1
Exhibit 4.4
================================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of May 5, 1999
between
AIRCRAFT FINANCE TRUST
and
XXXXXX BROTHERS INC.
MERRILL, LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
================================================================================
2
This Registration Rights Agreement (this "Agreement") is made and entered
into as of May 5, 1999 by and between Aircraft Finance Trust, a special purpose
statutory business trust organized under the laws of the State of Delaware (the
"Company"), and Xxxxxx Brothers Inc. (the "Representative," and together with
Merrill, Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated and Credit Suisse First
Boston Corporation, the "Initial Purchasers"), who have agreed to purchase
$1,209,000,000 million in aggregate principal amount of Class X-0, X-0, B and C
Notes (the "Initial Registrable Notes") and Class D Notes (together with the
Initial Registrable Notes, the "Initial Notes").
This Agreement is made pursuant to the Purchase Agreement dated April 21,
1999 (the "Purchase Agreement") by and among the Company, General Electric
Capital Corporation, UniCapital Corporation and the Representative on behalf of
the Initial Purchasers. In order to induce the Initial Purchasers to purchase
the Initial Registrable Notes, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers set
forth in Section 9 of the Purchase Agreement. Capitalized terms used and not
otherwise defined herein shall have the meaning assigned to them in the Trust
Indenture (the "Indenture"), dated as of May 5, 1999, between the Company,
Resource/Phoenix, Inc. and Bankers Trust Company, relating to the Initial Notes
and the Exchange Notes.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Affiliate: With respect to any Person, any other Person that, directly or
indirectly, Controls, is Controlled by or is under common control with, such
Person or is a director or officer of such Person; For purposes of this
definition, "Control" of a Person means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting Stock, by contract or
otherwise; provided, however that beneficial ownership of 10% or more of the
voting Stock of a Person shall be deemed to be control.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: A day on which commercial banks and foreign exchange markets
are open in New York, New York and, with respect to the determination of payment
of interest on any floating rate Notes, a day on which U.S. dollar deposits may
be dealt in on the London inter-bank market and, with respect to payments to or
withdrawals from the Non-Trustee Accounts (as defined in the Indenture), a day
on which the financial institution at which such account is located is open for
business.
Closing Date: May 5, 1999.
Commission: The U.S. Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for purposes
of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Securities Act of the Exchange Offer Registration Statement relating to the
Exchange Notes to be issued in the Exchange Offer, (b) the maintenance of such
Exchange Offer Registration Statement continuously effective and the keeping of
the Exchange Offer open for a period not less than the period required pursuant
to Section 3(b) hereof and (c) the delivery by the Company to the Registrar
under the Indenture of Exchange Notes in the same aggregate principal amount as
the aggregate principal amount of Initial Registrable Notes properly tendered
and not withdrawn by Holders thereof pursuant to the Exchange Offer.
3
Exchange Act: The U.S. Securities Exchange Act of 1934, as amended.
Exchange Notes: Any notes of the Company containing terms identical to the
Initial Registrable Notes (except to reflect the registration of the Exchange
Note under the Securities Act and that Registration Step-Up Interest shall not
apply thereto) that are issued and exchanged for the Initial Registrable Notes
pursuant to this Agreement and the Indenture either (i) in the Exchange Offer or
(ii) as contemplated by Section 4 hereof.
Exchange Offer: The exchange and issuance by the Company of a principal
amount of Exchange Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding principal amount of
Initial Registrable Notes that are properly tendered and not withdrawn by such
Holders in connection with such exchange and issuance.
Exchange Offer Consummation Deadline: As defined in Section 3(a) hereof.
Exchange Offer Registration Statement: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
Holders: As defined in Section 2 hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Legal Holiday: Any day that is not a Business Day.
Luxembourg Listing Agent: Kredietbank S.A. Luxembourg.
Notes: The Initial Registrable Notes and the Exchange Notes.
Participating Broker-Dealer: Any Broker-Dealer that holds Exchange Notes
that were acquired in the Exchange Offer in exchange for Initial Registrable
Notes that such Broker-Dealer acquired for its own account as a result of market
making activities or other trading activities (other than Initial Registrable
Notes acquired directly from the Company or any of its affiliates).
Person: Any natural person, firm, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any political subdivision thereof or
any other legal entity, including public bodies.
Prospectus: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company relating
to (a) an offering of Exchange Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, in each case, (i) that is filed pursuant to the
provisions of this Agreement and (ii) including the Prospectus included therein,
all amendments and
4
supplements thereto (including post-effective amendments) and all exhibits and
material incorporated by reference therein.
Regulation S: Regulation S promulgated under the Securities Act.
Rule 144: Rule 144 promulgated under the Securities Act.
Securities Act: The U.S. Securities Act of 1933, as amended.
Shelf Effectiveness Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Stock: All shares of capital stock, all beneficial interests in trusts,
all ordinary shares and preferred shares and any options, warrants and other
rights to acquire such shares or interests.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The U.S. Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Initial Registrable Note until (a)
the date on which such Note has been exchanged by a person other than a
Broker-Dealer for an Exchange Note in the Exchange Offer that is entitled to be
resold to the public by the holder thereof without complying with the prospectus
delivery requirement of the Securities Act, (b) following the exchange by a
Broker-Dealer in the Exchange Offer of such Initial Registrable Note for an
Exchange Note, the date on which such Exchange Note is sold to a purchaser who
receives from such Broker-Dealer on or prior to the date of such sale a copy of
the prospectus contained in the Exchange Offer Registration Statement and is
otherwise disposed of by such broker-dealer pursuant to the "Plan of
Distribution" set forth in the Exchange Offer Registration Statement, (c) the
date on which such Note has been effectively registered under the Securities Act
and disposed of in accordance with the Shelf Registration Statement or (d) the
date on which such Initial Registrable Note is distributed to the public
pursuant to Rule 144 under the Securities Act or is eligible for resale pursuant
to Rule 144(k) under the Securities Act.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each,
a "Holder") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable federal
law (after the procedures set forth in Section 6(a)(i) below have been complied
with), the Company shall (i) cause the Exchange Offer Registration Statement to
be filed with the Commission as soon as practicable after the Closing Date, (ii)
use all commercially reasonable efforts to cause such Exchange Offer
Registration Statement to become effective at the earliest possible time, (iii)
in connection with the foregoing, (A) file all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in order to cause it
to become effective, (B) file, if applicable, any required post-effective
amendment to such Exchange Offer Registration Statement and (C) cause all
necessary filings, if any, in connection with the registration and qualification
of the Exchange Notes to be made under the Blue Sky laws of such jurisdictions
as are necessary to permit Consummation of the Exchange Offer and (iv) upon the
5
effectiveness of such Exchange Offer Registration Statement, use all
commercially reasonable efforts to commence and Consummate the Exchange Offer,
but in no event later than 270 days after the Closing Date (the "Exchange Offer
Consummation Deadline"). The Exchange Offer shall be on the appropriate form
permitting registration of the Exchange Notes to be offered in exchange for the
Initial Registrable Notes that are Transfer Restricted Securities and to permit
resales of Exchange Notes by Broker-Dealers that tendered into the Exchange
Offer for Initial Registrable Notes that such Broker-Dealer acquired for its own
account as a result of market making activities or other trading activities
(other than Initial Registrable Notes acquired directly from the Company or any
of its Affiliates) as contemplated by Section 3(c) below.
(b) The Company shall use its best efforts to cause the Exchange Offer
Registration Statement to be effective continuously, and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 Business
Days. The Company shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the Exchange Notes
shall be included in the Exchange Offer Registration Statement. The Company
shall use all commercially reasonable efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than 30
Business Days thereafter.
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer that holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Transfer Restricted
Securities acquired directly from the Company or any Affiliate of the Company)
may exchange such Transfer Restricted Securities pursuant to the Exchange Offer;
however, such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Securities Act and must, therefore, deliver a prospectus meeting
the requirements of the Securities Act in connection with its initial sale of
any Exchange Notes received by such Broker-Dealer in the Exchange Offer and that
the Prospectus contained in the Exchange Offer Registration Statement may be
used to satisfy such prospectus delivery requirement. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement.
To the extent necessary to ensure that the Exchange Offer Registration
Statement is available for sales of Exchange Notes by Broker-Dealers, the
Company agrees to use its best efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented and amended as required by the
provisions of Section 6(c) hereof and in conformity with the requirements of
this Agreement, the Securities Act and the policies, rules and regulations of
the Commission as announced from time to time, for a period of 180 days from the
date on which the Exchange Offer is Consummated, or such shorter period as will
terminate when all Transfer Restricted Securities held by such Broker-Dealers
covered by such Registration Statement have been sold pursuant thereto (unless
such period is extended pursuant to Section 6(d) below). The Company shall
promptly provide sufficient copies of the latest version of such Prospectus to
such Broker-Dealers promptly upon request, and in no event later than one day
after such request, at any time during such period.
6
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not permitted by
applicable law or Commission policy (after the Company has complied with the
procedures set forth in Section 6(a)(i) below) or (ii) if any Holder of Transfer
Restricted Securities shall notify the Company within 20 Business Days following
the Consummation of the Exchange Offer that (A) such Holder was prohibited by
law or Commission policy from participating in the Exchange Offer or (B) such
Holder may not resell the Exchange Notes acquired by it in the Exchange Offer to
the public without delivering a prospectus and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder or (C) such Holder is a Broker-Dealer and holds Initial
Registrable Notes acquired directly from the Company or any of its Affiliates,
then the Company shall:
(x) use its best efforts to file a shelf registration statement with the
Commission pursuant to Rule 415 under the Securities Act (which may be an
amendment to the Exchange Offer Registration Statement (the "Shelf Registration
Statement")), relating to all Transfer Restricted Securities, and
(y) use its best efforts to cause such Shelf Registration Statement to
become effective on or prior to 270 days after the earlier of (i) the date on
which the Company determines that the Exchange Offer Registration Statement
cannot be filed as a result of clause (a)(i) above and (ii) the date on which
the Company receives the notice specified in clause (a) (ii) above (the 270th
day from such earlier date, the "Shelf Effectiveness Deadline").
If, after the Company has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) above, the Company is required
to file and make effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law, then the filing of
the Exchange Offer Registration Statement shall be deemed to satisfy the
requirements of clause (x) above; provided that, in such event, the Company
shall remain obligated to meet the Shelf Effectiveness Deadline set forth in
clause (y).
The Company shall use its best efforts to keep any Shelf Registration
Statement required by this Section 4(a) continuously effective, supplemented and
amended as required by and subject to the provisions of Sections 6(b) and (c)
hereof to the extent necessary to ensure that it is available for sales of
Transfer Restricted Securities by the Holders thereof entitled to the benefit of
this Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of at least two years
(as extended pursuant to Section 6(d)) following the date on which such Shelf
Registration Statement first becomes effective under the Securities Act, or such
shorter period as will terminate when all Transfer Restricted Securities covered
by such Registration Statement (i) have been sold pursuant thereto or (ii) are
no longer Restricted Securities (as defined in Rule 144 under the Securities
Act).
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, under
the Securities Act for use in connection with any Shelf Registration Statement
or Prospectus or preliminary Prospectus included therein. Each selling Holder
agrees to promptly furnish additional information required to be disclosed in
order to make the information previously furnished to the Company by such Holder
not materially misleading. No Holder of Transfer Restricted Securities shall be
entitled to Registration Step-Up Interest pursuant to Section 5 hereof unless
and until such Holder shall have provided all such information.
7
SECTION 5. REGISTRATION STEP-UP INTEREST
(a) If (i) the Exchange Offer has not been Consummated by the Exchange
Offer Consummation Deadline, (ii) the Exchange Offer has not been Consummated
within 30 Business Days after the date on which the Exchange Offer Registration
Statement was declared effective by the Commission or the Exchange Offer is not
kept open for a period of at least 20 Business Days, (iii) if obligated to file
the Shelf Registration Statement pursuant to Section 4(a) of this Agreement, the
Shelf Registration Statement has not been declared effective by the Shelf
Effectiveness Deadline 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
immediately by a post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective immediately (except as
permitted in paragraph (b) of this Section 5; such period of time during which
any such Registration Statement is not effective or any such Registration
Statement or the related Prospectus is not usable being referred to as a
"Blackout Period") (each such event referred to in clauses (i) through (iv), a
"Registration Default"), then Registration Step-Up Interest of an additional
0.5% per annum shall be payable on each subclass of Initial Registrable Notes as
provided for in the Indenture. Notwithstanding anything to the contrary set
forth herein, any Registration Default shall be deemed to be no longer
continuing (1) upon Consummation of the Exchange Offer, in the case of (i)
above, (2) upon Consummation of the Exchange Offer or the extension of the
period such Exchange Offer is open, in the case of (ii) above, (3) upon the
effectiveness of the Shelf Registration Statement, in the case of (iii) above,
and (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, and
thereupon Registration Step-Up Interest shall cease to be payable on each such
subclass of Initial Registrable Notes, as provided in the Indenture.
(b) A Registration Default referred to in Section 5(a)(iv) shall be deemed
not to have occurred and be continuing in relation to a Registration Statement
or the related Prospectus if (i) the Blackout Period has occurred solely as a
result of (x) the filing of a post-effective amendment to such Shelf
Registration Statement to incorporate annual audited financial information with
respect to the Company where such post-effective amendment is not yet effective
and needs to be declared effective to permit Holders to use the related
Prospectus or (y) the occurrence of other material events with respect to the
Company that would need to be described in such Registration Statement or the
related Prospectus and (ii) in the case of clause (y), the Company is proceeding
promptly and in good faith to amend or supplement (including by way of filing
documents under the Exchange Act which are incorporated by reference into the
Registration Statement) such Registration Statement and the related Prospectus
to describe such events: provided, however, that in any case if such Blackout
Period occurs for a continuous period in excess of 30 days, a Registration
Default shall be deemed to have occurred on the 31st day of such Blackout Period
and Registration Step-Up Interest shall be payable in accordance with the above
paragraph from the day such Registration Default occurs until such Registration
Default is cured or until the Company is no longer required pursuant to this
Agreement to keep such Registration Statement effective or such Registration
Statement or the related Prospectus usable; provided further, however, that in
no event shall the total of all Blackout Periods exceed 60 days in the aggregate
in any 12-month period.
Registration Step-Up Interest shall be paid to the Holders entitled
thereto, in the manner, and subject to the priorities, provided for in the
Indenture, on each Interest Payment Date, all as set forth in the Indenture and
the Notes.
8
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange
Offer and subject to Section 3(a) hereof, the Company shall comply with all
applicable provisions of Section 6(c) below, shall use its best efforts to
effect such exchange and to permit the resale of Exchange Notes by
Broker-Dealers that tendered in the Exchange Offer Initial Registrable Notes
that such Broker-Dealer acquired for its own account as a result of its market
making activities or other trading activities (other than Initial Registrable
Notes acquired directly from the Company or any of its Affiliates) being sold in
accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
(i) If, following the date hereof there has been announced a change
in Commission policy with respect to exchange offers such as the Exchange
Offer, that in the reasonable opinion of counsel to the Company raises a
substantial question as to whether the Exchange Offer is permitted by
applicable federal law, the Company hereby agrees to seek a no-action
letter or other favorable decision from the Commission allowing the
Company to Consummate an Exchange Offer for such Transfer Restricted
Securities. The Company hereby agrees to pursue the issuance of such a
decision to the Commission staff level. In connection with the foregoing,
the Company hereby agrees to take all such other actions as may be
requested by the Commission or otherwise required in connection with the
issuance of such decision, including without limitation (A) participating
in telephonic conferences with the Commission, (B) delivering to the
Commission staff an analysis prepared by counsel to the Company setting
forth the legal bases, if any, upon which such counsel has concluded that
such an Exchange Offer should be permitted and (C) diligently pursuing a
resolution by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer, each
Holder of Transfer Restricted Securities (including, without limitation,
any Holder who is a Broker Dealer) shall furnish, upon the request of the
Company, prior to the Consummation of the Exchange Offer, a written
representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to
the effect that (A) it is not an Affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
Exchange Notes to be issued in the Exchange Offer and (C) it is acquiring
the Exchange Notes in its ordinary course of business. Each Holder using
the Exchange Offer to participate in a distribution of the Exchange Notes
hereby acknowledges and agrees that, if the resales are of Exchange Notes
obtained by such Holder in exchange for Initial Registrable Notes acquired
directly from the Company or an Affiliate thereof, it (1) could not, under
Commission policy as in effect on the date of this Agreement, rely on the
position of the Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the Commission's letter to Shearman &
Sterling (available July 2, 1993), and similar no-action letters
(including, if applicable, any no-action letter obtained pursuant to
clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with
a secondary resale transaction and that such a secondary resale
transaction must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or
508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company shall provide a supplemental letter to the
Commission (A) stating that the Company is registering the Exchange Offer
in reliance on the position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and Co.,
Inc.
9
(available June 5, 1991) as interpreted in the Commission's letter to
Shearman & Sterling (available July 2, 1993), and, if applicable, any
no-action letter obtained pursuant to clause (i) above, (B) including a
representation that the Company has not entered into any arrangement or
understanding with any Person to distribute the Exchange Notes to be
received in the Exchange Offer and that, to the best of the Company's
information and belief, each Holder participating in the Exchange Offer is
acquiring the Exchange Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes received in the Exchange Offer and (C)
any other undertaking or representation required by the Commission as set
forth in any no-action letter obtained pursuant to clause (i) above, if
applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall comply with all the provisions of
Section 6(c) below and shall use its best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof (as indicated in the
information furnished to the Company pursuant to Section 4(b) hereof), and
pursuant thereto the Company will prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate form
under the Securities Act, which form shall be available for the sale of the
Transfer Restricted Securities in accordance with the intended method or methods
of distribution thereof within the time periods and otherwise in accordance with
the provisions hereof.
(c) General Provisions. In connection with any Registration Statement and
any related Prospectus required by this Agreement, the Company shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for
the period specified in Section 3 or 4 of this Agreement, as applicable;
upon the occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Company shall file promptly an appropriate amendment to such Registration
Statement curing such defect, and, if Commission review is required, use
its best efforts to cause such amendment to be declared effective as soon
as practicable;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as may
be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may be;
cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Securities Act, and to comply fully with Rules 424, 430A and 462, as
applicable, under the Securities Act in a timely manner; and comply with
the provisions of the Securities Act with respect to the disposition of
all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the selling Holders promptly and, if requested by such
Persons, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to any applicable Registration Statement or any
post-effective amendment thereto, when the same has become effective, (B)
of any written request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under
10
the Securities Act or of the suspension by any state securities commission
of the qualification of the Transfer Restricted Securities for offering or
sale in any jurisdiction, or the initiation of any proceeding for any of
the preceding purposes, (D) of the existence of any fact or the happening
of any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Registration
Statement in order to make the statements therein not misleading, or that
requires the making of any additions to or changes in the Prospectus in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Company shall use its best efforts
to obtain the withdrawal or lifting of such order at the earliest possible
time;
(iv) subject to Section 6(c)(i), if any fact or event contemplated
by Section 6(c)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain 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;
(v) furnish to the Initial Purchasers and, if requested by any
selling Holder, to such Holder, named in any Registration Statement or
Prospectus in connection with such sale, if any, before filing with the
Commission, copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such Registration
Statement or Prospectus (including all documents incorporated by reference
after the initial filing of such Registration Statement), which documents
will be subject to the review and comment of such Holders in connection
with such sale, if any, for a period of at least five Business Days, and
the Company will not file any such Registration Statement or Prospectus or
any amendment or supplement to any such Registration Statement or
Prospectus (including all such documents incorporated by reference) to
which the selling Holders of the Transfer Restricted Securities covered by
such Registration Statement in connection with such sale, if any, shall
reasonably object within five Business Days after the receipt thereof. A
selling Holder shall be deemed to have reasonably objected to such filing
if such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement or
omission or fails to comply with the applicable requirements of the
Securities Act;
(vi) upon the reasonable request of any selling Holder, promptly
prior to the filing of any document that is to be incorporated by
reference into a Registration Statement or Prospectus, provide copies of
such document to the selling Holders in connection with such sale, if any,
make the Company's representatives reasonably available for discussion of
such document and other customary due diligence matters, and include such
information in such document prior to the filing thereof as any selling
Holder may reasonably request;
(vii) in the case of any Shelf Registration, make available at
reasonable times for inspection by the selling Holders participating in
any disposition pursuant to such Registration Statement and any attorney
or accountant retained by such selling Holders, all financial and other
records, pertinent corporate documents of the Company and cause the
Company's officers, directors and employees to supply all information
reasonably requested by any such selling
11
Holder, attorney or accountant in connection with such Registration
Statement or any post-effective amendment thereto subsequent to the filing
thereof and prior to its effectiveness, in each case as shall reasonably
be necessary to enable such persons to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; provided, however,
that the foregoing inspection and information gathering shall be
coordinated on behalf of the Initial Purchasers and such selling Holders
by you and on behalf of the other parties, by one counsel designated by
and on behalf of such other parties as described in Section 7 hereof,
provided, further, that any records, documents, properties or information
that are designated by the Company as confidential at the time of delivery
of such records, documents, properties or information shall be kept
confidential by such persons, unless (i) such records, documents,
properties or information are in the public domain or otherwise publicly
available, (ii) disclosure of such records, documents, properties or
information is required by court or administrative order or (iii)
disclosure of such records, documents, properties or information, in the
written opinion of counsel to such person, is otherwise required by law
(including, without limitation, pursuant to the requirements of the
Securities Act);
(viii) subject to Section 4(b) hereof, if reasonably requested by
selling Holders of a majority of the principal amount of Transfer
Restricted Securities being sold in connection with such offering, if any,
promptly include in any Registration Statement or Prospectus, pursuant to
a supplement or post-effective amendment if necessary, such information as
such selling Holders may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities; and make all required
filings of such Prospectus supplement or post-effective amendment as soon
as practicable after the Company is notified of the matters to be included
in such Prospectus supplement or post-effective amendment; provided,
however, that the Company shall not be required to take any action
pursuant to this Section 6(c)(viii) that would, in the opinion of counsel
for the Company reasonably satisfactory to the Initial Purchasers, violate
applicable law;
(ix) furnish to each selling Holder in connection with such sale, if
any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each post-effective amendment
thereto, including financial statements and schedules, and, if the Holder
so requests in writing, all documents incorporated by reference therein
and all exhibits (including exhibits incorporated therein by reference);
(x) deliver to each selling Holder, without charge, as many copies
of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such selling Holder reasonably may
request; the Company hereby consents to the use (in accordance with law
and subject to the provisions of this Agreement) of the Prospectus and any
amendment or supplement thereto by each of the selling Holders in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto;
(xi) upon the request of any selling Holder, enter into such
agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any applicable Registration
Statement contemplated by this Agreement as may be reasonably requested by
any Holder of Transfer Restricted Securities in connection with any sale
or resale pursuant to any applicable Registration Statement, and in such
connection, the Company shall:
12
(A) Upon the request of any selling Holder, furnish (or in the
case of paragraphs (2) and (3), use its best efforts to cause to be
furnished) to each selling Holder, upon the effectiveness of the
Shelf Registration Statement or upon Consummation of the Exchange
Offer, as the case may be:
(1) a certificate, dated and addressing the matters
covered therein as of such date, signed on behalf of the
Company by the Equity Trustee of the Company, covering matters
similar to those set forth in Section 9(v) of the Purchase
Agreement and such other similar matters as are customary and
as the selling Holders may reasonably request;
(2) an opinion, dated and addressing the matters covered
therein as of the date of Consummation of the Exchange Offer,
or the date of effectiveness of the Shelf Registration
Statement, as the case may be, of counsel for the Company
covering matters similar to those set forth in of Section 9(c)
or 9(o) of the Purchase Agreement and such other matters as
the selling Holders may reasonably request, and in any event
including a statement to the effect that such counsel has
participated in conferences with officers of the Company and
with the independent public accountants for the Company
concerning the preparation of the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may
be, and although such counsel has made certain inquiries and
investigations in connection with such preparation, it is not
passing upon and does not assume any responsibility for the
accuracy or completeness of the statements contained in such
Registration Statements, except insofar as such statements
relate to such counsel, and on the basis of the foregoing,
such counsel's work in connection with this matter did not
disclose any information that gave such counsel reason to
believe that the applicable Registration Statement, at the
time such Registration Statement or any post-effective
amendment thereto became effective, or the Prospectus
contained in such Registration Statement as of its date, and,
in the case of the Exchange Offer Registration Statement, as
of the date of Consummation of the Exchange Offer, contained
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading; and
(3) a customary comfort letter, dated and addressing the
matters covered therein as of the date of Consummation of the
Exchange Offer, or as of the date of effectiveness of the
Shelf Registration Statement, as the case may be, from the
Company's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters to underwriters in connection with underwritten
offerings, and meeting the requirements set forth in the
comfort letters delivered pursuant to Section 9(u) of the
Purchase Agreement;
(B) Set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) Deliver such other customary documents and certificates as
may be reasonably requested by the selling Holders to evidence
compliance with clause (A) above and with any customary conditions
contained in any agreement entered into by the Company pursuant to
this clause (xi).
If at any time the representations and warranties of the
Company set forth in the certificate contemplated in clause (A)(1)
above cease to be true and correct, the Company
13
shall so advise the Initial Purchasers and the underwriter(s), if
any, and each selling Holder promptly and, if requested by such
Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that the Company
shall not be required to register or qualify as a foreign corporation
where it is not now so qualified or to take any action that would subject
it to the service of process in suits, other than as to matters and
transactions relating to the Registration Statement, in any jurisdiction
where it is not now so subject;
(xiii) issue, upon the request of any Holder of Initial Registrable
Notes covered by any Registration Statement contemplated by this
Agreement, Exchange Notes having a principal amount equal to the principal
amount of Initial Registrable Notes surrendered to the Company by such
Holder in exchange therefor or being sold by such Holder; such Exchange
Notes to be registered in the name of such Holder or in the name of the
purchaser(s) of such Exchange Notes, as the case may be; in return, the
Initial Registrable Notes held by such Holder shall be surrendered to the
Company for cancellation;
(xiv) in connection with any sale of Transfer Restricted Securities
that will result in such securities no longer being Transfer Restricted
Securities, cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and to
register such Transfer Restricted Securities in such denominations and
such names as the selling Holders may request at least two Business Days
prior to such sale of Transfer Restricted Securities pursuant to such
Registration Statement;
(xv) use its best efforts to cause the disposition of the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof to
consummate the disposition of such Transfer Restricted Securities, subject
to the proviso contained in clause (xii) above;
(xvi) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of a Registration Statement covering
such Transfer Restricted Securities and provide the Trustee under the
Indenture with printed certificates for the Transfer Restricted Securities
which are in a form eligible for deposit with The Depository Trust
Company;
(xvii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to
its security holders with regard to any applicable Registration Statement,
as soon as practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) covering a
twelve-month period beginning after the effective date of the Registration
Statement (as such term is defined in paragraph (c) of Rule 158 under the
Securities Act);
(xviii) (A) if the Notes have been rated prior to the initial sale
of such Notes, use its best efforts to confirm that such ratings will
apply to the Transfer Restricted Securities covered by a Registration
Statement, or (B) if the Notes were not previously rated, use commercially
reasonable efforts to cause the Transfer Restricted Securities covered by
the Registration
14
Statement to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority of the principal amount of Notes
covered thereby or the managing underwriter(s), if any;
(xix) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement and, in connection therewith, cooperate with the Trustee
and the Holders to effect such changes to the Indenture as may be required
for such Indenture to be so qualified in accordance with the terms of the
TIA; and execute and use its best efforts to cause the Trustee to execute,
all documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner; and
(xx) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 or
Section 15(d) of the Exchange Act.
(xxi) use its best efforts to list the Exchange Notes, if any, on
the Luxembourg Stock Exchange not later than the effective date of an
Exchange Offer Registration Statement and to make all documents relating
to the Exchange Offer available at the offices of the Luxembourg Listing
Agent;
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(i) or any notice from the Company of the existence of any fact of
the kind described in Section 6(c)(iii)(D) hereof (in each case, a "Suspension
Notice"), such Holder will promptly discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration Statement until
(i) such Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is advised in
writing by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus (in each case, the "Recommencement Date"). Each
Holder receiving a Suspension Notice hereby agrees that it will either (i)
destroy any Prospectuses, other than permanent file copies, then in such
Holder's possession which have been replaced by the Company with more recently
dated Prospectuses or (ii) deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Holder's possession of
the Prospectus covering such Transfer Restricted Securities that was current at
the time of receipt of the Suspension Notice. The time period regarding the
maintenance of the effectiveness of such Registration Statement set forth in
Section 3 or 4 hereof, as applicable, shall be extended by a number of days
equal to the number of days in the period from and including the date of
delivery of the Suspension Notice to the date of delivery of the Recommencement
Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses; (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing of Prospectuses), messenger and
delivery services and telephone; (iv) all reasonable fees and disbursements of
counsel for the Company and one firm of counsel designated by the Holders of a
majority of the principal amount of Transfer Restricted Securities to act as
counsel for the Holders in connection therewith; (v) all application and filing
fees in connection with listing the Exchange Notes on a national securities
exchange or automated quotation system; and (vi) all fees and disbursements of
independent certified public accountants of the Company (including the expenses
of any special audit and comfort letters required by or incident to such
performance).
15
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Milbank, Tweed, Xxxxxx & XxXxxx LLP, New York, New York, unless another firm
shall be chosen by the Holders of a majority of the principal amount of Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared.
(c) Each Holder of Transfer Restricted Securities will pay all
underwriting discounts, if any, and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Transfer Restricted
Securities.
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder of
Transfer Restricted Securities, its officers and employees and each person, if
any, who controls any such Holder within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Transfer
Restricted Securities), to which that Holder, officer, employee or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, preliminary prospectus or Prospectus
(in each case as amended or supplemented) or (ii) the omission or alleged
omission to state in any Registration Statement, preliminary prospectus or
Prospectus (in each case as amended or supplemented) any material fact required
to be stated therein or necessary to make the statements therein not misleading;
and shall reimburse each such Holder and each such officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that Holder, officer, employee or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Registration Statement, preliminary prospectus or
Prospectus (in each case as amended or supplemented) in reliance upon and in
conformity with written information concerning such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion therein and
provided further, however, that the Company shall not be liable to any Holder
under the indemnity agreement in this subsection (a) with respect to any
preliminary prospectus to the extent that any such loss, claim, damage or
liability of such Holder results from the fact that such Holder sold Transfer
Restricted Securities to a person as to whom there was not sent or given, at or
prior to written confirmation of such sale, a copy of the Prospectus or of the
Prospectus as then amended or supplemented if the Company had previously
furnished copies thereof in the quantity requested and in a timely manner in
accordance with Section 6(c)(x) hereof to such Holder and the loss, claim,
damage or liability of such Holder results from an untrue statement or omission
of a material fact contained in the preliminary prospectus and corrected in the
Prospectus or the Prospectus as amended or supplemented. The foregoing
16
indemnity agreement is in addition to any liability which the Company may
otherwise have to any Holder or to any officer, employee or controlling person
of that Holder.
(b) Each Holder of Transfer Restricted Securities, severally and not
jointly, shall indemnify and hold harmless the Company, its officers and
employees, each of its directors, and each person, if any, who controls the
Company within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company or any such director, officer or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (in each case as
amended or supplemented) or (ii) the omission or alleged omission to state in
any Registration Statement, preliminary prospectus or Prospectus (in each case
as amended or supplemented) any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information concerning such Holder furnished to the Company by or on behalf of
that Holder specifically for inclusion therein, and shall reimburse the Company
and any such director, officer or controlling person for any legal or other
expenses reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which any Holder may otherwise have to the Company or any such
director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Holders shall have the right to employ counsel to represent jointly the
Holders and their respective officers, employees and controlling persons who may
be subject to liability arising out of any claim in respect of which indemnity
may be sought by the Holders against the Company under this Section 8 if, in the
reasonable judgment of the Holders, it is advisable for the Holders, officers,
employees and controlling persons to be jointly represented by separate counsel,
and in that event the fees and expenses of such separate counsel shall be paid
by the Company. Such counsel shall be designated in writing by the Holders of a
majority in principal amount of Transfer Restricted Securities which are subject
to such claim. No indemnifying party shall (i) without the prior written consent
of the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable
17
for any settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with the
consent of the indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
from the offering and sale of the Notes, on the one hand, and the Holders from
their sale of Transfer Restricted Securities, on the other, 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 Company on
the one hand and the Holders on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and any such Holder on
the other shall be deemed to be in the same proportion as (x) in the case of the
Company, the total net proceeds from the offering pursuant to the Purchase
Agreement (before deducting expenses, but after deducting fees and commissions
payable to the Initial Purchasers) received by the Company with respect to the
Notes sold by such Holder (the "Net Proceeds") bear to (y) in the case of such
Holder, the aggregate principal amount of Notes sold by such Holder, less the
amount of the Net Proceeds relating to such Notes. Notwithstanding the
provisions of this Section 8, no Holder shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the total received by
such Holder with respect to the sale of its Transfer Restricted Securities
pursuant to a Registration Statement exceeds the amount of any damages which
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. The relative fault
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Holders, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Holders agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were to be determined by pro rata allocation (even
if the Holders were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. 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 Holders' obligations to contribute as provided in this
Section 8(d) are several in proportion to the respective principal amount of the
Transfer Restricted Securities held by each of the Holders hereunder and not
joint.
18
SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Company is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder of Transfer Restricted Securities, to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company acknowledges and agrees that any failure by the
Company to comply with its obligations under Sections 3 and 4 hereof may result
in material irreparable injury to the Initial Purchasers or the Holders for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under Sections 3 and
4 hereof. The Company further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the date
of this Agreement, enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any agreement granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any agreement in effect on the date
hereof.
(c) Adjustments Affecting the Notes. The Company will not take any action,
or permit any change to occur, with respect to the Notes that would materially
and adversely affect the ability of the Company or the Holders to Consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(d)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose securities are being tendered pursuant to the Exchange Offer
and that does not affect directly or indirectly the rights of other Holders
whose securities are not being tendered pursuant to such Exchange Offer may be
given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities subject to such Exchange Offer.
(e) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
19
(f) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company:
Aircraft Finance Trust
c/o Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Corporate Trust Administrator
With copies to:
UniCapital Corporation
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Milbank, Tweed, Xxxxxx & XxXxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Fine, Esq.
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 receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
Upon the date of filing of the Exchange Offer or a Shelf Registration
Statement, as the case may be, notice shall be delivered to Xxxxxx Brothers Inc.
on behalf of the Initial Purchasers (in the form attached hereto as Exhibit A)
and shall be addressed to: Attention: Compliance Department, 0 Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(g) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; provided, that nothing
20
herein shall be deemed to permit any assignment, transfer or other disposition
of Transfer Restricted Securities in violation of the terms hereof or of the
Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Transfer Restricted Securities in any manner, whether by operation of
law or otherwise, such Transfer Restricted Securities shall be held subject to
all of the terms of this Agreement, and by taking and holding such Transfer
Restricted 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.
(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, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(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) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AIRCRAFT FINANCE TRUST
By: Wilmington Trust Company, as
Trustee
By: /s/ Xxxxxx X. XxxXxxxxx
---------------------------------
Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
22
XXXXXX BROTHERS INC.
MERRILL, LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
BY: XXXXXX BROTHERS INC., as Representative of the Initial Purchasers
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
23
B15a
24
EXHIBIT A
NOTICE OF FILING OF
A/B EXCHANGE OFFER REGISTRATION STATEMENT
To: Xxxxxx Brothers Inc.
Compliance Department
3 World Financial Center
Xxx Xxxx, XX 00000
From: Aircraft Finance Trust
c/o Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Re: $512,500,000 Class A-1 Floating Rate Asset Backed Notes, Series 1999-1
$400,000,000 Class A-2 Floating Rate Asset Backed Notes, Series 1999-1
$126,500,000 Class B Floating Rate Asset Backed Notes, Series 1999-1
$106,000,000 Class C Fixed Rate Asset Backed Notes, Series 1999-1
Date __________________, ____
For your information only (NO ACTION REQUIRED):
Today, _______, ____, we filed [an Initial Registrable Note/Exchange Note
Exchange Offer Registration Statement/a Shelf Registration Statement] with the
Securities and Exchange Commission. We currently expect this registration
statement to be declared effective within ____ business days of the date hereof.
