections
addressing such issue or issues shall be of no force or effect with respect to
the registration of securities being effected in connection with such
underwriting or similar agreement.
(m) Termination. This Agreement shall terminate and be of no
further force or effect when there shall not be any Registrable Debentures,
except that the provisions of Section 4, 6, 7 and Sections 10(h) and (j) shall
survive any such termination.
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
ILLINOIS CENTRAL RAILROAD COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President