EXHIBIT 4.3
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Dated September 9, 2003
Among
DELTA AIR LINES, INC.
THE BANK OF NEW YORK,
not in its individual capacity but solely as Trustee
and
CITIGROUP GLOBAL MARKETS INC.
X.X. XXXXXX SECURITIES INC.
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
REGISTRATION RIGHTS AGREEMENT
Delta Air Lines, Inc., a Delaware corporation (the "COMPANY"),
plans to make offers to exchange (the "INITIAL EXCHANGE OFFER") its 10% Senior
Notes Due 2008 (the "INITIAL NOTES") for any and all of its outstanding 6.65%
Medium-Term Notes, Series C due 2004 (the "2004 NOTES"), and any and all of its
7.70% Senior Notes Due 2005 (the "2005 NOTES"; together with the 2004 Notes, the
"OLD NOTES"), upon the terms and subject to the conditions set forth in the
Offering Memorandum dated July 25, 2003 (as supplemented by the supplement
thereto, dated August 13, 2003), the related letter of transmittal, and a dealer
manager agreement (the "DEALER MANAGER AGREEMENT") dated July 25, 2003 among the
Company and Citigroup Global Markets Inc., X.X. Xxxxxx Securities Inc. and
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, as the dealer
managers (each, a "DEALER MANAGER" and, together, the "DEALER MANAGERS"),
relating to the Initial Exchange Offer. The Initial Notes are to be issued under
an indenture dated as of May 1, 1991 (the "SENIOR INDENTURE") between the
Company, as issuer, and The Bank of New York, as trustee (the "TRUSTEE"), as
supplemented by a first supplemental indenture dated as of September 9, 2003
between the Company and the Trustee (the "SUPPLEMENTAL INDENTURE"). The Senior
Indenture, as supplemented by the Supplemental Indenture, is referred to herein
as the "INDENTURE." To induce the Dealer Managers to enter into the Dealer
Manager Agreement and pursuant to the terms and conditions of the Initial
Exchange Offer, the Company agrees with you for your benefit and the benefit of
the holders (each a "HOLDER" and, together, the "HOLDERS") from time to time of
the Initial Notes and the Exchange Notes (as hereinafter defined), as follows:
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.
"2004 NOTES" shall have the meaning set forth in the first
paragraph of this Agreement.
"2005 NOTES" shall have the meaning set forth in the first
paragraph of this Agreement.
"ADDITIONAL INTEREST" shall have the meaning set forth in
Section 2(d) hereof.
"AGREEMENT" shall mean this registration rights agreement.
"BUSINESS DAY" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in The City
of New York.
"COMPANY" shall have the meaning set forth in the first
paragraph of this Agreement and shall also include the Company's
successors.
"DEALER MANAGER" shall have the meaning set forth in the first
paragraph of this Agreement.
"DEALER MANAGER AGREEMENT" shall have the meaning set forth in
the first paragraph of this Agreement.
"EXCHANGE DATE" shall have the meaning set forth in Section
2(a)(ii) hereof.
"EXCHANGE NOTES" shall mean debt securities of the Company to
be issued under the Indenture of up to an equal outstanding principal
amount as and containing terms identical to the Initial Notes (except
that (i) interest thereon shall accrue from the last date on which
interest was paid on the Initial Notes or, if no such interest has been
paid, from the Settlement Date, (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 Registrable Notes in exchange
for such Registrable Notes pursuant to the Exchange Offer.
"EXCHANGE OFFER" shall mean the exchange offer by the Company
of Exchange Notes for Registrable Notes pursuant to Section 2(a)
hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under
the 1933 Act effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form) and all amendments and supplements to such
registration statement, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by
reference therein.
"FEE" shall have the meaning set forth in the Dealer Manager
Agreement.
"HOLDER" shall have the meaning set forth in the first
paragraph of this Agreement.
"HOLDER INFORMATION" with respect to any Holder shall mean
information with respect to such Holder required to be included in any
Shelf Registration Statement or the related Prospectus pursuant to the
1933 Act and which information is included therein in reliance upon and
in conformity with information furnished to the Company in writing by
such Holder for inclusion therein.
2
"INDENTURE" shall have the meaning set forth in the first
paragraph of this Agreement.
"INITIAL EXCHANGE OFFER" shall have the meaning set forth in
the first paragraph of this Agreement.
"INITIAL NOTES" shall have the meaning set forth in the first
paragraph of this Agreement.
"INTEREST PAYMENT DATE" shall mean February 15 and August 15
of each year, commencing February 15, 2004.
"LOSSES" shall have the meaning set forth in Section 5(d)
hereof.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Notes; provided
that whenever the consent or approval of Holders of a specified
percentage of Registrable Notes is required hereunder, Registrable
Notes held by the Company or any of its affiliates (as such term is
defined in Rule 405 under the 0000 Xxx) shall not be counted in
determining whether such consent or approval was given by the Holders
of such required percentage or amount.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"NASD RULES" shall mean the rules and regulations promulgated
by the NASD.
"OLD NOTES" shall have the meaning set forth in the first
paragraph of this Agreement.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth
in Section 4(a) hereof.
"PERSON" shall mean an individual, partnership, limited
liability company, corporation, trust or unincorporated organization,
or a government or agency or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Notes covered by a
Shelf Registration Statement, or Exchange Notes covered by an Exchange
Offer Registration Statement, and other amendments and supplements to
such prospectus, and in each case including all material incorporated
by reference therein.
"REGISTRABLE NOTES" shall mean the Initial Notes; provided,
however, that the Initial Notes shall cease to be Registrable Notes
upon the earliest to occur of (i) an exchange of the Initial Notes for
Exchange Notes upon consummation of the Exchange Offer, (ii) a
Registration Statement with respect to such Initial Notes having been
3
declared effective under the 1933 Act and such Initial Notes having
been disposed of pursuant to such Registration Statement, (iii) such
Initial Notes 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 Initial Notes having ceased to be outstanding.
"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
NASD 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 Notes or Registrable
Notes), (iii) all 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, any underwriting agreements and other documents relating to
the performance of and compliance with this Agreement, (iv) all rating
agency fees, (v) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vi)
the fees and disbursements of the Trustee and its 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 Dealer Managers)
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 fees and expenses set forth in clause
(ii) above) or the Holders and underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of
Registrable Notes by a Holder.
"REGISTRATION STATEMENT" shall mean any registration statement
of the Company that covers any of the Registrable Notes or the Exchange
Notes or pursuant to the provisions of this Agreement (including any
Exchange Offer Registration Statement and Shelf Registration Statement)
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 U.S. Securities and Exchange Commission.
"SENIOR INDENTURE" shall have the meaning set forth in the
first paragraph of this Agreement.
"SETTLEMENT DATE" shall mean the date on which the Initial
Exchange Offer is consummated and the Initial Notes are originally
issued.
"SHELF REGISTRATION" shall mean a registration effected
pursuant to Section 2(b) hereof.
4
"SHELF REGISTRATION STATEMENT" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of
Section 2(b) of this Agreement which covers all of the Registrable
Notes (but no other securities unless approved by the Holders whose
Registrable Notes 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.
"SUPPLEMENTAL INDENTURE" shall have the meaning set forth in
the first paragraph of this Agreement.
"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 the last
paragraph of Section 3 hereof.
"UNDERWRITTEN OFFERING" shall mean a registration under the
1933 Act in which Registrable Notes are sold to an Underwriter for
reoffering to the public.
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included," or "stated" in
any Registration Statement, any preliminary Prospectus or Prospectus (and all
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
or deemed to be incorporated by reference in such Registration Statement,
preliminary Prospectus or Prospectus, as the case may be; and all references in
this Agreement to amendments or supplements to the Registration Statement, any
preliminary Prospectus or Prospectus shall be deemed to mean and include any
document filed with the SEC under the 1934 Act, after the date of such
Registration Statement, preliminary Prospectus or Prospectus, as the case may
be, which is incorporated or deemed to be incorporated by reference therein.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or
applicable interpretation of the SEC staff, 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 by the Company to the Holders to
exchange all of the Registrable Notes for Exchange Notes (the "EXCHANGE OFFER"),
(ii) to have the Exchange Offer Registration Statement declared effective and
(iii) to have such Exchange Offer 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 60 days after such effective date. The Company
shall commence the Exchange Offer by mailing, or causing to be mailed, the
Prospectus forming a part of the Exchange Offer Registration Statement and the
5
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 Agreement and that all Registrable Notes validly tendered will be
accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be
a period of at least 20 Business Days from the date such notice is
mailed) (the "EXCHANGE DATE");
(iii) that, subject to the limited exceptions set forth
herein, any Registrable Notes not tendered in the Exchange Offer will
remain outstanding and will continue to accrue interest, but will not
retain any rights under this Agreement;
(iv) that Holders electing to have a Registrable Note
exchanged pursuant to the Exchange Offer will be required to surrender
such Registrable Note, together with the relevant letters of
transmittal and related documents, to the institution and at the
address (located in the Borough of Manhattan, The City of New York)
specified in the Prospectus forming a part of the Exchange Offer
Registration Statement 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 (located in the
Borough of Manhattan, The City of New York) specified in the Prospectus
forming a part of the Exchange Offer Registration Statement a telegram,
telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Notes delivered for
exchange and a statement that such Holder is withdrawing his election
to have such Registrable Notes exchanged and the principal amount of
Registrable Notes subject to the withdrawal notice.
Promptly after the last Exchange Date, the Company shall:
(i) accept for exchange Registrable Notes or portions
thereof validly tendered and not withdrawn pursuant to the Exchange
Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes or portions thereof so accepted for
exchange by the Company and issue, and cause the Trustee to promptly
authenticate and mail to each Holder, Exchange Notes equal in principal
amount to the principal amount of the Registrable Notes tendered by
such Holder and accepted for exchange pursuant to the Exchange Offer.
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 SEC staff.
Each Holder participating in the Exchange Offer shall be
required to represent to the Company that (i) any Exchange Notes received by
such Holder will be acquired in the
6
ordinary course of business, (ii) such Holder will have no arrangements or
understanding with any person to participate in the distribution of the
Registrable Notes or the Exchange Notes 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, nor a broker-dealer tendering Registrable Notes acquired
directly from the Company or one of its affiliates (as defined in Rule 405 of
the 1933 Act). If a Holder participating in the Exchange Offer is a
broker-dealer, it will be required to represent that the Registrable Notes 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. 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 Notes held by any
Participating Broker-Dealers as provided in (and subject to) Sections 2(b)(iii)
and 2(b)(iv) hereof, and the Company shall have no further obligation to
register Initial Notes (other than such Registrable Notes of the Participating
Broker-Dealers) pursuant to Section 2(b) hereof.
(b) In the event that (i) changes in the law or the
applicable interpretations of the SEC staff do not permit the Company to effect
the Exchange Offer Registration, (ii) the Exchange Offer is not for any other
reason consummated by the 270th day from the Settlement Date, or (iii) the
Exchange Offer has been completed and in the opinion of counsel for any Holder a
Registration Statement must be filed and a Prospectus must be delivered by such
Holder in connection with any resale of Registrable Notes, the Company shall, at
no cost to the Holders of the Registrable Notes, as promptly as practicable,
file with the SEC a Shelf Registration Statement (or, if required by applicable
law or the interpretations of the SEC staff, additional Shelf Registration
Statements) providing for the sale by the Holders of all of the Registrable
Notes (in the case of clause (i) or (ii) above) or by the relevant Holders (in
the case of clause (iii) above) and use its reasonable best efforts to cause
such Shelf Registration Statement(s) to be declared effective by the SEC by the
270th day from the Settlement Date. In the event the Company is required to file
a Shelf Registration Statement solely as a result of the matters referred to in
clause (iii) 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) hereof with respect to all
Registrable Notes and such Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement) with
respect to offers and sales of Registrable Notes held by the Holders after
completion of the Exchange Offer. The Company agrees to use its reasonable best
efforts to keep the Shelf Registration Statement continuously effective until
the expiration of the period referred to in Rule 144(k) under the 1933 Act with
respect to the Registrable Notes or such shorter period that will terminate when
all of the Registrable Notes 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 or file additional Shelf
Registration Statements 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 the SEC staff or by any other
rules and regulations thereunder for shelf registration or if reasonably
7
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(s) to become usable as soon as thereafter
practicable. The Company agrees to furnish to such Holders of copies of any such
supplement or amendment to the Shelf Registration Statement 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) and 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 Notes
pursuant to a 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 Notes 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 Notes pursuant to
such Registration Statement may legally resume. In the event the Exchange Offer
is not consummated and a Shelf Registration Statement is not declared effective
on or prior to the 270th day (or, if such 270th day is not a Business Day, the
first Business Day thereafter) after the Settlement Date, the interest rate on
the Initial Notes will be increased by 0.25% per annum from and including such
270th day to but excluding such date that the Exchange Offer is consummated or a
Shelf Registration Statement is declared effective by the SEC. 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 Initial Notes shall be
increased by 0.25% 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. Any amounts payable under
this Section 2(d) shall be deemed "ADDITIONAL INTEREST" for purposes of this
Agreement. All calculations pursuant to this Section 2(d) shall be carried out
to five decimal places. The Additional Interest due shall be payable on each
Interest Payment Date to the record Holder entitled to receive the interest
payment to be paid on such Interest Payment Date as set forth in the Indenture.
Additional Interest shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months. All of the Company's obligations under this
Section 2(d) shall survive termination of this Agreement.
(e) The Company shall immediately notify the Trustee when
an event occurs in respect of which Additional Interest is required to be paid
(an "EVENT DATE").
(f) Without limiting the remedies available to 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 each Holder 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, any Holder may obtain such
relief as may be
8
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 (or, if required by applicable law or the interpretations of
the SEC staff, additional Registration Statements) 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 Notes 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
reasonable 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) to 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
Notes or Exchange Notes;
(c) in the case of a Shelf Registration, (x) notify the
Holders of Registrable Notes, at least five Business Days prior to
filing, that a Shelf Registration Statement with respect to the
Registrable Notes is being filed and advising such Holders that the
distribution of Registrable Notes will be made in accordance with the
method selected by the Majority Holders participating in the Shelf
Registration; (y) furnish to each Holder of Registrable Notes, to
counsel for the Holders and to each Underwriter of an Underwritten
Offering of Registrable Notes, if any, and each such Underwriter's
counsel, without charge, as many copies of each Prospectus, including
each preliminary Prospectus, if any, 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 Notes; and (z) consent to the use of any
Prospectus and any amendment or supplement thereto in accordance with
applicable law by each of the selling Holders of Registrable Notes and
any such Underwriters in connection with the offering and sale of the
Registrable Notes 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 Notes under all applicable state securities or
"blue sky" laws of such jurisdictions as any Holder of Registrable
Notes covered by a Registration Statement shall reasonably request in
9
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 NASD 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 Notes 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 excess of a nominal dollar amount
in any such jurisdiction if it is not otherwise so subject;
(e) in the case of a Shelf Registration, notify each
Holder of Registrable Notes, counsel for the Holders and, if requested
by any such Holder or counsel, confirm such advice in writing (i) when
a Shelf 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 Shelf Registration Statement and
Prospectus or for material additional information after the Shelf
Registration Statement has become effective, (iii) of the issuance by
the SEC or any state securities authority of any stop order suspending
the effectiveness of a Shelf Registration Statement or the initiation
of any proceedings for that purpose, (iv) if, between the effective
date of a Shelf Registration Statement and the closing of any sale of
Registrable Notes 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 (or exemption from qualification) of the Registrable
Notes or the Exchange Notes, as the case may be, 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 which makes any statement made in such Shelf
Registration Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such Shelf
Registration Statement or Prospectus in order to make the statements
therein (in the case of the Prospectus, in light of circumstances under
which they were made) not misleading and (vi) of any determination by
the Company that a post-effective amendment to a Shelf Registration
Statement would be appropriate;
(f) make every reasonable effort to obtain (i) the
withdrawal of any order suspending the effectiveness of a Registration
Statement and (ii) the lifting of any suspension of the qualification
(or exemption from qualification) of any of the Registrable Notes or
the Exchange Notes, as the case may be, for offer or sale in any
jurisdiction in which they have been qualified for sale, in each case
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 Notes, without charge, at least one conformed
copy of each Shelf Registration Statement and any post-effective
amendment thereto (without documents incorporated therein by reference
or exhibits thereto, unless requested);
10
(h) in the case of a Shelf Registration, cooperate with
the selling Holders of Registrable Notes to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold and not bearing any restrictive legends and enable such
Registrable Notes to be in such denominations (consistent with the
provisions of the Indenture) 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 Notes;
(i) in the case of a Shelf Registration, upon the
occurrence of any event contemplated by Section 3(e)(v) or 3(e)(vi)
hereof, use its best efforts to prepare and file with the SEC a
supplement or post-effective amendment to a Shelf 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 Notes, 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) within 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 Holders and their counsel and
make such of the representatives of the Company as shall be reasonably
requested by the Holders or their counsel available for discussion of
such document, and shall not at any time file or make 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 Holders and their counsel shall not have
previously been advised and furnished a copy or to which the Holders or
their counsel shall object;
(k) obtain a CUSIP number for all Exchange Notes or
Registrable Notes, as the case may be, and cause to be authenticated
and delivered to the Trustee global certificates for such Exchange
Notes or Registrable Notes, in a form eligible for deposit with The
Depository Trust Company, by the date the Exchange Offer is consummated
or the effective date of the initial Shelf Registration Statement,
whichever is earlier;
(l) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Notes or Registrable Notes, as the case
may be, cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and execute, and use
its best efforts to cause the Trustee to execute, all documents as may
be required to effect such changes and
11
all other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, upon execution
of customary confidentiality agreements reasonably satisfactory to the
Company and its counsel make available for inspection by a
representative of the Holders of the Registrable Notes, 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
Notes and Registrable Notes, 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
Notes 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;
(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 Notes being sold pursuant to such Shelf Registration
Statement) in order to expedite or facilitate the disposition of such
Registrable Notes 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 Notes 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 Notes being sold and such Underwriters
and their respective counsel) addressed to each selling Holder and
Underwriter of Registrable Notes, 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 Notes,
such letters to be
12
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 Notes 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; provided,
that if an underwriting agreement is entered into, cause the same to
contain indemnification provisions and procedures no less favorable
than those set forth in Section 5 hereof (or such other provisions and
procedures acceptable to the Majority Holders and the Underwriters, if
any), with respect to all parties to be indemnified pursuant to Section
5 hereof;
(q) in the event that any broker-dealer shall underwrite
any Registrable Notes or participate as a member of an underwriting
syndicate or selling group or "assist in the public distribution"
(within the meaning of the NASD Rules) thereof, whether as a Holder of
such Registrable Notes 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 NASD Rules,
including, without limitation, by:
(i) if the NASD Rules shall so require, engaging a
"qualified independent underwriter" (as defined in the NASD
Rules) to participate in the preparation of the Shelf
Registration Statement, to exercise usual standards of due
diligence with respect thereto and, if any portion of the
offering contemplated by the Shelf Registration Statement is
an underwritten offering or is made through a placement or
sales agent, to recommend the price of such Registrable Notes;
(ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of Holders
provided in Section 5 hereof; and
(iii) providing such information to such broker-dealer as
may be required in order for such broker-dealer to comply with
the requirements of the NASD Rules.
The Company shall use its best efforts to comply with all
applicable rules and regulations of the SEC and shall make generally available
to its security holders an earning statement satisfying the provisions of
Section 11(a) of the Act and Rule 158 promulgated by the SEC thereunder (or any
similar rule promulgated under the 0000 Xxx) for a 12-month period commencing on
the first day of the first fiscal quarter of the Company commencing after the
effective date of any Shelf Registration Statement or each post-effective
amendment to any Shelf Registration Statement, which such statements shall be
made available no later than 45 days after the end of the 12-month period or 90
days after the end of the 12-month period, if the 12-month period coincides with
the fiscal year of the Company, or such shorter period as required under the
1933 Act or 1934 Act and the rules and regulations promulgated thereunder.
In the case of a Shelf Registration Statement, the Company may
require each Holder of Registrable Notes to furnish to the Company such
information regarding the Holder and the proposed distribution by such Holder of
such Registrable Notes as the Company may
13
from time to time reasonably request in writing for inclusion in such Shelf
Registration Statement. The Company may exclude from such Shelf Registration
Statement the Registrable Notes 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) or 3(e)(vi) hereof, such Holder
will forthwith discontinue disposition of Registrable Notes 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 Notes current at the time of receipt of such notice, provided that
the foregoing shall not prevent the sale, transfer or other disposition of
Registrable Notes by a Holder in a transaction which is exempt from, or not
subject to, the registration requirements of the 1933 Act, so long as such
Holder does not and is not required to deliver the applicable Prospectus or
Shelf Registration Statement in connection with such sale, transfer or other
disposition, as the case may be; and provided, further, that the provisions of
this paragraph shall not prevent the occurrence of an Event Date or otherwise
limit the obligations of the Company to pay Additional Interest. If the Company
shall give any such notice to suspend the disposition of Registrable Notes
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 Notes covered by a Shelf
Registration Statement who desire to do so may sell such Registrable Notes in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "UNDERWRITERS") that will
administer the offering will be selected by the Majority Holders of the
Registrable Notes 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 SEC staff has taken the position that any
broker-dealer that receives Exchange Notes for its own account in the Exchange
Offer in exchange for Initial Notes 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 Notes. No Participating
Broker-Dealers other than the Dealer Managers 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 SEC 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
14
may resell the Exchange Notes, without naming the Participating Broker-Dealers
or specifying the amount of Exchange Notes 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 Notes for
their own accounts, so long as the Prospectus otherwise meets the requirements
of the 1933 Act.
(b) In light of Section 4(a) hereof, 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 an
Exchange Offer Registration to the extent, and with such reasonable
modifications thereto as may be, reasonably requested 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 Notes by
Participating Broker-Dealers consistent with the positions of the SEC staff
recited in Section 4(a) hereof; 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) hereof,
for a period exceeding 90 days after the last Exchange Date (as such
period may be extended pursuant to the penultimate paragraph of Section
3 hereof) 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;
(ii) the application of the Shelf Registration procedures
set forth in Section 3 hereof to an Exchange Offer Registration, to the
extent not required by the positions of the SEC staff or the 1933 Act
and the rules and regulations thereunder, will be in conformity with
the reasonable request in writing to the Company by one or more
broker-dealers who certify to the Company in writing that they
anticipate that they will be Participating Broker-Dealers; and provided
further that, in connection with such application of the Shelf
Registration procedures set forth in Section 3 hereof to an Exchange
Offer Registration, the Company shall be obligated (x) to deal only
with the Dealer Managers representing the Participating Broker-Dealers,
unless the Dealer Managers elect not to act as such representatives,
(y) to pay the fees and expenses of only one counsel representing the
Participating Broker-Dealers, which shall be counsel to the Dealer
Managers 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) None of the Dealer Managers shall have any 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 will indemnify and hold harmless each
Holder and each person who controls such Holder within the meaning of either the
1933 Act or the 1934 Act against any losses, claims, damages or liabilities,
joint or several, to which any of them may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages or
15
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement, or in any Prospectus, or any amendment thereof or
supplement thereto, 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 the light of the circumstances under which they were made, not
misleading, and will reimburse each such party for any legal or other expenses
reasonably incurred by such party in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however, (i)
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon Holder
Information, (ii) that with respect to any untrue statement or omission of
material fact made in any Shelf Registration Statement, or in any Prospectus,
the indemnity agreement contained in this Section 5(a) shall not inure to the
benefit of the Holder or any person who controls the Holder within the meaning
of either the 1933 Act or the 1934 Act from whom the person asserting any such
loss, claim, damage or liability purchased the securities concerned, to the
extent that any such loss, claim, damage or liability of the Holders occurs
under the circumstance where it shall have been established that (w) the Company
had previously furnished copies of the Prospectus, and any amendments and
supplements thereto, to the Holder, (x) delivery of the Prospectus, and any
amendment or supplements thereto, was required by the 1933 Act to be made to
such person, (y) the untrue statement or omission of a material fact contained
in the Prospectus was corrected in amendments or supplements thereto, and (z)
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such securities to such person, a copy of such
amendments or supplements to the Prospectus, and (iii) except as otherwise
provided in Section 5(c), the Company will not be liable for any such loss,
claim, damage or liability in connection with any settlement of any pending or
threatened litigation or any pending or threatened governmental agency
investigation or proceeding if that settlement is effected without the prior
written consent of the Company, which consent shall not be unreasonably
withheld. This indemnity agreement will be in addition to any liability that the
Company may otherwise have.
(b) Each Holder, severally and not jointly, agrees to
indemnify and hold harmless the Company, each of its directors and officers and
each person who controls the Company within the meaning of either the 1933 Act
or the 1934 Act, to the same extent as the foregoing indemnity from the Company
to the Holders and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any loss, claim, damage, liability or action, but
only with reference to Holder Information supplied by such Holder. This
indemnity agreement will be in addition to any liability that such Holder may
otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 5 of notice of the commencement of any action or proceeding
(including any governmental investigation), such indemnified party will, if a
claim for indemnification in respect thereof is to be made against the
indemnifying party under Section 5(a) or 5(b) hereof, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under Section 5(a) or 5(b) hereof to the
extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In case any such action or proceeding is
16
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein (jointly with any other indemnifying party similarly notified), and to
the extent that it may elect, by written notice, delivered to such indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided, however, that if the defendants (including any
impleaded parties) in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to appoint counsel to defend such action
and approval by the indemnified party of such counsel, the indemnifying party
will not be liable to such indemnified party under this Section 5 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expense of more than one separate counsel (in addition to any local
counsel), approved by the Holders in the case of paragraph (a) of this Section
5, representing the indemnified parties under such paragraph (a) who are parties
to such action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice or commencement of the action, (iii)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party, or (iv) the use of
counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest; and except that, if
clause (i) or (iii) is applicable, such liability shall be only in respect of
the counsel referred to in such clause (i) or (iii). An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. 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 this Section 5(c), the indemnifying party agrees that
it shall be liable for any settlement of any proceeding effected by the
indemnified party without its consent if (i) such settlement is entered into
more than 30 days after receipt by such indemnifying party of such request for
reimbursement and (ii) such indemnifying party shall not have reimbursed the
indemnified person in accordance with such request prior to the date of any
settlement.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 5 is unavailable to or insufficient to hold harmless
an indemnified party for any reason, each indemnifying party (severally and not
jointly) agrees to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively, "Losses") to which the
indemnified party may be subject in such proportion as is appropriate to reflect
the relative
17
benefits received by the Company from the Initial Exchange Offer, on the one
hand, and a Holder with respect to the sale by such Holder of Registrable Notes
pursuant to the Registration Statement which resulted in such Losses, on the
other hand; provided, however, that in no case shall an indemnifying party under
Section 5(b) hereof who is a Holder and who is also a Dealer Manager be
responsible, in the aggregate, for any amount in excess of the Fee applicable to
such Registrable Note paid to such Dealer Manager by the Company in accordance
with the Dealer Manager Agreement, nor shall any indemnifying party who is a
Holder and who is also an Underwriter be responsible for any amount in excess of
the underwriting discount or commission applicable to the Registrable Notes
purchased by such Underwriter under the Registration Statement which resulted in
such Losses, nor shall any other indemnifying party that is a Holder be
responsible for any amount in excess of the total price at which the Registrable
Notes are sold by such Holder to a purchaser under the Registration Statement
which resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the aggregate principal amount of
Old Notes exchanged in the Initial Exchange Offer (before deducting expenses).
Benefits received by a Holder who is also a Dealer Manager hereof shall be
deemed to be equal to the aggregate amount of Fees received by such Dealer
Manager under the Dealer Manager Agreement. Benefits received by a Holder who is
also an Underwriter shall be deemed to be equal to the total underwriting
discounts and commissions, as set forth on the cover page of the Prospectus
forming a part of the Registration Statement which resulted in such Losses.
Benefits received by any other Holders shall be deemed to be equal to the value
of receiving Exchange Notes registered under the 1933 Act. Relative fault shall
be determined by reference to, among other things, whether any alleged untrue
statement or omission relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The parties agree that
it would not be just and equitable if contribution pursuant to this paragraph
(d) were determined by pro rata allocation or any other method of allocation
that does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), 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. For purposes of this Section 5(d), each
person who controls such Holder within the meaning of either the 1933 Act or the
1934 Act shall have the same rights to contribution as such Holder, and each
person who controls the Company within the meaning of either the 1933 Act or the
1934 Act and each officer and director of the Company shall have the same rights
to contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section 5 will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Holder, any underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 5 hereof, and will survive the sale
by a Holder of Registrable Notes covered by a Shelf Registration Statement.
18
6. Miscellaneous.
(a) Rules 144 and 144A. The Company covenants that it
shall use its reasonable best efforts to file the reports required to be filed
by it under the 1933 Act and the 1934 Act in a timely manner so long as the
Registrable Notes remain outstanding. If at any time the Company is not required
to file such reports, it will, upon request of any Holder or beneficial owner of
Registrable Notes, make available such information necessary to permit sales
pursuant to Rule 144A. The Company further covenants that, for as long as any
Registrable Notes remain outstanding, it will take such further action as any
Holder of Registrable Notes may reasonably request, all to the extent required
from time to time to enable such Holder to sell Registrable Notes without
registration under the 1933 Act within the limitation of the exemptions provided
by Rule 144 and Rule 144A. Upon the written request of any Holder of Registrable
Notes, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements.
(b) 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 Notes 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.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Notes affected by such amendment, modification,
supplement, waiver or consent; provided, however, that no amendment,
modification, supplement, waiver or consent to any departure from the provisions
of Section 5 hereof shall be effective as against any Holder of Registrable
Notes unless consented to in writing by such Holder.
(d) 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(d), which address initially is, with respect to the
Dealer Managers, the address set forth in the Dealer Manager Agreement; and (ii)
if to the Company, initially at the Company's address set forth in the Dealer
Manager Agreement and thereafter at such other address, notice of which is given
in accordance with the provisions of this Section 6(d).
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when 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.
19
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the Trustee, at
the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Notes in violation of the terms of the Indenture. If any transferee of any
Holder shall acquire Registrable Notes, in any manner, whether by operation of
law or otherwise, such Registrable Notes shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Notes such
Person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement and such Person shall be
entitled to receive the benefits hereof. The Dealer Managers (in their capacity
as Dealer Managers) shall have no liability or obligation to the Company with
respect to any failure by any Holder to comply with, or breach by any Holder of,
any of the obligations of such Holder under this Agreement.
(f) Purchases and Sales of Initial Notes. 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 Initial Notes prior to the consummation of the Exchange Offer or a
Shelf Registration Statement being declared effective.
(g) Third Party Beneficiary. The Holders shall be third
party beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Dealer Managers, on the other hand, and shall have the right
to enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(h) Securities Held by the Company, etc. Whenever the
consent or approval of Holders of a specified percentage of principal amount of
Registrable Notes is required hereunder, Registrable Notes held by the Company
or its affiliates, as defined in Rule 405 under the 1933 Act (other than
subsequent Holders of Registrable Notes if such subsequent Holders are deemed to
be affiliates solely by reason of their holdings of such Registrable Notes),
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(i) 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.
(j) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(k) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
20
(l) 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) Trustee. The Trustee shall take action as may be
reasonably requested by the Company in connection with the Company satisfying
its obligations arising under this Agreement.
21
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
DELTA AIR LINES, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Senior Vice President - Finance,
Treasury and Business Development
THE BANK OF NEW YORK,
not in its individual capacity but solely as
Trustee
By: /s/ Xxxxx X. Xxxx
---------------------
Name: Xxxxx X. Xxxx
Title: As Agent
Confirmed and accepted as of the date first above written:
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxxx Xxxxxx
_____________________________________
Name: Xxxxxx Xxxxxx
Title: Managing Director
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxx Xxxxxxxxxxx
_____________________________________
Name: Xxxxx Xxxxxxxxxxx
Title: Vice President
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ [Illegible]
_____________________________________
Name:
Title:
