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[EXECUTION COPY]
Exhibit 10.75
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DEBT REGISTRATION RIGHTS AGREEMENT
among
RAILAMERICA TRANSPORTATION CORP.
RAILAMERICA, INC.,
PALM BEACH RAIL HOLDING, INC.,
and
THE ADDITIONAL REGISTRANTS PARTY HERETO,
and
THE PURCHASERS PARTY HERETO.
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Dated as of February 4, 2000
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TABLE OF CONTENTS
1. Definitions..............................................................1
2. Securities Subject to this Agreement.....................................2
3. Shelf Registration.......................................................3
4. Piggy-Back Registration..................................................3
5. Hold-Back Agreements.....................................................4
6. Registration Procedures..................................................5
7. Registration Expenses....................................................9
8. Indemnification.........................................................10
9. Rule 144................................................................12
10. Miscellaneous...........................................................13
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DEBT REGISTRATION RIGHTS AGREEMENT
This DEBT REGISTRATION RIGHTS AGREEMENT, dated as of February 4, 2000
(as amended, supplemented, amended and restated or otherwise modified from time
to time, this "AGREEMENT"), is made and entered by and among RAILAMERICA
TRANSPORTATION CORP., a Delaware corporation (the "COMPANY"), RAILAMERICA, INC.,
a Delaware corporation ("HOLDINGS"), PALM BEACH RAIL HOLDING, INC., a Delaware
corporation ("INTERMEDIATE HOLDINGS"), each Restricted Subsidiary of the Company
that is a party hereto as an "Additional Registrant" (each such Restricted
Subsidiary, together with Holdings and Intermediate Holdings, the "ADDITIONAL
REGISTRANTS") and the Persons parties hereto as "Purchasers" (collectively, the
"PURCHASERS").
RECITALS
This Agreement is being delivered pursuant to the Securities Purchase
Agreement, dated as of February 4, 2000 (as amended, supplemented or otherwise
modified, "SECURITIES PURCHASE AGREEMENT"), by and among the Company, the
Additional Registrants and the Purchasers. In order to induce the Purchasers to
enter into the Securities Purchase Agreement, each of the Company and each
Additional Registrant has agreed to provide the registration rights set forth in
this Agreement. The execution of this Agreement is a condition to the closing
under the Securities Purchase Agreement.
AGREEMENT
The parties agree as follows:
1. DEFINITIONS.
(a) CERTAIN TERMS. As used in this Agreement, the following capitalized
terms shall have the following meanings:
"INDEMNIFIED PARTIES" is defined in SECTION 8(A) hereof.
"INDEMNIFYING PARTY" is defined in SECTION 8(C) hereof.
"NASD" means the National Association of Securities Dealers,
Inc.
"PIGGY-BACK REGISTRATION" is defined in SECTION 4(A) hereof.
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"PROSPECTUS" means the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and by all other
amendments and supplements to the prospectus, including post-effective
amendments and all material incorporated by reference in such
prospectus.
"REGISTRABLE SECURITIES" means all Notes; PROVIDED that a Note
ceases to be a Registrable Security when it is no longer a Transfer
Restricted Security.
"REGISTRANTS" means the Company and the Additional
Registrants.
"REGISTRATION EXPENSES" is defined in SECTION 7 hereof.
"REGISTRATION STATEMENT" means any registration statement of
any Registrant which covers any of the Registrable Securities pursuant
to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all material incorporated
by reference in such Registration Statement.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHELF REGISTRATION" is defined in SECTION 3(A) hereof.
"TRANSFER RESTRICTED SECURITY" means Registrable Securities
upon original issuance thereof; PROVIDED that a Registrable Security is
no longer a Transfer Restricted Security when such Registrable Security
is sold to the public.
"UNDERWRITTEN REGISTRATION" and "UNDERWRITTEN OFFERING" mean a
registration in which securities of any Registrant are sold to an
underwriter for reoffering to the public.
(b) SECURITIES PURCHASE AGREEMENT DEFINITIONS. Unless otherwise defined
herein or the context otherwise requires, terms used in this Agreement,
including its preamble, have the meanings provided in the Securities Purchase
Agreement.
2. SECURITIES SUBJECT TO THIS AGREEMENT.
(a) REGISTRABLE SECURITIES. The securities entitled to the benefits of
this Agreement are the Registrable Securities.
(b) HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed to be a
holder of Registrable Securities whenever such Person owns Registrable
Securities of record or has provided evidence reasonably satisfactory to the
Company that such Person has the right to acquire such Registrable Securities in
compliance with the provisions of the Securities Purchase Agreement, whether or
not such acquisition has actually been effected.
3. SHELF REGISTRATION. The Registrants shall file, and shall use their
best efforts to cause to become effective a "shelf" registration statement on
any appropriate form pursuant to Rule 415 (or
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similar rule that may be adopted by the Commission) under the Securities Act (a
"SHELF REGISTRATION") on or as soon as practicable after the Fixed Rate Sale
Date in order to permit registered resales of all of the Registrable Securities.
Subject to the last paragraph of SECTION 6, the Registrants agree to use their
best efforts thereafter to keep such Shelf Registration continuously effective,
and to prevent the happening of any event of the kind described in SECTION 6(C)
hereof that requires the Registrants to give notice pursuant to the last
paragraph of SECTION 6 hereof, until such time as all the Registrable Securities
covered by the Shelf Registration have been sold pursuant to such Shelf
Registration or have been otherwise redeemed or repaid in full by the
Registrants.
4. PIGGY-BACK REGISTRATION.
(a) If any Registrant proposes to file a registration statement under
the Securities Act with respect to an offering (other than an offering the
proceeds of which are to be used to redeem the Notes) by such Registrant of any
debt securities for its own account or for the account of any of its security
holders (PROVIDED that, in the case of a registration on demand of such security
holders, the holders of a majority in aggregate principal amount of any such
debt securities consent in writing) of any class of debt or equity security
(other than a registration statement on Form S-4 or S-8 (or any substitute form
that may be adopted by the Commission), then such Registrant shall give written
notice of such proposed filing to the holders of Registrable Securities as soon
as practicable (but in no event less than 30 days before the anticipated filing
date), and such notice shall offer such holders the opportunity to register such
principal amount of Registrable Securities as each such Holder may request (a
"PIGGY-BACK REGISTRATION").
(b) The applicable Registrant shall use all reasonable efforts to cause
the managing underwriter or underwriters of a proposed Underwritten Offering to
permit the Registrable Securities requested to be included in the registration
statement for such offering to be included on the same terms and conditions as
any similar class of debt or equity securities of such Registrant or of such
other security holders included therein. Notwithstanding the foregoing, if the
managing underwriter or underwriters of such offering deliver a written opinion
to such Registrant that either because of (i) the kind or combination of
securities which the holders of Registrable Securities, such Registrant and any
other Persons intend to include in such offering or (ii) the size of the
offering which such holders, such Registrant and such other Persons intend to
make, are such that the success of the offering would be materially and
adversely affected by inclusion of the Registrable Securities requested to be
included, then (A) in the event that the size of the offering is the basis of
such managing underwriter's opinion, the amount of securities to be offered for
the accounts of such holders shall be reduced pro rata (according to the
Registrable
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Securities proposed for registration) to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount
recommended by such managing underwriter or underwriters; PROVIDED that if
securities are being offered for the account of other Persons as well as such
Registrant, then with respect to the Registrable Securities intended to be
offered by such holders, the proportion by which the amount of such class of
securities intended to be offered by such holders is reduced shall not exceed
the proportion by which the amount of such class of securities intended to be
offered by such other Persons is reduced; and (B) in the event that the kind (or
combination) of securities to be offered is the basis of such managing
underwriter's opinion, (x) the Registrable Securities to be included in such
offering shall be reduced as described in CLAUSE (A) above (subject to the
proviso in CLAUSE (A)) or (y) if the actions described in CLAUSE (X) would, in
the judgment of the managing underwriter or underwriters, be insufficient to
substantially eliminate the adverse effect that inclusion of the Registrable
Securities requested to be included would have on such offering, such
Registrable Securities will be excluded from such offering.
5. HOLD-BACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY HOLDER OF REGISTRABLE SECURITIES.
Each holder of Registrable Securities whose Registrable Securities are covered
by a Registration Statement filed pursuant to SECTION 3 or 4 hereof agrees, if
requested by the managing underwriters in an Underwritten Offering, not to
effect any public sale or distribution of securities of any of the Registrants
of the same class as the securities included in such Registration Statement,
including a sale pursuant to Rule 144 under the Securities Act (except as part
of such Underwritten Registration), during the 30-day period prior to, and
during the 90-day period beginning on, the closing date of each Underwritten
Offering made pursuant to such Registration Statement, to the extent timely
notified in writing by such Registrant or the managing underwriters; PROVIDED,
HOWEVER, that each holder of Registrable Securities shall be subject to the
hold-back restrictions of this SECTION 5(A) only once during any 365-day period.
The foregoing provisions shall not apply to any holder of Registrable
Securities if such holder is prevented by applicable statute or regulation from
entering 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 any Registrable Securities held by
such holder and covered by a Registration Statement commencing on the date of
sale of the Registrable Securities unless it has provided 45 days prior written
notice of such sale or distribution to the underwriter or underwriters.
(b) RESTRICTIONS ON SALE OF DEBT SECURITIES BY THE REGISTRANTS AND
OTHERS. The Registrants agree (i) not to effect any public or private offer,
sale or distribution of any of its debt securities or any class or series of its
capital stock having a preference in liquidation or with respect to dividends,
including a sale pursuant to Regulation D under the Securities Act (other than
any such sale or distribution of such securities in connection with any merger
or
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consolidation by Holdings, the Company or any of their respective Restricted
Subsidiaries or the acquisition by Holdings, the Company or any of their
respective Restricted Subsidiaries of the capital stock or substantially all the
assets of any other Person or in connection with any employee stock option or
other benefit plan; PROVIDED, that in each such case the recipients of such
securities agree to be bound by a restriction on transfer comparable to that set
forth in this SECTION 5(B)), during the 10-day period prior to, and during the
120-day period beginning with, the effectiveness of a Registration Statement
filed under SECTION 3 hereof to the extent timely notified in writing by a
holder of Registrable Securities or the managing underwriter or underwriters in
an Underwritten Offering and (ii) during the aforementioned period, to cause
each holder of each of the Registrants' privately placed debt securities or any
class or series of the Registrants' capital stock having a preference in
liquidation or with respect to dividends purchased from the Registrants at any
time on or after the date of this Agreement to agree not to effect any public
sale or distribution of any such securities during such period, including a sale
pursuant to Rule 144 under the Securities Act (except as part of such
registration, if permitted).
6. REGISTRATION PROCEDURES. In connection with the Registrants' Shelf
Registration obligations set forth in SECTION 3 hereof, each Registrant will use
its best efforts to effect such registration to permit the sale of such
Registrable Securities in accordance with the intended method or methods of
distribution thereof, and pursuant thereto such Registrant will, as
expeditiously as possible:
(a) prepare and file with the Commission, within the time period
provided in SECTION 3 hereof, a Registration Statement or Registration
Statements relating to the Shelf Registration on any appropriate form under the
Securities Act, which form shall be available for the sale of the Registrable
Securities in accordance with the intended method or methods of distribution
thereof and shall include all financial statements (including, if applicable,
financial statements of any Person that shall have guaranteed any indebtedness
of the Registrants) required by the Commission to be filed therewith, cooperate
and assist in any filings required to be made with the NASD, and use its best
efforts to cause such Registration Statement to become effective; PROVIDED, that
before filing a Registration Statement or any amendments or supplements thereto,
the Registrants will furnish to the holders of the Registrable Securities
covered by such Registration Statement, copies of all such documents proposed to
be filed, which documents will be subject to the review by such holders, and the
Registrants will not, except to the extent required by applicable law, file any
Registration Statement or any amendments or supplements thereto to which the
holders of a majority in aggregate principal amount of such Registrable
Securities shall reasonably object;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep the Registration Statement effective until all Registrable Securities
covered by such Registration Statement have been sold; cause the Prospectus to
be supplemented by any required
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Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act; and comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus;
(c) notify the selling holders of Registrable Securities promptly, and
(if requested by any such Person) confirm such advice in writing, (i) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the
Commission for amendments or supplements to the Registration Statement or the
Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order of which any Registrants or its counsel is aware
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose, (iv) if at any time the representations and
warranties of the Registrants contemplated by CLAUSE (O) below cease to be true
and correct in all material respects, (v) of the receipt by the Registrants of
any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vi) of any Registrant's
becoming aware that the Prospectus (including any document incorporated therein
by reference), as then in effect, includes an untrue statement of material fact
or omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing;
(d) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(e) if reasonably requested by a holder of Registrable Securities being
sold in connection with an Underwritten Offering, promptly incorporate in a
Prospectus such information as the holders of a majority in aggregate principal
amount of the Registrable Securities being sold agree should be included therein
relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
principal amount of Registrable Securities being sold, the purchase price being
paid therefor and any other terms of the underwritten (or best efforts
underwritten) offering of the Registrable Securities to be sold in such
offering; and make all required filings of such Prospectus as promptly as
practicable upon being notified of the matters to be incorporated in such
Prospectus;
(f) furnish to each selling holder of Registrable Securities without
charge, at least one signed copy of the Registration Statement and any
post-effective amendment thereto,
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including financial statements and schedules, all documents incorporated therein
by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities without
charge, as many copies of the Prospectus (including each preliminary prospectus)
and any amendment or supplement thereto as such Persons may reasonably request;
subject to the last sentence of this SECTION 6, the Registrants' consent to the
use of the Prospectus by each of the selling holders of Registrable Securities,
in connection with the offering and sale of the Registrable Securities covered
by the Prospectus;
(h) prior to any public offering of Registrable Securities, use its
best reasonable efforts to register or qualify or cooperate with the selling
holders of Registrable Securities and their counsel in connection with the
registration or qualification of such Registrable Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as any such seller
reasonably requests in writing and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of such Registrable
Securities; PROVIDED, that the Registrants will not be required to qualify
generally to do business in any jurisdiction where it is not then so qualified
or to take any action which would subject it to general service of process or
taxation in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities to
facilitate, to the extent commercially reasonable under the circumstances, the
timely preparation and delivery of certificates representing such Registrable
Securities to be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations and registered in such names
as such selling holders may reasonably request at least two business days prior
to any sale of such Registrable Securities;
(j) use their best efforts to cause the Registrable Securities covered
by the applicable Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such Registrable
Securities;
(k) upon the occurrence of any event contemplated by CLAUSE (C)(VI)
above, prepare a supplement or post-effective amendment to the related
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the holders of the Registrable Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading in light of the
circumstances then existing;
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(l) use commercially reasonable efforts to cause all Registrable
Securities covered by a Registration Statement to be listed on each securities
exchange on which similar securities issued by the Registrants are then listed
if such listing is permitted under the rules of such exchange and if requested
by the holders of a majority in aggregate principal amount of such Registrable
Securities;
(m) cause the Registrable Securities covered by a Registration
Statement to be rated with such rating agencies as the holders of a majority in
aggregate principal amount of such Registrable Securities may designate;
(n) not later than the effective date of the Shelf Registration,
provide a CUSIP number for all Registrable Securities and provide the transfer
agent with printed certificates for the Registrable Securities which are in a
form eligible for deposit with The Depository Trust Company;
(o) enter into such agreements (including an underwriting agreement)
and take all such other appropriate and reasonable actions in connection
therewith in order to expedite or facilitate the disposition of such Registrable
Securities and in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an Underwritten Registration
(i) make such representations and warranties to the holders of such Registrable
Securities in form, substance and scope as are customarily made by issuers to
underwriters in primary Underwritten Offerings and covering matters including,
but not limited to, those set forth in the Securities Purchase Agreement by the
Registrants; (ii) obtain opinions of counsel to the Registrants (which counsel
and opinions (in form, scope and substance) shall be reasonably satisfactory to
the holders of a majority in principal amount of such Registrable Securities)
addressed to each selling holder covering the matters customarily covered in
opinions requested in Underwritten Offerings and such other matters as may be
reasonably requested by such holders or underwriters; (iii) obtain "cold
comfort" letters and updates thereof from the Registrants' independent certified
public accountants addressed to such holders, such letters to be in customary
form and covering matters of the type customarily covered in "cold comfort"
letters by the Registrants' independent certified public accountants in
connection with primary Underwritten Offerings; (iv) if an underwriting
agreement is entered into, if permitted by the managing underwriter or
underwriters the same shall set forth in full the indemnification provisions and
procedures of SECTION 8 hereof with respect to all parties to be indemnified
pursuant to said Section; PROVIDED, that the indemnification provisions and
procedures set forth in such underwriting agreement shall be no less favorable
to the selling holders of Registrable Securities and the underwriters than the
indemnification provisions and procedures of SECTION 8 hereof; and (v) the
Registrants shall deliver such documents and certificates as may be requested by
the holders of a majority of the Registrable Securities being sold to evidence
compliance with CLAUSE (K) above and with any customary conditions contained in
the underwriting agreement or other agreement
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entered into by the Registrants. The above shall be done at each closing under
such underwriting or similar agreement or as and to the extent required
thereunder;
(p) make available for inspection by a representative of the holders of
a majority in principal amount of the Registrable Securities and any attorney or
accountant retained by such holders, all financial and other records, pertinent
corporate documents and properties of the Registrants as may be reasonably
necessary to enable them to exercise their due diligence responsibilities, and
provide reasonable access to appropriate officers of the Registrants in
connection with such due diligence responsibilities; PROVIDED, HOWEVER, that
such representative and such holders, to the extent not already bound by Section
11.11 of the Securities Purchase Agreement, shall enter into a confidentiality
agreement with the Company having terms substantially the same as such Section;
(q) otherwise use their best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to their
security holders, earnings statements for the Registrants satisfying the
provisions of Section 11(a) of the Securities Act, no later than 45 days after
the end of any twelve-month period (or 90 days, if such period is a fiscal year)
beginning with the first month of the Registrants' first fiscal quarter
commencing after the effective date of the Registration Statement, which
statements shall cover said twelve-month periods; PROVIDED, that a Registrant
shall be deemed to have complied with this CLAUSE (Q) if it has satisfied Rule
158 under the Securities Act; and
(r) promptly, prior to the filing of any document (relating to any
selling holder) which is to be incorporated by reference into the Registration
Statement or Prospectus (after initial filing of the Registration Statement),
provide copies of such document to counsel to the selling holders of Registrable
Securities covered by such Registration Statement, make the Registrants'
representatives available for discussion of such document with such selling
holders and make such changes in such document prior to the filing thereof as
counsel for such selling holders may reasonably request in writing.
The Registrants may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Registrants such
information regarding the distribution of such securities as the Registrants may
from time to time reasonably request in writing. Each holder of Registrable
Securities agrees by acceptance of such Registrable Securities that, upon
receipt of any notice from the Registrants of the happening of any event of the
kind described in SECTION 6(C)(III), (V) or (VI) hereof that, in the reasonable
judgment of any Registrants' Board of Directors, it is advisable to suspend use
of the prospectus for a discrete period of time due to pending corporate
developments, public filings with the Commission or similar events, such holder
will forthwith discontinue disposition of Registrable Securities until such
holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by SECTION 6(K) hereof, or until it is advised in writing (the
"ADVICE") by the Registrants that the use
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of such Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in such Prospectus,
and, if so directed by the Registrants, such holder will deliver to the
Registrants (at the Registrants' expense) all copies, other than permanent file
copies then in such holder's possession, of such Prospectus covering such
Registrable Securities current at the time of receipt of such notice. The
Registrants shall use all reasonable efforts to insure that the use of the
prospectus may be resumed as soon as practicable, and in any event shall not be
entitled to required the Holder to suspend use of any prospectus for more than
30 business days in any twelve-month period.
7. REGISTRATION EXPENSES.
(a) All reasonable expenses incident to the Registrants' performance of
or compliance with this Agreement, including, without limitation, all (i)
registration and filing fees, fees and expenses associated with filings required
to be made with the NASD (including, if applicable, the fees and expenses of any
"qualified independent underwriter" and its counsel as may be required by the
rules and regulations of the NASD), (ii) fees and expenses of compliance with
securities or blue sky laws (including fees and disbursements of counsel for the
selling holders in connection with blue sky qualifications of the Registrable
Securities and determination of their eligibility for investment under the laws
of such jurisdictions as the holders of a majority in aggregate principal amount
of the Registrable Securities being sold may reasonably designate), (iii)
printing expenses (including expenses of printing certificates for the
Registrable Securities in a form eligible for deposit with The Depository Trust
Company and of printing prospectuses), (iv) fees and disbursements of counsel
for the Registrants and for the sellers of the Registrable Securities (subject
to the provisions of SECTION 7(B)), and customary out of pocket expenses and
fees paid by issuers to the extent provided for in any underwriting agreement
(excluding discounts, commissions or fees of underwriters, selling brokers,
dealer managers or similar securities industry professionals relating to the
distribution of the Registrable Securities, transfer taxes or legal expenses of
any Person other than the Registrants and the selling holders), (v) the cost of
securities acts liability insurance if the Registrants so desire and (vi) fees
and expenses of other Persons retained by the Registrants (all such expenses
being herein called "REGISTRATION EXPENSES") will be borne by the Registrants,
regardless whether the Registration Statement becomes effective. Each holder of
Registrable Securities will pay any fees or disbursements of counsel to such
holder (other than as provided in SECTION 7(B)) and all underwriting discounts
and commissions and transfer taxes, if any, and provide other fees, costs and
expenses of such holder (other than Registration Expenses) relating to the sale
or disposition of such holder's Registrable Securities. Each Registrant, in any
event, will pay such Registrant's own internal expenses (including, without
limitation, all salaries and expenses of their officers and employees performing
legal or accounting duties), the expense of any annual audit, the fees and
expenses incurred in connection with the listing of the securities to be
registered on each securities exchange on which similar securities issued by the
Registrants are then listed, rating agency fees and the fees and expenses of any
Person, including special experts, retained by the Registrants.
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(b) In connection with the Shelf Registration hereunder, the
Registrants will reimburse the selling holders of Registrable Securities being
registered in such registration for the reasonable fees and disbursements of not
more than one counsel chosen by the selling holders of a majority in principal
amount of such Registrable Securities.
8. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE REGISTRANTS. The Registrants jointly and
severally agree to indemnify and hold harmless, to the full extent permitted by
law, each holder of Registrable Securities, its officers, directors and
employees and each Person who controls such holder (within the meaning of the
Securities Act) (the "INDEMNIFIED PARTIES") against all losses, claims, damages,
liabilities and expenses incurred by such Indemnified Party in connection with
any actual or threatened action arising out of or based upon any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or preliminary Prospectus or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same arise out of or are based upon any such untrue statement or omission made
in reliance on and in conformity with any information furnished in writing to
the Registrants by such holder or its counsel expressly for use therein;
PROVIDED, that the Registrants shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or expense arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission in the Prospectus, if such untrue statement or alleged untrue
statement, omission or alleged omission is completely corrected in an amendment
or supplement to the Prospectus and the holder of Registrable Securities
thereafter fails to deliver such Prospectus as so amended or supplemented prior
to or concurrently with the sale of the Registrable Securities to the Person
asserting such loss, claim, damage, liability or expense after the Registrants
have furnished such holder with a sufficient number of copies of the same. Each
Registrant shall also indemnify underwriters, their officers and directors and
each Person who controls such Persons (within the meaning of the Securities Act)
to the same extent as provided above with respect to the indemnification of the
Indemnified Parties, if requested.
(b) INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES. In connection
with the Shelf Registration and each Piggy-Back Registration, each holder of
Registrable Securities included therein will furnish to the Registrants in
writing such information and affidavits as the Registrants reasonably request
for use in connection with any such Registration Statement or Prospectus and
agrees to indemnify and hold harmless, to the fullest extent permitted by law,
the Registrants, their directors and officers and each Person who controls a
Registrants (within the meaning of the Securities Act) against any losses,
claims, damages, liabilities and expenses resulting from any untrue statement of
a material fact contained in any Registration Statement or Prospectus or any
omission of a material fact required to be stated in the Registration Statement
or Prospectus or preliminary Prospectus or necessary to make the statements
therein not misleading, to the extent, but only to the extent, that such untrue
statement or omission relates to
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a holder and is made in reliance on and in conformity with any information or
affidavit furnished in writing by such holder to the Registrants specifically
for inclusion in such Registration Statement or Prospectus. In no event shall
the liability of any selling holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the proceeds received by such holder
upon the sale of the Registrable Securities giving rise to such indemnification
obligation. The Registrants shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution of such Registrable Securities
to the same extent as provided above with respect to information or affidavit
furnished in writing by such Persons specifically for inclusion in any
Prospectus or Registration Statement.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to
indemnification hereunder will (i) give prompt notice to the applicable
Registrant or holder of Registrable Securities, as the case may be (in either
case, as applicable, an "INDEMNIFYING PARTY"), of any claim with respect to
which such Person seeks indemnification and (ii) permit such Indemnifying Party
to assume the defense of such claim with counsel reasonably satisfactory to such
Person; PROVIDED, HOWEVER, that any Person entitled to indemnification hereunder
shall have the right to employ separate counsel and to participate in the
defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such Person unless (a) the Indemnifying Party has agreed to pay such
fees or expenses, (b) the Indemnifying Party has failed to assume the defense of
such claim or (c) in the reasonable judgment of any such Person, based upon
advice of its counsel, a conflict of interest may exist between such Person and
the Indemnifying Party with respect to such claims (in which case, if such
Person notifies the Indemnifying Party in writing that such Person elects to
employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense of such claim
on behalf of such Person). If such defense is not assumed by the Indemnifying
Party, the Indemnifying Party will not be subject to any liability for any
settlement made without its consent (but such consent will not be unreasonably
withheld). No Indemnifying Party will be required to consent to the entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Person entitled to
indemnification a release from all liability in respect to such claim or
litigation. If any Indemnifying Party who is not entitled to, or elects not to,
assume the defense of a claim will not be obligated to pay the fees and expenses
of more than one counsel for all Persons entitled to indemnification by such
Indemnifying Party with respect to such claim, unless in the reasonable judgment
of any such Person a conflict of interest may exist between such Person and any
other Person entitled to indemnification with respect to such claim, in which
event the Indemnifying Party shall be obligated to pay the fees and expenses of
such additional counsel or counsels, but only of one such additional counsel for
each group of similarly situated Persons in any one jurisdiction.
(d) CONTRIBUTION. If for any reason the indemnification provided for in
the preceding CLAUSES (a) and (b) is unavailable to any Person entitled to
indemnification hereunder or is
-12-
15
insufficient to hold such Person harmless as contemplated by the preceding
CLAUSES (a) and (b), then the Indemnifying Party shall contribute to the amount
paid or payable by such Person as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect not only the relative
benefits received by such Person and the Indemnifying Party, but also the
relative fault of such Person and the Indemnifying Party, as well as any other
relevant equitable considerations; PROVIDED, that no holder of Registrable
Securities shall be required to contribute an amount greater than the dollar
amount of the proceeds received by such holder of Registrable Securities with
respect to the sale of any securities. 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.
9. RULE 144. The Registrants covenant that they will file the reports
required to be filed by them under the Securities Act and the Exchange Act and
the rules and regulations adopted by the Commission thereunder (or, if any of
them is not required to file such reports, the applicable party will, upon the
request of any holder of Registrable Securities made after the Fixed Rate Sale
Date make publicly available other information so long as necessary to permit
sales pursuant to Rule 144 under the Securities Act), and they will take such
further action as any holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable such holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as such Rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any holder
of Registrable Securities, the Registrants will deliver to such holder a written
statement as to whether they have complied with such information and filing
requirements.
10. MISCELLANEOUS.
(a) REMEDIES. Each holder of Registrable Securities, in addition to
being entitled to exercise all rights provided herein, in the Securities
Purchase Agreement or granted by law, including recovery of damages, in
connection with the breach by the Registrants of their obligations to register
the Registrable Securities will, to the fullest extent permitted under
applicable law, be entitled to specific performance of its rights under this
Agreement. The Registrants agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by any of them of the
provisions of this Agreement and each agrees, to the extent permitted under
applicable law, to waive the defense in any action for specific performance that
a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Registrants will not on or after
the date of this Agreement enter into any agreement with respect to its
securities which is inconsistent with the rights granted to the holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the holders of Registrable Securities
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of
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16
the Registrants' securities under any other agreements. The Registrants have not
previously entered into any inconsistent agreement with respect to their
securities granting any registration rights to any Person.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions of this Agreement may
not be given unless the Registrants have obtained the written consent of holders
of at least a majority of the principal amount of the outstanding Registrable
Securities (excluding Registrable Securities held by Holdings, the Company or
any of their respective Subsidiaries).
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, facsimile or air courier guaranteeing overnight delivery:
(i) if to a holder of Registrable Securities, at the most current
address given by such holder to the Registrants in accordance with the
provisions of this SECTION 10(D), which address initially is, with
respect to the Purchasers, the address set forth next to the
Purchasers' name on the signature pages of the Securities Purchase
Agreement; and
(ii) if to a Registrant, initially to it in care of the Company
at the address set forth in the Securities Purchase Agreement and
thereafter at such other address, notice of which is given in
accordance with the provisions of this SECTION 10(D).
All such notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; when receipt thereof is
electronically confirmed, if delivered by facsimile; and on the next business
day if timely delivered to an air courier guaranteeing overnight delivery.
(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,
including, without limitation and without the need for an express assignment,
subsequent holders of Registrable Securities.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
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17
(h) NEW YORK LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES
OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(i) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of any such provision in such jurisdiction in every other
respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
(j) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement with respect to the subject matter contained
herein and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Registrants with respect to the
Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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18
IN WITNESS WHEREOF, the parties have executed this Debt Registration
Rights Agreement as of the date first written above.
RAILAMERICA TRANSPORTATION
CORP.
By:
--------------------------------------
Name:
Title:
ADDITIONAL REGISTRANTS:
RAILAMERICA, INC.
By:
--------------------------------------
Name:
Title:
PALM BEACH RAIL HOLDING, INC.
By:
--------------------------------------
Name:
Title:
CASCADE AND COLUMBIA RIVER
RAILROAD COMPANY, INC., a
Delaware corporation
DAKOTA RAIL, INC., a South Dakota
corporation
DELAWARE VALLEY RAILWAY
COMPANY, INC., a Delaware
corporation
19
FLORIDA RAIL LINES, INC., a Delaware
corporation
HURON AND EASTERN RAILWAY
COMPANY, INC., a Michigan
corporation
KS BOCA, INC., a Florida corporation
KALYN/XXXXXXX INCORPORATED, a
Texas corporation
MARKSMAN CORP., a Delaware
corporation
MINNESOTA NORTHERN RAILROAD,
INC., a Delaware corporation
OTTER TAIL VALLEY RAILROAD
COMPANY, INC., a Minnesota
corporation
PLAINVIEW TERMINAL COMPANY, a
Texas corporation
PRAIRIE HOLDING CORPORATION, a
Florida corporation
RAILAMERICA AUSTRALIA, INC., a
Delaware corporation
RAILAMERICA EQUIPMENT
CORPORATION, a Delaware
corporation
RAILAMERICA INTERMODAL
SERVICES, INC., a Delaware
corporation
RAIL OPERATING SUPPORT GROUP,
INC., a Delaware corporation
20
SAGINAW VALLEY RAILWAY
COMPANY, INC., a Delaware
corporation
SOUTH CENTRAL TENNESSEE
RAILROAD CORP., a Delaware
corporation
ST. CROIX VALLEY RAILROAD
COMPANY, a Delaware corporation
TOLEDO, PEORIA & WESTERN
RAILWAY CORPORATION, a New
Jersey corporation
THE TOLEDO, PEORIA & WESTERN
RAILROAD CORPORATION, a New
York corporation
VENTURA COUNTY RAILROAD CO.,
INC., a Delaware corporation
WEST TEXAS AND LUBBOCK
RAILROAD COMPANY, INC., a Texas
corporation
INDIANA SOUTHERN RAILROAD, INC.,
a Delaware corporation
CENTRAL RAILROAD COMPANY OF
INDIANAPOLIS, an Indiana corporation
CENTRAL RAILROAD COMPANY OF
INDIANA, an Indiana corporation
DALLAS, GARLAND & NORTHEASTERN
RAILROAD, INC., a Texas corporation
21
DALLAS, GARLAND & NORTHEASTERN
RAILROAD, INC., a Delaware
corporation
GEORGIA SOUTHWESTERN RAILROAD,
INC., a Texas corporation
INDIANA AND OHIO RAIL CORP., a
Delaware corporation
INDIANA AND OHIO RAILWAY
COMPANY., a Delaware corporation
INDIANA AND OHIO CENTRAL
RAILROAD INC., a Delaware
corporation
CONNECTICUT SOUTHERN RAILROAD,
INC., a Delaware corporation
CENTRAL OREGON & PACIFIC
RAILROAD, INC., a Delaware
corporation
BOSTON CENTRAL FREIGHT
RAILROAD, INC., a Delaware
corporation
AUSTIN & NORTHWESTERN RAILROAD
COMPANY., INC., a Texas corporation
SOUTH CAROLINA CENTRAL
RAILROAD COMPANY, INC., a South
Carolina corporation
SAN DIEGO & IMPERIAL VALLEY
RAILROAD COMPANY, INC., a
California corporation
22
RAILTEX LOGISTICS, INC., a Delaware
corporation
MID-MICHIGAN RAILROAD, INC., a
Michigan corporation
MISSOURI & NORTHERN ARKANSAS
RAILROAD COMPANY, INC., a Kansas
corporation
RAILTEX DISTRIBUTION SERVICES,
INC., a Texas corporation
RAILTEX INTERNATIONAL HOLDINGS,
INC., a Delaware corporation
NORTH CAROLINA AND VIRGINIA
RAILROAD COMPANY, INC., a
Delaware corporation
NEW ENGLAND CENTRAL RAILROAD,
INC., a Delaware corporation
NEW ORLEANS LOWER COAST
RAILROAD COMPANY, INC., a
Louisiana corporation
PITTSBURGH INDUSTRIAL RAILROAD,
INC., a Delaware corporation
RAILTEX ACQUISITION CORP., a
Delaware corporation
RAILTEX SERVICE CO., INC., a Delaware
corporation
By:
--------------------------------------
Name:
Title:
23
PURCHASERS:
RAIL AMERICA FUNDING, INC.
By:
--------------------------------------
Name:
Title:
