EXHIBIT 1.2
REGISTRATION RIGHTS AGREEMENT
Dated as of August 25, 1997
by and among
Delta ▇▇▇▇▇, Inc.
and
Delta ▇▇▇▇▇ Marketing, Inc.
and
NationsBanc Capital Markets, Inc.
This Registration Rights Agreement (this "Agreement") is
made and entered into as of August 25, 1997 by and among Delta
▇▇▇▇▇, Inc., a Delaware corporation (the "Company"), Delta ▇▇▇▇▇
Marketing, Inc. (the "Guarantor" and, together with any future
subsidiary of the Company that executes a guarantee in accordance
with the provisions of the Indenture, the "Guarantors"), and
NationsBanc Capital Markets, Inc. (the "Initial Purchaser"),
which has agreed to purchase the Company's 9 5/8% Series A Senior
Notes due 2007 (together with the guarantee thereof by any
Guarantor, the "Series A Notes") pursuant to the Purchase
Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated August 20, 1997 (the "Purchase Agreement"), by and among
the Company, the Guarantor and the Initial Purchaser. In order
to induce the Initial Purchaser to purchase the Series A Notes,
the Company and the Guarantor (collectively, the "Issuers") have
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 Purchaser set forth
in Section 7 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION
1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered as such
under the Exchange Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence
of (i) the filing and effectiveness under the Act of the Exchange
Offer Registration Statement relating to the Series B Notes to be
issued in the Exchange Offer, (ii) the maintenance of such
Registration Statement continuously effective and the keeping of
the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof, and (iii) the
delivery by the Issuers to the Registrar under the Indenture of
Series B Notes in the same aggregate principal amount as the
aggregate principal amount of Series A Notes that were tendered
by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Notes, each
Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Exchange Offer: The registration by the Issuers under the
Act of the Series B Notes pursuant to a Registration Statement
pursuant to which the Issuers offer the Holders of all
outstanding Transfer Restricted Securities the opportunity to
exchange all such outstanding Transfer Restricted Securities held
by such Holders for Series B Notes in an aggregate principal
amount equal to the aggregate principal amount of the Transfer
Restricted Securities tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related
Prospectus.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of the date hereof,
among the Issuers and The Bank of New York, as trustee (the
"Trustee"), pursuant to which the Notes are to be issued, as such
Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchaser: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the
Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series A Notes and the Series B Notes.
Person: An individual, partnership, corporation, limited
liability company, limited liability partnership, trust or
unincorporated organization, or a government or agency or
political subdivision thereof.
Prospectus: The prospectus included in a Registration
Statement, 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.
Record Holder: With respect to any Damages Payment Date
relating to the Notes, each Person who is a Holder of Notes on
the record date with respect to the Interest Payment Date on
which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Issuers relating to (a) an offering of Series B Notes pursuant to
an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration
Statement, which is filed pursuant to the provisions of this
Agreement, in each case, including the Prospectus included
therein, all amendments and supplements thereto (including post-
effective amendments) and all exhibits and material incorporated
by reference therein.
Series B Notes: The Company's 9 5/8% Series B Senior Notes
due 2007 to be issued pursuant to the Indenture in the Exchange
Offer, together with the guarantee thereof by any Guarantor.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4
hereof.
TIA: The 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 Note, until the
earliest to occur of (a) the date on which such Note is exchanged
in the Exchange Offer and the Note for which it is exchanged is
entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Act,
(b) the date on which such Note has been effectively registered
under the Act and disposed of in accordance with a Shelf
Registration Statement or (c) the date on which such Note is
permitted to be distributed to the public pursuant to Rule 144
under the Act or by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration
Statement (including delivery of the Prospectus contained
therein).
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities
entitled to the benefits of this Agreement are the Transfer
Restricted Securities.
(b) Holders of Transfer Restricted Securities. 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
(ai Unless the Exchange Offer shall not be permissible
under applicable law or Commission policy (after the procedures
set forth in Section 6(a) below have been complied with), the
Issuers shall (i) cause to be filed with the Commission as soon
as practicable after the Closing Date, but in no event later than
45 days after the Closing Date, a Registration Statement under
the Act relating to the Series B Notes and the Exchange Offer,
(ii) use their best efforts to cause such Registration Statement
to become effective at the earliest possible time, but in no
event later than 135 days after the Closing Date, (iii) in
connection with the foregoing, file (A) all pre-effective
amendments to such Registration Statement as may be necessary in
order to cause such Registration Statement to become effective,
(B) if applicable, a post-effective amendment to such
Registration Statement pursuant to Rule 430A under the Act and
(C) cause all necessary filings in connection with the
registration and qualification of the Series B Notes to be made
under the Blue Sky laws of such jurisdictions as are necessary to
permit the Exchange Offer to be Consummated, and (iv) upon the
effectiveness of such Registration Statement, commence the
Exchange Offer. The Exchange Offer shall be on the appropriate
form permitting registration of the Series B Notes to be offered
in exchange for the Transfer Restricted Securities and to permit
resales of Notes held by Broker-Dealers as contemplated by
Section 3(c) below.
(bi The Company shall 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 Series B Notes shall be included in the
Exchange Offer Registration Statement. The Company shall use its
best 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 indicate in a "Plan of
Distribution" section contained in the Prospectus contained in
the Exchange Offer Registration Statement that any Broker-Dealer
who holds Series A Notes that are Transfer Restricted Securities
and that were acquired for its own account as a result of market-
making activities or other trading activities (other than
Transfer Restricted Securities acquired directly from the
Company), may exchange such Series A Notes pursuant to the
Exchange Offer; however, such Broker-Dealer may be deemed to be
an "underwriter" within the meaning of the Act and must,
therefore, deliver a prospectus meeting the requirements of the
Act in connection with any resales of the Series B Notes received
by such Broker-Dealer in the Exchange Offer, which prospectus
delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section
shall also contain all other information with respect to such
resales by Broker-Dealers that the Commission may require in
order to permit such resales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose
the amount of Notes held by any such Broker-Dealer except to the
extent required by the Commission as a result of a change in
policy after the date of this Agreement.
The Issuers shall use their best efforts to keep the
Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section
6(c) below to the extent necessary to ensure that it is available
for resales of Notes acquired by Broker-Dealers for their own
accounts as a result of market-making activities or other trading
activities, and to ensure that it conforms with the requirements
of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for
a period of one year from the date on which the Exchange Offer
Registration Statement is declared effective.
The Issuers shall provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon
request at any time during such one-year period in order to
facilitate such resales.
SECTION 4. SHELF REGISTRATION
(ai Shelf Registration. If (i) the Issuers are not
required to file an Exchange Offer Registration Statement or to
consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the
procedures set forth in Section 6(a) below have been complied
with) or (ii) if any Holder of Transfer Restricted Securities
shall notify the Company within 20 business days after the
Exchange Offer shall have been Consummated (A) that such Holder
is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) that such Holder may
not resell the Series B Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement
is not appropriate or available for such resales by such Holder,
or (C) that such Holder is a Broker-Dealer and holds Series A
Notes acquired directly from the Company or one of its
affiliates, then the Issuers shall
(x) cause to be filed a shelf registration statement
pursuant to Rule 415 under the Act, which may be an
amendment to the Exchange Offer Registration Statement (in
either event, the "Shelf Registration Statement") on or
prior to the earliest to occur of (1) the 60th day after
the date on which the Company determines that it is not
required to file the Exchange Offer Registration Statement,
(2) the 60th day after the date on which the Company
receives notice from a Holder of Transfer Restricted
Securities as contemplated by clause (ii) above, or (3) the
135th day after the Closing Date (such earliest date being
the "Shelf Filing Deadline"), which Shelf Registration
Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(b)
hereof; and
(y) use their best efforts to cause such Shelf
Registration Statement to be declared effective by the
Commission on or before the 135th day after the obligation
to file the Shelf Registration Statement arises.
The Issuers shall use their best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and (c)
hereof to the extent necessary to ensure that it is available for
resales of Notes by the Holders of Transfer Restricted Securities
entitled to the benefit of this Section 4(a), and to ensure that
it conforms with the requirements of this Agreement, the Act and
the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years
following the Closing Date.
(bi 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 15 business days after receipt
of a request therefor, such information as the Company may
reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus
included therein. No Holder of Transfer Restricted Securities
shall be entitled to Liquidated Damages pursuant to Section 5
hereof unless and until such Holder shall have used its best
efforts to provide all such reasonably requested information.
Each Holder as to which any 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 furnished to the Company by such Holder
not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the
date specified for such filing in this Agreement, (ii) any of
such Registration Statements has not been declared effective by
the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target
Date"), (iii) the Exchange Offer has not been Consummated within
30 business days after the Effectiveness Target Date with respect
to the Exchange Offer Registration Statement 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 prior to the
expiration of the time period specified by this Agreement without
being succeeded immediately by a post-effective amendment to such
Registration Statement that cures such failure and that is itself
immediately declared effective (each such event referred to in
clauses (i) through (iv), a "Registration Default"), the Issuers
hereby jointly and severally agree to pay liquidated damages to
each Holder of Transfer Restricted Securities with respect to the
first 90-day period immediately following the occurrence of such
Registration Default, in an amount equal to $.05 per week per
$1,000 principal amount of Transfer Restricted Securities held by
such Holder for each week or portion thereof that the
Registration Default continues. The amount of the liquidated
damages shall increase by an additional $.05 per week per $1,000
in principal amount of Transfer Restricted Securities with
respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of liquidated
damages of $.30 per week per $1,000 principal amount of Transfer
Restricted Securities. All accrued liquidated damages shall be
paid to Record Holders by the Company by wire transfer of
immediately available funds or by federal funds check on each
Damages Payment Date, as provided in the Indenture. Following
the cure of all Registration Defaults relating to any particular
Transfer Restricted Securities, the accrual of liquidated damages
with respect to such Transfer Restricted Securities will cease.
All obligations of the Issuers set forth in the preceding
paragraph that are outstanding with respect to any Transfer
Restricted Security at the time such security ceases to be a
Transfer Restricted Security shall survive until such time as all
such obligations with respect to such Security shall have been
satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection
with the Exchange Offer, the Issuers shall comply with all of the
provisions of Section 6(c) below, shall use their best efforts to
effect such exchange and shall comply with all of the following
provisions:
(i) If in the reasonable opinion of counsel to the
Company there is a question as to whether the Exchange Offer
is permitted by applicable law, the Issuers hereby agree to
seek a no-action letter or other favorable decision from the
Commission allowing the Issuers to Consummate an Exchange
Offer for such Series A Notes. The Issuers hereby agree to
pursue the issuance of such a decision to the Commission staff
level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy.
The Issuers hereby agree, however, to (A) participate in
telephonic conferences with the Commission, (B) deliver 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 pursue a resolution (which need
not be favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each
Holder of Transfer Restricted Securities shall furnish, upon
the request of the Company, prior to the time that it is
Consummated, 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 Issuers, (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 Series B Notes to be issued in the
Exchange Offer and (C) it is acquiring the Series B Notes in
its ordinary course of business. In addition, all such
Holders of Transfer Restricted Securities shall otherwise
cooperate in the Issuers' preparations for the Exchange Offer.
Each Holder hereby acknowledges and agrees that any Broker-
Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired
in the Exchange Offer (1) could not under Commission policy as
in effect on the date of this Agreement rely on the position
of the Commission enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 dated July 2, 1993,
and similar no-action letters (including any no-action letter
obtained pursuant to clause (i) above), and (2) must comply
with the registration and prospectus delivery requirements of
the Act in connection with a secondary resale transaction and
that such a secondary resale transaction should 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 if the resales are of Series B
Notes obtained by such Holder in exchange for Series A Notes
acquired by such Holder directly from the Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Issuers shall provide a
supplemental letter to the Commission (A) stating that the
Issuers are registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
and Co., Inc. (available June 5, 1991) and, if applicable, any
no-action letter obtained pursuant to clause (i) above and (B)
including a representation that neither the Company nor any
Guarantor has entered into any arrangement or understanding
with any Person to distribute the Series B 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 Series B Notes in its
ordinary course of business and has no arrangement or
understanding with any Person to participate in the
distribution of the Series B Notes received in the Exchange
Offer.
(b) Shelf Registration Statement. In connection with any
Shelf Registration Statement, the Issuers shall comply with all
the provisions of Section 6(c) below and shall use their 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, and pursuant
thereto the Issuers will as expeditiously as possible prepare and
file with the Commission a Registration Statement relating to the
registration on any appropriate form under the 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.
(c) General Provisions. In connection with any
Registration Statement and any Prospectus required by this
Agreement to permit the sale or resale of Transfer Restricted
Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales
of Notes by Broker-Dealers), the Issuers shall:
(i) use its best efforts to keep such Registration
Statement continuously effective and provide all requisite
financial statements (including, if required by the Act or any
regulation thereunder, financial statements of the Guarantors)
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 and usable for resale of
Transfer Restricted Securities during the period required by
this Agreement, the Issuers shall file promptly an appropriate
amendment to such Registration Statement, in the case of
clause (A), correcting any such misstatement or omission, and,
in the case of either clause (A) or (B), use its best efforts
to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become
usable for their intended purpose(s) as soon as practicable
thereafter;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as applicable, or such shorter period
as will terminate when all Transfer Restricted Securities
covered by such Registration Statement have been exchanged or
cease to be Transfer Restricted Securities; cause the
Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply fully with the
applicable provisions of Rules 424 and 430A under the Act in a
timely manner; and comply with the provisions of the 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 underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, to 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 Registration Statement or any
post-effective amendment thereto, when the same has become
effective, (B) of any 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 the 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 or the Prospectus
in order to make the statements therein 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 Issuers shall use their
best efforts to obtain the withdrawal or lifting of such order
at the earliest possible time;
(iv) furnish to each of the selling Holders and each
of the underwriter(s), 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 of such Holders and underwriter(s),
if any, for a period of at least three business days, and the
Issuers 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 a selling Holder
of Transfer Restricted Securities covered by such Registration
Statement or the underwriter(s), if any, shall reasonably
object within three business days after the receipt thereof;
(v) 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 and to the underwriter(s), if any, make
the Issuers representatives 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 such selling Holders or underwriter(s), if any,
reasonably may request;
(vi) make available at reasonable times for inspection
by the selling Holders, any underwriter participating in any
disposition pursuant to such Registration Statement, and any
attorney or accountant retained by such selling Holders or any
of the underwriter(s), all financial and other records,
pertinent corporate documents and properties of the Issuers
and cause the Issuers' officers, directors and employees to
supply all information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with
such Registration Statement subsequent to the filing thereof
and prior to its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any
Registration Statement or Prospectus, pursuant to a supplement
or post-effective amendment if necessary, such information as
such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including,
without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer
Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Securities to be sold in
such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after the Issuers are notified of the matters to
be incorporated in such Prospectus supplement or
post-effective amendment;
(viii) cause the Transfer Restricted Securities covered
by the Registration Statement to be rated with the appropriate
rating agencies, if so requested by the Holders of a majority
in aggregate principal amount of Notes covered thereby or the
underwriter(s), if any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of
the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may
request; the Issuers hereby consent to the use of the
Prospectus and any amendment or supplement thereto by each of
the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer
Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(xi) enter into such agreements (including an
underwriting agreement), and make such representations and
warranties, and take all such other actions in connection
therewith as reasonably necessary in order to expedite or
facilitate the disposition of the Transfer Restricted
Securities pursuant to any Registration Statement contemplated
by this Agreement, all to such extent as may be reasonably
requested by any Initial Purchaser or by any Holder of
Transfer Restricted Securities or underwriter in connection
with any sale or resale pursuant to any Registration Statement
contemplated by this Agreement; and whether or not an
underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Issuers
shall:
(A) furnish to the Initial Purchaser, each selling
Holder and each underwriter, if any, in such substance and
scope as they may reasonably request and as are customarily
made by issuers to underwriters in primary underwritten
offerings, upon the date of the Consummation of the
Exchange Offer and, if applicable, the effectiveness of the
Shelf Registration Statement:
(1) a certificate, dated the date the Exchange Offer
is Consummated or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed by
(y) the President or any Vice President and (z) a
principal financial or accounting officer of the Company
confirming, as of the date thereof, the matters set
forth in paragraphs (b), (c) and (d) of Section 7 of the
Purchase Agreement and such other matters as such
parties may reasonably request;
(2) an opinion, dated 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 Issuers, covering the matters set forth
in paragraph (g) of Section 7 of the Purchase Agreement
and such other matter as such parties may reasonably
request, and in any event including a statement to the
effect that such counsel has participated in conferences
with officers and other representatives of the Issuers,
representatives of the independent public accountants
for the Issuers, the Initial Purchaser's representatives
and the Initial Purchaser's counsel in connection with
the preparation of such Registration Statement and the
related Prospectus, and although such counsel is not
passing upon and does not assume responsibility for and
has not independently verified the accuracy,
completeness or fairness of such statements and has not
made any independent check or verification thereof, on
the basis of the foregoing (relying as to materiality to
a large extent upon facts provided to such counsel by
officers and other representatives of the Issuers and
without independent check or verification), no facts
came to such counsel's attention that caused such coun
sel to believe that the applicable Registration
Statement, at the time such Registration Statement or
any post-effective amendment thereto became effective,
and, in the case of the Prospectus included in the
Exchange Offer Registration Statement, as of the date of
Consummation, contained an untrue statement of a
material fact or omitted to state a material fact re
quired to be stated therein or necessary to make the
statements therein not misleading, or that the
Prospectus contained in such Registration Statement as
of its date and, in the case of the opinion dated the
date of Consummation of the Exchange Offer, as of the
date of Consummation, contained an untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein, in
light of the circumstances under which they were made,
not misleading. Without limiting the foregoing, such
counsel may state further that such counsel expresses no
belief or opinion with respect to, assumes no
responsibility for, and has not independently verified,
the accuracy, completeness or fairness of exhibits, the
financial statements, notes and schedules and other
financial and statistical data included in any
Registration Statement contemplated by this Agreement or
the related Prospectus; and
(3) a customary comfort letter, dated 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, from the Issuers' independent
accountants, in the customary form and covering matters
of the type customarily covered in comfort letters by
underwriters in connection with primary underwritten
offerings, and affirming the matters set forth in the
comfort letters delivered pursuant to Section 7(a) of
the Purchase Agreement, without exception;
(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 documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Issuers pursuant to this
clause (xi), if any.
If at any time during which a Registration Statement is
required to be effective under this Agreement the Issuers
become aware that the representations and warranties of the
Issuers contemplated in clause (A)(1) above cease to be true
and correct, the Issuers shall so advise the Initial Purchaser
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, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue
Sky laws of such jurisdictions (within the United States,
Canada or the United Kingdom) as the selling Holders or
underwriter(s) may reasonably request and do any and all other
acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement;
provided, however, that neither the Company nor any Guarantor
shall 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 or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xiii) shall issue, upon the request of any Holder of
Series A Notes covered by the Shelf Registration Statement,
Series B Notes, having an aggregate principal amount equal to
the aggregate principal amount of Series A Notes surrendered
to the Company by such Holder in exchange therefor or being
sold by such Holder; such Series B Notes to be registered in
the name of such Holder or in the name of the purchaser(s) of
such Notes, as the case may be; in return, the Series A Notes
held by such Holder shall be surrendered to the Company for
cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends;
and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders or
the underwriter(s), if any, may request at least two business
days prior to any sale of Transfer Restricted Securities made
by such underwriter(s);
(xv) use its best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to
be registered with or approved by such other governmental
agencies or authorities (within the United States, Canada or
the United Kingdom) as may be reasonably necessary to enable
the seller or sellers thereof or the underwriter(s), if any,
to consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause (xii)
above;
(xvi) if any fact or event contemplated by clause
(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 not
misleading;
(xvii) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of the
Registration Statement and provide the Trustee under the
Indenture with printed certificates for the Transfer
Restricted Securities that are in a form eligible for deposit
with The Depository Trust Company;
(xviii) cooperate and assist in any filings required to
be made with the NASD and in the performance of any due
diligence investigation by any underwriter (including any
"qualified independent underwriter") that is required to be
retained in accordance with the rules and regulations of the
NASD, and use its reasonable best efforts to cause such
Registration Statement to become effective and approved by
such governmental agencies or authorities (within the United
States, Canada or the United Kingdom) as may be necessary to
enable the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted
Securities;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as
practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal
quarter in which Transfer Restricted Securities are sold to
underwriters in a firm or best efforts Underwritten Offering
or (B) if not sold to underwriters in such an offering,
beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the
Registration Statement;
(xx) if so required under the TIA, 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 of Notes 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 their 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;
(xxi) provide promptly to each Holder upon request
each document filed by the Company with the Commission
pursuant to the requirements of Section 13 and Section 15 of
the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the Company of the
existence of any fact of the kind described in Section
6(c)(iii)(D) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated
by Section 6(c)(xvi) hereof, or until it is advised in writing
(the "Advice") 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. If so directed by the Company, each Holder will
deliver to the Company (at the Issuers' 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 such
notice. In the event the Company shall give any such notice, the
time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) hereof to and including the date when each
selling Holder covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xvi) hereof or shall have received
the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Issuers' performance of
or compliance with this Agreement will be borne by the Company or
the respective Guarantor, regardless of whether a Registration
Statement becomes effective, including without limitation:
(i) all registration and filing fees and expenses (including
filings made by any Initial Purchaser or Holder with the NASD
(and, if applicable, the reasonable fees and expenses of any
"qualified independent underwriter" and its counsel that may be
required by the rules and regulations of the NASD)); (ii) all
fees and expenses of compliance with federal securities and state
Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the Series B Notes to be
issued in the Exchange Offer and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company and, subject to Section
7(b) below, the Holders of Transfer Restricted Securities; (v)
all application and filing fees in connection with listing Notes
on a national securities exchange or automated quotation system
pursuant to the requirements hereof; and (vi) all fees and
disbursements of independent certified public accountants of the
Issuers (including the expenses of any special audit and comfort
letters required by or incident to such performance).
The Issuers will bear their 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 any Issuer.
(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 Issuers will reimburse the Initial Purchaser 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 ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ or such other counsel as may be chosen by the Holders of
a majority in principal amount of the Transfer Restricted
Securities for whose benefit such Registration Statement is being
prepared.
SECTION 8. INDEMNIFICATION
(a) The Issuers jointly and severally, agree to indemnify
and hold harmless (i) each Holder and (ii) each person, if any,
who controls (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) any Holder (any of the persons
referred to in this clause (ii) being hereinafter referred to as
a "controlling person") and (iii) the respective officers,
directors, partners, employees, representatives and agents
(including, without limitation, attorneys) of any Holder or any
controlling person (any person referred to in clause (i), (ii) or
(iii) may hereinafter be referred to as an "Indemnified Holder"),
to the fullest extent lawful, from and against any and all
losses, claims, damages, liabilities, judgments, actions and
reasonable expenses (including without limitation and as soon as
reasonably practicable, reimbursement of all reasonable costs of
investigating, preparing, pursuing or defending any claim or
action, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Indemnified Holder) directly
or indirectly caused by, related to, based upon, arising out of
or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration
Statement or Prospectus (or any amendment or supplement thereto),
or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses,
claims, damages, liabilities, judgments, actions or expenses are
caused by an untrue statement or omission or alleged untrue state
ment or omission that is made in reliance upon and in conformity
with information relating to any of the Holders furnished in
writing to the Company by any of the Holders expressly for use
therein.
In case any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
brought or asserted against any of the Indemnified Holders with
respect to which indemnity may be sought against the Issuers,
such Indemnified Holder (or the Indemnified Holder controlled by
such controlling person) shall promptly notify the Issuers in
writing (provided, that the failure to give such notice (i) will
not relieve the Issuers from liability under paragraph (a) above
unless and to the extent it did not otherwise learn of such
action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) above).
Such Indemnified Holder shall have the right to employ its own
counsel in any such action and the reasonable fees and expenses
of such counsel shall be paid, as soon as reasonably practicable
after they are incurred, by the Issuers (regardless of whether it
is ultimately determined that an Indemnified Holder is not
entitled to indemnification hereunder). The Issuers shall not,
in connection with any one such action or proceeding or separate
but substantially similar or related actions or proceedings in
the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses
of more than one separate firm of attorneys (in addition to any
local counsel) at any time for such Indemnified Holders, which
firm shall be designated by the Holders. The Issuers shall be
liable for any settlement of any such action or proceeding
effected with the Issuers' prior written consent, which consent
shall not be withheld unreasonably, and the Issuers agree to
indemnify and hold harmless any Indemnified Holder from and
against any loss, claim, damage, liability or reasonable expense
by reason of any settlement of any action effected with the
written consent of the Issuers. The Issuers shall not, without
the prior written consent of each Indemnified Holder, settle or
compromise or consent to the entry of judgment in or otherwise
seek to terminate any pending or threatened action, claim,
litigation or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not any
Indemnified Holder is a party thereto), unless such settlement,
compromise, consent or termination includes an unconditional
release of each Indemnified Holder from all liability arising out
of such action, claim, litigation or proceeding.
(b) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the
Issuers, and their respective directors, officers, employees and
agents (including, without limitation, attorneys) and any person
controlling (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Issuers, and the respective
officers, directors, partners, employees, representatives and
agents (including, without limitation, attorneys) of each such
person, to the same extent as the foregoing indemnity from the
Issuers to each of the Indemnified Holders, but only with respect
to claims and actions based on information relating to such
Holder furnished in writing by or on behalf of such Holder ex
pressly for use in any Registration Statement. In case any
action or proceeding shall be brought against any of the Issuers
or their directors, officers employees, agents (including,
without limitation, attorneys) or any such controlling person and
in respect of which indemnity may be sought against a Holder of
Transfer Restricted Securities, such Holder shall have the rights
and duties given the Issuers and the Issuers or their directors
or officers or such controlling person shall have the rights and
duties given to each Holder by the preceding paragraph. In no
event shall the liability of any selling Holder hereunder be
greater in amount than the dollar amount of the proceeds received
by such Holder upon the sale of the Registrable Securities giving
rise to such indemnification obligation.
(c) If the indemnification provided for in this Section 8
is unavailable to an indemnified party under Section 8(a) or
Section 8(b) hereof (other than by reason of exceptions provided
in those Sections) in respect of any losses, claims, damages,
liabilities or reasonable expenses referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages, liabilities or reasonable expenses in such proportion as
is appropriate to reflect the relative benefits received by the
Issuers on the one hand and the Holders on the other hand from
the sale by the Company of the Series A Notes or if such
allocation is not permitted by applicable law, the relative fault
of the Issuers on the one hand and of the Indemnified Holder on
the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or
reasonable expenses, as well as any other relevant equitable
considerations. The relative fault of the Issuers on the one
hand and of the Indemnified Holder on the other shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Issuers or by the Indemnified Holder
and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission. The amount paid or payable by a party as a result
of the losses, claims, damages, liabilities and reasonable
expenses referred to above shall be deemed to include, subject to
the limitations set forth in the second paragraph of Section
8(a), any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any
action or claim.
The Issuers and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if
contribution pursuant to this Section 8(c) were 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 account of the equitable considerations referred to in
the immediately preceding paragraph. Notwithstanding the
provisions of this ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ of the Holders (and its
related Indemnified Holders) shall be required to contribute, in
the aggregate, any amount in excess of the amount by which the
total net proceeds received by such Holder with respect to the
Notes 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. No
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresen
tation. The Holders' obligations to contribute pursuant to this
Section 8(c) are several in proportion to the respective
principal amount of Series A Notes held by each of the Holders
hereunder and not joint.
SECTION 9. RULE 144A
The Issuers hereby agree with each Holder, for so long as
any Transfer Restricted Securities remain outstanding, to make
available 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 from
such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's
Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting
arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by
the Shelf Registration Statement who desire to do so may sell
such Transfer Restricted Securities in an Underwritten Offering.
In any such Underwritten Offering, the investment banker or
investment bankers and manager or managers that will administer
the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities
included in such offering; provided, that such investment bankers
and managers must be reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Issuers agree that monetary damages
(including the liquidated damages contemplated hereby) would not
be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agree
to waive the defense in any action for specific performance that
a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuers 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. Neither the Company nor
the Guarantor have 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 Issuers' securities under any
agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Issuers 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 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 the Issuers have obtained the written
consent of Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities. 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
being tendered or registered.
(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, 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 Issuers:
Delta ▇▇▇▇▇, Inc.
▇▇▇-▇/▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with a copy to
Wyche, Burgess, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇ ▇. ▇▇▇▇▇
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 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
Transfer Restricted Securities; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such
successor or assign acquired Transfer Restricted Securities from
such Holder.
(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 LAW RULES THEREOF.
(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, together with the
Purchase Agreement, the Indenture, the Notes and the guarantee
thereof by the Guarantor, 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 Issuers with respect to
the Transfer Restricted Securities. This Agreement supersedes
all prior agreements and understandings between the parties with
respect to such subject matter.
[Signature page follows]
In Witness Whereof, the parties have executed this
Agreement as of the date first written above.
Delta ▇▇▇▇▇, Inc.
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice
President, Chief Financial
Officer and Treasurer
Delta ▇▇▇▇▇ Marketing, Inc.
BY:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Executive Vice
President, Chief Financial
Officer and Treasurer
NationsBanc Capital Markets, Inc.
By:
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director