TRANS WORLD AIRLINES, INC.
11 3/8% Senior Secured Notes Due 2003
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made
and entered into as of April 21, 1998, by and among Trans World Airlines,
Inc., a Delaware corporation (the "Company"), Lazard Freres & Co. LLC
("Lazard") and First Security Bank, National Association, as Owner Trustee
(the "Owner Trustee"), under the Trust Agreement (the "Trust Agreement") dated
as of January 24, 1995 between the Owner Trustee and Seven Sixty Seven
Leasing, Inc., as beneficiary (the "Beneficiary"). Subject to the terms and
conditions stated in the Aircraft Sale and Note Purchase Agreement dated as of
April 9, 1998 among the Company, the Owner Trustee and the Beneficiary (the
"Sale Agreement"), the Beneficiary will instruct the Owner Trustee to, and the
Owner Trustee will sell to the Company three Boeing 767-231 ETOPS aircraft and
their associated engines for $25,000,000 for each such aircraft, payable by
the issuance by the Company of (i) $43,200,000 aggregate principal amount of
the Company's 113/8% Senior Secured Notes Due 2003 (the "Notes") and (ii)
$31,800,000 aggregate principal amount of the Company's Mandatory Conversion
Equity Notes due 1999 (the "Equity Notes"). In connection therewith, subject
to the terms and conditions stated in the Placement Agreement dated as of
April 9, 1998 between the Company and Lazard (the "Placement Agreement"), the
Company has agreed to pay Lazard a placement fee of $3,000,000, which fee has
been agreed under the Sale Agreement to be paid by the Owner Trustee on behalf
of the Beneficiary to Lazard by payment of (x) $1,728,000 aggregate principal
amount of the Notes and (y) $1,272,000 aggregate principal amount of the
Equity Notes. The Notes will be issued pursuant to an indenture dated as of
April 21, 1998 (the "Indenture"), between the Company and First Security Bank,
National Association, as trustee (the "Trustee").
This Agreement is made pursuant to the Sale Agreement and the
Placement Agreement. In order to (x) fulfill its obligations to Owner Trustee
under the Sale Agreement and (y) fulfill its obligations to Lazard under the
Placement Agreement, the Company hereby agrees with Lazard and the Owner
Trustee for the benefit of the holders of the Notes (including, without
limitation, the Owner Trustee and Lazard), the Exchange Notes (as defined
below) and the Private Exchange Notes (as defined below) (collectively, the
"Holders"), as follows:
Section 1. Exchange Offer Registration.
The Company shall, at its cost, use its reasonable best efforts
to prepare and, not later than 60 days after (or if the 60th day is not a
business day, the first business day thereafter) the Issue Date (as defined in
the Indenture) of the Notes, file with the Securities and Exchange Commission
(the "Commission"), a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to a proposed offer (the
"Registered Exchange Offer") to the Holders of Transfer Restricted Notes (as
defined below), who are not prohibited by any law or policy of the Commission
from participating in the Registered Exchange Offer, to issue and deliver to
such Holders, in exchange for the Notes, a like aggregate principal amount of
debt securities (the "Exchange Notes") of the Company issued under the
Indenture and identical in all material respects to the Notes (except for the
transfer restrictions relating to the Notes) that would be registered under
the Securities Act. The Company shall use its reasonable best efforts to
cause such Exchange Offer Registration Statement to become effective under the
Securities Act within 150 days (or if the 150th day is not a business day, the
first business day thereafter) after the Issue Date of the Notes and shall
keep the Exchange Offer Registration Statement effective for not less than 20
business days (or longer if required by applicable law) after the date on which
notice of the Registered Exchange Offer is mailed to the Holders (such period
being called the "Exchange Offer Registration Period").
If the Company effects the Registered Exchange Offer, the
Company will be entitled to close the Registered Exchange Offer 20 business
days after the commencement thereof; provided, however, that the Company has
accepted all the Notes theretofore validly tendered in accordance with the
terms of the Registered Exchange Offer.
Following the declaration of the effectiveness of the Exchange
Offer Registration Statement, the Company shall promptly commence the
Registered Exchange Offer, it being the objective of such Registered Exchange
Offer to enable each Holder of Transfer Restricted Notes electing to exchange
the Notes for Exchange Notes (assuming that such Holder is not an affiliate of
the Company within the meaning of the Securities Act, acquires the Exchange
Notes in the ordinary course of such Holder's business, has no arrangements
with any person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer)
to trade such Exchange Notes from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States. In connection with such Registered Exchange Offer, the Company shall
take such further action, including, without limitation, appropriate filings
under state securities laws, as may be necessary to realize the foregoing
objective subject to the proviso of Section 3(h).
The Company acknowledges that, pursuant to current
interpretations by the Commission's staff of Section 5 of the Securities Act,
in the absence of an applicable exemption therefrom, (i) each Holder that is a
broker-dealer electing to exchange Notes, acquired for its own account as a
result of market making activities or other trading activities, for Exchange
Notes (an "Exchanging Dealer"), is required to deliver a prospectus containing
the information set forth in Annex A hereto on the cover, in Annex B hereto in
the "Exchange Offer Procedures" section and the "Purpose of the Exchange
Offer" section, and in Annex C hereto in the "Plan of Distribution" section of
such prospectus in connection with a sale of any such Exchange Notes received
by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii)
Lazard selling Exchange Notes acquired in exchange for Notes constituting any
portion of an unsold allotment is required to deliver a prospectus containing
the information required by Items 507 or 508 of Regulation S-K under the
Securities Act, as applicable, in connection with such sale.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein in order to permit such prospectus to be lawfully
delivered by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Notes; provided, however, that (i)
in the case where such prospectus and any amendment or supplement thereto must
be delivered by an Exchanging Dealer, such period shall be the lesser of 180
days after the expiration date of the Registered Exchange Offer and the date
on which all Exchanging Dealers have sold all Exchange Notes held by them
(unless such period is extended pursuant to Section 3(j) below), and (ii) the
Company shall make such prospectus and any amendment or supplement thereto
available to any broker-dealer for use in connection with any resale of any
Exchange Notes for a period not less than 90 days after the consummation of
the Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, Lazard
holds Notes which constitute some or all of its compensation in the form of
Notes under the Placement Agreement, the Company, simultaneously with the
delivery of the Exchange Notes pursuant to the Registered Exchange Offer,
shall issue and deliver to Lazard upon the written request of Lazard in
exchange (the "Private Exchange") for the Notes held by Lazard, a like
principal amount of debt securities of the Company issued under the Indenture
and identical in all material respects (including the existence of
restrictions on transfer under the Securities Act and the securities laws of
the several states of the United States) to the Notes (the "Private Exchange
Notes"). The Notes, the Exchange Notes and the Private Exchange Notes are
herein collectively called the "Securities".
In connection with the Registered Exchange Offer, the Company
shall:
(a) mail to each Holder a copy of the prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 20
business days (or longer, if required by applicable law) after the date notice
thereof is mailed to the Holders;
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of New
York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last business day on which the
Registered Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all applicable
law.
As soon as practicable after the close of the Registered
Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all the Notes validly tendered and not
withdrawn pursuant to the Registered Exchange Offer or the Private
Exchange, as the case may be;
(ii) deliver to the Trustee for cancellation all the Notes so accepted
for exchange; and
(iii) cause the Trustee to authenticate and promptly deliver to each
Holder of the Notes, Exchange Notes or Private Exchange Notes, as the case
may be, equal in principal amount to the Notes of each Holder so accepted
for exchange.
The Indenture will provide that the Exchange Notes will not be
subject to the transfer restrictions set forth in the Indenture and that all
the Securities will vote and consent together on all matters as one class and
that none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Each Holder participating in the Registered Exchange Offer
shall be required to represent to the Company that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Notes received
by such Holder will be acquired in the ordinary course of business, (ii) such
Holder will have no arrangements or understanding with any person to
participate in the distribution of the Notes or the Exchange Notes within the
meaning of the Securities Act, (iii) such Holder is not an "affiliate", as
defined in Rule 405 of the Securities Act, of the Company or, if it is an
affiliate, such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable, (iv) if
such Holder is not a broker-dealer, that it is not engaged in, and does not
intend to engage in, the distribution of the Exchange Notes, and (v) if such
Holder is a broker-dealer, that it will receive Exchange Notes for its own
account in exchange for Notes that were acquired as a result of market-making
activities or other trading activities and that it will deliver a prospectus
in connection with any resale of such Exchange Notes.
Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto will
comply in all material respects with the Securities 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, will not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that in no such case shall the Company be responsible for
information concerning Lazard included in the Exchange Offer Registration
Statement, the prospectus contained therein, or any amendment or supplement
thereto, as the case may be.
Section 2. Shelf Registration Statement.
(a) If (i) because of any change in law or in applicable
interpretations thereof by the staff of the Commission, the Company is not
permitted to effect a Registered Exchange Offer, as contemplated by Section 1
hereof, (ii) the Registered Exchange Offer is not consummated within 180 days
of the date of this Agreement, (iii) Lazard so requests with respect to the
Notes (or the Private Exchange Notes) not eligible to be exchanged for
Exchange Notes in the Registered Exchange Offer and held by it following
consummation of the Registered Exchange Offer or (iv) any Holder (other than
an Exchanging Dealer) is not eligible to participate in the Registered
Exchange Offer or, in the case of any Holder (other than an Exchanging Dealer)
that participates in the Registered Exchange Offer, such Holder does not
receive freely tradeable Exchange Notes on the date of the exchange, the
Company shall take the following actions:
(i) The Company shall use its reasonable best efforts, at its cost, as
promptly as practicable (but in no event more than the later of (i) 60 days
after the Issue Date and (ii) 30 days after so required or requested
pursuant to this Section 2), to file with the Commission and thereafter
shall use its reasonable best efforts to cause to be declared effective a
registration statement (the "Shelf Registration Statement" and, together
with the Exchange Offer Registration Statement, a "Registration Statement")
on an appropriate form under the Securities Act relating to the offer and
sale of the Transfer Restricted Notes by the Holders thereof from time to
time in accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act (hereinafter,
the "Shelf Registration"); provided, however, that no Holder (other than
the Owner Trustee and Lazard) shall be entitled to have the Securities held
by it covered by such Shelf Registration Statement unless such Holder
agrees in writing to be bound by all the provisions of this Agreement
applicable to such Holder (including certain indemnification obligations).
(ii) The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
prospectus included therein to be lawfully delivered by the Holders of the
relevant Securities, for a period of two years (or for such longer period
if extended pursuant to Section 3(j) below) from the Issue Date or such
shorter period that will terminate when all the Securities covered by the
Shelf Registration Statement have been sold pursuant thereto or can be sold
pursuant to Rule 144(k) thereof. Subject to Section 6(b), the Company shall
be deemed not to have used its reasonable best efforts to keep the Shelf
Registration Statement effective during the requisite period if it
voluntarily takes any action that would result in Holders of Securities
covered thereby not being able to offer and sell such Securities during
that period, unless such action is required by applicable law; provided,
however, that the Company shall not be deemed to have voluntarily taken any
such action if it enters, in good faith, into negotiations concerning, or
executes and delivers any agreement or other document relating to, any
business combination, acquisition or disposition.
(iii) Notwithstanding any other provision of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(b) No Holder of Securities may include any of its Securities in
the Shelf Registration Statement unless such Holder furnishes to the Company in
writing, within 10 business days after receipt of a request therefor (which
initial request shall be made within 40 days after the Issue Date to the
Holders of record on a date not more than 5 days prior to such request), such
information and representations and warranties as the Company may reasonably
request for use in connection with the Shelf Registration Statement or
prospectus or preliminary prospectus included therein. No Holder of
Securities shall be entitled to Special Interest, pursuant to Section 6
hereof, if such Holder's Securities are excluded from the Shelf Registration
Statement because such Holder failed to furnish the Company in writing such
information and representations and warranties reasonably requested by the
Company for use in connection with the Shelf Registration Statement or
prospectus or preliminary prospectus included therein. Each Holder as to
which the Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order to
make the information previously provided to the Company by such Holder not
misleading.
Section 3. Registration Procedures.
In connection with the Shelf Registration contemplated by
Section 2 hereof and, to the extent applicable, any Registered Exchange Offer
contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to the Owner Trustee and Lazard,
prior to the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein, and in the event that (x) Lazard (with respect to
securities acquired in other than market making or trading activity) is
participating in the Registered Exchange Offer or (y) either the Owner Trustee
or Lazard is making use of the Shelf Registration Statement, shall use its
reasonable best efforts to reflect in each such document, when so filed with
the Commission, such comments as the Owner Trustee and Lazard, as applicable,
reasonably may propose; (ii) include the information set forth in Annex A
hereto on the cover, in Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section and in Annex C hereto
in the "Plan of Distribution" section of the prospectus forming a part of the
Exchange Offer Registration Statement and include the information set forth in
Annex D hereto in the Letter of Transmittal delivered pursuant to the
Registered Exchange Offer; (iii) if requested by Lazard, include the
information required by Items 507 or 508 of Regulation S-K under the
Securities Act, as applicable, in the prospectus forming a part of the Exchange
Offer Registration Statement; (iv) include within the prospectus contained in
the Exchange Offer Registration Statement a section entitled "Plan of
Distribution", reasonably acceptable to Lazard, which shall contain a summary
statement of the positions taken or policies made by the staff of the
Commission with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of Exchange
Notes received by such broker-dealer in the Registered Exchange Offer (a
"Participating Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the staff of the Commission or such positions or
policies, in the reasonable judgment of Lazard based upon advice of counsel
(which may be in-house counsel), represent the prevailing views of the staff
of the Commission; and (v) in the case of a Shelf Registration Statement,
include the names of the Holders who propose to sell Securities pursuant to
the Shelf Registration Statement as selling securityholders.
(b) The Company shall give written notice to the Owner Trustee,
Lazard, the Holders of the Securities and any Participating Broker-Dealer from
whom the Company has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange Offer (which notice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to
suspend the use of the prospectus until the requisite changes have been made):
(i) when the Registration Statement or any amendment thereto has been
filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to
the Registration Statement or the prospectus included therein or for
additional information (provided, however, that with respect to any
requests prior to the effectiveness of the Registration Statement, the
Company shall be required to give written notice only to the Owner Trustee
and its counsel, to certain indirect beneficiaries under the Trust
Agreement and their counsel, Kleinberg, Kaplan, ▇▇▇▇▇ & ▇▇▇▇▇ PC, and to
Lazard and its counsel, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP);
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(v) of the happening of any event that requires the Company to make
changes in the Registration Statement or the prospectus in order that the
Registration Statement or the prospectus does not contain an untrue
statement of a material fact nor omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(c) The Company shall use its reasonable best efforts to obtain the
withdrawal at the earliest possible time of any order suspending the
effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, at least one
copy of the Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(e) The Company shall deliver to each Exchanging Dealer or
Participating Broker-Dealer, to the Owner Trustee, to Lazard, and to any other
Holder who so requests, without charge, at least one copy of the Exchange
Offer Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Owner Trustee,
Lazard or any such Holder requests, all exhibits thereto (including those
incorporated by reference).
(f) The Company shall deliver to each Holder of Securities included
within the coverage of the Shelf Registration, without charge, as many copies
of the prospectus (including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such person
may reasonably request. The Company consents, subject to the provisions of
this Agreement, to the use of the prospectus or any amendment or supplement
thereto included in the Shelf Registration Statement by each of the selling
Holders of the Securities in connection with the offering and sale of the
Securities covered by such prospectus, or any such amendment supplement.
(g) The Company shall deliver to Lazard, any Exchanging Dealer,
any Participating Broker-Dealer and such other persons required to deliver a
prospectus following the Registered Exchange Offer, without charge, as many
copies of the final prospectus included in the Exchange Offer Registration
Statement and any amendment or supplement thereto as such persons may
reasonably request. The Company consents, subject to the provisions of this
Agreement, to the use of the prospectus or any amendment or supplement thereto
by Lazard, if necessary, any Exchanging Dealer, any Participating
Broker-Dealer and such other persons required to deliver a prospectus
following the Registered Exchange Offer in connection with the offering and
sale of the Exchange Notes covered by the prospectus, or any amendment or
supplement thereto, included in such Exchange Offer Registration Statement.
(h) Prior to any public offering of the Securities, pursuant to any
Registration Statement, the Company shall use its reasonable best efforts to
register or qualify or cooperate with the Holders of the Securities included
therein and their respective counsel in connection with the registration or
qualification of the Securities for offer and sale under the securities or
"blue sky" laws of such states of the United States as any Holder of the
Securities reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Registration Statement;
provided, however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so
qualified, (ii) take any action which would subject it to general service of
process or to taxation in any jurisdiction where it is not then so subject or
(iii) register or qualify Securities or take any other action under the
securities or "blue sky" laws of any jurisdiction if, in the judgment of the
Board of Directors of the Company, the consequences of such registration,
qualification or other action would be unduly burdensome to the Company.
(i) The Company shall cooperate with the Holders of the Securities
to facilitate the timely preparation and delivery of certificates representing
the Securities to be sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered in such names as
the Holders may request a reasonable period of time prior to sales of the
Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs
(ii) through (v) of Section 3(b) above during the period for which the Company
is required to maintain an effective Registration Statement, the Company shall
promptly prepare and file a post-effective amendment to the Registration
Statement or a supplement to the related prospectus and any other required
document so that, as thereafter delivered to Holders of the Notes or the
Exchange Notes or purchasers of Securities, the prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. If the Company
notifies the Owner Trustee, Lazard, the Holders of the Securities and any
known Exchanging Dealer or Participating Broker-Dealer in accordance with
paragraphs (ii) through (v) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made, then
the Owner Trustee, Lazard, the Holders of the Securities and any such
Exchanging Dealer or Participating Broker-Dealer shall suspend use of such
prospectus, and the period of effectiveness of the Shelf Registration Statement
provided for in Section 2 above and the Exchange Offer Registration Statement
provided for in Section 1 above shall each be extended (i) by the number of
days from and including the date of the giving of such notice to and including
the date when the Owner Trustee, Lazard, the Holders of the Securities and any
known Exchanging Dealer or Participating Broker-Dealer shall have received
such amended or supplemented prospectus pursuant to this Section 3(j) or (ii)
if earlier, until the date when none of the Securities represent Transfer
Restricted Notes (as defined in Section 6(d)).
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for the Notes,
the Exchange Notes or the Private Exchange Notes, as the case may be, and
provide the applicable trustee with printed certificates for the Notes, the
Exchange Notes and the Private Exchange Notes, as the case may be, in a form
eligible for deposit with The Depository Trust Company.
(l) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Registered
Exchange Offer or the Shelf Registration and will make generally available to
its security holders (or otherwise provide in accordance with Section 11(a) of
the Securities Act) an earnings statement satisfying the provisions of Section
11(a) of the Securities Act, no later than 45 days after the end of a 12-month
period (or 90 days, if such period is a fiscal year) beginning with the first
month of the Company's first fiscal quarter commencing after the effective
date of the Registration Statement, which statement shall cover such 12-month
period.
(m) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended, in a timely manner and containing
such changes, if any, as shall be necessary for such qualification. In the
event that such qualification would require the appointment of a new trustee
under the Indenture, the Company shall appoint a new trustee thereunder
pursuant to the applicable provisions of the Indenture.
(n) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Securities as the
Company may from time to time reasonably require for inclusion in the Shelf
Registration Statement, and the Company may exclude from such registration the
Securities of any Holder that unreasonably fails to furnish such information
within a reasonable time after receiving such request.
(o) The Company shall enter into such customary agreements
(including if requested an underwriting agreement in customary form) and take
all such other action, if any, as may be required in order to facilitate the
disposition of the Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, subject to appropriate
confidentiality arrangements being entered into, the Company shall (i) make
available at reasonable times for inspection by the Holders of the Securities,
any underwriter participating in any disposition pursuant to the Shelf
Registration Statement and any attorney, accountant or other agent retained by
the Holders of the Securities or any such underwriter all relevant financial
and other records, pertinent corporate documents and properties of the Company
and (ii) cause the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the Holders
of the Securities or any such underwriter, attorney, accountant or agent in
connection with the Shelf Registration Statement, in each case, as shall be
reasonably necessary, in the judgment of the Holder or any such underwriter,
attorney, accountant or agent referred to in this paragraph, to conduct a
reasonable investigation within the meaning of Section 11 of the Securities
Act.
(q) In the case of any Shelf Registration, the Company, if
requested by any Holder of Securities covered thereby, shall cause (i) its
counsel to deliver an opinion and updates thereof relating to the Securities
in customary form addressed to such Holders and the managing underwriters, if
any, thereof and dated, in the case of the initial opinion, the effective date
of such Shelf Registration Statement covering the matters customarily covered
in opinions of counsel requested in underwritten offerings and such other
matters as may be reasonably requested by the managing underwriter or
underwriters; (ii) its officers to execute and deliver all customary documents
and certificates and updates thereof reasonably requested by any underwriters
of the applicable Securities; and (iii) its independent public accountants to
provide to the selling Holders of the applicable Securities and any
underwriter therefor a comfort letter in customary form and covering matters
of the type customarily covered in comfort letters in connection with primary
underwritten offerings, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards No.
72.
(r) In the case of the Registered Exchange Offer, if requested by
the Owner Trustee, Lazard or any known Exchanging Dealer or Participating
Broker-Dealer, the Company shall cause (i) its counsel to deliver to the Owner
Trustee, Lazard or such Exchanging Dealer or Participating Broker-Dealer,
signed opinions in the forms set forth in Section 7.04(e) of the Sale Agreement
with such changes as are customary in connection with the preparation of a
Registration Statement and (ii) its independent public accountants to deliver
to the Owner Trustee, Lazard or such Exchanging Dealer or Participating
Broker-Dealer a comfort letter, in customary form, meeting the requirements as
to the substance thereof as set forth in Section 7.04(f) of the Sale
Agreement, with appropriate date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Notes by Holders to the Company (or to such
other Person as directed by the Company) in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be, the Company shall ▇▇▇▇, or
cause to be marked, on the Notes so exchanged that such Notes are being
cancelled in exchange for the Exchange Notes or the Private Exchange Notes, as
the case may be; in no event shall the Notes be marked as paid or otherwise
satisfied.
(t) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution" (within
the meaning of the Conduct Rules and the By-Laws of the National Association
of Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of such
Securities or as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, the Company shall assist such
broker-dealer in complying with the requirements of such Rules and By-Laws
(including without limitation the indemnification of any "qualified
independent underwriter" required thereby).
(u) The Company will use its reasonable best efforts to cause the
Transfer Restricted Notes to be eligible for inclusion in the National
Association of Securities Dealers, Inc. Private Offerings, Resales and Trading
through Automated Linkages trading system.
(v) The Company shall use its reasonable best efforts to take all
other steps necessary to effect the registration of the Securities covered by a
Registration Statement contemplated hereby.
(w) The Company agrees that it will not include in the registration
contemplated by the Shelf Registration Statement any securities other than the
Securities.
(x) The Company hereby agrees to list the Notes on the American
Stock Exchange or on such other stock exchange or market as the common stock,
par value $.01 per share, of the Company is then principally traded no later
than the earliest to occur of (i) the effectiveness of the initial Exchange
Offer Registration Statement and (ii) the effectiveness of the initial Shelf
Registration Statement, provided that such Notes meet the minimum requirements
for listing on any such exchange or market, and, if applicable, to maintain
such listing for so long as any of the Notes is outstanding.
Section 4. Registration Expenses.
The Company shall bear all fees and expenses incurred in
connection with the performance of its obligations under Sections 1 through 3
hereof (including the reasonable fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, counsel for Lazard, incurred in connection with the Registered Exchange
Offer), whether or not the Registered Exchange Offer or a Shelf Registration
is filed or becomes effective, and, in the event of a Shelf Registration, shall
bear, or reimburse the Holders of the Securities covered thereby for, the
reasonable fees and disbursements of one firm of counsel designated by the
Holders of a majority in principal amount of the Securities covered thereby to
act as counsel for the Holders of the Securities in connection therewith, it
being understood that the Company shall not be responsible for the fees and
expenses of more than one counsel employed at any one time.
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 expense of any annual
audit, and the fees and expenses of any Person, including special experts,
retained by the Company. The Holders shall bear the expense of any broker's
commission or underwriters' discount or commission.
Section 5. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Holder
of the Securities, any Exchanging Dealer, any Participating Broker-Dealer and
each person, if any, who controls such Holder, Exchanging Dealer or
Participating Broker-Dealer within the meaning of the Securities Act or the
Exchange Act (each Holder, any Exchanging Dealer, any Participating
Broker-Dealer and such controlling persons referred to in this Section 5(a)
and the Company and its controlling persons referred to in Section 5(b), being
collectively referred to herein, as the case may be, as the "indemnified
parties") from and against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not limited to, any
losses, claims, damages, liabilities or actions relating to purchases and
sales of the Securities) to which each indemnified party may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained
in a Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Registration Statement,
or arise out of, or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, and shall reimburse, as incurred, the indemnified parties for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in a Registration Statement or prospectus
or in any amendment or supplement thereto or in any preliminary prospectus
relating to a Registration Statement in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company by
or on behalf of such Holder specifically for inclusion therein, (ii) with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any prospectus relating to such Registration Statement, the
indemnity agreement contained in this subsection (a) shall not inure to the
benefit of any person as to which there is a prospectus delivery requirement (a
"Delivering Seller") that sold the Securities to the person asserting any such
losses, claims, damages or liabilities to the extent that any such loss, claim,
damage or liability of such Delivering Seller results from the fact that there
was not sent or given to such person, on or prior to the written confirmation
of such sale, a copy of the relevant prospectus, as amended and supplemented,
provided that (I) the Company shall have previously furnished copies thereof
to such Delivering Seller in accordance with this Agreement and (II) such
furnished prospectus, as amended and supplemented, would have corrected any
such untrue statement or omission or alleged untrue statement or omission, and
(iii) this indemnity agreement will be in addition to any liability which the
Company may otherwise have to such indemnified party. The Company shall also
indemnify underwriters, selling brokers, dealer-managers and similar
securities industry professionals participating in the distribution (in each
case as described in the Registration Statement), their officers and directors
and each person who controls such persons within the meaning of the Securities
Act or the Exchange Act to the same extent as provided above with respect to
the indemnification of the Holders of the Securities if requested by such
Holders; provided, however, that the Company shall not indemnify any such
party to the extent its liability arises from its failure to comply with the
requirements described in Annexes A, B and C hereto.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company, each other Holder and each person, if
any, who controls the Company and each such Holder within the meaning of the
Securities Act or the Exchange Act from and against any losses, claims,
damages or liabilities or any actions in respect thereof to which the Company,
each other Holder or any such controlling person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, or arise
out of or are based upon the 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, 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 pertaining to such Holder and furnished to the Company by
or on behalf of such Holder specifically for inclusion therein; and, subject
to the limitation set forth immediately preceding this clause, shall
reimburse, as incurred, the Company, each such Holder for any legal or other
expenses reasonably incurred by the Company, each other Holder or any such
controlling person in connection with investigating or defending any loss,
claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Holder may otherwise
have to the Company, each other Holder or any of their controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action or proceeding (including
a governmental investigation), such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 5, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party, except to
the extent that it is prejudiced or harmed in any material respect by failure
to give such prompt notice. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with one counsel (and local
counsel as necessary) reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 5 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior
written consent of the indemnified party, not to be unreasonably withheld,
effect any settlement of any pending or threatened action in respect of which
any indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action and does not include
any injunctive relief against such indemnified party. No indemnifying party
shall be liable for any amounts paid in settlement of any action or claim
without its written consent, which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above for any reason, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from
the initial sale of the Aircraft for the Notes and the Equity Notes; provided,
however, that in no event shall the Owner Trustee, Lazard or any subsequent
Holder be responsible, in the aggregate, for any amount in excess of the
Placement Fee (as defined in the Placement Agreement), or (ii) if the
allocation provided by the foregoing clause (i) 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
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof) as well
as any other relevant equitable considerations. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company on the one hand or such Holder or such other indemnified person,
as the case may be, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (d).
Notwithstanding any other provision of this Section 5(d), the Holders of the
Securities shall not be required to contribute any amount in excess of the
amount by which the net proceeds received by such Holders from the sale of the
Securities pursuant to a Registration Statement exceeds the amount of damages
which such Holders have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this
paragraph (d), each officer, director, employee, representative and agent of
an indemnified party and each person, if any, who controls such indemnified
party within the meaning of the Securities Act or the Exchange Act shall have
the same rights to contribution as such indemnified party.
(e) The Company and each Holder agree that it would not be just and
equitable if contributions pursuant to Section 5(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable consideration referred to in Section 5(d).
(f) The agreements contained in this Section 5 shall survive the
sale of the Securities pursuant to a Registration Statement and shall remain
in full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
Section 6. Special Interest.
(a) If any of the following events occurs (each such event in
clauses (i) through (v) below a "Registration Default"):
(i) if by June 22, 1998, neither the Exchange Offer Registration
Statement nor a Shelf Registration Statement has been filed with the
Commission;
(ii) if by September 18, 1998, neither the Exchange Offer Registration
Statement nor the Shelf Registration Statement is declared effective;
(iii) if by October 19, 1998, neither the Registered Exchange
Offer is consummated nor, if required in lieu thereof, the Shelf Registration
Statement is declared effective by the Commission;
(iv) if, notwithstanding the filing of the Exchange Offer Registration
Statement or the effectiveness thereof or the consummation of the
Registered Exchange Offer, pursuant to the terms of subparagraph (i) of
Section 2(a) hereof, by the later of (x) June 22, 1998 and (y) 30 days
after a request made pursuant to Section 2, a Shelf Registration Statement
has not been filed with the Commission or such Shelf Registration Statement
has not been declared effective by the Commission within 150 days after any
such request; or
(v) if after either the Exchange Offer Registration Statement or the
Shelf Registration Statement is declared effective (A) such Registration
Statement thereafter ceases to be effective; or (B) such Registration
Statement or the related prospectus ceases to be usable (except as
permitted in paragraph (b)) in connection with resales of Transfer
Restricted Notes during the periods specified herein,
the Company will pay special interest ("Special Interest") to each Holder of
Transfer Restricted Notes, during the first 90-day period immediately following
such Registration Default at a per annum rate of 0.50% per Transfer Restricted
Note held by such Holder. The amount of Special Interest will increase by an
additional 0.50% per annum per Transfer Restricted Note, for each subsequent
90-day period until the date on which the Exchange Offer Registration Statement
or Shelf Registration Statement is filed or declared effective, as the case may
be, or such Registration Statement again becomes effective, or such Registration
Statement prospectus becomes usable as the case may be, up to a maximum Special
Interest with respect to any Registration Default of 1.50% per annum per
Transfer Restricted Note. Such Special Interest is payable in addition to any
other interest payable from time to time with respect to the Securities.
(b) A Registration Default referred to in Section 6(a)(v) shall be
deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
or, if required by the rules and regulations under the Securities Act,
quarterly unaudited 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) other
material events or developments with respect to the Company that would need to
be described in such Shelf 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 such Shelf Registration Statement and
related prospectus to describe such events; provided, however, that in no
event shall the Company be required to disclose the business purpose for such
suspension if the Company determines in good faith that such business purpose
must remain confidential; provided further, however, that in any case if such
Registration Default occurs for a continuous period in excess of 45 days,
Special Interest shall be payable in accordance with the above paragraph from
the day following such 45 day period until the date on which such Registration
Default is cured.
(c) All accrued Special Interest shall be payable by the Company in
cash on the regular interest payment dates with respect to the Notes, the
Exchange Notes or the Private Exchange Notes to the Holders of record on the
applicable record dates. The parties hereto agree that Special Interest
provided in this Section constitutes a reasonable estimate of the damages that
will be incurred by the Holders by reason of the failure of the Exchange Offer
Registration Statement or the Shelf Registration Statement to be filed,
declared effective or to remain effective or such Registration Statement or
related prospectus to be usable, as the case may be.
(d) "Transfer Restricted Notes" means each Note until (i) the date
on which such Transfer Restricted Note has been exchanged by a person other
than a broker-dealer for a freely transferable Exchange Note in the Registered
Exchange Offer, (ii) following the exchange by a broker-dealer in the
Registered Exchange Offer of a Transfer Restricted 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, (iii) the
date on which such Transfer Restricted Note has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iv) the date on which such Transfer Restricted Note
is distributed to the public pursuant to Rule 144 under the Securities Act or
is saleable pursuant to Rule 144(k) under the Securities Act.
Section 7. Rule 144 and Rule 144a.
The Company shall use its reasonable best efforts to file on a
timely basis all such reports required to be filed under the Exchange Act as,
and endeavor in good faith to take such other actions as, are reasonably
necessary to enable Holders to sell Transfer Restricted Notes without
registration under the Securities Act within the limitation of the exemptions
provided under (a) Rule 144 under the Securities Act, as such Rule may be
amended from time to time, (b) Rule 144A under the Securities Act, as such
Rule may be amended from time to time, and (c) any similar rules or
regulations hereafter adopted by the Commission. Upon request of any Holder
of Transfer Restricted Notes, the Company will provide a written statement as
to whether it has complied with such requirements and will, at its expense,
forthwith upon the request of the Owner Trustee or Lazard, deliver to the
Owner Trustee or Lazard, a certificate, signed by the Company's principal
financial officer, stating (i) the Company's name, address and telephone
number (including area code), (ii) the Company's Internal Revenue Service
identification number, (iii) the Company's Commission file number, (iv) the
number of shares of each class of capital stock outstanding as shown by the
most recent report or statement published by the Company, and (v) whether the
Company has filed the reports required to be filed under the Exchange Act for
a period of at least ninety (90) days prior to the date of such certificate
and in addition has filed the most recent annual report required to be filed
thereunder.
Section 8. Underwriting.
If any of the Transfer Restricted Notes covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker(s) and manager(s) that will manage the offering will be
selected by the Holders of a majority of the then outstanding Transfer
Restricted Notes (determined in accordance with Section 9(d)) included in such
offering (after consultation with the Company as to such selection and upon the
written consent of the Company, which consent will not be unreasonably
withheld or delayed). If requested by the underwriters, the Company will
promptly enter into an underwriting agreement reasonably acceptable to the
Company with such underwriters for such offering, such agreement to contain
such representations and warranties by the Company and such other terms and
conditions as are customary for underwriting agreements with respect to
secondary offerings, including without limitation, indemnities to the effect
and to the extent provided in Section 5 hereof. The Holders of Transfer
Restricted Notes on whose behalf such securities are being distributed shall
be party to any such underwriting agreement. Such Holders shall not be
required by the Company to make any representations or warranties to the
underwriters with respect to the Company or the Transfer Restricted Notes
(other than that the Holders are conveying such securities free and clear of
all pledges, securities interests, liens, charges, encumbrances, agreements,
equities, claims and options of whatever nature), and the Holders shall not be
required to indemnify the Company or the underwriters (other than with respect
to the matters, and to the extent, provided in Section 5). Furthermore, the
Company shall make available for inspection by the Holders, any underwriter
participating in any disposition pursuant to such Shelf Registration Statement,
and any attorney, accountant or other agent retained by any Holder or
underwriter, all financial and other records and other information, pertinent
corporate documents and properties of the Company as shall be reasonably
necessary to enable them to exercise their due diligence responsibilities.
No Holder of Transfer Restricted Notes may participate in any
underwritten distribution hereunder unless such holder (a) agrees to sell such
Holder's Transfer Restricted Notes on the basis provided in any underwriting
arrangements approved in accordance with the terms hereof, and (b) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
Section 9. Miscellaneous.
(a) Remedies. Each Holder of Securities, in addition to being
entitled to exercise all rights provided herein, and as provided in the Sale
Agreement and granted by law, and, in the case of Lazard, as provided in the
Placement Agreement, including the recovery of damages, shall be entitled to
specific performance of such Holder's rights under this Agreement. Except
with respect to the payment of Special Interest in the event of the occurrence
of a Registration Default, the Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agrees in any action for specific
performance to waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not and shall 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
of Securities in this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Holders of Securities hereunder do not and
will not in any way conflict with and are not and will not be inconsistent
with the rights granted to the holders of the Company's other securities under
any other agreements. No holder of any securities of the Company has rights
to the registration of any securities of the Company because of the execution,
delivery or performance by the Company of this Agreement or as a result of the
filing of the Exchange Offer Registration Statement or the Shelf Registration
Statement.
(c) No Adverse Action Affecting the Securities. The Company has
not taken and will not take, any action, or permit any change to occur with
respect to the Securities which would adversely affect the ability of any of
the Holders of Securities to include such Securities in a registration
undertaken pursuant to this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company has obtained the written consent of
Holders of a majority of the outstanding principal amount of Transfer
Restricted Notes. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to the rights of
Holders of Transfer Restricted Notes whose Transfer Restricted Notes are being
sold pursuant to the Shelf Registration Statement and that does not directly
or indirectly affect the rights of other Holders of Transfer Restricted Notes
may be given by the Holders of a majority of the Transfer Restricted Notes
being sold.
(e) 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 of Securities, at the address set forth on the
records of the Company or the Trustee under the Indenture, with a copy to
the Trustee, if to Lazard, at the address set forth in the Placement
Agreement and if to the Owner Trustee, at the address set forth in the Sale
Agreement; and
(ii) if to the Company, initially at its address set forth in the Sale
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section.
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 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
under the Indenture at the address specified in the Indenture.
(f) 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 Securities.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) 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 LAWS PRINCIPLES OF SUCH STATE.
(j) 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.
(k) 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 by the Company with
respect to the Securities except as provided in the Indenture, the Sale
Agreement and the Placement Agreement. Except as set forth in the prior
sentence, this Agreement supersedes all prior agreements and understandings
between the parties with respect to the subject matter hereof.
[Remainder of this page is blank.]
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
TRANS WORLD AIRLINES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Deputy
General Counsel
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual
capacity but as Owner Trustee for
Seven Sixty Seven Leasing, Inc.
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
LAZARD FRERES & CO. LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
ANNEX A
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus,
a broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Company has agreed that, for a period of 180
days after the Expiration Date (as defined herein), it will make this
Prospectus available to any broker-dealer for use in connection with any such
resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own
account in exchange for Notes, where such Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Registered Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Notes received
in exchange for Existing Notes where such Existing Notes were acquired as a
result of market-making activities or other trading activities. The Company
has agreed that, for a period of 180 days after the Expiration Date, it will
make this prospectus, as amended or supplemented, available to any
broker-dealer for use in connection with any such resale. In addition, until
_____, 199_, all dealers effecting transactions in the Exchange Notes may be
required to deliver a prospectus.(1)
The Company will not receive any proceeds from any sale of
Exchange Notes by broker-dealers. Exchange Notes received by broker-dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Notes. Any broker-dealer that resells Exchange Notes that were received by it
for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such Exchange Notes may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit on
any such resale of Exchange Notes and any commission or concessions received
by any such persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that, by acknowledging that
it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
For a period of 180 days after the Expiration Date the Company
will promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such
documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offer (including the reasonable expenses of
one counsel for the Holders of the Notes) other than commissions or
concessions of any brokers or dealers and will indemnify the Holders of
Securities (including any broker-dealers) against certain liabilities,
including liabilities under the Securities Act.
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(1)In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
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Address:
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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 Notes. If the undersigned is a broker-dealer that
will receive Exchange Notes for its own account in exchange for Notes that
were acquired as a result of market-making activities or other trading
activities, it acknowledges that it will deliver a prospectus in connection
with any resale of such Exchange Notes; 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 Securities Act.