Exhibit 4.25
TRANS WORLD AIRLINES, INC.
11 3/8% Senior Notes Due 2006
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement")
is made and entered into as of March 3, 1998, by Trans World
Airlines, Inc., a Delaware corporation (the "Company"), and
Lazard Freres & Co. LLC (the "Initial Purchaser"). Subject to
the terms and conditions stated in the Purchase Agreement dated
as of February 25, 1998 between the Company and the Initial
Purchaser (the "Purchase Agreement"), the Company shall issue and
sell to the Initial Purchaser $150,000,000 aggregate principal
amount of 11 3/8% Senior Notes Due 2006 (the "Notes"). The Notes
will be issued pursuant to an indenture dated as of March 3, 1998
(the "Indenture"), between the Company and First Security Bank,
National Association, as trustee (the "Trustee"). As an
inducement to the Initial Purchaser, the Company hereby agrees
with the Initial Purchaser, for the benefit of the holders of the
Notes (including, without limitation, the Initial Purchaser), the
Exchange Notes (as defined below) and the Private Exchange Notes
(as defined below) (collectively, the "Holders"), as follows:
SECTION 1. EXCHANGE OFFER REGISTRATION
The Company shall, at its cost, use its best efforts to
prepare and, not later than 60 days after (or if the 60th day is
not a business day, the first business day thereafter) the Issue
Date (as defined in the Indenture) of the Notes, file with the
Securities and Exchange Commission (the "Commission"), a
registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act of
1933, as amended (the "Securities Act"), with respect to a
proposed offer (the "Registered Exchange Offer") to the Holders
of Transfer Restricted Notes (as defined below), who are not
prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer, to issue and
deliver to such Holders, in exchange for the Notes, a like
aggregate principal amount of debt securities (the "Exchange
Notes") of the Company issued under the Indenture and identical
in all material respects to the Notes (except for the transfer
restrictions relating to the Notes) that would be registered
under the Securities Act. The Company shall use its best efforts
to cause such Exchange Offer Registration Statement to become
effective under the Securities Act within 150 days (or if the
150th day is not a business day, the first business day
thereafter) after the Issue Date of the Notes and shall keep the
Exchange Offer Registration Statement effective for not less than
30 days (or longer if required by applicable law) after the date
on which notice of the Registered Exchange Offer is mailed to the
Holders (such period being called the "Exchange Offer
Registration Period").
If the Company effects the Registered Exchange Offer,
the Company will be entitled to close the Registered Exchange
Offer 30 days after the commencement thereof; provided, however,
that the Company has accepted all the Notes theretofore validly
tendered in accordance with the terms of the Registered Exchange
Offer.
Following the declaration of the effectiveness of the
Exchange Offer Registration Statement, the Company shall promptly
commence the Registered Exchange Offer, it being the objective of
such Registered Exchange Offer to enable each Holder of Transfer
Restricted Notes electing to exchange the Notes for Exchange
Notes (assuming that such Holder is not an affiliate of the
Company within the meaning of the Securities Act, acquires the
Exchange Notes in the ordinary course of such Holder's business,
has no arrangements with any person to participate in the
distribution (within the meaning of the Securities Act) of the
Exchange Notes and is not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer)
to trade such Exchange Notes from and after their receipt without
any limitations or restrictions under the Securities Act and
without material restrictions under the securities laws of the
several states of the United States. In connection with such
Registered Exchange Offer, the Company shall take such further
action, including, without limitation, appropriate filings under
state securities laws, as may be necessary to realize the
foregoing objective subject to the proviso of Section 3(h).
The Company acknowledges that, pursuant to current
interpretations by the Commission's staff of Section 5 of the
Securities Act, in the absence of an applicable exemption
therefrom, (i) each Holder that is a broker-dealer electing to
exchange Notes, acquired for its own account as a result of
market making activities or other trading activities, for
Exchange Notes (an "Exchanging Dealer"), is required to deliver a
prospectus containing the information set forth in Annex A hereto
on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer"
section, and in Annex C hereto in the "Plan of Distribution"
section of such prospectus in connection with a sale of any such
Exchange Notes received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) the Initial Purchaser selling
Exchange Notes acquired in exchange for Notes constituting any
portion of an unsold allotment is required to deliver a
prospectus containing the information required by Items 507 or
508 of Regulation S-K under the Securities Act, as applicable, in
connection with such sale.
The Company shall use its best efforts to keep the
Exchange Offer Registration Statement effective and to amend and
supplement the prospectus contained therein in order to permit
such prospectus to be lawfully delivered by all persons subject
to the prospectus delivery requirements of the Securities Act for
such period of time as such persons must comply with such
requirements in order to resell the Exchange Notes; provided,
however, that (i) in the case where such prospectus and any
amendment or supplement thereto must be delivered by an
Exchanging Dealer or the Initial Purchaser, such period shall be
the lesser of 180 days after the expiration date of the
Registered Exchange Offer and the date on which all Exchanging
Dealers and the Initial Purchaser have sold all Exchange Notes
held by them (unless such period is extended pursuant to Section
3(j) below), and (ii) the Company shall make such prospectus and
any amendment or supplement thereto available to any broker-
dealer for use in connection with any resale of any Exchange
Notes for a period not less than 90 days after the consummation
of the Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer,
the Initial Purchaser holds Notes acquired by it as part of its
initial distribution, the Company, simultaneously with the
delivery of the Exchange Notes pursuant to the Registered
Exchange Offer, shall issue and deliver to the Initial Purchaser
upon the written request of the Initial Purchaser, in exchange
(the "Private Exchange") for the Notes held by the Initial
Purchaser, a like principal amount of debt securities of the
Company issued under the Indenture and identical in all material
respects (including the existence of restrictions on transfer
under the Securities Act and the securities laws of the several
states of the United States) to the Notes (the "Private Exchange
Notes"). The Notes, the Exchange Notes and the Private Exchange
Notes are herein collectively called the "Securities".
In connection with the Registered Exchange Offer, the
Company shall:
(a) 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;
(b) keep the Registered Exchange Offer open for not
less than 30 days (or longer, if required by applicable law)
after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of
Manhattan, The City of New York, which may be the Trustee or an
affiliate of the Trustee;
(d) permit Holders to withdraw tendered Notes at any
time prior to the close of business, New York time, on the last
business day on which the Registered Exchange Offer shall remain
open; and
(e) otherwise comply in all material respects with all
applicable law.
As soon as practicable after the close of the
Registered Exchange Offer or the Private Exchange, as the case
may be, the Company shall:
(i) accept for exchange all the Notes validly
tendered and not withdrawn pursuant to the Registered
Exchange Offer or the Private Exchange, as the case may be;
(ii) deliver to the Trustee for cancellation all the
Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and promptly
deliver to each Holder of the Notes, Exchange Notes or
Private Exchange Notes, as the case may be, equal in
principal amount to the Notes of each Holder so accepted for
exchange.
The Indenture will provide that the Exchange Notes will
not be subject to the transfer restrictions set forth in the
Indenture and that all the Securities will vote and consent
together on all matters as one class and that none of the
Securities will have the right to vote or consent as a class
separate from one another on any matter.
Each Holder participating in the Registered Exchange
Offer shall be required to represent to the Company that at the
time of the consummation of the Registered Exchange Offer (i) any
Exchange Notes 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 Notes or the Exchange Notes within the
meaning of the Securities Act, (iii) such Holder is not an
"affiliate", as defined in Rule 405 of the Securities Act, of the
Company or, if it is an affiliate, such Holder will comply with
the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (iv) if such Holder is
not a broker-dealer, that it is not engaged in, and does not
intend to engage in, the distribution of the Exchange Notes, and
(v) if such Holder is a broker-dealer, that it will receive
Exchange Notes for its own account in exchange for Notes that
were acquired as a result of market-making activities or other
trading activities and that it will deliver a prospectus in
connection with any resale of such Exchange Notes.
Notwithstanding any other provisions hereof, the
Company will ensure that (i) any Exchange Offer Registration
Statement and any amendment thereto and any prospectus forming
part thereof and any supplement thereto will comply in all
material respects with the Securities 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, will not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
that in no such case shall the Company be responsible for
information concerning the Initial Purchaser included in the
Exchange Offer Registration Statement, the prospectus contained
therein, or any amendment or supplement thereto, as the case may
be.
SECTION 2. SHELF REGISTRATION STATEMENT
(a) If (i) because of any change in law or in
applicable interpretations thereof by the staff of the
Commission, the Company is not permitted to effect a Registered
Exchange Offer, as contemplated by Section 1 hereof, (ii) the
Registered Exchange Offer is not consummated within 180 days of
the date of this Agreement, (iii) the Initial Purchaser so
requests with respect to the Notes (or the Private Exchange
Notes) not eligible to be exchanged for Exchange Notes in the
Registered Exchange Offer and held by it following consummation
of the Registered Exchange Offer or (iv) any Holder (other than
an Exchanging Dealer) is not eligible to participate in the
Registered Exchange Offer or, in the case of any Holder (other
than an Exchanging Dealer) that participates in the Registered
Exchange Offer, such Holder does not receive freely tradeable
Exchange Notes on the date of the exchange, the Company shall
take the following actions:
(i) The Company shall use its best efforts, at its
cost, as promptly as practicable (but in no event more than
the later of (i) 60 days after the Issue Date and (ii) 30
days after so required or requested pursuant to this Section
2) to file with the Commission and thereafter shall use its
best efforts to cause to be declared effective a
registration statement (the "Shelf Registration Statement"
and, together with the Exchange Offer Registration
Statement, a "Registration Statement") on an appropriate
form under the Securities Act relating to the offer and sale
of the Transfer Restricted Notes by the Holders thereof from
time to time in accordance with the methods of distribution
set forth in the Shelf Registration Statement and Rule 415
under the Securities Act (hereinafter, the "Shelf
Registration"); provided, however, that no Holder (other
than the Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound
by all the provisions of this Agreement applicable to such
Holder (including certain indemnification obligations).
(ii) The Company shall use its best efforts to keep
the Shelf Registration Statement continuously effective in
order to permit the prospectus included therein to be
lawfully delivered by the Holders of the relevant
Securities, for a period of two years (or for such longer
period if extended pursuant to Section 3(j) below) from the
Issue Date or such shorter period that will terminate when
all the Securities covered by the Shelf Registration
Statement have been sold pursuant thereto or can be sold
pursuant to Rule 144(k) thereof. Subject to Section 6(b),
the Company shall be deemed not to have used its best
efforts to keep the Shelf Registration Statement effective
during the requisite period if it voluntarily takes any
action that would result in Holders of Securities covered
thereby not being able to offer and sell such Securities
during that period, unless such action is required by
applicable law; provided, however, that the Company shall
not be deemed to have voluntarily taken any such action if
it enters, in good faith, into negotiations concerning, or
executes and delivers any agreement or other document
relating to, any business combination, acquisition or
disposition.
(iii) Notwithstanding any other provision of this
Agreement to the contrary, the Company shall cause the Shelf
Registration Statement and the related prospectus and any
amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement, amendment or supplement,
(i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and
regulations of the Commission and (ii) not to contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) No Holder of Securities may include any of its
Securities in the Shelf Registration Statement unless such Holder
furnishes to the Company in writing, within 10 business days
after receipt of a request therefor (which initial request shall
be made within 40 days after the Closing to the Holders of record
on a date not more than 5 days prior to such request), such
information and representations and warranties as the Company may
reasonably request for use in connection with the Shelf
Registration Statement or prospectus or preliminary prospectus
included therein. No Holder of Securities shall be entitled to
Special Interest, pursuant to Section 6 hereof, if such Holder's
Securities are excluded from the Shelf Registration Statement
because such Holder failed to furnish the Company in writing such
information and representations and warranties reasonably
requested by the Company for use in connection with the Shelf
Registration Statement or prospectus or preliminary prospectus
included therein. Each Holder as to which the Shelf Registration
Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make
the information previously provided to the Company by such Holder
not misleading.
SECTION 3. REGISTRATION PROCEDURES
In connection with the Shelf Registration contemplated
by Section 2 hereof and, to the extent applicable, any Registered
Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Company shall (i) furnish to the Initial
Purchaser, prior to the filing thereof with the Commission, a
copy of the Registration Statement and each amendment thereof and
each supplement, if any, to the prospectus included therein and,
in the event that the Initial Purchaser (with respect to any
portion of an unsold allotment from the original offering) is
participating in the Registered Exchange Offer or the Shelf
Registration Statement, shall use its best efforts to reflect in
each such document, when so filed with the Commission, such
comments as the Initial Purchaser reasonably may propose; (ii)
include the information set forth in Annex A hereto on the cover,
in Annex B hereto in the "Exchange Offer Procedures" section and
the "Purpose of the Exchange Offer" section and in Annex C hereto
in the "Plan of Distribution" section of the prospectus forming a
part of the Exchange Offer Registration Statement and include the
information set forth in Annex D hereto in the Letter of
Transmittal delivered pursuant to the Registered Exchange Offer;
(iii) if requested by the Initial Purchaser, include the
information required by Items 507 or 508 of Regulation S-K under
the Securities Act, as applicable, in the prospectus forming a
part of the Exchange Offer Registration Statement; (iv) include
within the prospectus contained in the Exchange Offer
Registration Statement a section entitled "Plan of Distribution",
reasonably acceptable to the Initial Purchaser, which shall
contain a summary statement of the positions taken or policies
made by the staff of the Commission with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial
owner (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934, as amended (the "Exchange Act")) of Exchange Notes
received by such broker-dealer in the Registered Exchange Offer
(a "Participating Broker-Dealer"), whether such positions or
policies have been publicly disseminated by the staff of the
Commission or such positions or policies, in the reasonable
judgment of the Initial Purchaser based upon advice of counsel
(which may be in-house counsel), represent the prevailing views
of the staff of the Commission; and (v) in the case of a Shelf
Registration Statement, include the names of the Holders who
propose to sell Securities pursuant to the Shelf Registration
Statement as selling securityholders.
(b) The Company shall give written notice to the
Initial Purchaser, the Holders of the Securities and any
Participating Broker-Dealer from whom the Company has received
prior written notice that it will be a Participating Broker-
Dealer in the Registered Exchange Offer (which notice pursuant to
clauses (ii)-(v) hereof shall be accompanied by an instruction to
suspend the use of the prospectus until the requisite changes
have been made):
(i) when the Registration Statement or any
amendment thereto has been filed with the Commission and
when the Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of any request by the Commission for
amendments or supplements to the Registration Statement or
the prospectus included therein or for additional
information (provided, however, that with respect to any
requests prior to the effectiveness of the Registration
Statement, the Company shall be required to give written
notice only to the Initial Purchaser and its counsel, Xxxxxx
Xxxxxxx & Xxxx LLP);
(iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the suspension
of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires
the Company to make changes in the Registration Statement or
the prospectus in order that the Registration Statement or
the prospectus does not contain an untrue statement of a
material fact nor omit to state a material fact required to
be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
(c) The Company shall use its best efforts to obtain
the withdrawal at the earliest possible time of any order
suspending the effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of
Securities included within the coverage of the Shelf
Registration, without charge, at least one copy of the Shelf
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder
so requests in writing, all exhibits thereto (including those, if
any, incorporated by reference).
(e) The Company shall deliver to each Exchanging
Dealer or Participating Broker-Dealer, to the Initial Purchaser,
and to any other Holder who so requests, without charge, at least
one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements
and schedules, and, if the Initial Purchaser or any such Holder
requests, all exhibits thereto (including those incorporated by
reference).
(f) The Company shall deliver to each Holder of
Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as
such person may reasonably request. The Company consents,
subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto included in the
Shelf Registration Statement by each of the selling Holders of
the Securities in connection with the offering and sale of the
Securities covered by such prospectus, or any such amendment
supplement.
(g) The Company shall deliver to the Initial
Purchaser, any Exchanging Dealer, any Participating Broker-Dealer
and such other persons required to deliver a prospectus following
the Registered Exchange Offer, without charge, as many copies of
the final prospectus included in the Exchange Offer Registration
Statement and any amendment or supplement thereto as such persons
may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by the Initial Purchaser, if
necessary, any Exchanging Dealer, any Participating Broker-Dealer
and such other persons required to deliver a prospectus following
the Registered Exchange Offer in connection with the offering and
sale of the Exchange Notes covered by the prospectus, or any
amendment or supplement thereto, included in such Exchange Offer
Registration Statement.
(h) Prior to any public offering of the Securities,
pursuant to any Registration Statement, the Company shall use its
best efforts to register or qualify or cooperate with the Holders
of the Securities included therein and their respective counsel
in connection with the registration or qualification of the
Securities for offer and sale under the securities or "blue sky"
laws of such states of the United States as any Holder of the
Securities reasonably requests in writing and do any and all
other acts or things necessary or advisable to enable the offer
and sale in such jurisdictions of the Securities covered by such
Registration Statement; provided, however, that the Company shall
not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified, (ii) take any
action which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so subject or
(iii) register or qualify Securities or take any other action
under the securities or "blue sky" laws of any jurisdiction if,
in the judgment of the Board of Directors of the Company, the
consequences of such registration, qualification or other action
would be unduly burdensome to the Company.
(i) The Company shall cooperate with the Holders of
the Securities to facilitate the timely preparation and delivery
of certificates representing the Securities to be sold pursuant
to any Registration Statement free of any restrictive legends and
in such denominations and registered in such names as the Holders
may request a reasonable period of time prior to sales of the
Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 3(b) above during the
period for which the Company is required to maintain an effective
Registration Statement, the Company shall promptly prepare and
file a post-effective amendment to the Registration Statement or
a supplement to the related prospectus and any other required
document so that, as thereafter delivered to Holders of the Notes
or the Exchange Notes or purchasers of Securities, the prospectus
will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the
Company notifies the Initial Purchaser, the Holders of the
Securities and any known Exchanging Dealer or Participating
Broker-Dealer in accordance with paragraphs (ii) through (v) of
Section 3(b) above to suspend the use of the prospectus until the
requisite changes to the prospectus have been made, then the
Initial Purchaser, the Holders of the Securities and any such
Exchanging Dealer or Participating Broker-Dealer shall suspend
use of such prospectus, and the period of effectiveness of the
Shelf Registration Statement provided for in Section 2 above and
the Exchange Offer Registration Statement provided for in Section
1 above shall each be extended (i) by the number of days from and
including the date of the giving of such notice to and including
the date when the Initial Purchaser, the Holders of the
Securities and any known Exchanging Dealer or Participating
Broker-Dealer shall have received such amended or supplemented
prospectus pursuant to this Section 3(j) or (ii) if earlier,
until the date when none of the Securities represent Transfer
Restricted Notes (as defined in Section 6(d)).
(k) Not later than the effective date of the
applicable Registration Statement, the Company will provide a
CUSIP number for the Notes, the Exchange Notes or the Private
Exchange Notes, as the case may be, and provide the applicable
trustee with printed certificates for the Notes, the Exchange
Notes or the Private Exchange Notes, as the case may be, in a
form eligible for deposit with The Depository Trust Company.
(l) The Company will comply with all rules and
regulations of the Commission to the extent and so long as they
are applicable to the Registered Exchange Offer or the Shelf
Registration and will make generally available to its security
holders (or otherwise provide in accordance with Section 11(a) of
the Securities Act) an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no later than
45 days after the end of a 12-month period (or 90 days, if such
period is a fiscal year) beginning with the first month of the
Company's first fiscal quarter commencing after the effective
date of the Registration Statement, which statement shall cover
such 12-month period.
(m) The Company shall cause the Indenture to be
qualified under the Trust Indenture Act of 1939, as amended, in a
timely manner and containing such changes, if any, as shall be
necessary for such qualification. In the event that such
qualification would require the appointment of a new trustee
under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the
Indenture.
(n) The Company may require each Holder of Securities
to be sold pursuant to the Shelf Registration Statement to
furnish to the Company such information regarding the Holder and
the distribution of the Securities as the Company may from time
to time reasonably require for inclusion in the Shelf
Registration Statement, and the Company may exclude from such
registration the Securities of any Holder that unreasonably fails
to furnish such information within a reasonable time after
receiving such request.
(o) The Company shall enter into such customary
agreements (including if requested an underwriting agreement in
customary form) and take all such other action, if any, as may be
required in order to facilitate the disposition of the Securities
pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, subject to
appropriate confidentiality arrangements being entered into, the
Company shall (i) make available at reasonable times for
inspection by the Holders of the Securities, any underwriter
participating in any disposition pursuant to the Shelf
Registration Statement and any attorney, accountant or other
agent retained by the Holders of the Securities or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and (ii) cause
the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested
by the Holders of the Securities or any such underwriter,
attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as shall be reasonably
necessary, in the judgment of the Holder or any such underwriter,
attorney, accountant or agent referred to in this paragraph, to
conduct a reasonable investigation within the meaning of Section
11 of the Securities Act.
(q) In the case of any Shelf Registration, the
Company, if requested by any Holder of Securities covered
thereby, shall cause (i) its counsel to deliver an opinion and
updates thereof relating to the Securities in customary form
addressed to such Holders and the managing underwriters, if any,
thereof and dated, in the case of the initial opinion, the
effective date of such Shelf Registration Statement covering the
matters customarily covered in opinions of counsel requested in
underwritten offerings and such other matters as may be
reasonably requested by the managing underwriter or underwriters;
(ii) its officers to execute and deliver all customary documents
and certificates and updates thereof reasonably requested by any
underwriters of the applicable Securities; and (iii) its
independent public accountants to provide to the selling Holders
of the applicable Securities and any underwriter therefor a
comfort letter in customary form and covering matters of the type
customarily covered in comfort letters in connection with primary
underwritten offerings, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if
requested by the Initial Purchaser or any known Exchanging Dealer
or Participating Broker-Dealer, the Company shall cause (i) its
counsel to deliver to the Initial Purchaser or such Exchanging
Dealer or Participating Broker-Dealer, signed opinions in the
forms set forth in Section 5(e) of the Purchase Agreement with
such changes as are customary in connection with the preparation
of a Registration Statement and (ii) its independent public
accountants to deliver to the Initial Purchaser or such
Exchanging Dealer or Participating Broker-Dealer a comfort
letter, in customary form, meeting the requirements as to the
substance thereof as set forth in Section 5(g) of the Purchase
Agreement, with appropriate date changes.
(s) If a Registered Exchange Offer or a Private
Exchange is to be consummated, upon delivery of the Notes by
Holders to the Company (or to such other Person as directed by
the Company) in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be, the Company shall xxxx, or
cause to be marked, on the Notes so exchanged that such Notes are
being cancelled in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be; in no event shall the Notes
be marked as paid or otherwise satisfied.
(t) In the event that any broker-dealer registered
under the Exchange Act shall underwrite any Securities or
participate as a member of an underwriting syndicate or selling
group or "assist in the distribution" (within the meaning of the
Rules of Fair Practice and the By-Laws of the National
Association of Securities Dealers, Inc. ("NASD")) thereof,
whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect
thereof, or otherwise, the Company shall assist such broker-
dealer in complying with the requirements of such Rules and By-
Laws (including without limitation the indemnification of any
"qualified independent underwriter" required thereby).
(u) The Company will use its best efforts to cause the
Transfer Restricted Notes to be eligible for inclusion in the
National Association of Securities Dealers, Inc. Private
Offerings, Resales and Trading through Automated Linkages trading
system.
(v) The Company shall use its best efforts to take all
other steps necessary to effect the registration of the
Securities covered by a Registration Statement contemplated
hereby.
(w) The Company agrees that it will not include in the
registration contemplated by the Shelf Registration Statement any
securities other than the Securities.
(x) The Company hereby agrees to list the Notes on the
American Stock Exchange or on such other stock exchange or market
as the Common Stock is then principally traded no later than the
earliest to occur of (i) the effectiveness of the initial
Exchange Offer Registration Statement and (ii) the effectiveness
of the initial Shelf Registration Statement, provided that such
Notes meet the minimum requirements for listing on any such
exchange or market, and, if applicable, to maintain such listing
for so long as any of the Notes is outstanding.
SECTION 4. REGISTRATION EXPENSES
The Company shall bear all fees and expenses incurred
in connection with the performance of its obligations under
Sections 1 through 3 hereof (including the reasonable fees and
expenses of Xxxxxx Xxxxxxx & Xxxx LLP, counsel for the Initial
Purchaser, incurred in connection with the Registered Exchange
Offer), whether or not the Registered Exchange Offer or a Shelf
Registration is filed or becomes effective, and, in the event of
a Shelf Registration, shall bear, or reimburse the Holders of the
Securities covered thereby for, the reasonable fees and
disbursements of one firm of counsel designated by the Holders of
a majority in principal amount of the Securities covered thereby
to act as counsel for the Holders of the Securities in connection
therewith, it being understood that the Company shall not be
responsible for the fees and expenses of more than one counsel
employed at any one time.
The Company will, in any event, bear its internal
expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, and the fees
and expenses of any Person, including special experts, retained
by the Company. The Holders shall bear the expense of any
broker's commission or underwriters' discount or commission.
SECTION 5. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless
each Holder of the Securities, any Exchanging Dealer, any
Participating Broker-Dealer and each person, if any, who controls
such Holder, Exchanging Dealer or Participating Broker-Dealer
within the meaning of the Securities Act or the Exchange Act
(each Holder, Exchanging Dealer, Participating Broker-Dealer and
such controlling persons being referred to in this Section 5(a)
and the Company and its controlling persons referred to in
Section 5(b), being collectively referred to herein, as the case
may be, as the "indemnified parties", from and against any
losses, claims, damages or liabilities, joint or several, or any
actions in respect thereof (including, but not limited to, any
losses, claims, damages, liabilities or actions relating to
purchases and sales of the Securities) to which each indemnified
party may become subject under the Securities Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus
relating to a Registration Statement, or arise out of, or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading, and shall reimburse the
indemnified parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action in respect
thereof; provided, however, that (i) the Company shall not be
liable in any such case to the extent that such loss, claim,
damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged
omission made in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus
relating to a Registration Statement in reliance upon and in
conformity with written information pertaining to such Holder and
furnished to the Company by or on behalf of such Holder
specifically for inclusion therein, (ii) with respect to any
untrue statement or omission or alleged untrue statement or
omission made in any prospectus relating to such Registration
Statement, the indemnity agreement contained in this subsection
(a) shall not inure to the benefit of any person as to which
there is a prospectus delivery requirement (a "Delivering
Seller") that sold the Securities to the person asserting any
such losses, claims, damages or liabilities to the extent that
any such loss, claim, damage or liability of such Delivering
Seller results from the fact that there was not sent or given to
such person, on or prior to the written confirmation of such
sale, a copy of the relevant prospectus, as amended and
supplemented, provided that (I) the Company shall have previously
furnished copies thereof to such Delivering Seller in accordance
with this Agreement and (II) such furnished prospectus, as
amended and supplemented, would have corrected any such untrue
statement or omission or alleged untrue statement or omission,
and (iii) this indemnity agreement will be in addition to any
liability which the Company may otherwise have to such
indemnified party. The Company shall also indemnify
underwriters, selling brokers, dealer-managers and similar
securities industry professionals participating in the
distribution (in each case as described in the Registration
Statement), their officers and directors and each person who
controls such persons within the meaning of the Securities Act or
the Exchange Act to the same extent as provided above with
respect to the indemnification of the Holders of the Securities
if requested by such Holders; provided, however, that the Company
shall not indemnify any such party to the extent its liability
arises from its failure to comply with the requirements described
in Annexes A, B and C hereto.
(b) Each Holder of the Securities, severally and not
jointly, will indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act from and against any
losses, claims, damages or liabilities or any actions in respect
thereof to which the Company or any such controlling person may
become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to a
Shelf Registration, or arise out of or are based upon the
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, but in
each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company by or on
behalf of such Holder specifically for inclusion therein; and,
subject to the limitation set forth immediately preceding this
clause, shall reimburse, as incurred, the Company for any legal
or other expenses reasonably incurred by the Company or any such
controlling person in connection with investigating or defending
any loss, claim, damage, liability or action in respect thereof.
This indemnity agreement will be in addition to any liability
which such Holder may otherwise have to the Company or any of its
controlling persons.
(c) Promptly after receipt by an indemnified party
under this Section 5 of notice of the commencement of any action
or proceeding (including a governmental investigation), such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 5, notify
the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not, in any
event, relieve the indemnifying party from any obligations to any
indemnified party, except to the extent that it is prejudiced or
harmed in any material respect by failure to give such prompt
notice. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume
the defense thereof, with one counsel (and local counsel as
necessary) reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so
to assume the defense thereof the indemnifying party will not be
liable to such indemnified party under this Section 5 for any
legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in
connection with the defense thereof. No indemnifying party
shall, without the prior written consent of the indemnified
party, not to be unreasonably withheld, effect any settlement of
any pending or threatened action in respect of which any
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 any claims that are the
subject matter of such action and does not include any injunctive
relief against such indemnified party. No indemnifying party
shall be liable for any amounts paid in settlement of any action
or claim without its written consent, which consent shall not be
unreasonably withheld.
(d) If the indemnification provided for in this
Section 5 is unavailable or insufficient to hold harmless an
indemnified party under subsections (a) or (b) above for any
reason, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect
thereof) referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and
the indemnified party on the other from (x) in the case of a
Holder of Notes, such Holder's exchange of its proportionate
share of Notes pursuant to the Registered Exchange Offer, and
(y) in the case of the Company, the Company's initial issuance of
the Notes, or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements
or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other
relevant equitable considerations. The relative fault of the
parties 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 on the one hand or
such Holder or such other indemnified person, as the case may be,
on the other, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this
subsection (d). Notwithstanding any other provision of this
Section 5(d), the Holders of the Securities shall not be required
to contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Securities
pursuant to a Registration Statement exceeds the amount of
damages which such Holders have 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
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For
purposes of this paragraph (d), each officer, director, employee,
representative and agent of an indemnified party and each person,
if any, who controls such indemnified party within the meaning of
the Securities Act or the Exchange Act shall have the same rights
to contribution as such indemnified party.
(e) The Company and each Holder agree that it would
not be just and equitable if contributions pursuant to Section
5(d) were determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable
consideration referred to in Section 5(d).
(f) The agreements contained in this Section 5 shall
survive the sale of the Securities pursuant to a Registration
Statement and shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
SECTION 6. SPECIAL INTEREST
(a) If any of the following events occurs (each such
event in clauses (i) through (iii) below a "Registration
Default"):
(i) if by May 4, 1998, neither the Exchange Offer
Registration Statement nor a Shelf Registration Statement
has been filed with the Commission;
(ii) if by July 31, 1998, neither the Exchange
Offer Registration Statement nor the Shelf Registration
Statement is declared effective;
(iii) if by August 31, 1998 neither the
Registered Exchange Offer is consummated nor, if required in
lieu thereof, the Shelf Registration Statement is declared
effective by the Commission;
(iv) if, notwithstanding the filing of the
Exchange Offer Registration Statement or the effectiveness
thereof or the consummation of the Registered Exchange
Offer, pursuant to the terms of subparagraph (i) of Section
2(a) hereof, by the later of (x) May 4, 1998 and (y) 30 days
after a request made pursuant to Section 2, a Shelf
Registration Statement has not been filed with the
Commission or such Shelf Registration Statement has not been
declared effective by the Commission within 150 days after
any such request; or
(v) if after either the Exchange Offer
Registration Statement or the Shelf Registration Statement
is declared effective (A) such Registration Statement
thereafter ceases to be effective; or (B) such Registration
Statement or the related prospectus ceases to be usable
(except as permitted in paragraph (b)) in connection with
resales of Transfer Restricted Notes during the periods
specified herein,
the Company will pay special interest ("Special Interest") to
each Holder of Transfer Restricted Notes, during the first 90-day
period immediately following such Registration Default at a per
annum rate of 0.50% per Transfer Restricted Note held by such
Holder. The amount of Special Interest will increase by an
additional 0.50% per annum per Transfer Restricted Note, for each
subsequent 90-day period until the date on which the Exchange
Offer Registration Statement or Shelf Registration Statement is
filed or declared effective, as the case may be, or such
Registration Statement again becomes effective, or such
Registration Statement prospectus becomes usable as the case may
be, up to a maximum Special Interest with respect to any
Registration Default of 2.00% per annum per Transfer Restricted
Note. Such Special Interest is payable in addition to any other
interest payable from time to time with respect to the
Securities.
(b) A Registration Default referred to in Section
6(a)(v) shall be deemed not to have occurred and be continuing in
relation to a Shelf Registration Statement or the related
prospectus if (i) such Registration Default has occurred solely
as a result of (x) the filing of a post-effective amendment to
such Shelf Registration Statement to incorporate annual audited
or, if required by the rules and regulations under the Securities
Act, quarterly unaudited financial information with respect to
the Company where such post-effective amendment is not yet
effective and needs to be declared effective to permit Holders to
use the related prospectus or (y) other material events or
developments with respect to the Company that would need to be
described in such Shelf Registration Statement or the related
prospectus and (ii) in the case of clause (y), the Company is
proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related prospectus to describe
such events; provided, however, that in no event shall the
Company be required to disclose the business purpose for such
suspension if the Company determines in good faith that such
business purpose must remain confidential; provided further,
however, that in any case if such Registration Default occurs for
a continuous period in excess of 45 days, Special Interest shall
be payable in accordance with the above paragraph from the day
following such 45 day period until the date on which such
Registration Default is cured.
(c) All accrued Special Interest shall be payable by
the Company in cash on the regular interest payment dates with
respect to the Notes, the Private Exchange Notes or the Exchange
Notes to the Holders of record on the applicable record dates.
The parties hereto agree that Special Interest provided in this
Section constitutes a reasonable estimate of the damages that
will be incurred by the Holders by reason of the failure of the
Exchange Offer Registration Statement or the Shelf Registration
Statement to be filed, declared effective or to remain effective
or such Registration Statement or related prospectus to be
usable, as the case may be.
(d) "Transfer Restricted Notes" means each Note until
(i) the date on which such Transfer Restricted Note has been
exchanged by a person other than a broker-dealer for a freely
transferable Exchange Note in the Registered Exchange Offer, (ii)
following the exchange by a broker-dealer in the Registered
Exchange Offer of a Transfer Restricted Note for an Exchange
Note, the date on which such Exchange Note is sold to a purchaser
who receives from such broker-dealer on or prior to the date of
such sale a copy of the prospectus contained in the Exchange
Offer Registration Statement, (iii) the date on which such
Transfer Restricted Note has been effectively registered under
the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iv) the date on which such Transfer
Restricted Note is distributed to the public pursuant to Rule 144
under the Securities Act or is saleable pursuant to Rule 144(k)
under the Securities Act.
SECTION 7. RULE 144 AND RULE 144A
The Company shall use its reasonable best efforts to
file on a timely basis all such reports required to be filed
under the Exchange Act as, and endeavor in good faith to take
such other actions as, are reasonably necessary to enable Holders
to sell Transfer Restricted Notes without registration under the
Securities Act within the limitation of the exemptions provided
under (a) Rule 144 under the Securities Act, as such Rule may be
amended from time to time, (b) Rule 144A under the Securities
Act, as such Rule may be amended from time to time, and (c) any
similar rules or regulations hereafter adopted by the Commission.
Upon request of any Holder of Transfer Restricted Notes, the
Company will provide a written statement as to whether it has
complied with such requirements and will, at its expense,
forthwith upon the request of the Initial Purchaser, deliver to
the Initial Purchaser a certificate, signed by the Company's
principal financial officer, stating (a) the Company's name,
address and telephone number (including area code), (b) the
Company's Internal Revenue Service identification number, (c) the
Company's Commission file number, (d) the number of shares of
each class of capital stock outstanding as shown by the most
recent report or statement published by the Company, and (e)
whether the Company has filed the reports required to be filed
under the Exchange Act for a period of at least ninety (90) days
prior to the date of such certificate and in addition has filed
the most recent annual report required to be filed thereunder.
SECTION 8. UNDERWRITING
If any of the Transfer Restricted Notes covered by any
Shelf Registration Statement are to be sold in an underwritten
offering, the investment banker(s) and manager(s) that will
manage the offering will be selected by the Holders of a majority
of the then outstanding Transfer Restricted Notes (determined in
accordance with Section 9(d)) included in such offering (after
consultation with the Company as to such selection and upon the
written consent of the Company, which consent will not be
unreasonably withheld or delayed). If requested by the
underwriters, the Company will promptly enter into an
underwriting agreement reasonably acceptable to the Company with
such underwriters for such offering, such agreement to contain
such representations and warranties by the Company and such other
terms and conditions as are customary for underwriting agreements
with respect to secondary offerings, including without
limitation, indemnities to the effect and to the extent provided
in Section 5 hereof. The Holders of Transfer Restricted Notes on
whose behalf such securities are being distributed shall be party
to any such underwriting agreement. Such Holders shall not be
required by the Company to make any representations or warranties
to the underwriters with respect to the Company or the Transfer
Restricted Notes (other than that the Holders are conveying such
securities free and clear of all pledges, securities interests,
liens, charges, encumbrances, agreements, equities, claims and
options of whatever nature), and the Holders shall not be
required to indemnify the Company or the underwriters (other than
with respect to the matters, and to the extent, provided in
Section 5). Furthermore, the Company shall make available for
inspection by the Holders, any underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and
any attorney, accountant or other agent retained by the Holders
or underwriter, all financial and other records and other
information, pertinent corporate documents and properties of the
Company as shall be reasonably necessary to enable them to
exercise their due diligence responsibilities.
No Holder of Transfer Restricted Notes may participate
in any underwritten distribution hereunder unless such holder (a)
agrees to sell such Holder's Transfer Restricted Notes on the
basis provided in any underwriting arrangements approved in
accordance with the terms hereof, and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such
underwriting arrangements.
SECTION 9. MISCELLANEOUS
(a) Remedies. Each Holder of Securities, in addition
to being entitled to exercise all rights provided herein, and as
provided in the Purchase Agreement and granted by law, including
the recovery of damages, shall be entitled to specific
performance of such Holder's rights under this Agreement. Except
with respect to the payment of Special Interest in the event of
the occurrence of a Registration Default, the Company agrees that
monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees in any action for specific
performance to waive the defense that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. The Company has not
and shall not on or after the date of this Agreement enter into
any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders of Securities in this
Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders of Securities hereunder do not and
will not in any way conflict with and are not and will not be
inconsistent with the rights granted to the holders of the
Company's other securities under any other agreements. No Holder
of any securities of the Company has rights to the registration
of any securities of the Company because of the execution,
delivery or performance by the Company of this Agreement or as a
result of the filing of the Exchange Offer Registration Statement
or the Shelf Registration Statement.
(c) No Adverse Action Affecting the Securities. The
Company has not taken and will not take, any action, or permit
any change to occur with respect to the Securities which would
adversely affect the ability of any of the Holders of Securities
to include such Securities in a registration undertaken pursuant
to this Agreement.
(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 a majority
of the outstanding principal amount of Transfer Restricted Notes.
Notwithstanding the foregoing, a waiver or consent to departure
from the provisions hereof that relates exclusively to the rights
of Holders of Transfer Restricted Notes whose Transfer Restricted
Notes are being sold pursuant to the Shelf Registration Statement
and that does not directly or indirectly affect the rights of
other Holders of Transfer Restricted Notes may be given by the
Holders of a majority of the Transfer Restricted Notes being
sold.
(e) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier
guaranteeing overnight delivery:
(i) if to a Holder of Securities, at the address set
forth on the records of the Company or the Trustee under the
Indenture, with a copy to the Trustee, and if to the Initial
Purchaser, at the address set forth in the Purchase
Agreement; and
(ii) if to the Company, initially at its 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.
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 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 the Trustee under the Indenture at the address
specified in the Indenture.
(f) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and
assigns of each of the parties, including without limitation and
without the need for an express assignment, subsequent Holders of
Securities.
(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, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH
STATE.
(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) Entire Agreement. This Agreement is intended by
the parties as a final expression of their agreement and intended
to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or
referred to herein with respect to the registration rights
granted by the Company with respect to the Securities except as
provided in the Indenture and in the Purchase Agreement. Except
as set forth in the prior sentence this Agreement supersedes all
prior agreements and understandings between the parties with
respect to the subject matter hereof.
[Remainder of this page is blank.]
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
TRANS WORLD AIRLINES, INC.
By:
-------------------------------
Name:
Title:
LAZARD FRERES & CO. LLC
By:
-------------------------------
Name:
Title:
ANNEX A
Each broker-dealer that receives Exchange Notes for its
own account pursuant to the Exchange Offer must acknowledge that
it will deliver a prospectus in connection with any resale of
such Exchange Notes. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Notes
received in exchange for Notes where such Notes were acquired by
such broker-dealer as a result of market-making activities or
other trading activities. The Company has agreed that, for a
period of 180 days after the Expiration Date (as defined herein),
it will make this Prospectus available to any broker-dealer for
use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its
own account in exchange for Notes, where such Notes were acquired
by such broker-dealer as a result of market-making activities or
other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes.
See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its
own account pursuant to the Registered Offer must acknowledge
that it will deliver a prospectus in connection with any resale
of such Exchange Notes. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in
connection with resales of Exchange Notes received in exchange
for Existing Notes where such Existing Notes were acquired as a
result of market-making activities or other trading activities.
The Company has agreed that, for a period of 180 days after the
Expiration Date, it will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in
connection with any such resale. In addition, until _____, 199_,
all dealers effecting transactions in the Exchange Notes may be
required to deliver a prospectus.*
The Company will not receive any proceeds from any sale
of Exchange Notes by broker-dealers. Exchange Notes received by
broker-dealers for their own account pursuant to the Exchange
Offer may be sold from time to time in one or more transactions
in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or
dealers who may receive compensation in the form of commissions
or concessions from any such broker-dealer or the purchasers of
any such Exchange Notes. Any broker-dealer that resells Exchange
Notes that were received by it for its own account pursuant to
the Exchange Offer and any broker or dealer that participates in
a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Notes and any commission or
concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter
of Transmittal states that, by acknowledging that it will deliver
and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
For a period of 180 days after the Expiration Date the
Company will promptly send additional copies of this Prospectus
and any amendment or supplement to this Prospectus to any broker-
dealer that requests such documents in the Letter of Transmittal.
The Company has agreed to pay all expenses incident to the
Exchange Offer (including the reasonable expenses of one counsel
for the Holders of the Notes) other than commissions or
concessions of any brokers or dealers and will indemnify the
Holders of Securities (including any broker-dealers) against
certain liabilities, including liabilities under the Securities
Act.
______________________________
* In addition, the legend required by Item 502(e) of
Regulation S-K will appear on the back cover page of the
Exchange Offer prospectus.
ANNEX D
_ CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
-----------------------------------------------------
Address:
--------------------------------------------------
--------------------------------------------------
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 Notes that were acquired as a result of
market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Notes; 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 Securities Act.
