EXHIBIT 4.12
Exchange and Registration Rights Agreement
Dated as of February 15, 2000
among
American Trans Air, Inc.,
Wilmington Trust Company,
not in its individual capacity but solely
as Trustee under
American Trans Air
Pass Through Trust, Series 2000-1G-O
American Trans Air
Pass Through Trust, Series 2000-1C-O
and
Xxxxxxx Xxxxx Xxxxxx Inc.
Banc One Capital Markets, Inc.
Chase Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT (this "Agreement")
is made and entered into as of February 15, 2000, among American Trans Air,
Inc., an Indiana corporation (the "Company"), Wilmington Trust Company, not
in its individual capacity but solely as trustee under each of the Original
Trusts (as defined below), Xxxxxxx Xxxxx Barney Inc., Banc One Capital
Markets, Inc., Chase Securities Inc., and Xxxxxx Xxxxxxx & Co. Incorporated
(collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated
February 8, 2000 among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides that the Trustee will issue and sell $201,901,000
principal amount of the pass through certificates of the Class G Trust (as
defined below) and $36,740,000 principal amount of the pass through
certificates of the Class C Trust (as defined below) (the Class G Trust and
Class C Trust together, the "Original Trusts" and such pass through
certificates of the Original Trusts, together, the "Initial Certificates"),
in each case with Escrow Receipts (as defined below) attached thereto. On the
Transfer Date (as defined below), and after satisfaction of the conditions
set forth in the Pass Through Trust Agreements (as defined below), each of
the Original Trusts will transfer and assign all of its assets and rights to
a newly-created successor trust with substantially identical terms (together,
the "Successor Trusts") and the Initial Certificates will be deemed for all
purposes of the Original Trusts and the Successor Trusts to be certificates
representing fractional undivided interests in the Successor Trusts and their
respective trust properties. In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Company has agreed to provide to the
Initial Purchasers and their direct and indirect transferees the exchange and
registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. The definitions set forth in this Agreement shall
apply equally to both singular and plural forms of the terms defined. As used
in this Agreement, the following capitalized defined terms shall have the
following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
time to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Agreement" shall have the meaning set forth in the preamble of
this Agreement.
"Business Day" shall mean any day on which the New York Stock
Exchange, Inc. is open for trading and banks in The City of New York are
open for business; references to "day" shall mean a calendar day.
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"Class C Trust" shall mean the American Trans Air Pass Through
Trust, Series 2000-1C-O.
"Class G Trust" shall mean the American Trans Air Pass Through
Trust, Series 2000-1G-O.
"Closing Date" shall mean the Closing Date as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble of this
Agreement and shall include the Company's successors.
"Deposit Agreement" shall have the meaning set forth in the
Purchase Agreement.
"DTC" shall mean the Depository Trust Company or any other
depositary appointed by the Company; provided, however, that any such
depositary must have an address in the Borough of Manhattan, in The City
of New York.
"Equipment Notes" shall mean the equipment notes that are the
property of the Trusts.
"Escrow Receipts" shall have the meaning set forth in the Purchase
Agreement.
"Exchange Certificates" shall mean the pass through certificates
issued under the Pass Through Trust Agreements or the Successor Pass
Through Trust Agreements, as the case may be, and otherwise containing
terms identical in all material respects to the Initial Certificates
(except that, with respect to the Exchange Certificates of each Trust,
(i) interest thereon shall accrue as set forth in Section 2(a) hereof,
(ii) the transfer restrictions thereon shall be eliminated, (iii)
certain provisions relating to an increase in the stated rate of
interest thereon shall be eliminated and (iv) such Exchange Certificates
shall initially be available only in book-entry form), including having
the benefit of the Policy (as defined in the Purchase Agreement), to be
offered to Holders of Initial Certificates in exchange for Initial
Certificates pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Certificates for Registrable Certificates pursuant to Section
2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean a Registration
Statement on Form S-4 (or, if applicable, on another appropriate form)
filed with the SEC pursuant to Section 2(a) of this Agreement, 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.
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"Holders" shall mean each of the Initial Purchasers, for so long as
they own any Registrable Certificates, and each of their successors,
assigns and direct and indirect transferees who become registered owners
of Registrable Certificates.
"Initial Certificates" has the meaning set forth in the preamble of
this Agreement.
"Initial Purchasers" shall have the meaning set forth in the
preamble of this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Certificates;
provided that whenever the consent or approval of Holders of a specified
percentage of Registrable Certificates is required hereunder,
Registrable Certificates held by the Company or any of its "affiliates"
(as such term is defined in Rule 405 under the 0000 Xxx) (other than the
Initial Purchasers or subsequent holders of Registrable Certificates if
such subsequent holders are deemed to be affiliates solely by reason of
their holding of such Registrable Certificates) shall be disregarded 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.
"Original Trusts" shall have the meaning set forth in the preamble
of this Agreement.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(f) of this Agreement.
"Pass Through Trust Agreements" shall mean each of the Pass Through
Trust Agreements relating to the Initial Certificates between the
Company and each Trustee, as may be amended from time to time in
accordance with the terms thereof.
"Person" shall mean an individual, partnership, corporation,
limited liability company, 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 Certificates covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble of this Agreement.
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"Registrable Certificates" shall mean the Initial Certificates;
provided, however, that the Initial Certificates shall cease to be
Registrable Certificates when (i) a Shelf Registration Statement with
respect to such Initial Certificates shall have been declared effective
under the 1933 Act and such Initial Certificates shall have been
disposed of pursuant to such Shelf Registration Statement, (ii) such
Initial Certificates shall have been sold to the public pursuant to Rule
144 (or any similar provision then in force, but not Rule 144A) under
the 1933 Act or may then be sold to the public pursuant to paragraph (k)
of said Rule 144 (or any similar provision then in force) by Holders
other than "affiliates" or former "affiliates" (as such term is defined
in paragraph (a) of Rule 144) of the Company, (iii) such Initial
Certificates shall have ceased to be outstanding or (iv) such Initial
Certificates have been exchanged for Exchange Certificates upon
consummation of the Exchange Offer.
"Registration Default" shall have the meaning set forth in Section
2(b) of this Agreement.
"Registration Event" shall mean the declaration of the
effectiveness by the SEC of an Exchange Offer Registration Statement or
a Shelf Registration Statement.
"Registration Expenses" shall mean any and all reasonable expenses
incident to performance of or compliance by the Company and the Trustees
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 or other
securities or blue sky laws and compliance with the rules of the NASD
(including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with state or other securities or
blue sky qualification of any of the Exchange Certificates or
Registrable Certificates), (iii) all expenses incurred by the Company in
preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus, any amendments
or supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) all
fees and expenses incurred in connection with the listing, if any, of
any of the Registrable Certificates on any securities exchange or
exchanges, (vi) all fees and disbursements relating to the qualification
of the Pass Through Trust Agreements and the Successor Pass Through
Trust Agreements under applicable securities laws, (vii) the fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audits
or "cold comfort" letters required by or incident to such performance
and compliance, (viii) the reasonable fees and expenses of the Trustees,
including their counsel, and any escrow agent or custodian, (ix) 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 Initial
Purchasers) and (x) any reasonable fees and disbursements of the
underwriters, if any, in connection with any Shelf Registration
Statement, and the reasonable fees and expenses of any special experts
retained by the Company in connection with any Registration Statement,
in each case as are customarily required to be paid by issuers, but
excluding (with respect to clauses (iii) through (x) above) fees of
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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 Certificates by a Holder.
"Registration Statement" shall mean any registration statement of
the Company which covers any of the Exchange Certificates or Registrable
Certificates pursuant to the provisions of this Agreement, and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"SEC" shall mean the Securities and Exchange Commission, as from
time to time constituted or created under the United States Securities
Exchange Act of 1934, as amended, or, if at any time after the execution
of this instrument such Commission is not existing and performing the
duties now assigned to it under the TIA, then the body performing such
duties on such date.
"Shelf Registration" shall mean a registration under the 1933 Act
effected pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of
this Agreement which covers some or all of the Registrable Certificates
(but no other securities unless approved by the Holders whose
Registrable Certificates are covered by such Shelf Registration
Statement) on an appropriate form under Rule 415 under the 1933 Act, or
any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post- effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Staff" shall mean the Staff of the Division of Corporation Finance
of the SEC.
"Successor Pass Through Trust Agreements" shall mean each of the
Successor Pass Through Trust Agreements entered into on the date hereof
between the Company and each Trustee forming the Successor Trusts, as
may be amended from time to time in accordance with the terms thereof.
"Successor Trusts" shall have the meaning set forth in the preamble
of this Agreement.
"TIA" shall have the meaning set forth in Section 3(l) of this
Agreement.
"Transfer Date" shall have the meaning set forth in the Purchase
Agreement.
"Trustees" shall mean the trustees under the Pass Through Trust
Agreements or the Successor Pass Through Trust Agreements, as the case
may be.
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"Trusts" shall mean the Original Trusts, or the Successor Trusts,
as the case may be.
2. Registration under the 1933 Act.
(a) Exchange Offer Registration. To the extent not prohibited by
any applicable law or applicable interpretation of the Staff, the Company
shall (A) file with the SEC within 90 days after the Closing Date an Exchange
Offer Registration Statement covering the offer by the Company to the Holders
to exchange all of the Registrable Certificates for Exchange Certificates,
(B) use its reasonable best efforts to cause such Exchange Offer Registration
Statement to be declared effective by the SEC within 180 days after the
Closing Date, (C) use its reasonable best efforts to cause such Registration
Statement to remain effective until the closing of the Exchange Offer and (D)
use its reasonable best efforts to consummate the Exchange Offer within 210
days after the Closing Date. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Exchange
Offer, it being the objective of such Exchange Offer to enable each Holder
(other than Participating Broker-Dealers) eligible and electing to exchange
Registrable Certificates for Exchange Certificates (assuming that such Holder
is not an affiliate of the Company within the meaning of Rule 405 under the
1933 Act, acquires the Exchange Certificates in the ordinary course of such
Holder's business and has no arrangements or understandings with any person
to participate in the Exchange Offer for the purpose of distributing the
Exchange Certificates) to trade such Exchange Certificates from and after
their receipt without any limitations or restrictions under the 1933 Act and
without material restrictions under the securities laws of a substantial
proportion of the several states of the United States.
In connection with the Exchange Offer, the Company shall or shall
direct the Trustees to and the Trustee shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 20 Business
Days after the date notice thereof is mailed to the Holders (or longer
if required by applicable law);
(iii) use the services of DTC for the Exchange Offer with respect
to Initial Certificates evidenced by global certificates;
(iv) permit Holders to withdraw tendered Registrable Certificates
at any time prior to the close of business, New York City time, on the
last Business Day on which the Exchange Offer shall remain open, by
delivering to the institution specified in the notice, a telegram,
telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Certificates delivered for
exchange, and a statement that such Holder is withdrawing its election
to have such Registrable Certificates exchanged;
(v) use its reasonable best efforts to ensure that (i) any Exchange
Offer Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any supplement thereto complies in
all material respects with the
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1933 Act and the rules and regulations thereunder, (ii) any Exchange
Offer Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and (iii) any Prospectus
forming part of any Exchange Offer Registration Statement, and any
supplement to such Prospectus (as amended or supplemented from time to
time), does not, prior to the consummation of the Exchange Offer,
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in light of the
circumstances under which they were made, not misleading; and
(vi) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall or shall direct the Trustees to and the Trustees shall:
(i) accept for exchange Registrable Certificates duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with
the terms of the Exchange Offer Registration Statement and the letter of
transmittal which is an exhibit thereto;
(ii) cancel or cause to be canceled all Registrable Certificates so
accepted for exchange by the Company; and
(iii) promptly cause to be authenticated and delivered Exchange
Certificates to each Holder of Registrable Certificates equal in amount
to the Registrable Certificates of such Holder so accepted for exchange.
Interest on each Exchange Certificate will accrue from the last
date on which interest was paid on the Registrable Certificates surrendered
in exchange therefor or, if no interest has been paid on the Registrable
Certificates, from the Closing Date. The Exchange Offer shall not be subject
to any conditions, other than that the Exchange Offer, or the making of any
exchange by a Holder, does not violate applicable law or any applicable
interpretation of the Staff. Each Holder of Registrable Certificates (other
than Participating Broker-Dealers) who wishes to exchange such Registrable
Certificates for Exchange Certificates in the Exchange Offer shall represent
that (i) it is not an "affiliate" of the Company or the Trustee within the
meaning of Rule 405 under the 1933 Act, (ii) any Exchange Certificates to be
received by it were acquired in the ordinary course of business and (iii) it
has no arrangement with any Person to participate in the distribution (within
the meaning of the 0000 Xxx) of the Exchange Certificates.
(b) Shelf Registration. (i) If, because of any change in law or
applicable interpretations thereof by the Staff, the Company is not permitted
to effect the Exchange Offer as contemplated by Section 2(a) hereof, or (ii)
if for any other reason the Exchange Offer is not declared effective within
180 days after the Closing Date or the Exchange Offer is not consummated
within 210 days after the Closing Date (a "Registration Default"), or (iii)
if any Holder (other than an Initial Purchaser) is not eligible to
participate in the Exchange Offer or (iv) upon the request of any Initial
Purchaser (with respect to any Registrable Certificates which it acquired
directly from the Company) following the consummation of the Exchange Offer
if such Initial
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Purchaser shall hold Registrable Certificates which it acquired directly from
the Company and if such Initial Purchaser is not permitted, in the opinion of
counsel to such Initial Purchaser, pursuant to applicable law or applicable
interpretation of the Staff to participate in the Exchange Offer, the Company
shall, at its cost:
(A) as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the Registrable
Certificates by the Holders from time to time in accordance with the
methods of distribution elected by the Majority Holders of such
Registrable Certificates and set forth in such Shelf Registration
Statement, and use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the SEC by the 180th
day after the Closing Date in the event that the Company is not
permitted to effect the Exchange Offer as contemplated by Section 2(a)
hereof (or promptly if the Exchange Offer is not consummated within 210
days after the Closing Date or in the event of a request by any Holder
pursuant to clause (iii) above or any Initial Purchaser pursuant to
clause (iv) above). In the event that the Company is required to file a
Shelf Registration Statement upon the request of any Holder (other than
an Initial Purchaser) not eligible to participate in the Exchange Offer
pursuant to clause (iii) above or upon the request of any Initial
Purchaser pursuant to clause (iv) above, the Company shall file and use
its reasonable best efforts to have declared effective by the SEC both
an Exchange Offer Registration Statement pursuant to Section 2(a) with
respect to all Registrable Certificates and a Shelf Registration
Statement (which may be a combined Registration Statement with the
Exchange Offer Registration Statement) with respect to offers and sales
of Registrable Certificates held by such Holder or such Initial
Purchaser after completion of the Exchange Offer. If the Company files a
Shelf Registration Statement pursuant to Section 2(b)(i) or (ii) hereof,
the Company will no longer be required to effect the Exchange Offer;
(B) use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective, in order to permit the Prospectus
forming part thereof to be usable by Holders, for a period of two years
after the Closing Date (or one year from the Closing Date if such Shelf
Registration Statement is filed upon the request of any Initial
Purchaser pursuant to clause (iv) above) or such shorter period as shall
end when all of the Registrable Certificates covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or cease to be outstanding; and
(C) notwithstanding any other provisions hereof, use its reasonable
best efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act
and the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto (in either case, other than with
respect to information included therein in reliance upon or in
conformity with information furnished to the Company by or on behalf of
a Holder specifically for use therein (the "Holders' Information")) 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) during the period in which the Shelf Registration Statement is
effective any Prospectus forming part of any Shelf Registration
Statement, and any supplement to such Prospectus (as
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amended or supplemented from time to time) (in any case, other than with
respect to Holders' Information), does not include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements, in light of the circumstances under which they
were made, not misleading.
The Company further agrees, if necessary, to supplement or amend
the Shelf Registration Statement if reasonably requested by the Majority
Holders with respect to Holders' Information and otherwise as required by
Section 3(b) below, to use all reasonable efforts to cause any such amendment
to become effective and such Shelf Registration Statement to become usable as
soon as practicable thereafter and to furnish to the Holders of Registrable
Certificates included in the Shelf Registration Statement copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
The Company shall be allowed a period of five days, beginning on
the first day a Registration Default occurs, to cure such Registration
Default before the Company will be required to comply with the requirements
of Section 2(b).
(c) Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) or 2(b) and, in the
case of any Shelf Registration Statement, will reimburse the Holders or
Initial Purchasers for the reasonable fees and disbursements of one firm or
counsel designated in writing by the Majority Holders to act as counsel for
the Holders of the Registrable Certificates in connection therewith. Each
Holder shall pay all expenses of its counsel, other than as set forth in the
preceding sentence, underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's
Registrable Certificates pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. (i) The Company will be
deemed not to have used its reasonable best efforts to cause the Exchange
Offer Registration Statement or the Shelf Registration Statement, as the case
may be, to become, or to remain, effective during the requisite period if the
Company voluntarily takes any action that would result in any such
Registration Statement not being declared effective or in the Holders of
Registrable Certificates covered thereby not being able to exchange or offer
and sell such Registrable Certificates during that period unless (A) such
action is required by applicable law or (B) such action is taken by the
Company in good faith and for valid business reasons (not including avoidance
of the Company's obligations hereunder), including, without limitation, the
acquisition or divestiture of assets, so long as the Company promptly
complies with the requirements of Section 3(j) hereof, if applicable.
(ii) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Certificates pursuant to a
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court, such Registration Statement will be deemed not to have been effective
during the period of such interference, until the offering of Registrable
Certificates pursuant to such Registration Statement may legally resume.
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(e) Increase in Interest Rate. In the event that no Registration
Event has occurred on or prior to the 210th day after the Closing Date, the
interest rate per annum payable in respect of the Initial Certificates shall
be increased by 0.50%, effective from and including such 210th day, to but
excluding the earlier of (i) the date on which a Registration Event occurs
and (ii) the date on which there cease to be any Registrable Certificates,
which additional interest shall be paid through a combination of an increase
in the interest rate per annum borne by the Equipment Notes of 0.50% and, if
applicable, an increase in the interest rate per annum payable on the
Deposits of 0.50% pursuant to the Depositary Agreements. In the event that
the Shelf Registration Statement ceases to be effective at any time during
the period specified by Section 2(b)(B) hereof for more than 60 days, whether
or not consecutive, during any 12-month period, the interest rate payable in
respect of the Initial Certificates shall be increased by 0.50% per annum
from the 61st day of the applicable 12-month period such Shelf Registration
Statement ceases to be effective until such time as the Shelf Registration
Statement again becomes effective (or, if earlier, the end of the period
specified by Section 2(b)(B) hereof), which additional interest shall be paid
through a combination of an increase in the interest rate per annum borne by
the Equipment Notes of 0.50% and, if applicable, an increase in the interest
rate per annum payable on the Deposits of 0.50% pursuant to the Depositary
Agreements.
(f) Specific Performance. Without limiting the remedies available
to the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Section 2(a) and
Section 2(b) hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law, that
it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, each Initial Purchaser or any Holder
may obtain such relief as may be required to specifically enforce the
Company's obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of
the Company with respect to the Registration Statements pursuant to Sections
2(a) and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement, within
the time period specified in Section 2, on the appropriate form under
the 1933 Act, which form (i) shall be selected by the Company, (ii)
shall, in the case of a Shelf Registration, be available for the sale of
the Registrable Certificates by the selling Holders thereof and (iii)
shall comply as to form in all material respects with the requirements
of the applicable form;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; cause each Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the 1933 Act;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Certificates when a Shelf Registration Statement with
respect to the Registrable Certificates has been filed and advise such
Holders that the distribution of Registrable Certificates will be made
in accordance with the method elected by the Majority Holders; (ii)
furnish to each Holder of Registrable
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Certificates included within the coverage of the Shelf Registration
Statement at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all reports, other
documents and exhibits filed with the SEC (including those incorporated
by reference) at the expense of the Company, (iii) furnish to each
Holder of Registrable Certificates included within the coverage of the
Shelf Registration Statement, to counsel for the Holders and to each
underwriter of an underwritten offering of Registrable Certificates, if
any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto as such
Holder or underwriter may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Certificates; and
(iv) subject to the last paragraph of Section 3, consent to the use of
the Prospectus or any amendment or supplement thereto by each of the
selling Holders of Registrable Certificates included in the Shelf
Registration Statement in connection with the offering and sale of the
Registrable Certificates covered by the Prospectus or any amendment or
supplement thereto;
(d) use its reasonable best efforts to register or qualify the
Registrable Certificates or cooperate with the Holders of Registrable
Certificates and their counsel in the registration or qualification of
such Registrable Certificates under all applicable state securities or
"blue sky" laws of such jurisdictions as any Holder of Registrable
Certificates covered by a Registration Statement and each underwriter of
an underwritten offering of Registrable Certificates shall reasonably
request in writing, to cooperate with the Holders in connection with any
filings required to be made with the NASD, and do any and all other acts
and things which may be reasonably necessary or advisable to enable such
Holders to consummate the disposition in each such jurisdiction of such
Registrable Certificates owned by such Holders; provided, however, that
in no event shall the Company be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(d) or
(ii) take any action which would subject it to general service of
process or taxation in any such jurisdiction if it is not then so
subject;
(e) in the case of a Shelf Registration or in the case of an
Exchange Registration if the Company has received from a Participating
Broker-Dealer the notice specified in Section 3(f)(A)(ii), notify each
Holder of Registrable Certificates included in such Shelf Registration
or such Exchange Registration and such Participating Broker-Dealer
promptly and, if requested by such Holder, Participating Broker-Dealer
or their counsel, confirm such advice in writing promptly (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request
by the SEC or any state securities authority for post-effective
amendments and supplements to a Registration Statement and Prospectus or
for additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) in the case of a Shelf Registration at the closing of any
sale of Registrable Certificates if, between the effective date of a
Shelf Registration Statement and such closing, the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other
12
similar agreement, if any, relating to such offering cease to be true
and correct in all material respects, (v) of the receipt by the Company
of any notification with respect to the suspension of the qualification
of the Registrable Certificates for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (vi) of
the happening of any material event or the discovery of any material
facts during the period a Registration Statement is effective which
makes any statement made in such Registration Statement or the related
Prospectus untrue or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements
therein (in the case of the Prospectus in light of the circumstances
under which they were made) not misleading and (vii) of any
determination by the Company that a post-effective amendment to a
Registration Statement would be appropriate;
(f) (A) in the case of the Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by broker- dealers who have exchanged their
Registrable Certificates for Exchange Certificates for the resale of
such Exchange Certificates, (ii) furnish to each broker-dealer who has
delivered to the Company a notice that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement to
sell Exchange Certificates and is required to deliver a Prospectus and
who agrees to be bound by the applicable terms of this Agreement,
without charge, as many copies of each Prospectus included in the
Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such
broker-dealer may reasonably request, (iii) include in the Exchange
Offer Registration Statement a statement that any broker-dealer who
holds Registrable Certificates acquired for its own account as a result
of market-making activities or other trading activities (a
"Participating Broker- Dealer"), and who receives Exchange Certificates
for Registrable Certificates pursuant to the Exchange Offer, may be a
statutory underwriter and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such
Exchange Certificates, (iv) subject to the last paragraph of Section 3,
hereby consent to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto, by
any broker-dealer who has delivered the notice specified in clause (ii)
above in connection with the sale or transfer of the Exchange
Certificates covered by the Prospectus or any amendment or supplement
thereto, and (v) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer the following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage
in, a distribution of Exchange Certificates. If the undersigned is
a broker-dealer that will receive Exchange Certificates for its own
account in exchange for Registrable Certificates, it represents
that the Registrable Certificates to be exchanged for Exchange
Certificates were acquired by it as a result of market-making
activities or other trading activities and acknowledges that it
will deliver a prospectus meeting the requirements of the 1933 Act
in connection with any resale of such Exchange Certificates
pursuant to the Exchange Offer; however, by so acknowledging and by
13
delivering a prospectus, the undersigned will not be deemed to
admit that it is an "underwriter" within the meaning of the 1933
Act";
(B) to the extent any Participating Broker-Dealer participates in
the Exchange Offer, use its reasonable best efforts to cause to be delivered
at the request of an entity representing the Participating Broker-Dealers
(which entity shall be Xxxxxxx Xxxxx Xxxxxx Inc., unless it elects not to act
as such representative) only one, if any, "cold comfort" letter with respect
to the Prospectus in the form existing on the last date for which exchanges
are accepted pursuant to the Exchange Offer and with respect to each
subsequent amendment or supplement, if any, effected during the period
specified in clause (C) below;
(C) to the extent any Participating Broker-Dealer participates in
the Exchange Offer, use its reasonable best efforts to maintain the
effectiveness of the Exchange Offer Registration Statement for such period of
time as any Participating Broker-Dealer must comply with the prospectus
delivery requirements of the 1933 Act; provided, however, that such period
shall not exceed the 180-day period specified in clause (D) below; and
(D) not be required to amend or supplement the Prospectus contained
in the Exchange Offer Registration Statement as would otherwise be
contemplated by Section 3(b), or take any other action as a result of this
Section 3(f), for a period exceeding 180 days after the last date for which
exchanges are accepted pursuant to the Exchange Offer (as such period may be
extended by the Company) and Participating Broker-Dealers shall not be
authorized by the Company to, and shall not, deliver such Prospectus after
such period in connection with resales contemplated by this Section 3;
(g) (A) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (B) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Certificates copies of any request by
the SEC or any state securities authority for amendments or supplements to a
Registration Statement and Prospectus or for additional information;
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon as
practicable;
(i) unless any Registrable Certificates are in book entry form
only, in the case of a Shelf Registration, cause the Trustees to cooperate
with the selling Holders of Registrable Certificates to facilitate the timely
preparation and delivery of certificates representing Registrable
Certificates to be sold free from any restrictive legends; and cause such
Registrable Certificates to be in such denominations (consistent with the
provisions of the Pass Through Trust Agreements or the Successor Pass Through
Trust Agreements, as the case may be) and registered in such names as the
selling Holders or the underwriters, if any, may reasonably request at least
two Business Days prior to the closing of any sale of Registrable
Certificates;
(j) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Sections
2(d)(i)(B) or 3(e)(ii)-(vi) hereof, use its reasonable best efforts to
prepare a post-effective amendment to a Registration Statement or an
amendment or supplement to the related Prospectus or file
14
any other required document so that, as thereafter delivered to the Initial
Purchasers of the Registrable Certificates, such Prospectus will not contain
at the time of such delivery any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading. The Company
agrees to notify each Holder to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and each Holder hereby
agrees to suspend use of the Prospectus as promptly as practicable upon
receipt of such notice until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission or until notified that
use of the Prospectus may be resumed, provided that the Company shall use all
reasonable efforts to cause such suspension not to last more than 30 days per
occurrence or more than 60 days in aggregate in a calendar year. At such time
as such public disclosure is otherwise made or the Company determines that
such disclosure is not necessary, in each case to correct any misstatement of
a material fact or to include any omitted material fact, the Company agrees
promptly to notify each Holder of such determination and to furnish each
Holder such numbers of copies of the Prospectus, as amended or supplemented,
as such Holder may reasonably request;
(k) obtain a CUSIP number for all Exchange Certificates, or
Registrable Certificates, as the case may be, of each Trust not later than
the effective date of an Exchange Offer Registration Statement or Shelf
Registration Statement, as the case may be, and provide the Trustees with
certificates evidencing the Exchange Certificates or the Registrable
Certificates, as the case may be, held in book entry form, in a form eligible
for deposit with DTC;
(l) (i) cause the Pass Through Trust Agreements or Successor Pass
Through Trust Agreements, as the case may be, to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Certificates, or Registrable Certificates, as
the case may be, (ii) cooperate with the Trustees and the Holders to effect
such changes to the Pass Through Trust Agreements or Successor Pass Through
Trust Agreements as may be required for the Pass Through Trust Agreements or
Successor Pass Through Trust Agreements, as the case may be, to be so
qualified in accordance with the terms of the TIA and (iii) execute, and use
its reasonable best efforts to cause the Trustees to execute, all documents
as may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Pass Through Trust Agreements
or Successor Pass Through Trust Agreements, as the case may be, to be so
qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such customary
agreements (including underwriting agreements in customary form) and take all
other customary and appropriate actions (including those reasonably requested
by the Holders of a majority in principal amount of Registrable Certificates
being sold) in order to expedite or facilitate the disposition of such
Registrable Certificates and in such connection whether or not an
underwriting agreement is entered into and whether or not the registration is
an underwritten registration:
(i) make such representations and warranties to the Holders of such
Registrable Certificates and the underwriters, if any, in form,
substance and scope as are customarily made by the Company to
underwriters in similar underwritten offerings as may be reasonably
requested by them;
15
(ii) obtain opinions of counsel to the Company (who may be the
general counsel of the Company) and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory
to the managing underwriters, if any, or if there are no such managing
underwriters, to the Holders of a majority in principal amount of the
Registrable Certificates being sold) addressed to each selling Holder
and the underwriters, if any, covering the matters customarily covered
in opinions requested in sales of securities or underwritten offerings;
(iii) obtain a "cold comfort" letter and updates thereof from the
Company's independent certified public accountants addressed to the
underwriters, if any, such letter to be in customary form and covering
such matters of the type customarily covered in "cold comfort" letters
in connection with similar underwritten offerings as the managing
underwriters shall reasonably request;
(iv) enter into a securities sales agreement with the Holders and
an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Certificates, which agreement shall
be in form, substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the same to
set forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures set forth in
Section 5 hereof (or such other provisions and procedures acceptable to
Holders of a majority in principal amount of Registrable Certificates
being sold and the managing underwriters) with respect to all parties to
be indemnified pursuant to said Section; and
(vi) deliver such other documents and certificates as may be
reasonably requested by Holders of a majority in principal amount of
Registrable Certificates being sold, and as are customarily delivered in
similar offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto) if
appropriate in connection with any particular disposition of Registrable
Certificates and (ii) each closing under any underwriting or similar
agreement as and to the extent required thereunder. In the case of any
underwritten offering, the Company shall provide written notice to the
Holders of all Registrable Certificates of such underwritten offering at
least 30 days prior to the filing of the prospectus supplement in connection
with such underwritten offering. Such notice shall (x) offer each such Holder
the right to participate in such underwritten offering, (y) specify a date,
which shall be no earlier than 10 days following the date of such notice, by
which such Holder must inform the Company of its intent to participate in
such underwritten offering and (z) include the instructions such Holder must
follow in order to participate in such underwritten offering;
(n) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable Certificates
and any underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any counsel or accountant retained by such Holders
or underwriters, all financial and other records, pertinent corporate
documents and properties of the Company reasonably
16
requested by it, and cause the respective officers, directors, employees, and
any other agents of the Company to make reasonably available all relevant
information reasonably requested by any such representative, underwriter,
counsel or accountant in connection with a Registration Statement, in each
case as is customary for similar due diligence examinations; provided,
however, that any information that is designated in writing by the Company,
in good faith, as confidential at the time of delivery of such information
shall be kept confidential by such representatives, underwriters, counsel or
accountant, unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes available to the
public generally or through a third party without an accompanying obligation
of confidentiality; and provided further that the foregoing inspection and
information gathering shall, to the extent reasonably possible, be
coordinated on behalf of the Holders and the other parties entitled thereto
by one counsel designated by and on behalf of such Holders and other parties;
and provided further that each person performing such inspection and
information gathering will be required to execute a confidentiality agreement
containing customary terms and provisions and to agree that upon learning
that disclosure of such information is sought in connection with a court
proceeding or required by law, it will give notice to the Company and allow
the Company at its expense to undertake appropriate action to prevent
disclosure of such confidential information;
(o) (i) a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any amendment
to an Exchange Offer Registration Statement or amendment or supplement to a
Prospectus, provide copies of such document to the Initial Purchasers, and
use its reasonable best efforts to reflect in any such document when filed
such comments as any of the Initial Purchasers or their counsel may
reasonably request; (ii) in the case of a Shelf Registration, a reasonable
time prior to filing any Shelf Registration Statement, any Prospectus forming
a part thereof, any amendment to such Shelf Registration Statement or
amendment or supplement to such Prospectus (unless such supplement is being
filed in response to a request by a Holder to amend any Holder's Information
with respect to such Holder), provide copies of such document to the Holders
of Registrable Certificates participating in a disposition thereunder, to the
Initial Purchasers, to counsel on behalf of the Holders and to the
underwriter or underwriters of an underwritten offering of Registrable
Certificates, if any, and use its reasonable best efforts to reflect such
comments in any such document when filed as such Holders of Registrable
Certificates, their counsel and any underwriter may reasonably request; and
(iii) cause the representatives of the Company to be available for discussion
of such document as shall be reasonably requested by such Holders of
Registrable Certificates, the Initial Purchasers on behalf of such Holders or
any underwriter and shall not at any time make any filing of any such
document of which such Holders, the Initial Purchasers on behalf of such
Holders, their counsel or any underwriter shall not have previously been
advised and furnished a copy or to which such Holders, the Initial Purchasers
on behalf of such Holders, their counsel or any underwriter shall reasonably
object;
(p) use its reasonable best efforts to cause the Exchange
Certificates or Registrable Certificates, as the case may be, to be rated
with two nationally recognized statistical rating organizations (as such term
is defined in Rule 436(g)(12) under the 0000 Xxx); and
(q) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC and make generally available to
its security holders, as
17
soon as reasonably practicable after the effective date of a Registration
Statement, an earnings statement which shall satisfy the provisions of
Section 11(a) of the 1933 Act and Rule 158 thereunder.
In the case of a Shelf Registration Statement, the Company may (as
a condition to such Holder's participation in the Shelf Registration) require
each Holder of Registrable Certificates to agree to be bound by the
applicable terms of this Agreement and to furnish to the Company such
information regarding such Holder and the proposed distribution by such
Holder of such Registrable Certificates as the Company may from time to time
reasonably request and the Company may exclude from such registration the
Registrable Certificates of any Holder that fails to furnish such information
within a reasonable time after receiving such request. Each Holder as to
which any Shelf Registration is being effected hereby agrees to furnish to
the Company all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not materially
misleading.
Each Holder agrees that, upon receipt of any notice from the
Company of the happening of any event or the discovery of any facts, each of
the kind described in Sections 2(d)(i)(B) or 3(e)(ii)-(vi) hereof, such
Holder will forthwith discontinue disposition of Registrable Certificates
pursuant to such Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(j)
hereof or it is advised in writing by the Company that the use of the
applicable Prospectus may be resumed, and, if so directed by the Company,
such Holder will deliver to the Company (at the Company's expense) all copies
in its possession other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Certificates current
at the time of receipt of such notice. If the Company shall give any such
notice to suspend the disposition of Registrable Certificates pursuant to a
Registration Statement as a result of the happening of any event or the
discovery of any facts, each of the kind described in Sections 2(d)(i)(B) or
3(e)(ii)-(vi) hereof, the Company shall be deemed to have used its reasonable
best efforts to keep the Registration Statement effective during such period
of suspension provided that the Company shall use its reasonable best efforts
to file and have declared effective (if an amendment) as soon as practicable
an amendment or supplement to the Registration Statement and shall extend the
period during which the Registration Statement shall be maintained effective
pursuant to this Agreement by the number of days during the period from and
including the date of the giving of such notice to and including the date
when the Holders shall have received copies of the supplemented or amended
Prospectus necessary to resume such dispositions or it is advised in writing
by the Company that the use of the applicable Prospectus may be resumed.
4. Underwritten Offering. The Holders of Registrable Certificates
covered by a Shelf Registration Statement who desire to do so may sell such
Registrable Certificates in an underwritten offering. In any such
underwritten offering, the investment banker or bankers and manager or
managers that will administer the offering will be selected by, and the
underwriting arrangements with respect thereto will be approved by, the
Holders of a majority of the Registrable Securities to be included in such
offering; provided, however, that (i) such investment bankers and managers
and underwriting arrangements must be reasonably satisfactory to the Company
and (ii) the Company shall not be obligated to arrange for more than one
underwritten offering during the period such Shelf Registration Statement is
required to be effective pursuant to Section 2(b)(B) hereof. No Holder may
participate in any underwritten offering
18
contemplated hereby unless such Holder (a) agrees to sell such Holder's
Registrable Certificates in accordance with any approved underwriting
arrangements, (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such approved underwriting
arrangements and (c) at least 20% of the outstanding Registrable Certificates
are included in such underwritten offering. The Holders participating in any
underwritten offering shall be responsible for any expenses customarily borne
by selling securityholders, including underwriting discounts and commissions
and fees and expenses of counsel to the selling securityholders.
5. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless, each Initial Purchaser, each Holder and each
person, if any, who controls any Initial Purchaser or any Holder within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act,
from and against all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred by any
Initial Purchaser, any Holder or any such controlling person in connection
with defending or investigating any such action or claim) caused by any
untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement (or any amendment thereto) pursuant to which
Exchange Certificates or Registrable Certificates were registered under the
1933 Act, including all documents incorporated therein by reference, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or caused by any untrue statement or alleged untrue statement of
a material fact contained in any Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
necessary to make the statements therein in light of the circumstances under
which they were made not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to the
Initial Purchasers or any Holder furnished to the Company in writing by the
Initial Purchasers or any selling Holder expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to any
preliminary Prospectus shall not inure to the benefit of any Person from whom
the Person asserting any such losses, claims, damages or liabilities
purchased Registrable Certificates, or any person controlling such seller, if
a copy of the final Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such seller to such purchaser with or prior
to the written confirmation of the sale of the Registrable Certificates to
such Person, and if the final Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or
liabilities. In connection with any underwritten offering permitted by
Section 4, the Company will also indemnify the underwriters participating in
the distribution, their officers and directors and each Person who controls
such Persons (within the meaning of the 1933 Act and the 0000 Xxx) to the
same extent as provided above with respect to the indemnification of the
Holders, if requested in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, each Initial Purchaser, the other selling Holders,
and each of their respective directors, officers who sign the Registration
Statement and each Person, if any, who controls the Company, any Initial
Purchaser and any other selling Holder within the meaning of either Section
15 of the 1933 Act or Section 20 of the 1934 Act to
19
the same extent as the foregoing indemnity from the Company to the Initial
Purchasers and the Holders, but only with reference to information relating
to such Holder furnished to the Company in writing by such Holder expressly
for use in any Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or paragraph (b)
above, such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, may elect to or upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel)
for all such indemnified parties and that such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing (i)
by the Initial Purchasers in the case of the Initial Purchasers and related
parties indemnified pursuant to paragraph (a) above, (ii) by the Majority
Holders in the case of the Holders and related parties indemnified pursuant
to paragraph (a) above, and (iii) by the Company in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent but, if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifyng party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which such indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and the Holders shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a
20
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Holders' respective
obligations to contribute pursuant to this Section 5(d) are several in
proportion to the respective aggregate principal amount of Registrable
Certificates of such Holder that were registered pursuant to a Registration
Statement.
(e) The Company and each Holder agree that it would not be just or
equitable if contribution pursuant to this Section 5 were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at
which Registrable Certificates were sold by such Holder exceeds the amount of
any damages that such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 5 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or
in equity.
The indemnity and contribution provisions contained in this Section
5 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers, any Holder or any person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company, its officers or
directors or any person controlling the Company, (iii) acceptance of any of
the Exchange Certificates and (iv) any sale of Registrable Certificates
pursuant to a Shelf Registration Statement.
6. Miscellaneous. (a) Rule 144 and Rule 144A. For so long as
Amtran, Inc. is subject to the reporting requirements of Section 13 or 15 of
the 1934 Act, the Company covenants that it will cause Amtran, Inc. to file
the reports required to be filed by it under Section 13(a) or 15(d) of the
1934 Act and the rules and regulations adopted by the SEC thereunder, that if
it ceases to be so required to file such reports, it will upon the request of
any Holder of Registrable Certificates (i) make publicly available such
information as is necessary to permit sales pursuant to Rule 144 under the
1933 Act, (ii) deliver (and cause Amtran Inc. to deliver) such information to
a prospective purchaser as is necessary to permit sales pursuant to Rule 144A
under the 1933 Act, and (iii) take such further action that is reasonable in
the circumstances, in each case, to the extent required from time to time to
enable such Holder to sell its Registrable Certificates without registration
under the 1933 Act within the limitation of the exemptions provided by (x)
Rule 144 under the 1933 Act, as such Rule may be amended from time to time,
(y) Rule 144A under the 1933 Act, as such Rule may be amended from time to
time, or (z) any similar rules or regulations hereafter adopted by the SEC.
Upon the reasonable request of any Holder of Registrable Certificates, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
21
(b) Purchase and Sale of Certificates. The Company shall not, and
the Company shall use its reasonable best efforts to cause its affiliates (as
defined in Rule 405 under the 0000 Xxx) not to, purchase and then resell or
otherwise transfer any Initial Certificates.
(c) Trustees. The Trustees shall take such action as may be
reasonably requested by the Company in connection with the Company satisfying
its obligations arising under this Agreement; provided that the Company shall
provide to the Trustee (as Trustee and in its individual capacity) such
indemnity in connection therewith as the Trustee may reasonably request,
subject to any separate fee arrangement between the Company and the Trustee.
(d) No Inconsistent Agreements. The Company has not entered into
nor will the Company on or after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Certificates in this Agreement or otherwise conflicts with the
provisions hereof.
(e) Amendments and Waivers. Except as otherwise expressly permitted
in the Pass Through Trust Agreements or the Successor Pass Through Trust
Agreements, the provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given unless the
Company has obtained the written consent of Holders of at least a majority in
aggregate principal amount of the outstanding Registrable Certificates
affected by such amendment, modification, supplement, waiver or departure;
provided, however, that no amendment, modification, supplement or waiver or
consent to any departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Certificates unless consented
to in writing by such Holder.
(f) 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(f), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to
the Company, initially at the Company's address set forth in the Purchase
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(f).
All such notices and communications shall be deemed to have been
duly given when received or, if made by facsimile or telecommunication
transmission, when received unless received outside of business hours, in
which case on the next open of business on a Business Day.
Copies of all such notices, demands, or other communications shall
be concurrently delivered by the person giving the same to the Trustees, at
the address specified in the Pass Through Trust Agreements or the Successor
Pass Through Trust Agreements, as the case may be.
(g) 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,
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including, without limitation and without the need for an express assignment,
subsequent Holders; provided that nothing herein shall be deemed to permit
any assignment, transfer or other disposition of Registrable Certificates in
violation of the terms hereof or of the Purchase Agreement or the Pass
Through Trust Agreements or Successor Pass Through Trust Agreements. If any
transferee of any Holder shall acquire Registrable Certificates, in any
manner, whether by operation of law or otherwise, such Registrable
Certificates shall be held subject to all of the terms of this Agreement, and
by taking and holding such Registrable Certificates, such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale
set forth in this Agreement and, if applicable, the Purchase Agreement, and
such Person shall be entitled to receive the benefits hereof. Upon the
occurrence of the transfers contemplated by the Assignment and Assumption
Agreements (as defined in the Pass Through Trust Agreements), the trustee of
each Original Trust shall (without any further act) be deemed to have
transferred all of its rights, title and interest in and to this Agreement to
the trustee of the corresponding Successor Trust and, thereafter, the trustee
of each Successor Trust shall be deemed to be the "Trustee" of such Successor
Trust with the rights and obligations of a "Trustee" hereunder. The Initial
Purchasers (in their capacity as Initial Purchasers) shall have no liability
or obligation to the Company with respect to any failure by any other Holder
to comply with, or any breach by any other Holder of, any of the obligations
of such other Holder under this Registration Rights Agreement.
(h) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder and to the obligations of the
Company hereunder and shall have the right to enforce such agreements and
obligations directly to the extent any such Holder deems such enforcement
necessary or advisable to protect the rights expressed to be for its benefit
hereunder.
(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.
(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.
(m) Limitation of Trustee Liability. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and
delivered by Wilmington Trust Company, not individually or personally but
solely as Trustee, in the exercise of the powers and authority conferred and
vested in it in such capacity, (b) each of the representations, undertakings
and agreements herein made on the part of the
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Trustee is made and intended not as personal representations, undertakings
and agreements by Wilmington Trust Company but is made for the purpose of
binding only the Trustee and (c) under no circumstances shall Wilmington
Trust Company be personally liable for the payment of any indebtedness or
expenses of the Trustee or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
Trustee under this Agreement or any related documents.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
AMERICAN TRANS AIR, INC.
By:
--------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Trustee under each of the
Original Trusts
By:
--------------------------------
Name:
Title:
Confirmed and accepted as of
the date first written above:
XXXXXXX XXXXX XXXXXX INC.
BANC ONE CAPITAL MARKETS, INC.
CHASE SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
By: XXXXXXX XXXXX BARNEY INC.
By:
---------------------------
Name:
Title:
