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Exhibit 4.13
[EXECUTION COPY]
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Exchange and Registration Rights Agreement
Dated as of June 25, 1997
among
Continental Airlines, Inc.
Wilmington Trust Company
as Trustee under
Continental Airlines
Pass Through Trust, Series 0000-0X
Xxxxxxxxxxx Xxxxxxxx
Xxxx Through Trust, Series 0000-0X
Xxxxxxxxxxx Xxxxxxxx
Xxxx Through Trust, Series 1997-2C
Continental Airlines
Pass Through Trust, Series 1997-2D
and
Credit Suisse First Boston Corporation
and
Xxxxxx Xxxxxxx & Co. Incorporated.
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT (the "Agreement") is
made and entered into as of June 25, 1997, among (i) Continental Airlines, Inc.,
a Delaware corporation (the "Company"), (ii) Wilmington Trust Company, as
trustee under each of the Trusts (as defined below) and (iii) Credit Suisse
First Boston Corporation and Xxxxxx Xxxxxxx & Co. Incorporated (together, the
"Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated June
17, 1997 among the Company and the Purchasers (the "Purchase Agreement"), which
provides that the Trustee will issue and sell $74,862,000 principal amount of
the pass through certificates of the Class A Trust, $25,563,000 principal amount
of the pass through certificates of the Class B Trust, $27,206,000 principal
amount of the pass through certificates of the Class C Trust and $27,369,000
principal amount of the pass through certificates of the Class D Trust (the
Class A Trust, Class B Trust, Class C Trust and Class D Trust together, the
"Trusts" and such pass through certificates of the Trusts, together, the
"Initial Certificates"). In order to induce the Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide to the Purchasers and
their successors, assigns and 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.
"Class A Trust" shall mean the Continental Airlines Pass Through
Trust, Series 1997-2A.
"Class B Trust" shall mean the Continental Airlines Pass Through
Trust, Series 1997-2B.
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"Class C Trust" shall mean the Continental Airlines Pass Through
Trust, Series 1997-2C.
"Class D Trust" shall mean the Continental Airlines Pass Through
Trust, Series 1997-2D.
"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.
"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.
"Exchange Certificates" shall mean the pass through certificates
issued under the Pass Through Trust Agreements 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) 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.
"Holders" shall mean each of the 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.
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"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 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.
"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, 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.
"Purchasers" shall have the meaning set forth in the preamble of
this Agreement.
"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
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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 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 of
any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities
sales agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and expenses incurred in connection with the listing, if any, of any of
the Registrable Certificates on any securities exchange or exchanges, (vi)
all fees and disbursements relating to the qualification of the 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 fees and expenses of the Trustees, including their
counsel, and any escrow agent or custodian, and (ix) any reasonable fees
and disbursements of the underwriters, if any, and the reasonable fees and
expenses of any special experts retained by the Company in connection with
any Registration Statement, in each case as are customarily required to be
paid by issuers or sellers of securities, but excluding fees of counsel to
the underwriters or the Holders and underwriting discounts and commissions
and transfer taxes, if any relating to the sale or disposition of
Registrable 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.
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"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 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.
"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.
"Trusts" shall have the meaning set forth in the preamble of this
Agreement.
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 use its best efforts (A) to file with the SEC
within 120 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) to cause such Exchange
Offer Registration Statement to be declared effective by the SEC within 180 days
after the Closing Date, (C) to cause such Registration Statement to remain
effective until the closing of the Exchange Offer and (D) 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.
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In connection with the Exchange Offer, the Company shall or shall
cause the Trustees to:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 30 days after
the date notice thereof is mailed to the Holders (or longer if required by
applicable law);
(iii) use the services of 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 sending to
the institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Certificates delivered for exchange, and a
statement that such Holder is withdrawing its election to have such
Registrable Certificates exchanged;
(v) use its best efforts to ensure that (i) any Exchange Offer
Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any supplement thereto complies in all material
respects with the 1933 Act and the rules and regulations thereunder, (ii)
any Exchange Offer Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any
Prospectus forming part of any Exchange Offer Registration Statement, and
any supplement to such Prospectus (as amended or supplemented from time to
time), does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in light
of the circumstances under which they were made, not misleading; and
(vi) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company shall or shall cause the Trustees to:
(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
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(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 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 Registration Statement 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 a Purchaser) is not eligible to participate
in the Exchange Offer or (iv) upon the request of any Purchaser (with respect to
any Registrable Certificates which it acquired directly from the Company)
following the consummation of the Exchange Offer if such Purchaser shall hold
Registrable Certificates which it acquired directly from the Company and if such
Purchaser is not permitted, in the opinion of counsel to such 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 best efforts to cause such Shelf Registration
Statement to be declared effective by the SEC by the 180th day after the
Closing Date (or promptly in the event of a request by any Holder pursuant
to clause (iii) above or any 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 a Purchaser) not
eligible to participate in the Exchange Offer pursuant to clause (iii)
above or upon the request of any Purchaser pursuant to clause (iv) above,
the Company shall file and have declared effective by the SEC both an
Exchange Offer Registration Statement pursuant to Section 2(a) with
respect to all Registrable 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 Purchaser after completion of the
Exchange Offer. If the Company
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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 best efforts to keep the Shelf Registration Statement
continuously effective, in order to permit the Prospectus forming part
thereof to be usable by Holders, until the end of the period referred to
in Rule 144(k) (or one year from the Closing Date if such Shelf
Registration Statement is filed upon the request of any 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; and
(C) notwithstanding any other provisions hereof, use its best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act and
the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading and (iii) any Prospectus forming part of any Shelf
Registration Statement, and any supplement to such Prospectus (as amended
or supplemented from time to time), does not include an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements, in light of the circumstances under which they were
made, not misleading.
The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement if reasonably requested by the Majority Holders
with respect to information relating to the Holders and otherwise as required by
Section 3(b) below, to use all reasonable efforts to cause any such amendment to
become effective and such Shelf Registration Statement to become usable as soon
as practicable thereafter and to furnish to the Holders of Registrable
Certificates copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
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
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.
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(d) Effective Registration Statement. (i) The Company will be deemed
not to have used its best efforts to cause the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, to become, or
to remain, effective during the requisite period if the Company voluntarily
takes any action that would result in any such Registration Statement not being
declared effective or in the Holders of Registrable 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.
(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 Equipment Notes 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. In the
event that the Shelf Registration Statement (if it is filed), after it is
declared effective by the SEC, 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 Equipment Notes shall be increased by 0.50% per annum from the 61st day of
the applicable 12-month period such Shelf Registration Statement ceases to be
effective until such time as the Shelf Registration Statement again becomes
effective (or, if earlier, the end of the period specified by Section 2(b)(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;
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(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 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 (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 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, notify each Holder of
Registrable Certificates promptly and, if requested by such Holder or
counsel, confirm such advice in writing promptly (i) when a Shelf
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any
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request by the SEC or any state securities authority for post-effective
amendments and supplements to a Shelf Registration Statement and
Prospectus or for additional information after the Shelf Registration
Statement has become effective, (iii) of the issuance by the SEC or any
state securities authority of any stop order suspending the effectiveness
of a Shelf Registration Statement or the initiation of any proceedings for
that purpose, (iv) at the closing of any sale of Registrable 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 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 Shelf Registration Statement is effective which makes any
statement made in such Registration Statement or the related Prospectus
untrue or which requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein (in the
case of the Prospectus in light of the circumstances under which they were
made) not misleading and (vii) of any determination by the Company that a
post-effective amendment to a Registration Statement would be appropriate;
(f) (A) in the case of the Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who have exchanged their
Registrable Certificates for Exchange Certificates for the resale of such
Exchange Certificates, (ii) furnish to each broker-dealer who desires to
participate in the Exchange Offer, without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or supplement
thereto, as such broker-dealer may reasonably request, (iii) include in
the Exchange Offer Registration Statement a statement that any
broker-dealer who holds Registrable 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 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 (x) the following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage
in, a distribution of Exchange Certificates. If the undersigned is a
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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 delivering a
prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the 1933 Act"; and
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in subclause (x) and by delivering a Prospectus
in connection with the exchange of Registrable Certificates, the
broker-dealer 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 best efforts to cause to be delivered at the
request of an entity representing the Participating Broker-Dealers (which
entity shall be one of the Purchasers, 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 best efforts to maintain the effectiveness of
the Exchange Offer Registration Statement for the 180-day period specified
in clause (D) below; and
(D) not be required to amend or supplement the Prospectus contained
in the Exchange Offer Registration Statement as would otherwise be
contemplated by Section 3(b), or take any other action as a result of this
Section 3(f), for a period exceeding 180 days after the last date for
which exchanges are accepted pursuant to the Exchange Offer (as such
period may be extended by the Company) and Participating Broker-Dealers
shall not be authorized by the Company to, and shall not, deliver such
Prospectus after such period in connection with resales contemplated by
this Section 3;
(g) (A) in the case of an Exchange Offer, furnish counsel for the
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 and provide immediate notice to each Holder of the withdrawal
of any such order;
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(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) and registered in such
names as the selling Holders or the underwriters, if any, may reasonably
request at least one Business Day prior to the closing of any sale of
Registrable 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 best efforts to prepare a
post-effective amendment to a Registration Statement or an amendment or
supplement to the related Prospectus or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
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, provided that the
Company shall cause such suspension not to last more than 30 days per
occurrence or more than 60 days in aggregate in a calendar year. At such
time as such public disclosure is otherwise made or the Company determines
that such disclosure is not necessary, in each case to correct any
misstatement of a material fact or to include any omitted material fact,
the Company agrees promptly to notify each Holder of such determination
and to furnish each Holder such numbers of copies of the Prospectus, as
amended or supplemented, as such Holder may reasonably request;
(k) obtain a CUSIP number for all Exchange 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
printed 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 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 as may be required for the Pass Through Trust Agreements to be
so qualified in accordance with the terms of the TIA and (iii) execute,
and use its best efforts to cause the Trustees to execute, all documents
as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable the Pass Through
Trust Agreements to be so qualified in a timely manner;
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(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;
(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 and such other matters
as may be reasonably requested by such Holders and underwriters;
(iii) obtain a "cold comfort" letter and updates thereof from
the Company's independent certified public accountants addressed to
the underwriters, if any, and will use its best efforts to have such
letter addressed to the selling Holders of Registrable Certificates,
such letter to be in customary form and covering such matters of the
type customarily covered in "cold comfort" letters in connection
with similar underwritten offerings as the Holders of a majority in
principal amount of the Registration Certificates being sold shall
request;
(iv) enter into a securities sales agreement with the Holders
and an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable 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 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.
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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 a prospectus supplement for such
underwritten offering. Such notice shall (x) offer each such Holder the
right to participate in such underwritten offering, (y) specify a date,
which shall be no earlier than 10 days following the date of such notice,
by which such Holder must inform the Company of its intent to participate
in such underwritten offering and (z) include the instructions such Holder
must follow in order to participate in such underwritten offering;
(n) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable
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
requested by it, and cause the respective officers, directors, employees,
and any other agents of the Company to make reasonably available all
relevant information reasonably requested by any such representative,
underwriter, counsel or accountant in connection with a Registration
Statement, in each case as is customary for similar due diligence
examinations; provided, however, that any information that is designated
in writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by such
representatives, underwriters, counsel or accountant, unless such
disclosure is made in connection with a court proceeding or required by
law, or such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality; and provided further that the foregoing inspection and
information gathering shall, to the extent reasonably possible, be
coordinated on behalf of the Holders and the other parties entitled
thereto by one counsel designated by and on behalf of such Holders and
other parties;
(o) (i) a reasonable time prior to the filing of any Exchange Offer
Registration Statement, any Prospectus forming a part thereof, any
amendment to an Exchange Offer Registration Statement or amendment or
supplement to a Prospectus, provide copies of such document to the
Purchasers, and use its best efforts to reflect in any such document when
filed such comments as any of the 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, provide copies of such
document to the Holders of Registrable Certificates, to the 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
best efforts to reflect such comments in any such document when filed as
the Holders of Registrable Certificates, their counsel and any underwriter
may reasonably request; and (iii) cause the
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representatives of the Company to be available for discussion of such
document as shall be reasonably requested by the Holders of Registrable
Certificates, the 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 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 Purchasers on behalf of such Holders,
their counsel or any underwriter shall reasonably object;
(p) in the case of a Shelf Registration, use its best efforts to
cause the Registrable Certificates to be rated with the appropriate rating
agencies at the time of effectiveness of such Shelf Registration
Statement, unless the Registrable Certificates are already so rated; and
(q) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC and make generally available to its
security holders, as soon as reasonably practicable after the effective
date of a Registration Statement, an earnings statement which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder.
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Certificates 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.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company of the happening of any event
or the discovery of any facts, each of the kind described in Sections 2(d)(i)(B)
or 3(e)(ii)-(vi) hereof, such Holder will forthwith discontinue disposition of
Registrable Certificates pursuant to such Shelf Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(j) hereof, and, if so directed by the Company, such
Holder will deliver to the Company (at the Company's expense) all copies in its
possession other than permanent file copies then in such Holder's possession, of
the Prospectus covering such Registrable 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 Shelf Registration
Statement as a result of the happening of any event or the discovery of any
facts, each of the kind described in Sections 2(d)(i)(B) or 3(e)(ii)-(vi)
hereof, the Company shall be deemed to have used its best efforts to keep the
Shelf Registration Statement effective during such period of suspension provided
that the Company shall use its best efforts to file and have declared effective
(if an amendment) as soon as practicable an amendment or supplement to the Shelf
Registration Statement and shall extend the period during which the Registration
Statement shall be maintained effective pursuant to this Agreement by the number
of days during the period from and including the date of the giving of such
notice to and including the date when the
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Holders shall have received copies of the supplemented or amended Prospectus
necessary to resume such dispositions.
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
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
security holders, including underwriting discounts and commissions and fees and
expenses of counsel to the selling security holders.
5. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Holder and each person, if any, who controls
any Holder within the meaning of either Section 15 of the 1933 Act or Section 20
of the 1934 Act, from and against all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
by any Holder or any such controlling person in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which Exchange 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 any Holder furnished to the Company in writing by
any selling Holder expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary Prospectus shall
not inure to the benefit of any Person from whom the Person asserting any such
losses, claims, damages or liabilities purchased Registerable Certificates, or
any person controlling such seller, if a copy of the final Prospectus (as then
amended or supplemented if the Company shall have
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furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such seller to such purchaser with or prior to the written
confirmation of the sale of the Registerable 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 and the other selling Holders, and each of their
respective directors, officers who sign the Registration Statement and each
Person, if any, who controls the Company and any other selling Holder within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act to
the same extent as the foregoing indemnity from the Company to the Holders, but
only with reference to information relating to such Holder furnished to the
Company in writing by such Holder expressly for use in any Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by the Majority Holders in the case of parties
indemnified pursuant to paragraph (a) above and by the Company in the case of
parties indemnified pursuant to paragraph (b) above. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but, if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested in writing an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third
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sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 90 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party for such fees and expenses of
counsel in accordance with such request prior to the date of such settlement,
unless such fees and expenses are being disputed in good faith. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which such
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the indemnifying party or parties on the one hand and of the indemnified
party or parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Company and the Holders shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Holders and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Holders' respective obligations to contribute
pursuant to this Section 5(d) are several in proportion to the respective
aggregate principal amount of Registrable 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.
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The indemnity and contribution provisions contained in this Section
5 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder or any person controlling any Holder, or by or on behalf of the
Company, its officers or directors or any person controlling the Company, (iii)
acceptance of any of the Exchange 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 the
Company is subject to the reporting requirements of Section 13 or 15 of the 1934
Act, the Company covenants that it will file the reports required to be filed by
it under Section 13(a) or 15(d) of the 1934 Act and the rules and regulations
adopted by the SEC thereunder, that if it ceases to be so required to file such
reports, it will upon the request of any Holder of Registrable Certificates (i)
make publicly available such information as is necessary to permit sales
pursuant to Rule 144 under the 1933 Act, (ii) deliver such information to a
prospective purchaser as is necessary to permit sales pursuant to Rule 144A
under the 1933 Act and it will take such further action as any Holder of
Registrable Certificates may reasonably request, 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 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.
(b) Other Registration Rights. The Company may grant registration
rights that would permit any Person the right to piggyback on any Shelf
Registration Statement, provided that if the managing underwriter, if any, of an
offering pursuant to such Shelf Registration Statement delivers an opinion of
the selling Holders that the total amount of securities which they and the
holders of such piggyback rights intend to include in any Shelf Registration
Statement materially adversely affects the success of such offering (including
the price at which such securities can be sold), then the amount, number or kind
of securities to be offered for the account of holders of such piggyback rights
will be reduced to the extent necessary to reduce the total amount of securities
to be included in such offering to the amount, number or kind recommended by
such managing underwriter; and provided further that such piggyback registration
rights shall in no event materially adversely affect the interests of any
Holder.
(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.
(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.
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(e) Amendments and Waivers. Except as otherwise expressly permitted
in the 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 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; at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next Business Day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall
be concurrently delivered by the person giving the same to the Trustees, at the
address specified in the Pass Through Trust Agreements.
(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, 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. 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.
(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
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the right to enforce such agreements and obligations directly to the extent any
such Holder deems such enforcement necessary or advisable to protect its rights
hereunder.
(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) Termination. This Agreement shall terminate and be of no further
force or effect when there shall not be any Registrable Certificates
outstanding, except that the provisions of Sections 2(c), 2(e), 5, 6(h) and 6(k)
hereof shall survive any such termination.
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
CONTINENTAL AIRLINES, INC.
By:
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
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 above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-----------------------------------
Name:
Title:
25
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
CONTINENTAL AIRLINES, 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 above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-----------------------------------
Name:
Title:
26
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
CONTINENTAL AIRLINES, 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 above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-----------------------------------
Name:
Title:
