EXHIBIT 4.26
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into October 4, 2001, among AMERICAN AIRLINES, INC., a Delaware
corporation (the "Company"), STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as trustee under each of the Trusts (as defined below)
(the "Trustee") and XXXXXX XXXXXXX & CO. INCORPORATED ("Xxxxxx Xxxxxxx"),Credit
Suisse First Boston Corporation, Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx
Incorporated, X.X. Xxxxxx Securities Inc. and Xxxxxxx Xxxxx Xxxxxx Inc.
(collectively the "Placement Agents").
This Agreement is made pursuant to the Placement Agreement dated as
of September 25, 2001, among the Company and the Placement Agents (the
"Placement Agreement"), which provides for the sale to the Placement Agents of
(i) $322,404,000 aggregate principal amount of 6.978% 2001-2A-1 Pass Through
Certificates (the "Class A-1 Certificates"), (ii) $828,761,000 aggregate
principal amount of 7.858% 2001-2A-2 Pass Through Certificates (the "Class A-2
Certificates") and (iii) $180,087,000 aggregate principal amount of 8.608%
2001-2B Pass Through Certificates (the "Class B Certificates"; and together with
the Class A-1 Certificates and the Class A-2 Certificates the "Offered
Certificates.) In order to induce the Placement Agents to enter into the
Placement Agreement, the Company has agreed to provide to the Placement Agents
and their 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 Placement Agreement.
The Offered Certificates will be issued pursuant to the Pass Through
Trust Agreement, dated as of October 4, 2001, between the Company and the
Trustee (the "Basic Agreement"), as supplemented with respect to each series of
Certificates by a separate Pass Through Trust Supplement between the Company and
the Trustee to be dated as of the date on which the Closing Time (as defined in
the Placement Agreement) will occur (individually, a "Trust Supplement") (the
Basic Agreement, as supplemented by each such Trust Supplement, being referred
to herein as the "Pass Through Trust Agreement"). The Pass Through Trust
Agreements are related to the creation and administration of American Airlines,
Inc., Pass Through Trust Series 2001-2A-1 (the "Class A-1 Trust"), American
Airlines, Inc., Pass Through Trust Series 2001-2A-2 (the "Class A-2 Trust") and
American Airlines, Inc., Pass Through Trust Series 2001-2B (the "Class B Trust";
and together with the Class A-1 Trust and the Class A-2 Trust, the "Trusts").
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.
"Agreement" shall have the meaning set forth in the preamble.
"Applicable Trust Agreement" shall mean, (i) with respect to the
Class A-1 Certificates, the Class A-1 Holders or the Class A-1 Trustee,
the Class A-1 Trust Agreement, (ii) with respect to the Class A-2
Certificates, the Class A-2 Holders or the Class A-2 Trustee, the Class
A-2 Trust Agreement and (iii) with respect to the Class B Certificates,
the Class B Holders or the Class B Trustee, the Class B Trust Agreement.
"Class A-1 Certificates" shall have the meaning set forth in the
second paragraph of this Agreement.
"Class A-1 Exchange Certificates" shall mean securities issued under
the Class A-1 Trust Agreement of equal outstanding principal amount as and
containing terms identical to the Class A-1 Certificates (except that (i)
interest thereon shall accrue from the last date on which interest was
paid on the Class A-1 Certificates or, if no such interest has been paid,
from the Closing Time, (ii) the transfer restrictions thereon shall be
modified or eliminated, as appropriate and (iii) provisions relating to an
increase in the stated rate of interest thereon shall be eliminated), to
be offered to Holders of the Class A-1 Certificates in exchange for such
Class A-1 Certificates pursuant to the Exchange Offer.
"Class A-1 Holder" shall mean each Placement Agent, for so long as
it owns any Class A-1 Registrable Certificates, and each of its
successors, assigns and direct and indirect transferees who become
registered owners of Class A-1 Registrable Certificates under the Class
A-1 Trust Agreement; provided that for purposes of Sections 4 and 5 of
this Agreement, the term "Class A-1 Holder" shall include Participating
Broker-Dealers (as defined in Section 4(a)).
"Class A-1 Registrable Certificates" shall mean the Class A-1
Certificates; provided, however, that the Class A-1 Certificates shall
cease to be Class A-1 Registrable Certificates upon the earliest to occur
of (i) the consummation of the Exchange Offer, (ii) a Registration
Statement with respect to such Class A-1 Certificates having been declared
effective under the 1933 Act and such Class A-1 Certificates having been
disposed of pursuant to such Registration Statement, (iii) such Class A-1
Certificates having been sold to the public pursuant to Rule 144(k) (or
any similar provision then in
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force, but not Rule 144A) under the 1933 Act or (iv) such Class A-1
Certificates having ceased to be outstanding.
"Class A-1 Trust Agreement" shall mean the Pass Through Trust
Agreement relating to the Class A-1 Certificates, as may be amended from
time to time in accordance with the terms thereof.
"Class A-1 Trustee" shall mean State Street Bank and Trust Company
of Connecticut, National Association, not in its individual capacity
except as expressly set forth in the Class A-1 Trust Agreement, but solely
as Trustee under the Class A-1 Trust Agreement, together with any
successor Trustee under the terms of the Class A-1 Trust Agreement.
"Class A-2 Certificates" shall have the meaning set forth in the
second paragraph of this Agreement.
"Class A-2 Exchange Certificates" shall mean securities issued under
the Class A-2 Trust Agreement of equal outstanding principal amount as and
containing terms identical to the Class A-2 Certificates (except that (i)
interest thereon shall accrue from the last date on which interest was
paid on the Class A-2 Certificates or, if no such interest has been paid,
from the Closing Time, (ii) the transfer restrictions thereon shall be
modified or eliminated, as appropriate and (iii) provisions relating to an
increase in the stated rate of interest thereon shall be eliminated), to
be offered to Holders of the Class A-2 Certificates in exchange for such
Class A-2 Certificates pursuant to the Exchange Offer.
"Class A-2 Holder" shall mean each Placement Agent, for so long as
it owns any Class A-2 Registrable Certificates, and each of its
successors, assigns and direct and indirect transferees who become
registered owners of Class A-2 Registrable Certificates under the Class
A-2 Trust Agreement; provided that for purposes of Sections 4 and 5 of
this Agreement, the term "Class A-2 Holder" shall include Participating
Broker-Dealers (as defined in Section 4(a)).
"Class A-2 Registrable Certificates" shall mean the Class A-2
Certificates; provided, however, that the Class A-2 Certificates shall
cease to be Class A-2 Registrable Certificates upon the earliest to occur
of (i) the consummation of the Exchange Offer, (ii) a Registration
Statement with respect to such Class A-2 Certificates having been declared
effective under the 1933 Act and such Class A-2 Certificates having been
disposed of pursuant to such Registration Statement, (iii) such Class A-2
Certificates having been sold to the public pursuant to Rule 144(k) (or
any similar provision then in force, but not Rule 144A) under the 1933 Act
or (iv) such Class A-2 Certificates having ceased to be outstanding.
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"Class A-2 Trust Agreement" shall mean the Pass Through Trust
Agreement relating to the Class A-2 Certificates, as may be amended from
time to time in accordance with the terms thereof.
"Class A-2 Trustee" shall mean State Street Bank and Trust Company
of Connecticut, National Association, not in its individual capacity
except as expressly set forth in the Class A-2 Trust Agreement, but solely
as Trustee under the Class A-2 Trust Agreement, together with any
successor Trustee under the terms of the Class A-2 Trust Agreement.
"Class B Certificates" shall have the meaning set forth in the
second paragraph of this Agreement.
"Class B Exchange Certificates" shall mean securities issued under
the Class B Trust Agreement of equal outstanding principal amount as and
containing terms identical to the Class B Certificates (except that (i)
interest thereon shall accrue from the last date on which interest was
paid on the Class B Certificates or, if no such interest has been paid,
from the Closing Time, (ii) the transfer restrictions thereon shall be
modified or eliminated, as appropriate and (iii) provisions relating to an
increase in the stated rate of interest thereon shall be eliminated), to
be offered to Holders of the Class B Certificates in exchange for such
Class B Certificates pursuant to the Exchange Offer.
"Class B Holder" shall mean each Placement Agent, for so long as it
owns any Class B Registrable Certificates, and each of its successors,
assigns and direct and indirect transferees who become registered owners
of Class B Registrable Certificates under the Class B Trust Agreement;
provided that for purposes of Sections 4 and 5 of this Agreement, the term
"Class B Holder" shall include Participating Broker-Dealers (as defined in
Section 4(a)).
"Class B Registrable Certificates" shall mean the Class B
Certificates; provided, however, that the Class B Certificates shall cease
to be Class B Registrable Certificates upon the earliest to occur of (i)
the consummation of the Exchange Offer, (ii) a Registration Statement with
respect to such Class B Certificates having been declared effective under
the 1933 Act and such Class B Certificates having been disposed of
pursuant to such Registration Statement, (iii) such Class B Certificates
having been sold to the public pursuant to Rule 144(k) (or any similar
provision then in force, but not Rule 144A) under the 1933 Act or (iv)
such Class B Certificates having ceased to be outstanding.
"Class B Trust Agreement" shall mean the Pass Through Trust
Agreement relating to the Class B Certificates, as may be amended from
time to time in accordance with the terms thereof.
"Class B Trustee" shall mean State Street Bank and Trust Company of
Connecticut, National Association, not in its individual capacity except
as expressly set
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forth in the Class B Trust Agreement, but solely as Trustee under the
Class B Trust Agreement, together with any successor Trustee under the
terms of the Class B Trust Agreement.
"Closing Time" shall mean the Closing Time as defined in the
Placement Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Exchange Certificates" shall mean, together, the Class A-1 Exchange
Certificates, the Class A-2 Exchange Certificates and the Class B Exchange
Certificates.
"Exchange Dates" shall have the meaning set forth in Section
2(a)(ii) of this Agreement.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Certificates for Registrable Certificates 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.
"Holder" shall mean a Class A-1 Holder, a Class A-2 Holder or a
Class B Holder
"Majority Holders" shall mean, together, the Holders of a majority
in aggregate principal amount of the Registrable Certificates then
outstanding; provided that whenever the consent or approval of Holders of
a specified percentage of Registrable Certificates is required hereunder,
Registrable Certificates held by the Company or any of its affiliates (as
such term is defined in Rule 405 under the 0000 Xxx) (other than the
Placement Agents or subsequent holders of Registrable Certificates if such
subsequent holders are deemed to be such affiliates solely by reason of
their holding of such Registrable Certificates) shall not be counted in
determining whether such consent or approval was given by the Holders of
such required percentage or amount.
"Xxxxxx Xxxxxxx" shall have the meaning set forth in the preamble.
"Offered Certificates" shall have the meaning set forth in the
second paragraph of this Agreement.
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"Pass Through Trust Agreements" shall have the meaning set forth in
the third paragraph of this Agreement.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Placement Agents" shall have the meaning set forth in the preamble.
"Placement Agreement" shall have the meaning set forth in the second
paragraph of this Agreement.
"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 Certificates covered by a Shelf Registration
Statement, and by all other amendments and supplements to such prospectus,
and in each case including all material incorporated by reference therein.
"Registrable Certificates" shall mean, together, the Class A-1
Registrable Certificates, the Class A-2 Registrable Certificates and the
Class B Registrable Certificates.
"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. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or
blue sky laws (including reasonable fees and disbursements of counsel in
connection with blue sky qualification of any of the Exchange Certificates
or Registrable Certificates), (iii) all reasonable expenses of any Persons
in preparing or assisting in preparing word processing, printing and
distributing of any Registration Statement, any Prospectus, any amendments
or supplements thereto and other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees (it being
understood that no rating agency shall be engaged by a Placement Agent),
(v) all fees and disbursements relating to the qualification of the Trust
Agreements under applicable securities laws, (vi) the fees and
disbursements of the Trustees and their counsel, (vii) the fees and
disbursements of counsel for the Company and, in the case of a Shelf
Registration Statement, the fees and disbursements of one counsel for the
Holders (which counsel shall be selected by the Majority Holders and which
counsel may also be counsel for the Placement Agents) and (viii) the fees
and disbursements 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, but excluding
fees and expenses of counsel to the underwriters (other than reasonable
fees and expenses set forth in clause (ii) above) or the
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Holders and underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of Registrable Certificates by a
Holder.
"Registration Statement" shall mean any registration statement of
the Company that covers any of the Exchange Certificates or Registrable
Certificates 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 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 that covers all of the Registrable Certificates (but no
other securities unless approved by the Holders whose Registrable
Certificates are covered by such Shelf Registration Statement) 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.
"TIA" shall have the meaning set forth in Section 3(l) of this
Agreement.
"Trustee" shall have the meaning set forth in the first paragraph of
this Agreement and shall also include the Trustee's successors.
"Underwriters" shall have the meaning set forth in Section 3 of this
Agreement.
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which Registrable Certificates are sold to an Underwriter
for reoffering to the public.
2. Registration Under the 1933 Act. (a) To the extent not prohibited by
any applicable law or applicable interpretation of the Staff of the SEC, the
Company shall use its reasonable best efforts (i) to cause to be filed with the
SEC an Exchange Offer Registration Statement covering the offer to the Holders
to exchange (A) all of the Class A-1 Registrable Certificates for Class A-1
Exchange Certificates, (B) all of the Class A-2 Registrable Certificates for
Class A-2 Exchange Certificates and (C) all of the Class B Registrable
Certificates for Class B Exchange Certificates, (ii) to have the Exchange Offer
Registration Statement declared effective and (iii) to have such Registration
Statement remain effective until the closing of the Exchange Offer. The Company
shall commence the Exchange Offer promptly after the Exchange Offer Registration
Statement has been declared effective by the SEC and use its reasonable best
efforts to have the Exchange Offer consummated not later than the date that is
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270 days (or, if such date is not a business day, the first business day
thereafter) after the Closing Time. The Company shall, or shall cause the
Trustees to, commence the Exchange Offer by mailing the related exchange offer
Prospectus and accompanying documents to each Holder stating, in addition to
such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this
Registration Rights Agreement and that all Registrable Certificates
validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period
of at least 30 days (or such shorter period as allowed by applicable law
or SEC rules and interpretations) from the date such notice is mailed)
(the "Exchange Dates");
(iii) that any Registrable Certificate not tendered will remain
outstanding and continue to accrue interest, but will not retain any
rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Certificate
exchanged pursuant to the Exchange Offer will be required to surrender
such Registrable Certificate, together with the enclosed letters of
transmittal, to the institution and at the address specified in the notice
prior to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the last Exchange Date, by sending to
the institution and at the address specified in the notice, a telegram,
telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount and class of Registrable Certificates
delivered for exchange, and a statement that such Holder is withdrawing
his election to have such Certificates exchanged.
As soon as practicable after the last Exchange Date, the Company
shall or shall cause the Trustees to:
(i) accept for exchange Registrable Certificates or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the Class A-1 Trustee for
cancellation all Class A-1 Registrable Certificates or portions thereof so
accepted for exchange by the Company, and issue, and cause the Class A-1
Trustee to promptly authenticate and mail to each Class A-1 Holder, Class
A-1 Exchange Certificates equal in principal amount to the principal
amount of the Class A-1 Registrable Certificates surrendered by such Class
A-1 Holder;
(iii) deliver, or cause to be delivered, to the Class A-2 Trustee
for cancellation all Class A-2 Registrable Certificates or portions
thereof so accepted for exchange by the Company, and issue, and cause the
Class A-2 Trustee to promptly authenticate and mail
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to each Class A-2 Holder, Class A-2 Exchange Certificates equal in
principal amount to the principal amount of the Class A-2 Registrable
Certificates surrendered by such Class A-2 Holder; and
(iv) deliver, or cause to be delivered, to the Class B Trustee for
cancellation all Class B Registrable Certificates or portions thereof so
accepted for exchange by the Company, and issue, and cause the Class B
Trustee to promptly authenticate and mail to each Class B Holder, Class B
Exchange Certificates equal in principal amount to the principal amount of
the Class B Registrable Certificates surrendered by such Class B Holder.
The Company shall use its reasonable best efforts to complete the Exchange Offer
as provided above and shall comply with the applicable requirements of the 1933
Act, the 1934 Act and other applicable laws, rules and regulations in connection
with the Exchange Offer. The Exchange Offer shall not be subject to any
conditions, other than that the Exchange Offer does not violate applicable law
or any applicable interpretation of the Staff of the SEC. The Company shall
inform the Placement Agents of the names and addresses of the Holders to whom
the Exchange Offer is made, and the Placement Agents shall have the right,
subject to applicable law, to contact such Holders and otherwise facilitate the
tender of Registrable Certificates in the Exchange Offer.
Each Holder participating in the Exchange Offer shall be required to
represent to the Company at or prior to the consummation of the Exchange Offer
that (i) any Exchange Certificates received by such Holder will be acquired in
the ordinary course of business, (ii) such Holder will have no arrangements or
understanding with any person to participate in the distribution of the Offered
Certificates or the Exchange Certificates within the meaning of the 1933 Act,
and (iii) such Holder is not an "affiliate," as defined in Rule 405 of the 1933
Act, of the Company or any Trustee, nor a broker-dealer tendering Offered
Certificates acquired directly from the Company or any Trust for its own
account. If such Holder is a broker-dealer, it will be required to represent
that the Offered Certificates were acquired as a result of market-marking
activities or other trading activities and that it will deliver a prospectus in
connection with any resale of such Exchange Certificates. Each such Holder,
whether or not it is a broker-dealer, shall also represent that it is not acting
on behalf of any person that could not truthfully make any of the foregoing
representations contained in this paragraph.
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply (to the
extent applicable) solely with respect to Registrable Certificates held by the
Placement Agents or any Participating Broker-Dealers (as defined in Section
4(a)) as provided in (and subject to) Section 2(b)(ii), and the Company shall
have no further obligation to register Offered Certificates (other than such
Registrable Certificates of the Placement Agents and Participating
Broker-Dealers) pursuant to Section 2(b) of this Agreement.
(b) In the event that (i) the Company determines that the Exchange
Offer Registration provided for in Section 2(a) above is not available or may
not be consummated as
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soon as practicable after the last Exchange Date because it would violate
applicable law or the applicable interpretations of the Staff of the SEC, or
(ii) the Exchange Offer has been completed and in the opinion of counsel for the
Placement Agents a Registration Statement must be filed and a Prospectus must be
delivered by the Placement Agents in connection with any primary offering or
sale of Registrable Certificates, the Company shall use its reasonable best
efforts to cause to be filed as soon as practicable after such determination,
date or notice of such opinion of counsel is given to the Company, as the case
may be, a Shelf Registration Statement providing for the sale by the Holders of
all of the Registrable Certificates (in the case of clause (i) above) or by the
Placement Agents (in the case of clause (ii) above) and to have such Shelf
Registration Statement declared effective by the SEC. In the event the Company
is required to file a Shelf Registration Statement solely as a result of the
matters referred to in clause (ii) of the preceding sentence, the Company shall
use its reasonable best efforts to file and have declared effective by the SEC
both an Exchange Offer Registration Statement pursuant to Section 2(a) with
respect to all Registrable Certificates 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
Certificates held by the Placement Agents after completion of the Exchange
Offer. The Company agrees to use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective for a period of two years after
its effective date with respect to the Registrable Certificates or such shorter
period that will terminate when all of the Registrable Certificates covered by
the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or may be freely sold pursuant to Rule 144(k) under the
1933 Act. The Company further agrees to supplement or amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the 1933 Act or by any other rules and regulations
thereunder for shelf registration or if reasonably requested by a Holder with
respect to information relating to such Holder, and to use its best efforts to
cause any such amendment to become effective and such Shelf Registration
Statement to become usable as soon as thereafter practicable. The Company agrees
to furnish to the Holders of Registrable Certificates copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) or Section 2(b). Each Holder
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Certificates
pursuant to the Shelf Registration Statement.
(d) 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 Certificates pursuant to a Shelf
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
Shelf Registration Statement will be deemed not to have become effective during
the period of such interference until the offering of Registrable Certificates
pursuant to such Registration Statement may legally resume. In the event that
neither the consummation of the Exchange Offer nor the declaration by
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the SEC of a Shelf Registration to be effective (each a "Registration Event")
occurs on or prior to the 270th day (or, if such 270th day is not a business
day, the first business day thereafter) after the Closing Time, the interest
rate per annum borne by the Offered Certificates shall be increased by 0.50%,
effective from and including such 270th day (or, if such 270th day is not a
business day, the first business day thereafter), to but excluding the date on
which a Registration Event occurs provided that if, to permit additional Holders
of Offered Certificates (who have notified the Company in writing its intention
to participate in the Exchange Offer) to participate in the Exchange Offer, the
length of such Exchange Offer is extended beyond such 270th day (or, if such
270th day is not a business day, the first business day thereafter), the
interest rate shall not be increased if the Exchange Offer is consummated within
60 days of such extension. In the event that the Shelf Registration Statement
required to be effective pursuant to Section 2(b) hereof 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 Offered Certificates 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.
(e) Without limiting the remedies available to the Placement Agents
and the Holders, the Company acknowledges that any failure by the Company to
comply with its obligations under Section 2(a) and Section 2(b) hereof may
result in material irreparable injury to the Placement Agents or the Holders for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, each Placement Agent or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under Section 2(a)
and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of
the Company with respect to the Registration Statements pursuant to Section 2(a)
and Section 2(b) hereof, the Company shall as reasonably expeditiously as
possible:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the 1933 Act, which form (x) shall be selected by
the Company, (y) shall, in the case of a Shelf Registration, be available
for the sale of the Registrable Certificates by the selling Holders
thereof and (z) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith, and use its best efforts to
cause such Registration Statement to become effective and remain effective
in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to (x) keep
such Registration Statement effective for the applicable period under this
Agreement, (y) 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 and (z) keep each Prospectus current during
the period described under Section 4(3) and Rule 174 under the 1933 Act
that is applicable to transactions by brokers or dealers with respect to
the Registrable Certificates or Exchange Certificates;
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(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Certificates, to counsel for the Placement Agents, to counsel
for the Holders and to each Underwriter of an Underwritten Offering of
Registrable Certificates, if any, and each such Underwriter's Counsel,
without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder or Underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the
Registrable Certificates; and the Company consents to the use of such
Prospectus and any amendment or supplement thereto in accordance with
applicable law by each of the selling Holders of Registrable Certificates
and any such Underwriters in connection with the offering and sale of the
Registrable Certificates covered by and in the manner described in such
Prospectus or any amendment or supplement thereto in accordance with
applicable law;
(d) use its reasonable best efforts to register or qualify the
Registrable Certificates under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder of Registrable Certificates
covered by a Registration Statement shall reasonably request in writing by
the time the applicable Registration Statement is declared effective by
the SEC, to cooperate with such Holders in connection with any filings
required to be made with the National Association of Securities Dealers,
Inc. and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Holder to consummate the disposition
in each such jurisdiction of such Registrable Certificates owned by such
Holder; provided, however, that the Company shall not 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), (ii) file any general consent to service of process or
(iii) subject itself to taxation in any such jurisdiction if it is not so
subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Certificates, counsel for the Holders and counsel for the
Placement Agents promptly and, if requested by any such Holder or counsel,
confirm such advice in writing, (i) when a Registration Statement has
become effective and when any post-effective amendment thereto has been
filed and becomes effective, (ii) of any request by the SEC or any state
securities authority for amendments and supplements to a Registration
Statement and Prospectus or for material additional information after the
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 Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Certificates covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to the offering
cease to be true and correct in all material respects or if the Company
receives any notification with respect to the suspension of the
qualification of the Registrable Certificates for sale in any jurisdiction
or the initiation of any proceeding for such purpose, (v) of the happening
of any event during the period a Shelf Registration Statement is effective
12
which makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect 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
(vi) of any determination by the Company that a post-effective amendment
to a Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment and provide immediate notice to each Holder of
the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Certificates, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto,
unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Certificates to facilitate the timely preparation
and delivery of certificates representing Registrable Certificates to be
sold and not bearing any restrictive legends and enable such Registrable
Certificates to be in such denominations (consistent with the provisions
of the Applicable Trust Agreement) and registered in such names as the
selling Holders may reasonably request at least two business days prior to
the closing of any sale of Registrable Certificates;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, use its best efforts to
prepare and file with the SEC a supplement or post-effective amendment to
a 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 purchasers of the Registrable
Certificates, such Prospectus will not contain 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 the Holders to suspend
use of the Prospectus as promptly as practicable after the occurrence of
such an event, and the Holders hereby agree to suspend use of the
Prospectus until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of such
document to the Placement Agents and their counsel (and, in the case of a
Shelf Registration Statement, the Holders and their counsel) and make such
of the representatives of the Company as shall be reasonably requested by
the Placement Agents or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) available for
discussion of such document, and shall not at any time file or make
13
any amendment to the Registration Statement, any Prospectus or any
amendment of or supplement to a Registration Statement or a Prospectus or
any document which is to be incorporated by reference into a Registration
Statement or a Prospectus, of which the Placement Agents and their counsel
(and, in the case of a Shelf Registration Statement, the Holders and their
counsel) shall not have previously been advised and furnished a copy or to
which the Placement Agents or their counsel (and, in the case of a
Registration Statement, the Holders or their counsel) shall object;
(k) obtain a CUSIP number for all Exchange Certificates or
Registrable Certificates, as the case may be, not later than the effective
date of a Registration Statement;
(l) cause the Trust Agreements to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA") in connection with the
registration of the Exchange Certificates or Registrable Certificates, as
the case may be, cooperate with the Trustees and the Holders to effect
such changes to the Trust Agreements as may be required for the Trust
Agreements to be so qualified in accordance with the terms of the TIA and
execute, and use its best efforts to cause the Trustees 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 Trust
Agreements to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, upon execution of customary
confidentiality agreements reasonably satisfactory to the Company and its
counsel, (other than a Placement Agent) make available for inspection by a
representative of the Holders of the Registrable Certificates, any
Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and attorneys and accountants designated by the
Holders, at reasonable times and in a reasonable manner, all financial and
other records, pertinent documents and properties of the Company, and
cause the respective officers, directors and employees of the Company to
supply all information reasonably requested by any such representative,
Underwriter, attorney or accountant in connection with a Shelf
Registration Statement as shall be necessary to enable such persons to
conduct a reasonable investigation within the meaning of Section 11 of the
1933 Act;
(n) use its reasonable best efforts to cause the Exchange
Certificates or Registrable Certificates, as the case may be, to be rated
by two nationally recognized statistical rating organizations (as such
term is defined in Rule 436(g)(2) under the 0000 Xxx);
(o) if reasonably requested by any Holder of Registrable
Certificates covered by a Registration Statement, (i) promptly incorporate
in a Prospectus supplement or post-effective amendment such information
with respect to such Holder as such Holder reasonably requests to be
included therein and (ii) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as the Company has
received notification of the matters to be incorporated in such filing;
and
14
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith
(including those requested by the Holders of a majority of the Registrable
Certificates being sold) in order to expedite or facilitate the
disposition of such Registrable Certificates including, but not limited
to, an Underwritten Offering and in such connection, (i) to the extent
possible, make such representations and warranties to the Holders and any
Underwriters of such Registrable Certificates with respect to the business
of the Company and its subsidiaries, the Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated
by reference therein, if any, in each case, in form, substance and scope
as are customarily made by issuers to underwriters in underwritten
offerings and confirm the same if and when requested, (ii) obtain opinions
of counsel to the Company (which counsel and opinions, in form, scope and
substance, shall be reasonably satisfactory to the Holders of a majority
in principal amount of Registrable Certificates being sold and such
Underwriters and their respective counsel) addressed to each selling
Holder and Underwriter of Registrable Certificates, covering the matters
customarily covered in opinions requested in underwritten offerings, (iii)
obtain "cold comfort" letters from the independent certified public
accountants of the Company (and, if necessary, any other certified public
accountant of any subsidiary of the Company, or of any business acquired
by the Company for which financial statements and financial data are or
are required to be included in the Registration Statement) addressed to
each selling Holder and Underwriter of Registrable Certificates, such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings, and (iv) deliver such documents and certificates
as may be reasonably requested by the Holders of a majority in principal
amount of the Registrable Certificates being sold or the Underwriters, and
which are customarily delivered in underwritten offerings, to evidence the
continued validity of the representations and warranties of the Company
made pursuant to clause (i) above and to evidence compliance with any
customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may
require each Holder of Registrable Certificates to furnish to the Company such
information regarding the Holder and the proposed distribution by such Holder of
such Registrable Certificates as the Company may from time to time reasonably
request in writing. The Company may exclude from such registration the
Registrable Certificates of any Holder who 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
of the kind described in Section 3(e)(v) hereof, such Holder will forthwith
discontinue disposition of Registrable Certificates pursuant to a Shelf
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) 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 Certificates current at the time of receipt of such
15
notice. If the Company shall give any such notice to suspend the disposition of
Registrable Certificates pursuant to a Registration Statement, the Company 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.
The Holders of Registrable Certificates covered by a Shelf
Registration Statement who desire to do so may sell such Registrable
Certificates in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers (the
"Underwriters") that will administer the offering will be selected by the
Majority Holders of the Registrable Certificates included in such offering,
subject to the consent of the Company (which shall not be unreasonably
withheld).
4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff
of the SEC has taken the position that any broker-dealer that receives Exchange
Certificates for its own account in the Exchange Offer in exchange for Offered
Certificates that were acquired by such broker-dealer as a result of market
making or other trading activities (a "Participating Broker-Dealer") may be
deemed to be an "underwriter" within the meaning of the 1933 Act and must
deliver a prospectus meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Certificates. No Participating Broker-Dealers other
than the Placement Agents and persons who have obtained the Company's prior
written consent to act as a market maker shall have any rights as Participating
Broker-Dealers under this Agreement.
The Company understands that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Certificates, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Certificates owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the 1933
Act in connection with resales of Exchange Certificates for their own accounts,
so long as the Prospectus otherwise meets the requirements of the 1933 Act.
(b) In light of Section 4(a) above, notwithstanding the other
provisions of this Agreement, the Company agrees that the provisions of this
Agreement as they relate to a Shelf Registration shall also apply to the
Exchange Offer Registration to the extent, and with such reasonable
modifications thereto as may be reasonably requested by the Placement Agents or
by one or more Participating Broker-Dealers, in each case as provided in clause
(ii) below, in order to expedite or facilitate the disposition of any Exchange
Certificates by Participating Broker-Dealers consistent with the positions of
the Staff recited in Section 4(a) above; provided that:
(i) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement, as
would otherwise be contemplated by Section 3(i), for a period exceeding 90
days after the last Exchange Date
16
(as such period may be discontinued and extended pursuant to the
penultimate paragraph of Section 3 of this Agreement) and Participating
Broker-Dealers shall not be authorized by the Company to deliver and shall
not deliver such Prospectus after such period in connection with the
resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures set forth
in Section 3 of this Agreement to an Exchange Offer Registration, to the
extent not required by the positions of the Staff of the SEC or the 1933
Act and the rules and regulations thereunder, will be in conformity with
the reasonable request to the Company by the Placement Agents or with the
reasonable request in writing to the Company by one or more broker-dealers
who certify to the Placement Agents and the Company in writing that they
anticipate that they will be Participating Broker-Dealers in accordance
with Section 4(a); provided that in connection with such application of
the Shelf Registration procedures set forth in Section 3 to an Exchange
Offer Registration, the Company shall be obligated (x) to deal only with
one entity representing the Participating Broker-Dealers, which shall be
Xxxxxx Xxxxxxx unless it elects not to act as such representative, (y) to
pay the fees and expenses of only one counsel representing the
Participating Broker-Dealers, which shall be counsel to the Placement
Agents unless such counsel elects not to so act, and (z) to cause to be
delivered only one, if any, "cold comfort" letter with respect to the
Prospectus in the form existing on the last Exchange Date and with respect
to each subsequent amendment or supplement, if any, effected during the
period specified in clause (i) above.
(c) The Placement Agents shall have no liability to the Company or
any Holder with respect to any request that it may make pursuant to Section 4(b)
above.
5. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Placement Agents, each Holder and each Person,
if any, who controls any Placement Agent or any Holder within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is under
common control with, or is controlled by, any Placement Agent or any Holder,
from and against all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by the Placement
Agent, any such Holder or any such controlling or affiliated 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
Certificates or Registrable Certificates 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 the
17
Placement Agents or any Holder furnished to the Company in writing through
Xxxxxx Xxxxxxx or any selling Holder expressly for use therein provided,
however, that the foregoing indemnity agreement shall not inure to the benefit
of any Holder to the extent that any such losses, claims, damages or liabilities
result from the fact that such Holder sold securities to a person to whom there
was not sent or given by or on behalf of such Holder (if required by law so to
have been delivered) a copy of the final Prospectus (in the case of any
preliminary Prospectus) or a prospectus amendment or supplement (in the case of
any Prospectus) at or prior to the written confirmation of the sale of the
Registrable Certificates to such person if the Company had previously furnished
copies thereof to such Holder and such untrue statement or omission or alleged
untrue statement or omission was corrected in such final Prospectus or
prospectus amendment or supplement, nor shall this indemnity agreement inure to
the benefit of any Holder from whom the person asserting any such losses,
claims, damages or liabilities purchased the Registrable Certificates concerned
if at the time of such purchase such Holder had received written notice from the
Company that the use of such Prospectus, amendment, supplement or preliminary
Prospectus was suspended as provided in the penultimate paragraph of Section 3.
In connection with any Underwritten Offering permitted by Section 3, the Company
will also indemnify the Underwriters, if any, selling brokers, dealers and
similar securities industry professionals participating in the distribution,
their officers and directors and each Person who controls such Persons (within
the meaning of the 1933 Act and the 0000 Xxx) 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, the Placement Agents 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, any Placement Agent
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 Placement Agents and 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 of 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
18
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 (a) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Placement Agents and all
Persons, if any, who control any Placement Agent within the meaning of either
Section 15 of the 1933 Act or Xxxxxxx 00 xx xxx 0000 Xxx, (x) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Company, its directors, its officers who sign the Registration Statement and
each Person, if any, who controls the Company within the meaning of either such
Section and (c) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Holders and all Persons, if any, who
control any Holders within the meaning of either such Section, and that all such
fees and expenses shall be reimbursed as they are incurred. In such case
involving the Placement Agents and Persons who control the Placement Agents,
such firm shall be designated in writing by Xxxxxx Xxxxxxx. In such case
involving the Holders and such Persons who control Holders, such firm shall be
designated in writing by the Majority Holders. In all other cases, such firm
shall be designated by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent (which
consent shall not be unreasonably withheld) 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 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. 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 (which consent shall not be unreasonably withheld), 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
19
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or 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 principle amount of Registrable Certificates 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 Certificates
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
the Placement Agents, any Holder or any person controlling any Placement Agent
or 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
Certificates and (iv) any sale of Registrable Certificates pursuant to a Shelf
Registration Statement.
6. Miscellaneous. (a) No Inconsistent Agreements. The Company has
not entered into, and on or after the date of this Agreement will not enter
into, any agreement that is inconsistent with the rights granted to the Holders
of Registrable Certificates in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's other issued and outstanding securities under any such agreements.
(b) 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 Certificates affected by such amendment, modification, supplement,
waiver or consent; provided, however, that no amendment, modification,
supplement, waiver or
20
consents to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Certificates unless consented to
in writing by such Holder.
(c) 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(c), which address initially is, with respect to the Placement Agents,
the address set forth in the Placement Agreement, and (ii) if to the Company,
initially at the Company's address set forth in the Placement Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 6(c).
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.
Copies of all such notices, demands, or other communications shall
be concurrently delivered by the person giving the same to each applicable
Trustee, at the address specified in the Applicable Trust Agreement.
(d) 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
Certificates in violation of the terms of the Placement Agreement or the Trust
Agreements. If any transferee of any Holder shall acquire Registrable
Certificates, in any manner, whether by operation of law or otherwise, such
Registrable Certificates shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Certificates, 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 and such Person shall be entitled to
receive the benefits hereof. The Placement Agents (in their capacity as
Placement Agents) shall have no liability or obligation to the Company with
respect to any failure by any other Holder to comply with, or any breach by any
other Holder of, any of the obligations of such other Holder under this
Agreement.
(e) Purchases and Sales of Certificates. The Company shall not, and
shall use its best efforts to cause its affiliates (as defined in Rule 405 under
the 0000 Xxx) to not, purchase and then resell or otherwise transfer any Offered
Certificates prior to consummation of the Exchange Offer or a Shelf Registration
Statement being declared effective.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder and shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights hereunder.
21
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(j) 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.
(k) Trustees. The Trustees shall take such action as may be
reasonably requested by the Company in connection with the Company satisfying
its obligations arising under this Agreement.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
AMERICAN AIRLINES, INC.
By: ____________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY
OF CONNECTICUT, NATIONAL ASSOCIATION,
as Trustee
By: ____________________________________
Name:
Title:
Confirmed and accepted as of the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX XXXXXX INC.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By:_______________________________
Name:
Title:
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