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Exhibit 4.3
EXECUTION COPY
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Exchange and Registration Rights Agreement
Dated as of April 17, 1998
among
Calair L.L.C. and
Calair Capital Corporation,
as Note Issuers,
and
Continental Airlines, Inc.,
as Guarantor,
and
Chase Securities Inc.,
Credit Suisse First Boston Corporation and
Xxxxxx Xxxxxxx & Co. Incorporated,
as Purchasers
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is made and entered into as of April 17, 1998, among (i) Calair
L.L.C., a Delaware limited liability company ("Calair"), and Calair Capital
Corporation, a Delaware corporation ("Calair Capital" and, together with
Calair, the "Note Issuers"), (ii) Continental Airlines, Inc., a Delaware
corporation (the "Guarantor" and, together with the Note Issuers, the
"Issuers"), and (iii) Chase Securities, Inc., Credit Suisse First Boston
Corporation and Xxxxxx Xxxxxxx & Co. Incorporated (together, the "Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated April 14, 1998, among the Issuers and the Purchasers (the "Purchase
Agreement"), which provides that the Note Issuers will issue and sell
$112,300,000 principal amount of 8?% Senior Notes due 2008 (the "Initial
Notes"). The Initial Notes will be fully guaranteed on an unsecured, senior
basis by the Guarantor. The Initial Notes together with such guarantee are
referred to herein as the "Initial Securities". In order to induce the
Purchasers to enter into the Purchase Agreement, the Issuers have 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 Issuers and the
Purchasers 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.
"Closing Date" shall mean the Closing Date as defined in the
Purchase Agreement.
"DTC" shall mean the Depository Trust Company or any other
depositary appointed by the Issuers; provided, however, that any such
depositary must have an address in the Borough of Manhattan, in The
City of New York.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
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"Exchange Offer" shall mean the exchange offer by the Issuers
of Exchange Securities for Registrable Securities 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.
"Exchange Securities" shall mean the securities to be issued
under the Indenture, together with the guarantee thereof by the
Guarantor provided for in the Indenture, and otherwise containing
terms identical in all material respects to the Initial Securities
(except that, with respect to the Exchange Securities, (i) interest
thereon shall accrue as set forth in Section 2(a) hereof, (ii) the
transfer restrictions thereon (other than the transfer restrictions
provided for in Section 2.08(e) of the Indenture relating to certain
ERISA matters) shall be eliminated, (iii) certain provisions relating
to an increase in the stated rate of interest thereon shall be
eliminated and (iv) such Exchange Securities shall initially be
available only in book-entry form) to be offered to Holders of Initial
Securities in exchange for Initial Securities pursuant to the Exchange
Offer.
"Holders" shall mean each of the Purchasers, for so long as
they own any Registrable Securities, and each of their successors,
assigns and direct and indirect transferees who become owners of
Registrable Securities.
"Indenture" shall mean the indenture relating to the
Securities entered into among the Issuers and the Trustee and dated as
of April 1, 1998.
"Initial Notes" has the meaning set forth in the preamble of
this Agreement.
"Initial Securities" has the meaning set forth in the preamble
of this Agreement.
"Issuers" shall have the meaning set forth in the preamble of
this Agreement and shall include the Issuers' respective successors.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities;
provided that whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Issuers or any "affiliate" (as such
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term is defined in Rule 405 under the 0000 Xxx) of an Issuer (other
than the Purchasers or subsequent holders of Registrable Securities if
such subsequent holders are deemed to be affiliates solely by reason
of their holding of such Registrable Securities) 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.
"Note Issuers" shall have the meaning set forth in the
preamble of this Agreement and shall include the Note Issuers'
respective successors.
"Participating Broker-Dealer" shall have the meaning set forth
in Section 3(f) of this Agreement.
"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 Securities
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 Securities" shall mean the Initial Securities;
provided, however, that the Initial Securities shall cease to be
Registrable Securities when (i) a Shelf Registration Statement with
respect to such Initial Securities shall have been declared effective
under the 1933 Act and such Initial Securities shall have been
disposed of pursuant to such Shelf Registration Statement, (ii) such
Initial Securities shall have been sold to the public pursuant to
paragraph (k) of 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 said Rule 144 (or any similar provision then in force) by
Holders other than "affiliates" or former "affiliates" (as such term
is defined in paragraph (a) of Rule 144) of the Issuers, (iii) such
Initial Securities shall have ceased to be outstanding or (iv) such
Initial Securities have been exchanged for Exchange Securities upon
consummation of the Exchange Offer.
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"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 Issuers 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 Securities or Registrable
Securities), (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 Securities on any securities exchange or exchanges, (vi)
all fees and disbursements relating to the qualification of the
Indenture under applicable securities laws, (vii) the fees and
disbursements of counsel for the Issuers and of the independent public
accountants of the Issuers, 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
Trustee and any paying agent (including related fees and expenses of
any counsel to such parties); 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 Issuers 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 Securities by a Holder.
"Registration Statement" shall mean any registration statement
of the Issuers which covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement,
and all amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission, as
from time to time constituted or created under the 1934 Act, or, if at
any time after the execution of this
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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 Issuers pursuant to the provisions of
Section 2(b) of this Agreement which covers some or all of the
Registrable Securities 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.
"Trustee" shall mean Bank One, N.A.
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, each of the Issuers 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 Issuers to the Holders to
exchange all of the Registrable Securities for Exchange Securities, (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 Issuers
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 Securities for Exchange
Securities (assuming that such Holder is not an affiliate of any of the Issuers
within the meaning of Rule 405 under the 1933 Act, acquires the Exchange
Securities 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 Securities) to trade such
Exchange Securities from and after their receipt without any limitations or
restrictions under the 1933 Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United
States.
In connection with the Exchange Offer, the Issuers shall:
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(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 Securities evidenced by global notes;
(iv) permit Holders to withdraw tendered Registrable
Securities 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 Securities
delivered for exchange, and a statement that such Holder is
withdrawing its election to have such Registrable Securities
exchanged;
(v) use their 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 Issuers shall:
(i) accept for exchange Registrable Securities 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;
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(ii) cancel or cause to be canceled all Registrable
Securities so accepted for exchange by the Issuers; and
(iii) promptly cause to be authenticated and
delivered Exchange Securities to each Holder of Registrable Securities
equal in amount to the Registrable Securities of such Holder so
accepted for exchange.
Interest on each Exchange Security will accrue from the last
date on which interest was paid on the Registrable Securities surrendered in
exchange therefor or, if no interest has been paid on the Registrable
Securities, 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 Securities (other than
Participating Broker-Dealers) who wishes to exchange such Registrable
Securities for Exchange Securities in the Exchange Offer shall represent that
(i) it is neither an "affiliate" of any of the Issuers within the meaning of
Rule 405 under the 1933 Act, nor a broker-dealer tendering Registrable
Securities acquired directly from the Issuers for its own account, (ii) any
Exchange Securities 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
Securities.
(b) Shelf Registration. (i) If, because of any change in
law or applicable interpretations thereof by the Staff, the Issuers are 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) upon the request of any Holder (other than a
Purchaser) who is not eligible to participate in the Exchange Offer, or (iv)
upon the request of any Purchaser (with respect to any Registrable Securities
which it acquired directly from the Issuers) following the consummation of the
Exchange Offer if such Purchaser shall hold Registrable Securities which it
acquired directly from the Issuers 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 Issuers shall, at their expense:
(A) as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the
Registrable Securities by the Holders from time to time in accordance
with the methods of distribution elected by the Majority Holders of
such Registrable Securities 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 Issuers are required to file a
Shelf Registration Statement
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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
Issuers 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 Securities 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 Securities held by such Holder or such Purchaser
after completion of the Exchange Offer. If the Issuers file a Shelf
Registration Statement pursuant to Section 2(b)(i) or (ii) hereof,
they will no longer be required to effect the Exchange Offer;
(B) use their 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 Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement or may be freely sold pursuant to Rule 144
under the Securities Act; and
(C) notwithstanding any other provisions hereof, use
their 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 Issuers further agree, 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 their best 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 Securities copies of any such supplement or amendment promptly
after its being used or filed with the SEC.
The Issuers shall be allowed a period of five days, beginning
on the first day a
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Registration Default occurs, to cure such Registration Default before the
Issuers will be required to comply with the requirements of Section 2(b).
(c) Expenses. The Issuers, jointly and severally, 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 Securities 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
Securities pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. (i) The Issuers
will be deemed not to have used their 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 any Issuer
voluntarily takes any action that would result in any such Registration
Statement not being declared effective or in the Holders of Registrable
Securities covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period unless (A) such action is required by
applicable law or (B) such action is taken by the Issuers in good faith and for
valid business reasons (not including avoidance of the Issuers' obligations
hereunder), including, without limitation, the acquisition or divestiture of
assets, so long as the Issuers promptly comply 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 Securities 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
Securities 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 Registrable
Securities 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 Securities.
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 Registrable Securities shall be increased by 0.50% per annum
from the 61st day of the
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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 Issuers with respect to the Registration Statements pursuant
to Sections 2(a) and 2(b) hereof, the Issuers 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 Issuers, (ii) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling
Holders thereof and (iii) shall comply as to form in all material
respects with the requirements of the applicable form;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; cause each Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the 1933 Act;
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Securities when a Shelf Registration Statement
with respect to the Registrable Securities has been filed and advise
such Holders that the distribution of Exchange Securities will be made
in accordance with the method elected by the Majority Holders; (ii)
furnish to each Holder of Registrable Securities 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
Issuers, (iii) furnish to each Holder of Registrable Securities
included within the coverage of the Shelf Registration Statement, to
counsel for the Holders and to each underwriter of an underwritten
offering of Registrable Securities, 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 Securities; and (iv) subject to the
last paragraph of this Section 3, consent to the use of the Prospectus
or any amendment or supplement thereto by each of the selling Holders
of Registrable Securities included in the Shelf Registration Statement
in connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto;
(d) use their best efforts to register or qualify the
Registrable Securities or
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cooperate with the Holders of Registrable Securities and their counsel
in the registration or qualification of such Registrable Securities
under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement and each underwriter of an underwritten
offering of Registrable Securities 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 Securities owned by such Holders; provided, however, that
in no event shall any Issuer 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 Securities 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 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 Securities if, between the effective date of a Shelf
Registration Statement and such closing, the representations and
warranties of the Issuers 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 Issuers of any notification with
respect to the suspension of the qualification of the Registrable
Securities 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 Issuers 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
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exchanged their Registrable Securities for Exchange Securities for the
resale of such Exchange Securities, (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 Securities
acquired for its own account as a result of market-making activities
or other trading activities (a "Participating Broker-Dealer"), and who
receives Exchange Securities for Registrable Securities 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 Securities, (iv) subject to the last
paragraph of this 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 Securities
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 Securities. If the
undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Registrable
Securities, it represents that the Registrable Securities to
be exchanged for Exchange Securities 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 Securities 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 Securities,
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
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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 extending beyond 180 days
after the last date for which exchanges are accepted pursuant to the
Exchange Offer (as such period may be extended by the Issuers) and
Participating Broker-Dealers shall not be authorized by the Issuers
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 Securities 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;
(i) unless any Registrable Securities are in book entry
form only, in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold free from any restrictive legends; and cause
such Registrable Securities to be in such denominations (consistent
with the provisions of the Indenture) 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 Securities;
(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 Securities, 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
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light of the circumstances under which they were made, not misleading.
The Issuers agree 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
Issuers have amended or supplemented the Prospectus to correct such
misstatement or omission, provided that the Issuers 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 Issuers determine 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
Issuers agree 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 Securities, or
Registrable Securities, as the case may be, not later than the
effective date of an Exchange Offer Registration Statement or Shelf
Registration Statement, as the case may be, and provide the Trustee
with printed certificates evidencing the Exchange Securities or the
Registrable Securities, as the case may be, held in book entry form,
in a form eligible for deposit with DTC;
(l) (i) cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "TIA"), in connection
with the registration of the Exchange Securities, or Registrable
Securities, as the case may be, (ii) cooperate with the Trustees and
the Holders to effect such changes to the Indenture as may be required
for the Indenture to be so qualified in accordance with the terms of
the TIA and (iii) execute, and use its best efforts to cause the
Trustee 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 Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such
customary agreements (including underwriting agreements in customary
form) and take all other customary and appropriate actions (including
those reasonably requested by the Holders of a majority in principal
amount of Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities 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 Securities and the underwriters,
if any, in form, substance and scope as are customarily made
by the Issuers to underwriters in similar underwritten
offerings as may be reasonably requested by them;
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(ii) obtain an opinion of counsel to each Issuer
(who may be the general counsel of the Guarantor) 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 Securities 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 Issuers' 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 Securities, 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 Registrable Securities
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
Securities, 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 Securities being sold, and as
are customarily delivered in similar offerings.
The above shall be done at (i) the effectiveness of such Registration
Statement (and, if appropriate, each post-effective amendment thereto)
if appropriate in connection with any particular disposition of
Registrable Securities 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 Issuers shall provide written
notice to the Holders of all Registrable Securities 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,
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which shall be no earlier than 10 days following the date of such
notice, by which such Holder must inform the Issuers 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
Securities 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
Issuers reasonably requested by it, and cause the respective officers,
directors, employees, and any other agents of each Issuer 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 Issuers, 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 their 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 Securities, to the Purchasers, to counsel on behalf of the
Holders and to the underwriter or underwriters of an underwritten
offering of Registrable Securities, if any, and use its best efforts
to reflect such comments in any such document when filed as the
Holders of Registrable Securities, their counsel and any underwriter
may reasonably request; and (iii) cause the representatives of the
Issuers to be available for discussion of such document as shall be
reasonably requested by the Holders of Registrable Securities, 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
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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 their best
efforts to cause the Registrable Securities to be rated with the
appropriate rating agencies at the time of effectiveness of such Shelf
Registration Statement, unless the Registrable Securities are already
so rated; and
(q) otherwise use their 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 Issuers may
(as a condition to such Holder's participation in the Shelf Registration)
require each Holder of Registrable Securities to furnish to the Issuers such
information regarding such Holder and the proposed distribution by such Holder
of such Registrable Securities as the Issuers may from time to time reasonably
request and the Issuers may exclude from such registration the Registrable
Securities 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 Issuers 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 Securities 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 Issuers, such Holder will deliver to the Issuers (at the Issuers' expense)
all copies in its possession other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. If the Issuers shall give any
such notice to suspend the disposition of Registrable Securities 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 Issuers shall be deemed to have used their best
efforts to keep the Shelf Registration Statement effective during such period
of suspension provided that the Issuers shall use their 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 Holders shall have received copies of
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the supplemented or amended Prospectus necessary to resume such dispositions.
4. Underwritten Offering. The Holders of Registrable
Securities covered by a Shelf Registration Statement who desire to do so may
sell such Registrable Securities 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 Issuers and
(ii) the Issuers 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 Securities 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
Securities are included in such underwritten offering. The Holders
participating in any underwritten offering shall be responsible for any
expenses customarily borne by selling securityholders, including underwriting
discounts and commissions and fees and expenses of counsel to the selling
securityholders.
5. Indemnification and Contribution. (a) Each of the
Issuers agrees, jointly and severally, 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 Securities or Registrable
Securities 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 Issuers 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 Issuers
in writing by any selling Holder expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
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Prospectus shall not inure to the benefit of any Person from whom the Person
asserting any such losses, claims, damages or liabilities purchased Registrable
Securities, or any person controlling such seller, if a copy of the final
Prospectus (as then amended or supplemented if the Issuers shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such seller to such purchaser with or prior to the written confirmation of the
sale of the Registrable Securities 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 Issuers will also, jointly and severally,
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 each Issuer and the other selling Holders, and each
of their respective directors, officers who sign the Registration Statement and
each Person, if any, who controls any Issuer 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 Issuers to the
Holders, but only with reference to information relating to such Holder
furnished to the Issuers 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
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by the Issuers 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 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
Issuers 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 Issuers 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 Securities of such Holder that were
registered pursuant to a Registration Statement.
(e) Each Issuer 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
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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 Securities were sold by such Holder exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder or any person controlling any Holder, or by or on behalf of the
Issuers, their respective officers or directors or any person controlling the
Issuers, (iii) acceptance of any of the Exchange Securities and (iv) any sale
of Registrable Securities pursuant to a Shelf Registration Statement.
6. Miscellaneous. (a) Rule 144 and Rule 144A. For so
long as the Guarantor is subject to the reporting requirements of Section 13 or
15 of the 1934 Act (and, if at any time any Note Issuer becomes subject to such
requirements (the "Reporting Note Issuer"), for so long as it is a Reporting
Note Issuer), the Guarantor (and any Reporting Note Issuer) 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 Securities (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 Securities 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 Securities 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 Securities, the Guarantor (and any Reporting Note
Issuer) will deliver to such Holder a written statement as to whether it has
complied with such requirements.
(b) Other Registration Rights. The Issuers may grant
registration rights that would permit any Person the right to piggyback on any
Shelf Registration Statement, provided
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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) No Inconsistent Agreements. The Issuers have not
entered into nor will the Issuers on or after the date of this Agreement enter
into any agreement which is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
(d) Amendments and Waivers. Except as otherwise
expressly permitted in the Indenture, 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 Issuers have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities 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 Securities
unless consented to in writing by such Holder.
(e) 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 Issuers by means of a notice given in accordance with the
provisions of this Section 6(e), which address initially is, with respect to
the Purchasers, the address set forth in the Purchase Agreement; and (ii) if to
the Issuers, initially at each Issuer'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(e).
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.
(f) Successors and Assigns. This Agreement shall inure
to the benefit of and
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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 Securities in
violation of the terms hereof or of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities, 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.
(g) Third Party Beneficiaries. The Holders shall be
third party beneficiaries to the agreements made hereunder and to the
obligations of the Issuers hereunder and shall have the right to enforce such
agreements and obligations directly to the extent any such Holder deems such
enforcement necessary or advisable to protect its rights hereunder.
(h) 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.
(i) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(k) 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.
(l) Termination. This Agreement shall terminate and be
of no further force or effect when there shall not be any Registrable
Securities outstanding, except that the provisions of Sections 2(c), 2(e), 5,
6(g) and 6(j) hereof shall survive any such termination.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
CALAIR L.L.C.
By: CALFINCO, Inc.,
Its Managing Member
By: /s/ XXXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President -
Treasury Operations
CALAIR CAPITAL CORPORATION
By: /s/ XXXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President - Treasury
Operations
CONTINENTAL AIRLINES, INC.
By: /s/ XXXXXX XXXXXXXX
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President - Corporate
Finance
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Confirmed and accepted as of
the date first above written:
CHASE SECURITIES INC.
By: /s/ XXXX X. XXXXXXXXXXXXX
----------------------------------------
Name: Xxxx X. Xxxxxxxxxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ H. XXXXXX XXXXXXXXXX
----------------------------------------
Name: H. Xxxxxx Xxxxxxxxxx
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ XXXXX XXXXXX
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
