EXHIBIT 4.2
US AIRWAYS, INC.
6.82% Pass Through Certificates, Series 1998-1, Class C
REGISTRATION AGREEMENT
December 14, 1998
AIRBUS INDUSTRIE FINANCIAL SERVICES
2nd Floor
George's Dock House
International Financial Center
Xxxxxx 0, Xxxxxxx
Dear Sirs:
US Airways, Inc., a Delaware corporation ("US Airways" or the
"Issuer"), proposes to issue and sell to Airbus Industrie Financial
Services, a corporation organized under the laws of Ireland (the
"Purchaser"), upon the terms set forth in a purchase agreement dated as of
December 14, 1998 (the "Purchase Agreement"), its 6.82% Pass Through
Certificates, Series 1998-1, Class C (the "Certificates"). Capitalized
terms used but not specifically defined herein are defined in the Purchase
Agreement. As an inducement to the Purchaser to enter into the Purchase
Agreement and in satisfaction of a condition to your obligations
thereunder, US Airways and State Street Bank and Trust Company, solely in
its capacity as trustee (the "Trustee") of the US Airways Pass Through
Trust 1998-1C (the "Class C Trust") agree with you, for the benefit of the
beneficial holders and record holders of the Certificates, the Exchange
Certificates (as defined herein) and the Private Exchange Certificates
(including the Purchaser) (the "Holders") as follows:
1. Registered Exchange Offer. US Airways shall, at its cost,
prepare and, not later than forty-five (45) days after the Closing Date
(or, if the 45th day is not a business day, the first business day
thereafter) (January 28, 1999, assuming the Closing Date is December 14,
1998), file with the Securities and Exchange Commission (the "Commission")
a registration statement (the "Exchange Offer Registration Statement") on
an appropriate form under the Securities Act of 1933, as amended (the "1933
Act"), with respect to a proposed offer (the "Registered Exchange Offer")
to the Holders to cause the Class C Trust to issue and deliver to such
Holders, in exchange for the Certificates, a like principal amount of pass
through certificates (the "Exchange Certificates") of the Class C Trust
with terms substantially identical in all material respects to the
Certificates (except that the Exchange Certificates will not contain terms
with respect to transfer restrictions or liquidated damages), shall use all
reasonable best efforts to cause the Exchange Offer Registration Statement
to become effective under the 1933 Act not later than one hundred twenty
(120) days after the Closing Date (or, if the 120th day is not a business
day, the first business day thereafter) (April 13, 1999, assuming the
Closing Date is December 14, 1998), shall consummate the Exchange Offer not
later than one hundred fifty (150) days after the Closing Date (or, if the
150th day is not a business day, the first business day thereafter) (May
13, 1999 assuming the Closing Date is December 14, 1998), and shall use all
reasonable best efforts to keep the Exchange Offer Registration Statement
effective under the 1933 Act until the close of business on the 180th day
following the expiration of the Registered Exchange Offer (such period
being called the "Exchange Offer Registration Period") for use by
Exchanging Dealers (as defined below) as contemplated in Section 4(g) below
or for use as contemplated by clause (ii) of the fourth paragraph of this
Section 1.
The Issuer shall give the Purchaser written notice (the "Issuer
Effectiveness Notice") at least five (5) business days before the date on
which the Issuer reasonably expects the Exchange Offer Registration
Statement to be declared effective. The Purchaser may give the Issuer
written notice (the "Purchaser Delay Notice") at any time after the date
hereof but in no event later than two (2) business days after the date of
the Issuer Effectiveness Notice of its request to delay the effective date
of the Exchange Offer Registration Statement, and in such notice or in a
written notice delivered promptly thereafter, the Purchaser will specify
another date for the effective date which may not be later than 180 days
after the Closing Date (the length of such delay, the "Delay Period"). The
Issuer will use its reasonable best efforts to have the Exchange Offer
Registration Statement declared effective as requested by the Purchaser in
a valid notice, provided that the Issuer will have at least sixty (60) days
from the date of the notice to have the Exchange Offer Registration
Statement declared effective. The one hundred twenty (120) day and one
hundred fifty (150) day periods described above will be extended by the
Delay Period.
US Airways shall be deemed not to have used all reasonable best
efforts to keep the Exchange Offer Registration Statement effective during
the Exchange Offer Registration Period if US Airways voluntarily takes any
action that would result in Exchanging Dealers not being able to use such
Registration Statement as contemplated in such Section 4(g) or for use as
contemplated by clause (ii) of the next paragraph, unless (i) such action
is required by applicable law, or (ii) US Airways cannot obtain, after
using its reasonable best efforts, financial information (or information
used to prepare such information) necessary for filing the Exchange Offer
Registration Statement or any amendment or supplement thereto, or (iii)
such action is taken by US Airways in good faith and for valid business
reasons (not including avoidance of US Airways' obligations hereunder) to
prevent the disclosure of any material fact(s) related directly or
indirectly to US Airways. The Exchange Certificates will be issued under
the Pass Through Agreement.
Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuer shall promptly cause the Class C Trust to commence
the Registered Exchange Offer, it being the objective of such Registered
Exchange Offer to enable each Holder electing to exchange Certificates for
Exchange Certificates (assuming that such Holder is not an affiliate of US
Airways within the meaning of the 1933 Act, acquires the Exchange
Certificates in the ordinary course of such Holder's business and has no
arrangements with any person to participate in the distribution of the
Exchange Certificates) to trade such Exchange Certificates from and after
their receipt without any limitations or restrictions under the 1933 Act.
Notwithstanding the foregoing, the Purchaser and US Airways acknowledge
that, pursuant to current interpretations by the Commission's staff of
Section 5 of the 1933 Act, and in the absence of an applicable exemption
therefrom, (i) each Holder that is a broker-dealer electing to exchange the
Certificates acquired for its own account as a result of market-making
activities or other trading activities for the Exchange Certificates (an
"Exchanging Dealer") may be required to deliver a prospectus containing the
information set forth in Annex A hereto on the cover, in Annex B hereto in
"The Exchange Offer" section, and in Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any
such Exchange Certificates received by such Exchanging Dealer pursuant to
the Registered Exchange Offer and (ii) the Purchaser (if it elects to sell
Exchange Certificates acquired in exchange for the Certificates originally
purchased by it) may be required to deliver a prospectus containing the
information required by Items 507 and/or 508 of Regulation S-K under the
1933 Act, as applicable, in connection with such a sale.
If, upon consummation of the Registered Exchange Offer, the
Purchaser holds any Certificates, the Issuer, following the delivery of the
Exchange Certificates pursuant to the Registered Exchange Offer, upon the
written request of the Purchaser, shall cause the Class C Trust to issue
and deliver to the Purchaser in exchange (the "Private Exchange") for the
Certificates held by the Purchaser, a like principal amount of the Exchange
Certificates issued under the Pass Through Agreement and identical in all
material respects (including the existence of restrictions on transfer
under the 1933 Act and the securities laws of the several states of the
United States) to the Certificates (the "Private Exchange Certificates,"
and collectively with the Certificates and the Exchange Certificates, the
"Securities").
In connection with the Registered Exchange Offer, the Issuer
shall or shall cause the Class C Trust to:
(a) mail to each Holder a copy of the prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than
thirty (30) days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of New
York or in the City of Boston;
(d) permit Holders to withdraw tendered Certificates at any time
prior to the close of business, New York time, on the last business day on
which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all applicable laws.
As soon as practicable after the close of the Registered Exchange
Offer, or the Private Exchange, as the case may be, the Issuer shall:
(a) accept, or shall cause the Class C Trust to accept, for
exchange all Certificates tendered and not validly withdrawn pursuant to
the Registered Exchange Offer and the Private Exchange;
(b) deliver to the Trustee for cancellation all Certificates so
accepted for exchange; and
(c) cause the Trustee promptly to authenticate and deliver to
each Holder of the Certificates the Exchange Certificates or the Private
Exchange Certificates, as the case may be, equal in principal amount to the
Certificates of such Holder so accepted for exchange.
The Pass Through Agreement will provide that all Securities
issued under such Pass Through Agreement will vote and consent together as
one class and that none of the Securities issued under such Pass Through
Agreement will have the right to vote or consent as a class separate from
one another on any matter. The Issuer shall use its reasonable best
efforts to keep the Exchange Offer Registration Statement effective and to
amend and supplement the prospectus contained therein in order to permit
such prospectus to be used by all persons subject to the prospectus
delivery requirements of the Securities Act for such period of time as
referred to in the first paragraph of this Section 1 or, in the case of the
Purchaser only, such longer period of time as the Purchaser is required to
deliver a prospectus in connection with the sale of securities.
Notwithstanding any other provisions hereof, the Issuer shall
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, 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 the light of the
circumstances under which they were made, not misleading.
Each Holder participating in the Registered Exchange Offer shall
be required to represent to the Issuer that, at the time of the
consummation of the Registered Exchange Offer, (i) any Exchange
Certificates received by such Holder will be acquired in the ordinary
course of business; (ii) such Holder will have no arrangements or
understanding with any person to participate in the distribution of the
Certificates or the Exchange Certificates within the meaning of the 1933
Act; (iii) such Holder is not an "affiliate", as defined in Rule 405 of the
1933 Act, of US Airways, or if it is an affiliate, such Holder acknowledges
that it must comply with the registration and prospectus delivery
requirements of the 1933 Act to the extent applicable; (iv) if such Holder
is not a broker-dealer, that it is not engaged in, and does not intend to
engage in, a distribution of the Exchange Certificates; and (v) if such
Holder is a broker-dealer, that it will receive Exchange Certificates for
its own account in exchange for the Certificates that were acquired as a
result of market-making activities or other trading activities and that it
will be required to acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Certificates.
2. Shelf Registration. If: (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Issuer
determines that it is not permitted to effect the Registered Exchange Offer
as contemplated by Section 1 hereof; (ii) for any other reason the
Registered Exchange Offer is not consummated by the 150th day after the
Closing Date (which day shall be extended by the Delay Period, if any, and
if such day is not a business day, the first business day thereafter) (May
13, 1999, assuming (a) the Closing Date is December 14, 1998 and (b) there
is no Delay Period), (iii) the Purchaser so requests if it so determines
that any Holder is not eligible to participate in the Registered Exchange
Offer; (iv) the Purchaser so requests with respect to Certificates not
eligible to be exchanged for Exchange Certificates in the Registered
Exchange Offer; (v) the Purchaser so requests if it so determines that any
Holder that participates in the Registered Exchange Offer does not or will
not receive freely transferable Exchange Certificates in exchange for
tendered Certificates (including as a result of the Holder being required
under applicable law to deliver a prospectus in connection with any resale
of Exchange Certificates) or the Purchaser holds Private Exchange
Certificates (in the case of clause (iii), (iv) or (v), the Purchaser may
make the determination or request at any time after the Closing Date and
shall communicate such determination or request to the Issuer in writing
and, in connection therewith, if such notice is given prior to the
consummation of the Registered Exchange Offer, the Purchaser may request
that the Issuer and the Class C Trust cease performing their obligations
under Section 1, in which event, the Issuer's and the Class C Trust's
obligations under Section 1, as well as any liabilities of the Issuer under
Section 3 related to Section 1, shall terminate); or (vi) if the Issuer so
elects, the following provisions shall apply:
(a) The Issuer shall, subject to Section 5, as promptly as
practicable file (but in no event more than forty-five (45) days after so
required or requested pursuant to this Section 2) with the Commission and
thereafter shall use all reasonable best efforts to cause to be declared
effective within one hundred twenty (120) days after so required or
requested pursuant to this Section 2 a shelf registration statement on an
appropriate form under the 1933 Act relating to the offer and sale of the
Certificates (or Private Exchange Certificates or Exchange Certificates) by
the Holders of the Certificates (or Private Exchange Certificates or
Exchange Certificates) from time to time in accordance with the methods of
distribution elected by such Holders and set forth in such registration
statement (hereafter, a "Shelf Registration Statement" and, together with
any Exchange Offer Registration Statement, a "Registration Statement").
(b) The Issuer shall use all reasonable best efforts to keep the
Shelf Registration Statement continuously effective to permit the
prospectus forming part thereof to be usable by Holders or the Purchaser,
as applicable, for a period of two (2) years from the Closing Date or such
shorter period that will terminate when all the Certificates covered by the
Shelf Registration Statement have been sold pursuant to the Registration
Statement (in any such case, such period being called the "Shelf
Registration Period"). The Issuer shall be deemed not to have used its
reasonable best efforts to cause the Shelf Registration Statement to
become, or to remain, effective during the requisite period if US Airways
voluntarily takes any action that would result in any such Registration
Statement not being declared effective or in the Holders of Securities
covered thereby not being able to offer and sell such Securities during
that period unless (i) such action is required by applicable law, or (ii)
US Airways cannot obtain, after using its reasonable best efforts,
financial information (or information used to prepare such information)
necessary for the Shelf Registration Statement or any amendment or
supplement thereto, or (iii) such action is taken by US Airways in good
faith and for valid business reasons (not including avoidance of US
Airways' obligations hereunder) to prevent the disclosure of any material
fact(s) related directly or indirectly to US Airways. A Shelf Registration
Statement pursuant to this Section 2(b) shall not be deemed to have become
effective unless it has been declared effective by the Commission;
provided, however, that if, after it has been declared effective, the
offering of Securities pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or requirement
of the Commission or any other governmental agency or court, or Holders are
not otherwise able to offer and sell Securities covered by such Shelf
Registration Statement, such Shelf Registration Statement shall be deemed
not to have been effective during the period of such interference or period
of unavailability, until the offering of Securities pursuant to such Shelf
Registration Statement may legally resume (and the two year period referred
to above shall be extended by a number of days equal to such period).
(c) Notwithstanding any other provisions hereof, the Issuer
shall 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, 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 the light of the
circumstances under which they were made, not misleading.
3. Liquidated Damages. The parties agree that if the Issuer
fails to fulfill its obligations under Section 1 or 2, the Holders will
suffer damages that will be difficult to ascertain. If (i) any
Registration Statement required by this Agreement is not filed with the
Commission on or prior to the applicable filing deadline specified herein,
(ii) any Registration Statement required by this Agreement is not declared
effective by the Commission on or prior to the applicable effectiveness
deadline specified herein, (iii) the Registered Exchange Offer has not
been consummated on or prior to the consummation deadline specified herein,
or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within two (2) days
by a post-effective amendment to such Registration Statement that cures
such failure and that is itself declared effective within five (5) days of
filing such post-effective amendment to such Registration Statement (each
such event in clauses (i) through (iv), a "Registration Default"), then the
Issuer agrees to pay to the Class C Trust for distribution to each Holder
liquidated damages in an amount equal to the following: during the first
ninety (90)-day period immediately following the occurrence of such
Registration Default, .0025 (the "Multiplier") times the aggregate
principal amount of such Holder's Securities times the number of days such
Registration Default exists divided by 360 (less any amount thereof that
has been paid as provided in the next paragraph). The amount of the
Multiplier shall increase by .0025 during each subsequent ninety (90)-day
period during which any Registration Default exists, up to a maximum
Multiplier of .01. Notwithstanding the prior sentence, (1) upon the filing
of the Exchange Offer Registration Statement (and/or, if applicable, the
Shelf Registration Statement), in the case of (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement) in the case of (ii) above,
(3) upon consummation of the Registered Exchange Offer in the case of (iii)
above, or (4) upon the filing of a post-effective amendment to the
Registration Statement or an additional Registration Statement that causes
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement) to again be declared effective or made usable in
the case of (iv) above, the liquidated damages payable with respect to the
Securities as a result of such clause (i), (ii), (iii) or (iv), as
applicable, will cease, until such time, if any, that another Registration
Default occurs.
Notwithstanding any other provision of this Agreement, liquidated
damages shall not be payable by the Issuer for an aggregate of 30 days,
whether or not consecutive, from the date the Issuer provides the Purchaser
written notice that it has failed to fulfill an obligation under Section 1
or 2 which would result in the Issuer's obligation to pay liquidated
damages hereunder, if (and only so long as) the reason the Issuer failed to
fulfill such obligation is because (i) such failure is required to comply
with applicable law, (ii) US Airways cannot obtain, after using its
reasonable best efforts, financial information (or information used to
prepare such information) necessary for the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, or any
amendment or supplement thereto, or (iii) such action is taken by US
Airways in good faith and for valid business reasons (not including
avoidance of US Airways' obligations hereunder) to prevent the disclosure
of any material fact(s) related directly or indirectly to US Airways.
All accrued liquidated damages will be paid to Holders entitled
thereto in the manner provided for the payment of interest in the Pass
Through Agreement, on each Regular Distribution Date, as more fully set
forth in the Pass Through Agreement and the Certificates.
4. Registration Procedures. In connection with any Registration
Statement filed pursuant to Section 1 or Section 2 hereof, the following
provisions shall apply:
(a) The Issuer shall (i) furnish to the Purchaser, prior to the
filing thereof with the Commission, a copy of the Registration Statement
and each amendment thereof and each supplement, if any, to the prospectus
included therein and shall use all reasonable best efforts to reflect in
each such document, when so filed with the Commission, such comments as the
Purchaser reasonably may propose; (ii) include the information set forth in
Annex A hereto on the cover, in Annex B hereto in "The Exchange Offer"
section, and in Annex C hereto in the "Plan of Distribution" section of the
prospectus forming a part of the Exchange Offer Registration Statement, and
include the information set forth in Annex D hereto in the Letter of
Transmittal delivered pursuant to the Registered Exchange Offer; (iii) if
requested by the Purchaser, include the information required by Items 507
and/or 508 of Regulation S-K under the 1933 Act, as applicable, in the
prospectus forming a part of the Registration Statement; and (iv) in the
case of a Shelf Registration Statement, include the names of the Holders
who propose to sell Securities pursuant to the Shelf Registration
Statement, as selling security holders.
(b) (1) The Issuer shall advise you (and any Exchanging Dealer
or Holder whom you have requested in writing that the Issuer contact and
whose contact information you have provided to the Issuer before the date
on which such notice is to be supplied):
(i) when any Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the prospectus included
therein or for additional information.
Any notice pursuant to clause (ii) above shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite
changes have been made and a notice that the Registration Statement shall
be deemed not to have been effective during the period of such interference
until the offering of Securities pursuant to such Registration Statement
may legally resume (and any time periods referred to in Section 1 or 2
during which a Registration Statement must be kept effective shall be
extended by a number of days equal to such period). US Airways also shall
provide such notice to the Holders of Securities included within the
coverage of a Shelf Registration Statement and to any Exchanging Dealer, in
the case of an Exchange Offer Registration Statement in each case, which
has provided in writing to the Issuer a telephone or facsimile number or
address for notices. If requested by you or any such Holder or Exchanging
Dealer, US Airways shall confirm such advice in writing.
(2) The Issuer shall advise you (and any Exchanging Dealer or
Holder whom you have requested in writing that the Issuer contact and whose
contact information you have provided to the Issuer before the date on
which such notice is to be supplied):
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Issuer of any notification with
respect to the suspension of the qualification of the Securities
included therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(iii) of the happening of any event that requires the making of
any changes in the Registration Statement or the prospectus so that,
as of such date, the statements therein are not misleading and do not
omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
prospectus, in light of the circumstances under which they were made)
not misleading (which advice shall be accompanied by an instruction to
suspend the use of the prospectus until the requisite changes have
been made).
Any notice pursuant to this subsection (2)shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite
changes have been made and a notice that the Registration Statement shall
be deemed not to have been effective during the period of such suspension,
until the offering of Securities pursuant to such Registration Statement
may legally resume (and any time periods referred to in Sections 1 or 2
during which a Registration Statement must be kept effective shall be
extended by a number of days equal to such period). US Airways also shall
provide such notice to the Holders of Securities included within the
coverage of a Shelf Registration Statement and to any Exchanging Dealer, in
the case of an Exchange Offer Registration Statement in each case, which
has provided in writing to the Issuer a telephone or facsimile number or
address for notices. If requested by you or any such Holder or Exchanging
Dealer, US Airways shall confirm such advice in writing.
(c) The Issuer shall make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement at the earliest possible time.
(d) The Issuer shall furnish to each Holder of Securities
included within the coverage of any Shelf Registration Statement (including
any Exchanging Dealer which so requests in writing or any Purchaser),
without charge, at least one (1) 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 exhibits
(including those incorporated by reference).
(e) The Issuer shall, during the Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of any
Shelf Registration Statement, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such
Holder may reasonably request. Subject to the terms of this Agreement, the
Issuer consents to the use of the prospectus or any amendment or supplement
thereto by each of the selling Holders of Securities in connection with the
offering and sale of the Securities covered by the prospectus or any
amendment or supplement thereto.
(f) The Issuer shall furnish to each Exchanging Dealer or the
Purchaser, as applicable, which so requests, without charge, at least one
(1) copy of the Exchange Offer Registration Statement and any post-
effective amendment thereto, including financial statements and schedules,
and, if the Exchanging Dealer or the Purchaser, as applicable, so requests
in writing, all exhibits (including those incorporated by reference).
(g) The Issuer shall, during the Exchange Offer Registration
Period, promptly deliver to each broker-dealer that is the beneficial owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "1934 Act")) of Exchange Certificates received by such broker-
dealer in the Registered Exchange Offer (a "Participating Broker-Dealer")
and such other persons as may be required to deliver a prospectus following
the Registered Exchange Offer, without charge, as many copies of the
prospectus included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as such person may reasonably request for
delivery by such person in connection with a sale of Exchange Certificates
received by it pursuant to the Registered Exchange Offer. Subject to the
terms of this Agreement, the Issuer consents to the use of the prospectus
or any amendment or supplement thereto by any such Participating Broker-
Dealer or other person as aforesaid.
(h) Prior to the effective date of any Registration Statement,
the Issuer will use its reasonable best efforts to register or qualify or
cooperate with the Holders of Securities included therein and their
respective counsel in connection with the registration or qualification of
such Securities for offer and sale under the state securities or blue sky
laws of such jurisdictions as any such Holder reasonably requests in
writing and do any and all other acts of things necessary or advisable to
enable the offer and sale in such jurisdictions of the Securities covered
by such Registration Statement; provided that the Issuer will not be
required to qualify generally to do business in any jurisdiction where it
is not then so qualified or to take any action which would subject it to
general service of process or to taxation in any such jurisdiction where it
is not then so subject.
(i) The Issuer shall cooperate with the Holders of Securities to
facilitate the timely preparation and delivery of certificates representing
the Securities to be sold pursuant to any Shelf Registration Statement free
of any restrictive legends and in such denominations and registered in such
names as Holders may request prior to sales of the Securities pursuant to
such Shelf Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs
(b)(1)(ii) or (b)(2)(iii) above, the Issuer shall promptly prepare and file
with the Commission a post-effective amendment to the Registration
Statement or a supplement to the related prospectus or file any other
required document so that, as thereafter delivered to purchasers of the
Securities included therein, the prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. If the Issuer notifies the
Purchaser, the Holders and any known Participating Broker-Dealer in
accordance with paragraphs (1)(ii) or (2)(i) through (iii) of Section 4(b)
above to suspend the use of the prospectus until the requisite changes to
the prospectus have been made, then the Purchaser, the Holders and any such
Participating Broker-Dealers shall suspend use of such prospectus. In the
event such suspension becomes necessary, the Shelf Registration Statement
shall be deemed not to have been effective during the period of such
suspension until the offering of Securities pursuant to such Registration
Statement may legally resume (and any time periods referred to in Section 1
or 2 during which a Registration Statement must be kept effective shall be
extended by a number of days equal to such period).
(k) Not later than the effective date of the applicable
Registration Statement, the Issuer shall provide a CUSIP number for the
Certificates, the Exchange Certificates, or the Private Exchange
Certificates, as the case may be, and provide the trustee with printed
certificates for the Certificates, the Exchange Certificates or the Private
Exchange Certificates, as the case may be, in a form eligible for deposit
with The Depository Trust Company (it being expressly understood that the
Exchange Certificates will continue to be held in book-entry form in the
same manner as the Certificates). The Issuer shall take such action as is
necessary to assure that all Securities sold pursuant to a Registration
Statement or Rule 144 under the 1933 Act bear the same CUSIP number (which
CUSIP number shall be for the use of unrestricted securities).
(l) The Issuer will cause the Pass Through Agreement to be
qualified under the Trust Indenture Act as required by applicable law in a
timely manner.
(m) The Issuer shall comply with all applicable rules and
regulations of the Commission and shall make generally available to its
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the 1933 Act; provided that in no event
shall such earnings statement be delivered more than forty-five (45) days
after the end of the twelve (12) month period (or ninety (90) days, if such
period is a fiscal year) beginning with the first month of the Issuer's
first fiscal quarter commencing after the effective date of the applicable
Registration Statement, which statement shall cover such twelve (12) month
period.
(n) The Issuer may require each Holder of Securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Issuer such
information regarding the Holder and the distribution of such Securities as
the Issuer may from time to time reasonably require for inclusion in such
Registration Statement. The Issuer may exclude from such Registration
Statement the Securities of any Holder that fails to furnish such
information within a reasonable time after receiving such request.
(o) In the case of a Shelf Registration Statement, the Issuer
shall enter into such customary agreements (including, if requested, an
agreement with selling agents (the "Agents") for the Holders in customary
form) and take all such other action, if any, as the Purchaser, the Holders
of a majority in aggregate principal amount of the Securities or the Agent
(if any) shall reasonably request in order to facilitate any disposition of
Securities pursuant to such Shelf Registration Statement.
(p) In the case of a Shelf Registration Statement, the Issuer
shall (i) make reasonably available for inspection by a representative of,
and special counsel ("Special Counsel") acting for the Purchaser or Holders
of a majority in aggregate principal amount of the Securities being sold
and any Agent participating in any disposition of Securities pursuant to
such Shelf Registration Statement, all relevant financial and other
records, pertinent corporate documents and properties of the Issuer, the
trusts and its subsidiaries and (ii) use its reasonable best efforts to
have its officers, directors, employees, accountants and counsel supply all
relevant information reasonably requested by such representative, Special
Counsel or any such Agent (an "Inspector") in connection with such Shelf
Registration Statement, provided that the Issuer shall be required to
comply with the provisions of this Section 4(p) only (A) at the time of the
initial effectiveness of the Shelf Registration Statement, (B) after the
Issuer files a Form 8-K under the 1934 Act (other than a Form 8-K filed in
connection with an earnings announcement), provided that any investigation
conducted under this clause (B) is limited to the material filed (or
reasonably related to the material filed) in the Form 8-K; and (C), except
as specified in clauses (A) and (B), not more than once per quarter.
(q) In the case of a Shelf Registration Statement, the Issuer
shall, if requested by the Purchaser or Holders of a majority in aggregate
principal amount of the Securities, their Special Counsel or the Agents (if
any) in connection with such Shelf Registration Statement, use its
reasonable best efforts to cause (i) its counsel to deliver to the
Purchaser an opinion (and reasonable updates thereof) relating to the Shelf
Registration Statement and the Securities in customary form, (ii) its
officers to execute and deliver all customary documents and certificates
requested by the Purchaser or Holders of a majority in aggregate principal
amount of the Securities being sold, their Special Counsel or the Agents
(if any) and (iii) its independent public accountants to provide a comfort
letter in customary form, subject to the receipt of appropriate
documentation as contemplated and only if permitted by Statement of
Auditing Standards No. 72, provided that the Issuer need comply with the
provisions of this Section 4(q) only at the time of the initial
effectiveness of the Shelf Registration Statement and twice thereafter and
in its sole and absolute discretion upon the request by the Purchaser.
(r) In the case of any Shelf Registration Statement, the Issuer,
if requested by any Holder, shall cause its counsel to deliver an opinion
relating to the Securities included within the coverage of such Shelf
Registration Statement in customary form.
(s) If a Registered Exchange Offer or Private Exchange is to be
consummated, upon delivery of the Certificates by Holders to the Issuer (or
to such other person as directed by the Issuer) in exchange for the
Exchange Certificates or Private Exchange Certificates, as the case may be,
the Issuer shall xxxx, or cause to be marked, on the Certificates so
exchanged that such Certificates are being canceled in exchange for the
Exchange Certificates or Private Exchange Certificates, as the case may be,
in no event shall the Certificates be marked as paid or otherwise
satisfied.
5. Registration Expenses.
(a) US Airways shall bear all Registration Expenses related to
the performance of its obligations under Section 1 relating to an Exchange
Offer Registration Statement, provided that the Purchaser shall bear all
additional expenses caused by (1) a request to delay the effectiveness of
the Exchange Offer Registration Statement pursuant to a request in an
Purchaser Delay Notice or (2) keeping the Exchange Offer Registration
Statement effective for more than 180 days after the expiration of the
Registered Exchange Offer (as extended by the Delay Period).
(b) The Purchaser shall bear all Registration Expenses in
connection with the Shelf Registration Statement unless prior to the
commencement of the Registered Exchange Offer, the Purchaser instructs the
Issuer not to continue the process for the Registered Exchange Offer (and
waives any penalties for such discontinuance), and the Shelf Registration
Statement is filed pursuant to Section 2 hereof; in that case, the Issuer
will bear the amount of such Registration Expenses for the Shelf
Registration Statement up to the amount it would have borne under Section
5(a) had the Registered Exchange Offer been consummated, and the Purchaser
shall pay any remaining expenses.
(c) For purposes of this Agreement, "Registration Expenses"
shall mean any and all expenses incident to performance of or compliance by
US Airways and the Trustees with this Agreement, including: (i) all
Commission, stock exchange or National Association of Securities Dealers,
Inc. ("NASD") registration and filing fees; (ii) all reasonable 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 qualifications of any of the Exchange Certificates or
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 Certificates on any securities exchange
or exchanges; (vi) all fees and disbursements relating to the qualification
of the Pass Through Agreements under applicable securities laws; (vii) the
reasonable fees and disbursements of counsel (other than the fees and
disbursements of internal counsel) for the Issuer and of the independent
public accountants of the Issuer, 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; and
(ix) any reasonable fees and disbursements of the underwriters or Agents,
if any, retained by the Issuer and the reasonable fees and expenses of any
special experts retained by the Issuer 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 Agents,
underwriters or the Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Certificates
by a Holder.
6. Indemnification. (a) In the event of a Shelf Registration
or in connection with any prospectus delivery pursuant to a Registered
Exchange Offer by an Exchanging Dealer as contemplated in Section 4(g) or
by the Purchaser, the Issuer shall indemnify and hold harmless each Holder
and its affiliates (as defined in the 1933 Act), officers, directors, and
employees from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof, or any prospectus forming a part thereof (as amended or
supplemented if the Issuer shall have furnished any amendments or
supplements thereto), 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 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 base upon information relating to any Holder
furnished to the Issuer in writing by such Holder expressly for use therein
("Holder Information"); provided, however, that the foregoing indemnity
agreement, with respect to any preliminary prospectus shall not inure to
the benefit of any Holder from whom the person asserting any such losses,
claims, damages or liabilities purchased Securities or any person
controlling such Holder, if a copy of the prospectus (as then amended or
supplemented if the Issuer shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Holder
to such person, if required by law so to have been delivered, at or prior
to the written confirmation of the sale of the Securities to such person,
and if the prospectus (as so amended or supplemented) would have cured the
defects giving rise to such losses, claims, damages or liabilities.
(b) In the event of a Shelf Registration Statement, each Holder
agrees, severally and not jointly, to indemnify and hold harmless the
Issuer, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Issuer within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Issuer to such Holder, but
only with reference to the Holder Information of such Holder; provided,
however, that no such Holder shall be liable for any indemnity claims
hereunder in excess of the net proceeds received by such Holder from the
sale of Securities pursuant to such Shelf Registration Statement.
(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 (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 reasonable 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
reasonable 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 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 reasonable fees and expenses of more than one firm ( in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by such Holder 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. 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 any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 6 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 (i) in such proportion as is appropriate to reflect
the relative benefits received by the Issuer, on the one hand, and such
Holder, on the other hand, from the offering of the Securities or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Issuer on the one hand and such Holder 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 benefits received by the Issuer in connection with the
offering of such Securities shall be deemed to be in the same proportion as
the aggregate consideration received by the Trust from the sale by the
Trust of such Securities (or Securities which were exchanged into such
Securities) bears to the aggregate consideration received by such Holder in
connection with the resale of such Securities, and such Holder shall be
deemed to have received the rest of the benefits. The relative fault of
the Issuer on the one hand and of such Holder on the other hand 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
Issuer or by such Holder and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or omission.
(e) The Issuer and the Purchaser agree that it would not be just
or equitable if contribution pursuant to this Section 6 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 6(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 6, no Holder shall be
required to contribute any amount in excess of the amount by which the
total price at which the Securities sold by it to any purchaser 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 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.
(f) The indemnity and contribution provisions contained in this
Section 6 and the representation, warranties and other statements of the
Issuer contained in this Agreement or contained in certificates of officers
of the Issuer submitted pursuant hereto, 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 the Issuer, its officers or directors or any
person controlling the Issuer and (iii) acceptance of and payment for any
of the Securities.
7. Rules 144 and 144A. The Issuer shall use its reasonable best
efforts to file the reports required to be filed by it under the 1933 Act
and the 1934 Act in a timely manner and, if at any time the Issuer is not
required to file such reports, it will, upon the written request of any
Holder of Certificates, make publicly available other information so long
as necessary to permit sales of such Holder's securities pursuant to Rules
144 and 144A. The Issuer covenants that it will take such further action
as any Holder of Certificates may reasonably request, all to the extent
required from time to time to enable such Holder to sell Certificates
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including, without limitation,
the requirements of Rule 144A(d)(4)). Upon the written request of any
Holder of Certificates, the Issuer shall deliver to such Holder a written
statement as to whether it has complied with such requirements.
8. Miscellaneous.
(a) Amendment and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless US Airways
has obtained the written consent of Holders of a majority in aggregate
principal amount of the Securities. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose Securities
are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by
Holders of a majority in aggregate principal amount of the Securities being
sold by such Holders pursuant to such Registration Statement.
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-
class mail, telex, telecopier, or air courier guaranteeing overnight
delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Issuer in accordance with the provisions of this
Section 6(b), which address initially is, with respect to each Holder,
the address of such Holder maintained by the Registrar under the Pass
Through Agreement, with a copy in like manner to the Purchaser;
(ii) if to the Purchaser, initially at the respective addresses
set forth in the Purchase Agreement with copies to the parties
specified therein; and
(iii) if to the Issuer, initially at its address set forth in
the Purchase Agreement, with copies to the parties specified therein.
All such notices and communications shall be deemed to have been
duly given when received.
The Purchaser or US Airways by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(c) Successors and Assigns. This Agreement shall be binding
upon US Airways and each of its successors and assigns.
(d) 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.
(e) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
Specified times of day refer to New York City time.
(g) Severability. If 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.
(h) Securities Held by the Issuer. Whenever the consent or
approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Issuer or any of
its affiliates (other than subsequent Holders of Securities if such
subsequent Holders are deemed to be affiliates solely by reason of their
holdings of such Securities) shall not be counted in determining whether
such consent or approval was given by the Holders of such required
percentage.
(i) No Inconsistent Agreements. US Airways has not, as of the
date hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders herein or otherwise conflicts with
the provisions hereof.
(j) Copies of Agreement. US Airways shall provide a copy of
this Agreement to prospective purchasers of the Certificates identified to
them by the Purchaser upon request.
(k) Letter Agreement. The rights and obligations of the parties
hereunder shall be independent of the rights and obligations under the
captions "Transfer Rights" and "Transaction Expenses" in Section 4 of that
certain "Letter Agreement dated as of October 31, 1997 (as amended from
time to time, the "Letter Agreement" and the provisions described above,
the "Applicable Provisions") between AVSA, S.A.R.L. and US Airways, and the
Applicable Provisions shall not affect or limit the rights or obligations
of the parties hereunder, provided that without limiting the foregoing, the
rights and obligations under the "Transfer Rights" caption described above
shall survive the execution and delivery of this Agreement and shall remain
in full force and effect in accordance with their terms.
(l) Underwritten Offering. Notwithstanding anything to the
contrary herein, neither the Purchaser nor any Holder shall be entitled to
use the registration rights granted to it in this Agreement to effect an
underwritten public offering.
(m) Class C Trust. The Trustee shall take such action as may be
reasonably requested by the Company in connection with the Company
satisfying its obligations arising under this Agreement.
Please confirm that the foregoing correctly sets forth the
agreement between US Airways and you.
Very truly yours,
US AIRWAYS, INC.
By: /s/ Xxxxxx X. Mutyrn
------------------------------
Name: Xxxxxx X. Mutyrn
Title: Sr. V.P., Finance & CFO
CONFIRMED AND ACCEPTED
as of the date first above written:
AIRBUS INDUSTRIE FINANCIAL SERVICES
By: /s/ Yann Ballet
------------------------------
Name: Yann Ballet
Title: Managing Director
(counterpart signature page for Registration Agreement)
CONFIRMED AND ACCEPTED
as of the date first above written:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ Xxxx X. Xxxxx
-------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
ANNEX A TO
REGISTRATION AGREEMENT
Each broker-dealer that receives Exchange Certificates for its
own account pursuant to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange
Certificates. The Letter of Transmittal states that by so acknowledging
and by delivering a prospectus, a broker-dealer will not be deemed to admit
that it is an "underwriter" within the meaning of the 1933 Act. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Certificates
received in exchange for the Certificates where such Certificates were
acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Issuer has agreed that, for a period of one
hundred eighty (180) days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in
connection with any such resale. See "Plan of Distribution".
ANNEX B TO
REGISTRATION AGREEMENT
Each broker-dealer that receives Exchange Certificates for its
own account in exchange for the Certificates, where such Certificates were
acquired by such broker-dealer as a result of market-making activities or
other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Certificates.
See "Plan of Distribution".
ANNEX C TO
REGISTRATION AGREEMENT
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Certificates for its
own account pursuant to the Registered Exchange Offer must acknowledge that
it will deliver a prospectus in connection with any resale of such Exchange
Certificates. This Prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of
Exchange Certificates received in exchange for Existing Certificates where
such Existing Certificates were acquired as a result of market-making
activities or other trading activities. The Issuer has agreed that for a
period of one hundred eighty (180) days after the Expiration Date, it will
make this Prospectus, as amended or supplemented, available to any broker-
dealer for use in connection with any such resale. In addition, until
__________, 199__, all dealers effecting transactions in the Exchange
Certificates may be required to deliver a prospectus.(1)
-----------------------
(1) The legend required by Item 502(e) of Regulation S-K must appear on
the back page of the Exchange Offer Prospectus.
The Issuer will not receive any proceeds from any sale of
Exchange Certificates by broker-dealers. Exchange Certificates received by
broker-dealers for their own account pursuant to the Exchange Offer may be
sold from time to time in one or more transactions in the over-the-counter
market, in negotiated transactions, through the writing of options on the
Exchange Certificates or a combination of such methods of resale, at market
prices prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Certificates. Any
broker-dealer that resells Exchange Certificates that were received by it
for its own account pursuant to the Exchange offer and any broker or dealer
that participates in a distribution of such Exchange Certificates may be
deemed to be an "underwriter" within the meaning of the 1933 Act and any
profit on any such resale of Exchange Certificates and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the 1933 Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter"
within the meaning of the 1933 Act.
For a period of one hundred eighty (180) days after the
Expiration Date, the Issuer will promptly send additional copies of this
Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal.
The Issuer has agreed to pay all expenses incident to the Exchange Offer
other than commissions or concessions of any brokers or dealers and will
indemnify the holders of the Certificates (including any broker-dealers)
against certain liabilities, including liabilities under the 1933 Act.
ANNEX D TO
REGISTRATION AGREEMENT
Rider A
( ) CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND TEN (10) COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: _______________________________________________________________
Address: _______________________________________________________________
_______________________________________________________________
Rider B
[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 CERTIFICATES, IT REPRESENTS THAT THE CERTIFICATES TO BE
EXCHANGED FOR EXCHANGE CERTIFICATES WERE ACQUIRED BY IT AS A RESULT OF
MARKET-MAKING OR OTHER TRADING ACTIVITIES AND ACKNOWLEDGES THAT IT WILL
DELIVER A PROSPECTUS IN CONNECTION WITH ANY RESALE OF SUCH EXCHANGE
CERTIFICATES; 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.]
