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Registration Rights Agreement
Dated as of December 10, 1996
between
Continental Airlines, Inc.
and
Xxxxxx Brothers Inc.
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement")
is made and entered into as of December 10, 1996, between
Continental Airlines, Inc., a Delaware corporation (the
"Company"), and Xxxxxx Brothers Inc. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase
Agreement dated December 4, 1996 between the Company and the
Initial Purchaser (the "Purchase Agreement"), which provides that
the Company will issue and sell $250,000,000 aggregate principal
amount of 9 1/2 % Senior Notes due 2001 (the "Initial Notes"). In
order to induce the Initial Purchaser to enter into the Purchase
Agreement the Company has agreed to provide to the Initial
Purchaser and its successors, assigns and direct and indirect
transferees the registration rights set forth in this Agreement.
The execution of this Agreement is a condition to the closing
under the Purchase Agreement.
In consideration of the foregoing, the parties hereto
agree as follows:
1. Definitions. As used in this Agreement, the
following capitalized defined terms shall have the following
meanings:
"1933 Act" shall mean the Securities Act of 1933, as
amended from time to time.
"1934 Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
"Closing Date" shall mean the Closing Date as defined
in the Purchase Agreement.
"Company" shall have the meaning set forth in the
preamble of this Agreement and shall include the Company's
successors.
"Depositary" shall mean the Depository Trust Company,
or any other depositary appointed by the Company; provided,
however; that any such depositary must have an address in the
Borough of Manhattan, in the City of New York.
"Exchange Notes" shall mean the notes issued by the
Company containing terms identical to the Initial Notes (except
that, with respect to the Exchange Notes, (i) interest thereon
shall accrue from the last date on which interest was paid on the
Initial Notes, or, if no such interest has been paid, from the
Closing Date, (ii) the transfer restrictions thereon shall be
eliminated and (iii) certain provisions relating to an increase
in the stated rate of interest thereon shall be eliminated) to be
offered to Holders of Initial Notes in exchange for Initial Notes
pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the
Company of Exchange Notes for Registrable Notes pursuant to
Section 2(a) hereof.
"Exchange Offer Registration" shall mean a
registration under the 1933 Act effected pursuant to Section 2(a)
hereof.
"Exchange Offer Registration Statement" shall mean an
exchange offer registration statement on Form S-4 (or, if
applicable, on another appropriate form), and all amendments and
supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Holders" shall mean the Initial Purchaser, for so
long as it owns any Registrable Notes, and each of its
successors, assigns and direct and indirect transferees who
become registered owners of Registrable Notes.
"Indenture" shall mean the indenture dated as of
December 10, 1996 between the Company and Texas Commerce Bank
National Association pursuant to which the Initial Notes and the
Exchange Notes will be issued.
"Initial Notes" has the meaning set forth in the
preamble of this Agreement.
"Initial Purchaser" shall have the meaning set forth in
the preamble of this Agreement.
"Majority Holders" shall mean the Holders of a
majority of the aggregate principal amount of outstanding
Registrable Notes; provided that whenever the consent or approval
of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or any
of its affiliates (as such term is defined in Rule 405 under the
0000 Xxx) (other than the Initial Purchaser or subsequent holders
of Registrable Notes if such subsequent holders are deemed to be
affiliates solely by reason of their holding of such Registrable
Notes) shall be disregarded in determining whether such consent
or approval was given by the Holders of such required percentage
or amount.
"Person" shall mean an individual, partnership,
corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and
any such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Notes
covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including
post-effective amendments, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth
in the preamble of this Agreement.
"Registrable Notes" shall mean the Initial Notes;
provided, however, that the Initial Notes shall cease to be
Registrable Notes when (i) a Shelf Registration Statement with
respect to such Initial Notes shall have been declared effective
under the 1933 Act and such Initial Notes shall have been
disposed of pursuant to such Shelf Registration Statement, (ii)
such Initial Notes shall have been sold to the public pursuant to
Rule 144 (or any similar provision then in force, but not Rule
144A) under the 1933 Act, (iii) such Initial Notes shall have
ceased to be outstanding or (iv) such Initial Notes have been
exchanged for Exchange Notes upon consummation of the Exchange
Offer.
"Registration Expenses" shall mean any and all
expenses incident to performance of or compliance by the Company
with this Agreement, including without limitation: (i) all SEC,
stock exchange or National Association of Securities Dealers,
Inc. ("NASD") registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state or
other securities or blue sky laws and compliance with the rules
of the NASD (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with state
or other securities or blue sky qualification of any of the
Exchange Notes or Registrable Notes), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and expenses
incurred in connection with the listing, if any, of any of the
Registrable Notes on any securities exchange or exchanges, (vi)
all fees and disbursements relating to the qualification of the
Indenture under applicable securities laws, (vii) the fees and
disbursements of counsel for the Company and of the independent
public accountants of the Company, including the expenses of any
special audits or "cold comfort" letters required by or incident
to such performance and compliance, (viii) the fees and expenses
of the Trustee, including its counsel, and (ix) any reasonable
fees and disbursements of the underwriters, if any, and the
reasonable fees and expenses of any special experts retained by
the Company in connection with any Registration Statement, in
each case as are customarily required to be paid by issuers or
sellers of securities, but excluding fees of counsel to the
underwriters or the Holders and underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Notes by a Holder.
"Registration Statement" shall mean any registration
statement of the Company which covers any of the Exchange Notes
or Registrable Notes pursuant to the provisions of this
Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in
each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions
of Section 2(b) of this Agreement which covers some or all of the
Registrable Notes on an appropriate form under Rule 415 under the
1933 Act, or any similar rule that may be adopted by the SEC, and
all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the
Initial Notes and the Exchange Notes under the Indenture.
2. Registration Under the 1933 Act. (a) Exchange Offer
Registration. To the extent not prohibited by any applicable law
or applicable interpretation of the Staff of the SEC, the Company
shall use its best efforts (A) to file with the SEC within 45
days after the Closing Date an Exchange Offer Registration
Statement covering the offer by the Company to the Holders to
exchange all of the Registrable Notes for Exchange Notes, (B) to
cause such Exchange Offer Registration Statement to be declared
effective by the SEC within 60 days after the date of filing of
such Exchange Offer Registration Statement, (C) to cause such
Registration Statement to remain effective until the closing of
the Exchange Offer and (D) to consummate the Exchange Offer
within 30 days after the date such Exchange Offer Registration
Statement is declared effective. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company shall promptly
commence the Exchange Offer, it being the objective of such
Exchange Offer to enable each Holder (other than Participating
Broker-Dealers (as defined in Section 3(f) hereof)) eligible and
electing to exchange Registrable Notes for Exchange Notes
(assuming that such Holder is not an affiliate of the Company
within the meaning of Rule 405 under the 1933 Act, acquires the
Exchange Notes in the ordinary course of such Holder's business
and has no arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing
the Exchange Notes) to trade such Exchange Notes from and after
their receipt without any limitations or restrictions under the
1933 Act and without material restrictions under the securities
laws of a substantial proportion of the several states of the
United States.
In connection with the Exchange Offer, the Company
shall:
(i) 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;
(ii) keep the Exchange Offer open for not less than 30
days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law);
(iii) use the services of the Depositary for the
Exchange Offer with respect to Initial Notes evidenced by
global certificates;
(iv) permit Holders to withdraw tendered Registrable
Notes at any time prior to the close of business, New York
City time, on the last business day on which the Exchange
Offer shall remain open, by sending to the institution
specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Notes delivered
for exchange, and a statement that such Holder is
withdrawing his election to have such Registrable Notes
exchanged;
(v) use its best efforts to ensure that (i) any
Exchange Offer Registration Statement and any amendment
thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with
the 1933 Act and the rules and regulations thereunder, (ii)
any Exchange Offer Registration Statement and any amendment
thereto does not, when it becomes effective, 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 not misleading and (iii) any
Prospectus forming part of any Exchange Offer Registration
Statement, and any supplement to such Prospectus (as
amended or supplemented from time to time), does not
include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements, in light of the circumstances under which they
were made, not misleading; and
(vi) otherwise comply in all respects with all
applicable laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange
Offer, the Company shall:
(i) accept for exchange Registrable Notes duly
tendered and not validly withdrawn pursuant to the Exchange
Offer in accordance with the terms of the Exchange Offer
Registration Statement and the letter of transmittal which
is an exhibit thereto;
(ii) cancel or cause to be cancelled all Registrable
Notes so accepted for exchange by the Company; and
(iii) promptly cause to be authenticated and delivered
Exchange Notes to each Holder of Registrable Notes equal in
amount to the Registrable Notes of such Holder so accepted
for exchange.
Interest on each Exchange Note will accrue from the
last date on which interest was paid on the Registrable Notes
surrendered in exchange therefor or, if no interest has been paid
on the Registrable Notes, from the Closing Date. The Exchange
Offer shall not be subject to any conditions, other than that the
Exchange Offer, or the making of any exchange by a Holder, does
not violate applicable law or any applicable interpretation of
the Staff of the SEC. Each Holder of Registrable Notes (other
than Participating Broker-Dealers, as hereinafter defined) who
wishes to exchange such Registrable Notes for Exchange Notes in
the Exchange Offer shall represent that (i) it is not an
affiliate of the Company within the meaning of Rule 405 under the
1933 Act, (ii) any Exchange Notes to be received by it were
acquired in the ordinary course of business and (iii) it has no
arrangement with any Person to participate in the distribution
(within the meaning of the 0000 Xxx) of the Exchange Notes.
(b) Shelf Registration. (i) If, because of any change
in law or applicable interpretations thereof by the Staff of the
SEC, the Company is not permitted to effect the Exchange Offer as
contemplated by Section 2(a) hereof, or (ii) if for any other
reason the Exchange Offer Registration Statement is not declared
effective within 60 days following the date such Exchange Offer
Registration Statement is filed or the Exchange Offer is not
consummated within 30 days following the date such Exchange Offer
Registration Statement is declared effective, or (iii) if any
Holder (other than the Initial Purchaser) is not eligible to
participate in the Exchange Offer, or (iv) upon the request of
the Initial Purchaser (with respect to any Registrable Notes
which it acquired directly from the Company) following the
consummation of the Exchange Offer if the Initial Purchaser shall
hold Registrable Notes which it acquired directly from the
Company and if such Initial Purchaser is not permitted, in the
opinion of counsel to such Initial Purchaser, pursuant to
applicable law or applicable interpretation of the Staff of the
SEC to participate in the Exchange Offer, the Company shall, at
its cost:
(A) as promptly as practicable, file with the SEC a
Shelf Registration Statement relating to the offer and sale
of the Registrable Notes by the Holders from time to time
in accordance with the methods of distribution elected by
the Majority Holders of such Registrable Notes and set
forth in such Shelf Registration Statement, and use its
best efforts to cause such Shelf Registration Statement to
be declared effective by the SEC by the 105th day after the
Closing Date (or promptly in the event of a request by any
Holder pursuant to clause (iii) above or any Initial
Purchaser pursuant to clause (iv) above). In the event that
the Company is required to file a Shelf Registration
Statement upon the request of any Holder (other than the
Initial Purchaser) not eligible to participate in the
Exchange Offer pursuant to clause (iii) above or upon the
request of the Initial Purchaser pursuant to clause (iv)
above, the Company shall file and have declared effective
by the SEC both an Exchange Offer Registration Statement
pursuant to Section 2(a) with respect to all Registrable
Notes and a Shelf Registration Statement (which may be a
combined Registration Statement with the Exchange Offer
Registration Statement) with respect to offers and sales of
Registrable Notes held by such Holder or such Initial
Purchaser after completion of the Exchange Offer. If the
Company files a Shelf Registration Statement pursuant to
Section 2(b)(ii) hereof; the Company will no longer be
required to effect the Exchange Offer;
(B) use its best efforts to keep the Shelf
Registration Statement continuously effective, in order to
permit the Prospectus forming part thereof to be usable by
Holders, until the end of the period referred to in Rule
144(k) (or one year from the Closing Date if such Shelf
Registration Statement is filed upon the request of any
Initial Purchaser pursuant to clause (iv) above) or such
shorter period as shall end when all of the Registrable
Notes covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement; and
(C) notwithstanding any other provisions hereof, use
its best efforts to ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus
forming part thereof and any supplement thereto complies in
all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it
becomes effective, 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 not misleading and (iii) any Prospectus forming
part of any Shelf Registration Statement, and any
supplement to such Prospectus (as amended or supplemented
from time to time), does not include an untrue statement of
a material fact or omit to state a material fact necessary
in order to make the statements, in light of the
circumstances under which they were made, not misleading.
The Company further agrees, if necessary, to
supplement or amend the Shelf Registration Statement if
reasonably requested by the Majority Holders with respect to
information relating to the Holders and otherwise as required by
Section 3(b) below, to use all reasonable efforts to cause any
such amendment to become effective and such Shelf Registration to
become usable as soon as practicable thereafter and to furnish to
the Holders of Registrable Notes copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
The Company shall be allowed a period of five days,
beginning on the first day a Registration Default (as hereinafter
defined) referred to in Section 2(b)(ii) occurs, to cure such
Registration Default before the Company will be required to
comply with the requirements of Section 2(b).
(c) Expenses. The Company shall pay all Registration
Expenses in connection with the registration pursuant to Section
2(a) or 2(b) and, in the case of any Shelf Registration
Statement, will reimburse the Holders or Initial Purchaser for
the reasonable fees and disbursements of one firm or counsel
designated in writing by the Majority Holders to act as counsel
for the Holders of the Registrable Notes in connection therewith.
Each Holder shall pay all expenses of its counsel, other than as
set forth in the preceding sentence, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Notes pursuant to the
Shelf Registration Statement.
(d) Effective Registration Statement. (i) The Company
will be deemed not to have used its best efforts to cause the
Exchange Offer Registration Statement or the Shelf Registration
Statement, as the case may be, to become, or to remain, effective
during the requisite period if the Company voluntarily takes any
action that would result in any such Registration Statement not
being declared effective or in the Holders of Registrable Notes
covered thereby not being able to exchange or offer and sell such
Registrable Notes during that period unless (A) such action is
required by applicable law or (B) 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, without limitation, the acquisition or divestiture of
assets, so long as the Company promptly complies with the
requirements of Section 3(j) hereof, if applicable.
(ii) An Exchange Offer Registration Statement pursuant
to Section 2(a) hereof or a Shelf Registration Statement pursuant
to Section 2(b) hereof will not be deemed to have become
effective unless it has been declared effective by the SEC;
provided, however, that if, after it has been declared effective,
the offering of Registrable Notes pursuant to a Registration
Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental
agency or court, such Registration Statement will be deemed not
to have been effective during the period of such interference,
until the offering of Registrable Notes pursuant to such
Registration Statement may legally resume.
(e) Increase in Interest Rate. In the event that
neither the consummation of the Exchange Offer nor the
declaration by the Commission of a Shelf Registration to be
effective (each a "Registration Event') occurs on or prior to the
105th day after the date of the issuance of the Registrable
Notes, the interest rate per annum borne by the Notes shall be
increased by 0.50%, effective from and including such 105th day,
to but excluding the date on which a Registration Event occurs.
In the event that the Shelf Registration Statement ceases to be
effective at any time during the period specified by Section 2(b)
hereof for more than 60 days, whether or not consecutive, during
any 12-month period, the interest rate borne by the Notes shall
be increased by 0.50% per annum from the 61st day of the
applicable 12-month period such Shelf Registration Statement
ceases to be effective until such time as the Shelf Registration
Statement again becomes effective.
3. Registration Procedures. In connection with the
obligations of the Company with respect to the Registration
Statements pursuant to Sections 2(a) and 2(b) hereof, the Company
shall.
(a) prepare and file with the SEC a Registration
Statement, within the time period specified in Section 2, on the
appropriate form under the 1933 Act, which form (i) shall be
selected by the Company, (ii) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Notes
by the selling Holders thereof and (iii) shall comply as to form
in all material respects with the requirements of the applicable
form;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may
be necessary under applicable law to keep such Registration
Statement effective for the applicable period; cause each
Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule
424 under the 1933 Act;
(c) in the case of a Shelf Registration, (i) notify
each Holder of Registrable Notes when a Shelf Registration
Statement with respect to the Registrable Notes has been filed
and advise such Holders that the distribution of Registrable
Notes will be made in accordance with the method elected by the
Majority Holders; (ii) furnish to each Holder of Registrable
Notes included within the coverage of the Shelf Registration
Statement at least one copy of such Shelf Registration Statement
and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in
writing, all reports, other documents and exhibits (including
those incorporated by reference) at the expense of the Company,
(iii) furnish to each Holder of Registrable Notes included within
the coverage of the Shelf Registration Statement, to counsel for
the Holders and to each underwriter of an underwritten offering
of Registrable Notes, if any, without charge, as many copies of
each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto as such Holder or underwriter may
reasonably request in order to facilitate the public sale or
other disposition of the Registrable Notes; and (iv) subject to
the last paragraph of Section 3, consent to the use of the
Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Notes included in the Shelf
Registration Statement in connection with the offering and sale
of the Registrable Notes covered by the Prospectus or any
amendment or supplement thereto;
(d) use its best efforts to register or qualify the
Registrable Notes or cooperate with the Holders of Registrable
Notes and their counsel in the registration or qualification of
such Registrable Notes under all applicable state securities or
"blue sky" laws of such jurisdictions as any Holder of
Registrable Notes covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable Notes
shall reasonably request in writing to cooperate with the Holders
in connection with any filings required to be made with the NASD,
and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holders to consummate the
disposition in each such jurisdiction of such Registrable Notes
owned by such Holders; provided, however; that in no event shall
the Company be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would
not otherwise be required to qualify but for this Section 3(d) or
(ii) take any action which would subject it to general service of
process or taxation in any such jurisdiction if it is not then so
subject;
(e) in the case of a Shelf Registration, notify each
Holder of Registrable Notes promptly and, if requested by such
Holder or counsel, confirm such advice in writing promptly (i)
when a Shelf Registration Statement has become effective and when
any post-effective amendments and supplements thereto become
effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments and supplements to a
Shelf Registration Statement and Prospectus or for additional
information after the Shelf Registration Statement has become
effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the
effectiveness of a Shelf Registration Statement or the initiation
of any proceedings for that purpose, (iv) at the closing of any
sale of Registrable Notes if, between the effective date of a
Shelf Registration Statement and such closing, the
representations and warranties of the Company contained in any
underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to such offering cease to be
true and correct in all material respects, (v) of the receipt by
the Company of any notification with respect to the suspension of
the qualification of the Registrable Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose, (vi) of the happening of any material event or
the discovery of any material facts during the period a Shelf
Registration Statement is effective which makes any statement
made in such Registration Statement or the related Prospectus
untrue or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the
statements therein (in the case of the Prospectus in light of the
circumstances under which they were made) not misleading and
(vii) of any determination by the Company that a post-effective
amendment to a Registration Statement would be appropriate;
(f) (A) in the case of the Exchange Offer, (i) include
in the Exchange Offer Registration Statement a "Plan of
Distribution" section covering the use of the Prospectus included
in the Exchange Offer Registration Statement by broker-dealers
who have exchanged their Registrable Notes for Exchange Notes for
the resale of such Exchange Notes, (ii) furnish to each
broker-dealer who desires to participate in the Exchange Offer,
without charge, as many copies of each Prospectus included in the
Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such
broker-dealer may reasonably request, (iii) include in the
Exchange Offer Registration Statement a statement that any
broker-dealer who holds Registrable Notes acquired for its own
account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who receives
Exchange Notes for Registrable Notes pursuant to the Exchange
Offer, may be a statutory underwriter and must deliver a
prospectus meeting the requirements of the 1933 Act in connection
with any resale of such Exchange Notes, (iv) subject to the last
paragraph of Section 3, hereby consent to the use of the
Prospectus forming part of the Exchange Offer Registration
Statement or any amendment or supplement thereto, by any
broker-dealer in connection with the sale or transfer of the
Exchange Notes covered by the Prospectus or any amendment or
supplement thereto, and (v) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in
order to participate in the Exchange Offer (x) the following
provision:
"If the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and
does not intend to engage in, a distribution of
Exchange Notes. If the undersigned is a broker-dealer
that will receive Exchange Notes for its own account
in exchange for Registrable Notes, it represents that
the Registrable Notes to be exchanged for Exchange
Notes were acquired by it as a result of market-making
activities or other trading activities and
acknowledges that it will deliver a prospectus meeting
the requirements of the 1933 Act in connection with
any resale of such Exchange Notes pursuant to the
Exchange Offer; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the
meaning of the 1933 Act"; and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in subclause (x) and by delivering a
Prospectus in connection with the exchange of Registrable Notes,
the broker-dealer will not be deemed to admit that it is an
underwriter within the meaning of the 1933 Act; and
(B) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, use its best efforts to
cause to be delivered at the request of an entity
representing the Participating Broker-Dealers (which entity
shall be the Initial Purchaser, unless it elects not to act
as such representative) only one, if any, "cold comfort"
letter with respect to the Prospectus in the form existing
on the last date for which exchanges are accepted pursuant
to the Exchange Offer and with respect to each subsequent
amendment or supplement, if any, effected during the period
specified in clause (C) below; and
(C) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, use its best efforts to
maintain the effectiveness of the Exchange Offer
Registration Statement for the 180 day period specified in
clause (D) below; and
(D) not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration
Statement as would otherwise be contemplated by Section
3(b), or take any other action as a result of this Section
3(f), for a period exceeding 180 days after the last date
for which exchanges are accepted pursuant to the Exchange
Offer (as such period may be extended by the Company) and
Participating Broker-Dealers shall not be authorized by the
Company to, and shall not, deliver such Prospectus after
such period in connection with resales contemplated by this
Section 3;
(g) (A) in the case of an Exchange Offer, furnish
counsel for the Initial Purchasers and (B) in the case of a Shelf
Registration, furnish counsel for the Holders of Registrable
Notes copies of any request by the SEC or any state securities
authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(h) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a
Registration Statement as soon as practicable and provide
immediate notice to each Holder of the withdrawal of any such
order;
(i) unless any Registrable Notes are in book entry
form only, in the case of a Shelf Registration, cause the Trustee
to cooperate with the selling Holders of Registrable Notes to
facilitate the timely preparation and delivery of certificates
representing Registrable Notes to be sold free from any
restrictive legends; and cause such Registrable Notes to be in
such denominations (consistent with the provisions of the
Indenture) and registered in such names as the selling Holders or
the underwriters, if any, may reasonably request at least one
business day prior to the closing of any sale of Registrable
Notes;
(j) in the case of a Shelf Registration, upon the
occurrence of any event or the discovery of any facts, each as
contemplated by Sections 2(d)(i)(B) or 3(e)(ii)-(vi) hereof, use
its best efforts to prepare a post-effective amendment to a
Registration Statement or an amendment or supplement to the
related Prospectus or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable
Notes, such Prospectus will not contain at the time of such
delivery any untrue statement of a material fact or omit to state
a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading. The Company agrees to notify each Holder to suspend
use of the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees to
suspend use of the Prospectus as promptly as practicable upon
receipt of such notice until the Company has amended or
supplemented the Prospectus to correct such misstatement or
omission, provided that the Company shall cause such suspension
not to last more than 30 days per occurrence or more than 60 days
in aggregate in a calendar year. At such time as such public
disclosure is otherwise made or the Company determines that such
disclosure is not necessary, in each case to correct any
misstatement of a material fact or to include any omitted
material fact, the Company agrees promptly to notify each Holder
of such determination and to furnish each Holder such numbers of
copies of the Prospectus, as amended or supplemented, as such
Holder may reasonably request;
(k) obtain a CUSIP number for all Exchange Notes, or
Registrable Notes, as the case may be, not later than the
effective date of an Exchange Offer Registration Statement or
Shelf Registration Statement, as the case may be, and provide the
Trustee with printed certificates evidencing the Exchange Notes
or the Registrable Notes, as the case may be, held in book entry
form, in a form eligible for deposit with the Depositary;
(1) (i) cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "TIA"), in
connection with the registration of the Exchange Notes, or
Registrable Notes, as the case may be, (ii) cooperate with the
Trustee and the Holders to effect such changes to the Indenture
as may be required for the Indenture to be so qualified in
accordance with the terms of the TIA and (iii) execute, and use
its best efforts to cause the 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 the
Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into
such customary agreements (including underwriting agreements in
customary form) and take all other customary and appropriate
actions (including those reasonably requested by the Holders of a
majority in principal amount of Registrable Notes being sold) in
order to expedite or facilitate the disposition of such
Registrable Notes 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 Notes and the underwriters, if
any, in form, substance and scope as are customarily made
by the Company to underwriters in similar underwritten
offerings as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company (who
may be the general counsel of the Company) and updates
thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters, if any, or if there are no such managing
underwriters, to the Holders of a majority in principal
amount of the Registrable Notes being sold) addressed to
each selling Holder and the underwriters, if any, covering
the matters customarily covered in opinions requested in
sales of securities or underwritten offerings and such
other matters as may be reasonably requested by such
Holders and underwriters;
(iii) obtain a "cold comfort" letter and updates
thereof from the Company's independent certified public
accountants addressed to the underwriters, if any, and will
use its best efforts to have such letter addressed to the
selling Holders of Registrable Notes, such letter to be in
customary form and covering such matters of the type
customarily covered in "cold comfort" letters in connection
with similar underwritten offerings as the Holders of a
majority in principal amount of the Registrable Notes being
sold shall request;
(iv) enter into a securities sales agreement with the
Holders and an agent of the Holders providing for, among
other things, the appointment of such agent for the selling
Holders for the purpose of soliciting purchases of
Registrable Notes, which agreement shall be in form,
substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into,
cause the same to set forth indemnification provisions and
procedures substantially equivalent to the indemnification
provisions and procedures set forth in Section 5 hereof
with respect to all parties to be indemnified pursuant to
said Section; and
(vi) deliver such other documents and certificates as
may be reasonably requested by Holders of a majority in
principal amount of Registrable Notes being sold, and as
are customarily delivered in similar offerings.
The above shall be done at (i) the effectiveness of such
Registration Statement (and, if appropriate, each post-effective
amendment thereto) if appropriate in connection with any
particular disposition of Registrable Notes and (ii) each closing
under any underwriting or similar agreement as and to the extent
required thereunder. In the case of any underwritten offering,
the Company shall provide written notice to the Holders of all
Registrable Notes of such underwritten offering at least 30 days
prior to the filing of a prospectus supplement for such
underwritten offering. Such notice shall (x) offer each such
Holder the right to participate in such underwritten offering,
(y) specify a date, which shall be no earlier than 10 days
following the date of such notice, by which such Holder must
inform the Company of its intent to participate in such
underwritten offering and (z) include the instructions such
Holder must follow in order to participate in such underwritten
offering;
(n) in the case of a Shelf Registration, make
available for inspection by representatives of the Holders of the
Registrable Notes and any underwriters participating in any
disposition pursuant to a Shelf Registration Statement and any
counsel or accountant retained by such Holders or underwriters,
all financial and other records, pertinent corporate documents
and properties of the Company reasonably requested by it, and
cause the respective officers, directors, employees, and any
other agents of the Company to make reasonably available all
relevant information reasonably requested by any such
representative, underwriter, counsel or accountant in connection
with a Registration Statement, in each case as is customary for
similar due diligence examinations; provided, however, that any
information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such
information shall be kept confidential by such representatives,
underwriters, counsel or accountant, unless such disclosure is
made in connection with a court proceeding or required by law, or
such information becomes available to the public generally or
through a third party without an accompanying, obligation of
confidentiality; and provided further that the foregoing
inspection and information gathering shall, to the extent
reasonably possible, be coordinated on behalf of the Holders and
the other parties entitled thereto by one counsel designated by
and on behalf of such Holders and other parties;
(o) (i) a reasonable time prior to the filing of any
Exchange Offer Registration Statement, any Prospectus forming a
part thereof; any amendment to an Exchange Offer Registration
Statement or amendment or supplement to a Prospectus, provide
copies of such document to the Initial Purchaser, and use its
best efforts to reflect in any such document when filed such
comments as the Initial Purchaser or its counsel may reasonably
request; (ii) in the case of a Shelf Registration, a reasonable
time prior to filing any Shelf Registration Statement, any
Prospectus forming a part thereof; any amendment to such Shelf
Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Holders of
Registrable Notes, to the Initial Purchaser, to counsel on behalf
of the Holders and to the underwriter or underwriters of an
underwritten offering of Registrable Notes, if any, and use its
best efforts to reflect such comments in any such document when
filed as the Holders of Registrable Notes, their counsel and any
underwriter may reasonably request; and (iii) cause the
representatives of the Company to be available for discussion of
such document as shall be reasonably requested by the Holders of
Registrable Notes, the Initial Purchaser on behalf of such
Holders or any underwriter and shall not at any time make any
filing of any such document of which such Holders, the Initial
Purchaser on behalf of such Holders, their counsel or any
underwriter shall not have previously been advised and furnished
a copy or to which such Holders, the Initial Purchaser on behalf
of such Holders, their counsel or any underwriter shall
reasonably object;
(p) in the case of a Shelf Registration, use its best
efforts to cause the Registrable Notes to be rated with the
appropriate rating agencies at the time of effectiveness of such
Shelf Registration Statement, unless the Registrable Notes are
already so rated; and
(q) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and make generally
available to its security holders, as soon as reasonably
practicable after the effective date of a Registration Statement,
an earnings statement which shall satisfy the provisions of
Section 11(a) of the 1933 Act and Rule 158 thereunder.
In the case of a Shelf Registration Statement, the
Company may (as a condition to such Holder's participation in the
Shelf Registration) require each Holder of Registrable Notes to
furnish to the Company such information regarding such Holder and
the proposed distribution by such Holder of such Registrable
Notes as the Company may from time to time reasonably request and
the Company may exclude from such registration the Registrable
Notes of any Holder that fails to furnish such information within
a reasonable time after receiving such request.
In the case of a Shelf Registration Statement, each
Holder agrees that, upon receipt of any notice from the Company
of the happening of any event or the discovery of any facts, each
of the kind described in Sections 2(d)(i)(B) or 3(e)(ii)-(vi)
hereof; such Holder will forthwith discontinue disposition of
Registrable Notes pursuant to such Shelf Registration Statement
until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(j) hereof; and, if
so directed by the Company, such Holder will deliver to the
Company (at the Company's expense) all copies in its possession,
other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Notes
current at the time of receipt of such notice. If the Company
shall give any such notice to suspend the disposition of
Registrable Notes pursuant to a Shelf Registration Statement as a
result of the happening of any event or the discovery of any
facts, each of the kind described in Sections 2(d)(i)(B) or
3(e)(ii)-(vi) hereof; the Company shall be deemed to have used
its best efforts to keep the Shelf Registration Statement
effective during such period of suspension provided that the
Company shall use its best efforts to file and have declared
effective (if an amendment) as soon as practicable an amendment
or supplement to the Shelf Registration Statement and shall
extend the period during which the Registration Statement shall
be maintained effective pursuant to this Agreement by the number
of days during the period from and including the date of the
giving of such notice to and including the date when the Holders
shall have received copies of the supplemented or amended
Prospectus necessary to resume such dispositions.
4. Underwritten Offering. The Holders of Registrable
Notes covered by a Shelf Registration Statement who desire to do
so may sell such Registrable Notes in an underwritten offering.
In any such underwritten offering, the investment banker or
bankers and manager or managers that will administer the offering
will be selected by, and the underwriting arrangements with
respect thereto will be approved by, the Holders of a majority of
the Registrable Notes to be included in such offering; provided,
however, that (i) such investment bankers and managers and
underwriting arrangements must be reasonably satisfactory to the
Company and (ii) the Company shall not be obligated to arrange
for more than one underwritten offering during the period such
Shelf Registration Statement is required to be effective pursuant
to Section 2(b)(i)(B) hereof. No Holder may participate in any
underwritten offering contemplated hereby unless such Holder (a)
agrees to sell such Holder's Registrable Notes in accordance with
any approved underwriting arrangements, (b) completes and
executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such approved underwriting
arrangements and (c) at least 20% of the outstanding Registrable
Notes are included in such underwritten offering. The Holders
participating in any underwritten offering shall be responsible
for any expenses customarily borne by selling securityholders,
including underwriting discounts and commissions and fees and
expenses of counsel to the selling securityholders.
5. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Holder and each
person, if any, who controls any Holder within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act,
from and against all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses
reasonably incurred by any Holder or any such controlling person
in connection with defending or investigating any such action or
claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in any Registration Statement (or
any amendment thereto) pursuant to which Exchange Notes or
Registrable Notes were registered under the 1933 Act, including
all documents incorporated therein by reference, or caused by 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, or caused by any untrue statement or
alleged untrue statement of a material fact contained in any
Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by
any omission or alleged omission to state therein a material fact
necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except
insofar as such losses, claims, damages or liabilities are caused
by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any
Holder furnished to the Company in writing by any selling Holder
expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary Prospectus
shall not inure to the benefit of any Person from whom the Person
asserting any such losses, claims, damages or liabilities
purchased Registerable Notes, or any person controlling such
seller, if a copy of the final Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments
or supplements thereto) was not sent or given by or on behalf of
such seller to such purchaser with or prior to the written
confirmation of the sale of the Registerable Notes to such
Person, and if the final Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities. In connection with any
underwritten offering permitted by Section 3, the Company will
also indemnify the underwriters participating in the
distribution, their officers and directors and each Person who
controls such Persons (within the meaning of the Securities Act
and the Exchange Act) to the same extent as provided above with
respect to the indemnification of the Holders, if requested in
connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company and the other selling
Holders, and each of their respective directors, officers who
sign the Registration Statement and each Person, if any, who
controls the Company and any other selling Holder within the
meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act to the same extent as the foregoing indemnity from the
Company to the Holders, but only with reference to information
relating to such Holder furnished to the Company in writing by
such Holder expressly for use in any Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or
supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either
paragraph (a) or paragraph (b) above, such person (the
"indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and
any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention
of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood
that the indemnifying party 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
parties and that such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by
the Majority Holders in the case of parties indemnified pursuant
to paragraph (a) above and by the Company in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying
party 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 plaintiff, the
indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested in writing an
indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that
it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered
into more than 90 days after receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall
not have reimbursed the indemnified party for such fees and
expenses of counsel in accordance with such request prior to the
date of such settlement, unless such fees and expenses are being
disputed in good faith. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of
which such indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph
(a) or paragraph (b) of this Section 5 is unavailable to an
indemnified party or insufficient in respect of any losses,
claims, damages or liabilities, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to
reflect the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative
fault of the Company and the Holders shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied
by the Company or by the Holders and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section
5(d) are several in proportion to the respective aggregate
principal amount of Registrable Notes of such Holder that were
registered pursuant to a Registration Statement.
(e) The Company and each Holder agree that it would
not be just or equitable if contribution pursuant to this Section
5 were determined by pro rata allocation or by any other method
of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder shall be required to
indemnify or contribute any amount in excess of the amount by
which the total price at which Registrable Notes were sold by
such Holder exceeds the amount of any damages that such Holder
has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution provisions contained in
this Section 5 shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Holder or any
person controlling any Holder, or by or on behalf of the Company,
its officers or directors or any person controlling the Company,
(iii) acceptance of any of the Exchange Notes and (iv) any sale
of Registrable Notes pursuant to a Shelf Registration Statement.
6. Miscellaneous. (a) Rule 144 and Rule 144A. For so
long as the Company is subject to the reporting requirements of
Section 13 or 15 of the 1934 Act, the Company covenants that it
will file the reports required to be filed by it under Section
13(a) or 15(d) of the 1934 Act and the rules and regulations
adopted by the SEC thereunder, that if it ceases to be so
required to file such reports, it will upon the request of any
Holder of Registrable Notes (i) make publicly available such
information as is necessary to permit sales pursuant to Rule 144
under the 1933 Act, (ii) deliver such information to a
prospective purchaser as is necessary to permit sales pursuant to
Rule 144A under the 1933 Act and it will take such farther action
as any Holder of Registrable Notes may reasonably request, and
(iii) take such farther action that is reasonable in the
circumstances, in each case, to the extent required from time to
time to enable such Holder to sell its Registrable Notes without
registration under the 1933 Act within the limitation of the
exemptions provided by (x) Rule 144 under the 1933 Act, as such
Rule may be amended from time to time, (y) Rule 144A under the
1933 Act, as such Rule may be amended from time to time, or (z)
any similar rules or regulations hereafter adopted by the SEC.
Upon the request of any Holder of Registrable Notes, the Company
will deliver to such Holder a written statement as to whether it
has complied with such requirements.
(b) Other Registration Rights. The Company may grant
registration rights that would permit any Person the right to
piggy-back on any Shelf Registration Statement, provided that if
the managing underwriter, if any, of an offering pursuant to such
Shelf Registration Statement delivers an opinion of the selling
Holders that the total amount of securities which they and the
holders of such piggy-back rights intend to include in any Shelf
Registration Statement materially adversely affects the success
of such offering (including the price at which such securities
can be sold), then the amount, number or kind of securities to be
offered for the account of holders of such piggy-back rights will
be reduced to the extent necessary to reduce the total amount of
securities to be included in such offering to the amount, number
or kind recommended by such managing underwriter; and provided
farther that such piggy-back registration rights shall in no
event materially adversely affect the interests of any Holder.
(c) No Inconsistent Agreements. The Company has not
entered into nor will the Company on or after the date of this
Agreement enter into any agreement which is inconsistent with the
rights granted to the Holders of Registrable Notes in this
Agreement or otherwise conflicts with the provisions hereof.
(d) 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 hereof may not be given unless the
Company has obtained the written consent of Holders of at least a
majority in aggregate principal amount of the outstanding
Registrable Notes affected by such amendment, modification,
supplement, waiver or departure; that no amendment, modification,
supplement or waiver or consent to any departure from the
provisions of Section 5 hereof shall be effective as against any
Holder of Registrable Notes unless consented to in writing by
such Holder.
(e) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, telecopier, or
any courier guaranteeing overnight delivery (i) if to a Holder,
at the most current address given by such Holder to the Company
by means of a notice given in accordance with the provisions of
this Section 6(e), which address initially is, with respect to
the Initial Purchaser, the address set forth in the Purchase
Agreement; and (ii) if to the Company initially at the Company's
address set forth in the Purchase Agreement and thereafter at
such other address, notice of which is given in accordance with
the provisions of this Section 6(e).
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 answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the
next business day if timely delivered to an air courier
guaranteeing overnight delivery.
(f) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors, assigns and
transferees of each of the parties, including, without limitation
and without the need for an express assignment, subsequent
Holders; provided that nothing herein shall be deemed to permit
any assignment, transfer or other disposition of Registrable
Notes in violation of the terms hereof or of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall
acquire Registrable Notes, in any manner, whether by operation of
law or otherwise, such Registrable Notes shall be held subject to
all of the terms of this Agreement, and by taking and holding
such Registrable Notes, such Person shall be conclusively deemed
to have agreed to be bound by and to perform all of the terms and
provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such Person shall be entitled to receive
the benefits hereof.
(g) Third Party Beneficiary. The Holders shall be
third party beneficiaries to the agreements made hereunder and to
the obligations of the Company hereunder and shall have the right
to enforce such agreements and obligations directly to the extent
any such Holder deems such enforcement necessary or advisable to
protect its rights hereunder.
(h) 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.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
(k) 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, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
CONTINENTAL AIRLINES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
Confirmed and accepted as of the date
first above written:
XXXXXX BROTHERS INC.
By:_____________________________
Name:
Title:
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
CONTINENTAL AIRLINES, INC.
By:___________________________________
Name:
Title:
Confirmed and accepted as of the date
first above written:
XXXXXX BROTHERS INC.
By: /s/ Xxxxx X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: Associate
