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EXHIBIT 4.13
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REGISTRATION RIGHTS AGREEMENT
Dated as of December 23, 1997
between
UNITED AIR LINES, INC.
FIRST SECURITY BANK, NATIONAL ASSOCIATION
as Trustee under
UNITED AIRLINES
PASS THROUGH TRUST 1997-1A
UNITED AIRLINES
PASS THROUGH TRUST 1997-1B
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
BT ALEX. ▇▇▇▇▇ INCORPORATED
CITICORP SECURITIES, INCORPORATED.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
and
KREDITANSTALT FUR WIEDERAUFBAU
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 23, 1997 (the
"Agreement"), between UNITED AIR LINES, INC., a Delaware corporation (the
"Company"), FIRST SECURITY BANK, NATIONAL ASSOCIATION, as trustee under each of
the Trusts (as defined below), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED, BT ALEX.
▇▇▇▇▇ INCORPORATED, CITICORP SECURITIES, INC., CREDIT SUISSE FIRST BOSTON
CORPORATION and ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED and
KREDITANSTALT FUR WIEDERAUFBAU ("KfW") (collectively, the "Initial
Purchasers").
WHEREAS, pursuant to the Purchase Agreement, dated as of December 18,
1997 (the "Purchase Agreement"), between the Company and the Initial Purchasers
(other than KfW), the Trustee will issue and sell $445,826,000 principal amount
of the Enhanced Pass Through Certificates, Series 1997-1A of the Class A Trust
(the "Class A Certificates");
WHEREAS, pursuant to the Certificate Purchase Agreement, dated as of
the date hereof (the "Certificate Purchase Agreement" and, together with the
Purchase Agreement, the "Purchase Agreements"), between the Company, the
Trustee and KfW, the Trustee will issue and sell and KfW will purchase
$106,607,000 principal amount of the Enhanced Pass Through Certificates, Series
1997-1B of the Class B Trust (the "Class B Certificates" and, collectively with
the Class A Certificates, the "Initial Certificates"); and
WHEREAS, in order to induce the Initial Purchasers to enter into
their respective Purchase Agreements, the Company has agreed to provide to the
Initial Purchasers and their successors, assigns and direct and indirect
transferees the registration rights set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:
1. Definitions. As used in this Agreement, the
following capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Class A Trust" shall mean the United Airlines 1997-1A Pass Through
Trust.
"Class B Trust" shall mean the United Airlines 1997-1B Pass Through
Trust.
"Closing Date" shall mean the date hereof.
"Company" shall have the meaning set forth in the preamble and shall
include the Company's successors.
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"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that any such
depositary must have an address in the Borough of Manhattan in the City of New
York.
"Equipment Notes" shall mean the equipment notes that are the property
of the Trusts.
"Exchange Certificates" shall mean the Enhanced Pass Through
Certificates, Series 1997-1A and the Enhanced Pass Through Certificates, Series
1997-1B issued by the Class A Trust and the Class B Trust, respectively, under
the applicable Pass Through Trust Agreements containing terms identical to the
Initial Certificates (except that, with respect to the Exchange Certificates of
each such Trust, (i) interest thereon shall accrue from the last date on which
interest was paid on the Initial Certificates of such Trust or, if no such
interest has been paid, from the Closing Date, (ii) the transfer restrictions
thereon under the 1933 Act shall be eliminated and (iii) certain provisions
relating to an increase in the stated rate of interest thereon shall be
eliminated) to be offered to Holders of Initial Certificates in exchange for
Initial Certificates pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Certificates for Registrable Certificates pursuant to Section 3(a).
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 3(a).
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement, in
each case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Holders" shall mean each of the Initial Purchasers and the Company,
for so long as they own any Registrable Certificates, and each of their
successors, assigns and direct and indirect transferees who become registered
owners of Registrable Certificates under the Pass Through Trust Agreements.
"Initial Certificates" shall have the meaning set forth in the
preamble.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"KfW" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Certificates; provided,
however, that whenever the consent or approval of Holders of a specified
percentage of Registrable Certificates is required hereunder, Registrable
Certificates held by the Company or any of its affiliates (as such term is
defined in Rule 405 under the ▇▇▇▇ ▇▇▇) (other than the Initial Purchasers, the
Company or subsequent holders of Registrable Certificates if such subsequent
holders are deemed to be affiliates solely by reason of their holding
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of such Registrable Certificates) shall be disregarded in determining whether
such consent or approval was given by the Holders of such required percentage
or amount.
"Participating Broker-Dealers" shall have the meaning set forth in
Section 4(f).
"Pass Through Trust Agreements" shall mean each of the Pass Through
Trust Agreements relating to the Initial Certificates and the Exchange
Certificates, dated as of December 23, 1997, between the Company and each
Trustee, as amended from time to time in accordance with the terms thereof.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, trustee, unincorporated
organization or government or any agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Certificates covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Purchase Agreements" shall have the meaning set forth in the
preamble.
"Registrable Certificates" shall mean the Initial Certificates;
provided, however, that the Initial Certificates shall cease to be Registrable
Certificates when (i) a Shelf Registration Statement with respect to such
Initial Certificates shall have been declared effective under the 1933 Act and
such Initial Certificates shall have been disposed of pursuant to such Shelf
Registration Statement, (ii) such Initial Certificates shall have been sold to
the public pursuant to Rule 144 (or any similar provision then in force, but
not Rule 144A) under the 1933 Act, (iii) such Initial Certificates shall have
ceased to be outstanding or (iv) such Initial Certificates have been exchanged
for Exchange Certificates upon consummation of the Exchange Offer.
"Registration Event" shall have the meaning set forth in Section 3(e).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Trustees with this
Agreement, including: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. ("NASD") registration and filing fees; (ii) all fees
and expenses incurred in connection with compliance with state or other
securities or blue sky laws and compliance with the rules of the NASD
(including reasonable fees and disbursements of counsel for any underwriters or
Holders in connection with state or other securities or blue sky qualification
of any of the Exchange Certificates or Registrable Certificates); (iii) all
expenses of any Persons in preparing or assisting in preparing, word
processing, printing and distributing any Registration Statement, any
Prospectus, any amendments or supplements thereto, any underwriting agreements,
securities sales agreements and other documents relating to the
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performance of and compliance with this Agreement; (iv) all rating agency fees;
(v) all fees and expenses incurred in connection with the listing, if any, of
any of the Registrable Certificates on any securities exchange or exchanges;
(vi) all fees and disbursements relating to the qualification of the Pass
Through Trust Agreements under applicable securities laws; (vii) the fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special audits or
"cold comfort" letters required by or incident to such performance and
compliance; (viii) the fees and expenses of the Trustees, including their
counsel, and any escrow agent or custodian; and (ix) any reasonable fees and
disbursements of the underwriters, if any, and the reasonable fees and expenses
of any special experts retained by the Company in connection with any
Registration Statement, in each case as are customarily required to be paid by
issuers or sellers of securities, but excluding fees of counsel to the
underwriters or the Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Certificates by a Holder.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Certificates or Registrable
Certificates pursuant to the provisions of this Agreement, and all amendments
and supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration under the 1933 Act
effected pursuant to Section 3(b).
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 3(b) which
covers some or all of the Registrable Certificates on an appropriate form under
Rule 145 under the 1933 Act, or any similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"TIA" shall have the meaning set forth in Section 4(l).
"Trustees" shall mean the trustees with respect to the Initial
Certificates and the Exchange Certificates of the Trusts under the Pass Through
Trust Agreements.
"Trusts" shall mean the Class A Trust and the Class B Trust.
2. General Interpretive Principles. For purposes of
this Agreement except as otherwise expressly provided: (a) references herein to
"Articles," "Sections," "subsections," "paragraphs" and other subdivisions
without reference to a document are to designated Articles, Sections,
subsections, paragraphs and other subdivisions of this Agreement; (b) the words
"herein," "hereof," "hereunder" and other similar words refer to this Agreement
as a whole and not any
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particular provision; (c) the term "include" or "including" shall mean without
limitation by reason of enumeration; and (d) "or" is not exclusive.
3. Registration Under the 1933 Act. (a) Exchange Offer
Registration. To the extent not prohibited by any applicable law or applicable
interpretation of the Staff of the SEC, the Company shall use its best efforts
(A) to file with the SEC within 90 days after the Closing Date an Exchange
Offer Registration Statement covering the offer by the Company to the Holders
to exchange all of the Registrable Certificates for Exchange Certificates, (b)
to cause such Exchange Offer Registration Statement, to be declared effective
by the SEC within 150 days after the Closing Date, (C) to cause such
Registration Statement to remain effective until the closing of the Exchange
Offer and (D) to consummate the Exchange Offer within 180 days after the
Closing Date. Upon effectiveness of the Exchange Offer Registration Statement,
the Company shall promptly commence the Exchange Offer, it being the objective
of such Exchange Offer to enable each Holder (other than Participating
Broker-Dealers) eligible and electing to exchange Registrable Certificates for
Exchange Certificates (assuming that such Holder is not an affiliate of the
Company within the meaning of Rule 405 under the 1933 Act, acquires the
Exchange Certificates in the ordinary course of such Holder's business and has
no arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing the Exchange Certificates) to
trade such Exchange Certificates from and after their receipt without any
limitations or restrictions under the 1933 Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States.
In connection with the Exchange Offer, the Company shall or
shall cause the Trustees to:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 30
days after the date notice thereof is mailed to the Holders (or longer
if required by applicable law);
(iii) use the services of the Depositary for the Exchange
Offer with respect to Initial Certificates evidenced by global
certificates;
(iv) permit Holders to withdraw tendered Registrable
Certificates at any time prior to the close of business, New York City
time, on the last business day on which the Exchange Offer shall
remain open, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Certificates
delivered for exchange and a statement that such Holder is withdrawing
his election to have such Registrable Certificates exchanged;
(v) use its best efforts to ensure that (i) any Exchange
Offer Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any
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supplement thereto complies as to form in all material respects with
the 1933 Act and the rules and regulations thereunder, (ii) any
Exchange Offer Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming part of any Exchange Offer Registration
Statement, and any supplement to such Prospectus (as amended or
supplemented from time to time), does not include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements, in light of the circumstances under which they
were made, not misleading; and
(vi) otherwise comply in all respects with all applicable
laws relating to the Exchange Offer.
As soon a practicable after the close of the Exchange Offer,
the Company shall or shall cause the Trustees to:
(i) accept for exchange Registrable Certificates duly
tendered and not validly withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer Registration Statement
and the letter of transmittal that is an exhibit thereto;
(ii) cancel or cause to be canceled all Registrable
Certificates so accepted for exchange by the Company; and
(iii) promptly cause to be authenticated and delivered
Exchange Certificates to each Holder of Registrable Certificates equal
in amount to the Registrable Certificates equal in amount to the
Registrable Certificates of such Holder so accepted for exchange.
Interest on each Exchange Certificate shall accrue from the
last date on which interest was paid on the Registrable Certificates
surrendered in exchange therefor or, if no interest has been paid on the
Registrable Certificates, from the Closing Date. The Exchange Offer shall not
be subject to any conditions, other than that the Exchange Offer, or the making
of any exchange by a Holder, does not violate applicable law or any applicable
interpretation of the Staff of the SEC. Each Holder of Registrable
Certificates (other than Participating Broker-Dealers) who wishes to exchange
such Registrable Certificates for Exchange Certificates in the Exchange Offer
shall represent that (i) it is not an affiliate of the Company within the
meaning of Rule 405 under the 1933 Act, (ii) any Exchange Certificates to be
received by it were acquired in the ordinary course of business and (iii) it
has no arrangement with any Person to participate in the distribution (within
the meaning of the ▇▇▇▇ ▇▇▇) of the Exchange Certificates.
(b) Shelf Registration. (i) If, because of any change
in law or applicable interpretations thereof by the Staff of the SEC, the
Company is not permitted to effect the Exchange Offer as contemplated by
Section 3(a) or (ii) if for any other reason the Exchange Offer Registration
Statement is not declared effective within 150 days after the Closing Date or
the Exchange Offer is not consummated within 180 days after the Closing Date,
or (iii) if any Holder (other than a
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Purchaser) is not eligible to participate in the Exchange Offer or (iv) upon
the request of any Purchaser (with respect to any Registrable Certificates that
it acquired directly from the Company) following the consummation of the
Exchange Offer if such Purchaser shall hold Registrable Certificates that it
acquired directly from the Company and if such Purchaser is not permitted, in
the opinion of counsel to such Purchaser, pursuant to applicable law or
applicable interpretation of the Staff of the SEC to participate in the
Exchange Offer, the Company shall, at its cost:
(A) as promptly as practicable, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the
Registrable Certificates by the Holders from time to time in
accordance with the methods of distribution elected by the Majority
Holders of such Registrable Certificates and set forth in such Shelf
Registration Statement, and use its best efforts to cause such Shelf
Registration Statement to be declared effective by the SEC by the
180th day after the Closing Date (or promptly in the event of a
request by any Holder pursuant to clause (iii) above or any Purchaser
pursuant to clause (iv) above). If the Company is required to file a
Shelf Registration Statement upon the request of any Holder (other
than a Purchaser) not eligible to participate in the Exchange Offer
pursuant to clause (iii) above or upon the request of any Purchaser
pursuant to clause (iv) above, the Company shall file and have
declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 3(a) with respect to all Registrable
Certificates and a Shelf Registration Statement (which may be a
combined Registration Statement with the Exchange Offer Registration
Statement) with respect to offers and sales of Registrable
Certificates held by such Holder or such Purchaser after completion of
the Exchange Offer. If the Company files a Shelf Registration
Statement pursuant to Section 3(b)(ii) the Company will no longer be
required to effect the Exchange Offer;
(B) use its best efforts to keep the Shelf Registration
Statement continuously effective, in order to permit the Prospectus
forming part thereof to be usable by Holders, until the end of the
period referred to in Rule 144(k) (or two years from the Closing Date
if such Shelf Registration Statement is filed upon the request of any
Purchaser pursuant to clause (iv) above) or such shorter period as
shall end when all of the Registrable Certificates covered by the
Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement; and
(C) notwithstanding any other provisions hereof, use its
best efforts to ensure that (i) any Shelf Registration Statement and
any amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act
and the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes
effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any Prospectus
forming part of any Shelf Registration Statement, and any supplement
to such Prospectus (as amended or supplemented from time to time),
does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in
light of the circumstances under which they were made, not misleading.
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The Company further agrees, if necessary, to supplement or
amend the Shelf Registration Statement if reasonably requested by the Majority
Holders with respect to information relating to the Holders and otherwise as
required by Section 4(b), to use all reasonable efforts to cause any such
amendment to become effective and such Shelf Registration to become usable as
soon as practicable thereafter and to furnish to the Holders of Registrable
Certificates copies of any such supplement or amendment promptly after its
being used or filed with the SEC.
The Company shall be allowed a period of five days, beginning
on the first day a Registration Event referred to in Section 3(b)(ii) occurs,
to cure such Registration Event before the Company will be required to comply
with the requirements of Section 3(b).
(c) Expenses. The Company shall pay all Registration
Expenses in connection with the registration pursuant to Section 3(a) or 3(b)
and, in the case of any Shelf Registration Statement, shall reimburse the
Holders or Initial Purchasers for the reasonable fees and disbursements of one
firm or counsel designated in writing by the Majority Holders to act as counsel
for the Holders of the Registrable Certificates in connection therewith. Each
Holder shall pay all expenses of its counsel, other than as set forth in the
preceding sentence, underwriting discounts and commissions and transfer taxes,
if any, relating to the sale or disposition of such Holder's Registrable
Certificates pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. (i) The Company
shall be deemed not to have used its best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
to become, or to remain, effective during the requisite period if the Company
voluntarily takes any action that would result in any such Registration
Statement not being declared effective or in the Holders of Registrable
Certificates covered thereby not being able to exchange or offer and sell such
Registrable Certificates during the period unless (A) such action is required
by applicable law or (B) such action is taken by the Company in good faith and
for valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of assets, so
long as the Company promptly complies with the requirements of Section 4(j), if
applicable.
(ii) An Exchange Offer Registration Statement pursuant to
Section 3(a) or a Shelf Registration Statement pursuant to Section 3(b) shall
not be deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that if, after it has been declared effective, the
offering of Registrable Certificates pursuant to a Registration Statement is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration Statement
shall be deemed not to have been effective during the period of such
interference, until the offering of Registrable Certificates pursuant to such
Registration Statement may legally resume.
(e) Increase in Interest Rate. If either (i) the
Exchange Offer is not consummated on or prior to the 180th calendar day
following the Closing Date, or (ii) a Shelf Registration Statement is not
declared effective on or prior to the 180th calendar day following the Closing
Date (each, a "Registration Event"), the interest rate borne by the Initial
Certificates shall be increased
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by (1) 0.50% per annum from and including July 1, 1998 to but excluding the
date on which such Registration Event occurs; provided, however, that such
increase shall cease to be in effect from and including, in the case of clause
(i) above, the date on which the Exchange Offer is consummated, and, in the
case of clause (ii) above the date the Shelf Registration Statement is declared
effective. If the Shelf Registration Statement ceases to be effective at any
time during the period specified by Section 3(b) for more than 60 days, whether
or not consecutive, during any 12-month period, the interest rate borne by the
Equipment Notes shall be increased by 0.50% per annum from the 61st day of the
applicable 12-month period such Shelf Registration Statement ceases to be
effective until such time as the Shelf Registration Statement again becomes
effective.
4. Registration Procedures. In connection with the
obligations of the Company with respect to the Registration Statements pursuant
to Sections 3(a) and 3(b), the Company shall:
(a) prepare and file with the SEC a Registration
Statement, within the time period specified in Section 3, on the
appropriate form under the 1933 Act, which form (i) shall be selected
by the Company, (ii) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Certificates by the selling
Holders thereof and (iii) shall comply as to form in all material
respects with the requirements of the applicable form;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period and cause each Prospectus to be
supplemented by any required prospectus supplement and, as so
supplemented, to be filed pursuant to Rule 424 under the 1933 Act;
(c) in the case of a Shelf Registration, (i) notify each
Holder of Registrable Certificates when a Shelf Registration Statement
with respect to the Registrable Certificates has been filed and advise
such Holders that the distribution of Registrable Certificates will be
made in accordance with the method elected by the Majority Holders;
(ii) furnish to each Holder of Registrable Certificates included
within the coverage of the Shelf Registration Statement at least one
copy of such Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and,
if the Holder so requests in writing, all reports, other documents and
exhibits (including those incorporated by reference) at the expense of
the Company, (iii) furnish to each Holder of Registrable Certificates
included within the coverage of the Shelf Registration Statement, to
counsel for the Holders and to each underwriter of an underwritten
offering of Registrable Certificates, if any, without charge, as many
copies of each Prospectus, including each preliminary Prospectus, and
any amendment or supplement thereto as such Holder or underwriter may
reasonably request in order to facilitate the public sale or other
disposition of the Registrable Certificates; and (iv) subject to the
last paragraph of Section 4, consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of
Registrable Certificates included in the Shelf Registration Statement
in connection with the offering and sale of the Registrable
Certificates covered by the Prospectus or any amendment or supplement
thereto;
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(d) use its best efforts to register or qualify the
Registrable Certificates or cooperate with the Holders of Registrable
Certificates and their counsel in the registration or qualification of
such Registrable Certificates under all applicable state securities or
"blue sky" laws of such jurisdictions as any Holder of Registrable
Certificates covered by a Registration Statement and each underwriter
of an underwritten offering of Registrable Certificates shall
reasonably request in writing to cooperate with the Holders in
connection with any filings required to be made with the NASD, and do
any and all other acts and things which may be reasonably necessary or
advisable to enable such Holders to consummate the disposition in each
such jurisdiction of such Registrable Certificates owned by such
Holders; provided, however, that in no event shall the Company be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 4(d) or (ii) take any action
which would subject it to general service of process or taxation in
any such jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration, notify each
Holder of Registrable Certificates promptly and, if requested by such
Holder or counsel, confirm such advice in writing promptly (i) when a
Shelf Registration Statement has become effective and when any
post-effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities authority for
post-effective amendments and supplements to a Shelf Registration
Statement and Prospectus or for additional information after the Shelf
Registration Statement has become effective, (iii) of the issuance by
the SEC or any state securities authority of any stop order suspending
the effectiveness of a Shelf Registration Statement or the initiation
of any proceedings for that purpose, (iv) at the closing of any sale
of Registrable Certificates if, between the effective date of a Shelf
Registration Statement and such closing, the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any,
relating to such offering cease to be true and correct in all material
respects, (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (vi) of the happening
of any material event or the discovery of any material facts during
the period a Shelf Registration Statement is effective which makes any
statement made in such Registration Statement or the related
Prospectus untrue or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements
therein (in the case of the Prospectus in light of the circumstances
under which they were made) not misleading and (vii) of any
determination by the Company that a post-effective amendment to a
Registration Statement would be appropriate;
(f)(A) in the case of the Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution"
section covering the use of the Prospectus included in the Exchange
Offer Registration Statement by broker-dealers who have exchanged
their Registrable Certificates for Exchange Certificates for the
resale of such Exchange Certificates, (ii) furnish to each
broker-dealer who desires to participate in the Exchange Offer,
without charge, as many copies of each Prospectus included in the
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Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such
broker-dealer may reasonably request, (iii) include in the Exchange
Offer Registration Statement a statement that any broker-dealer who
holds Registrable Certificates acquired for its own account as a
result of market-making activities or other trading activities (a
"Participating Broker-Dealer"), and who receives Exchange Certificates
for Registrable Certificates pursuant to the Exchange Offer, may be a
statutory underwriter and must deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such
Exchange Certificates, and (iv) subject to the last paragraph of
Section 4, hereby consent to the use of the Prospectus forming part of
the Exchange Offer Registration Statement or any amendment or
supplement thereto, by any broker-dealer in connection with the sale
or transfer of the Exchange Certificates covered by the Prospectus or
any amendment or supplement thereto, and (v) include in the
transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Exchange Offer the
following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Certificates. If the
undersigned is a broker-dealer that will receive Exchange
Certificates for its own account in exchange for Registrable
Certificates, it represents that the Registrable Certificates
to be exchanged for Exchange Certificates were acquired by it
as a result of market-making activities or other trading
activities and acknowledges that it will deliver a prospectus
meeting the requirements of the 1933 Act in connection with
any resale of such Exchange Certificates pursuant to the
Exchange Offer; however, by so acknowledging and by delivering
a prospectus, the undersigned will not be deemed to admit that
it is an "underwriter" within the meaning of the 1933 Act";
and
(B) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, use its best efforts to cause to
be delivered at the request of an entity representing the
Participating Broker-Dealers (which entity shall be one of the Initial
Purchasers (other than KfW), unless it elects not to act as such
representative) only one, if any, "cold comfort" letter with respect
to the Prospectus in the form existing on the last date for which
exchanges are accepted pursuant to the Exchange Offer and with respect
to each subsequent amendment or supplement, if any, effected during
the period specified in clause (C) below; and
(C) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, use its best efforts to maintain
the effectiveness of the Exchange Offer Registration Statement for the
180 day period specified in clause (D) below; and
(D) not be required to amend or supplement the Prospectus
contained in the Exchange Offer Registration Statement as would
otherwise be contemplated by Section 4(b), or take any other action as
a result of this Section 4(f), for a period exceeding 180 days after
the last date for which exchanges are accepted pursuant to the
Exchange Offer (as such period may be extended by the Company) and
Participating Broker-Dealers shall not be
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authorized by the Company to, and shall not, deliver such Prospectus
after such period in connection with resales contemplated by this
Section 4;
(g) (A) in the case of an Exchange Offer, furnish counsel
for the Initial Purchasers and (B) in the case of a Shelf
Registration, furnish counsel for the Holders of Registrable
Certificates copies of any request by the SEC or any state securities
authority for amendments or supplements to a Registration Statement
and Prospectus or for additional information;
(h) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement
as soon as practicable and provide immediate notice to each Holder of
the withdrawal of any such order;
(i) unless any Registrable Certificates are in book entry
form only, in the case of a Shelf Registration, cause the Trustees to
cooperate with the selling Holders of Registrable Certificates to
facilitate the timely preparation and delivery of certificates
representing Registrable Certificates to be sold free from any
restrictive legends; and cause such Registrable Certificates to be in
such denominations (consistent with the provisions of the Pass Through
Trust Agreements) and registered in such names as the selling Holder
or the underwriters, if any, may reasonably request at least one
business day prior to the closing of any sale of Registrable
Certificates;
(j) in the case of a Shelf Registration, upon the
occurrence of any event or the discovery of any facts, each as
contemplated by Sections 3(d)(i)(B) or 4(e)(ii)-(vi), use its best
efforts to prepare a post-effective amendment to a Registration
Statement or an amendment or supplement to the related Prospectus or
file any other required document so that, as thereafter delivered to
the purchasers of the Registrable Certificates, such Prospectus will
not contain at the time of such delivery any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading. The Company agrees to notify each Holder
to suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby agrees to suspend
use of the Prospectus as promptly as practicable upon receipt of such
notice until the Company has amended or supplemented the Prospectus to
correct such misstatement or omission, provided that the Company shall
cause such suspension not to last more than 30 days per occurrence or
more than 60 days in aggregate in a calendar year. At such time as
such public disclosure is otherwise made or the Company determines
that such disclosure is not necessary, in each case to correct any
misstatement of a material fact or to include any omitted material
fact, the Company agrees promptly to notify each Holder of such
determination and to furnish each Holder such numbers of copies of the
Prospectus, as amended or supplemented, as such Holder may reasonably
request.
(k) obtain a CUSIP number for all Exchange Certificates,
or Registrable Certificates, as the case may be, of each Trust not
later than the effective date of an
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Exchange Offer Registration Statement or Shelf Registration Statement,
as the case may be, and provide the Trustees with printed certificates
evidencing the Exchange Certificates or the Registrable Certificates,
as the case may be, held in book entry form, in a form eligible for
deposit with the Depositary;
(l) (i) cause the Pass Through Trust Agreements to be
qualified under the Trust Indenture Act of 1939, as amended (the
"TIA"), in connection with the registration of the Exchange
Certificates or Registrable Certificates, as the case may be, (ii)
cooperate with the Trustees and the Holders to effect such changes to
the Pass Through Trust Agreements as may be required for the Pass
Through Trust Agreements to be so qualified in accordance with the
terms of the TIA and (iii) execute, and use its best efforts to cause
the Trustees to execute, all documents as may be required to effect
such changes, and all other forms and documents required to be filed
with the SEC to enable the Pass Through Trust Agreements to be so
qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such
customary agreements (including underwriting agreements in customary
form) and take all other customary and appropriate actions (including
those reasonably requested by the Holders of a majority in principal
amount of Registrable Certificates being sold) in order to expedite or
facilitate the disposition of such Registrable Certificates and in
such connection whether or not an underwriting agreement is entered
into and whether or not the registration is an underwritten
registration:
(i) make such representations and warranties to
the Holders of such Registrable Certificates and the
underwriters, if any, in form, substance and scope as are
customarily made by the Company to underwriters in similar
underwritten offerings as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Company
(who may be employees of the Company) and updates thereof
(which counsel and opinions in form, scope and substance shall
be reasonably satisfactory to the managing underwriters, if
any, or if there are no such managing underwriters, to the
Holders of a majority in principal amount of the Registrable
Certificates being sold) addressed to each selling Holder and
the underwriters, if any, covering the matters customarily
covered in opinions requested in sales of securities or
underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(iii) obtain a "cold comfort" letter and updates
thereof from the Company's independent certified public
accountants addressed to the underwriters, if any, and use its
best efforts to have such letters addressed to the selling
Holders of Registrable Certificates, such letter to be in
customary form and covering such matters of the type
customarily covered in "cold comfort" letters in connection
with similar underwritten offerings as the Holders of a
majority in principal amount of the Registration Certificates
being sold shall request;
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(iv) enter into a securities sales agreement with
the Holders and an agent of the Holders providing for, among
other things, the appointment of such agent for the selling
Holders for the purpose of soliciting purchases of Registrable
Certificates, which agreement shall be in form, substance and
scope customary for similar offerings;
(v) if an underwriting agreement is entered into,
cause such underwriting agreement to set forth indemnification
provisions and procedures substantially similar to the
indemnification provisions and procedures set forth in Section
6 with respect to all parties to be indemnified pursuant to
Section 6; and
(vi) deliver such other documents and certificates
as may be reasonably requested by Holders of a majority in
principal amount of Registrable Certificates being sold, and
as are customarily delivered in similar offerings.
The above shall be done at (i) the effectiveness of such Registration Statement
(and, if appropriate, each post-effective amendment thereto) if appropriate in
connection with any particular disposition of Registrable Certificates and (ii)
each closing under any underwritten or similar agreement as and to the extent
required thereunder. In the case of any underwritten offering, the Company
shall provide written notice to the Holders of all Registrable Certificates of
such underwritten offering at least 30 days prior to the filing of a prospectus
supplement for such underwritten offering. Such notice shall (x) offer each
such Holder the right to participate in such underwritten offering, (y) specify
a date, which shall be no earlier than 10 days following the date of such
notice, by which such Holder must inform the Company of its intent to
participate in such underwritten offering and (z) include the instructions such
Holder must follow in order to participate in such underwritten offering;
(n) in the case of a Shelf Registration, make available
for inspection by representatives of the Holders of the Registrable
Certificates and any underwriters participating in any disposition
pursuant to a Shelf Registration Statement and any counsel or
accountant retained by such Holders or underwriters, all financial and
other records, pertinent corporate documents and properties of the
Company reasonably requested by it, and cause the respective officers,
directors, employees and any other agents of the Company to make
reasonably available all relevant information reasonably requested by
any such representative, underwriter, counsel or accountant in
connection with a Registration Statement, in each case as is customary
for similar due diligence examinations; provided, however, that any
information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such information
shall be kept confidential by such representatives, underwriters,
counsel or accountant, unless such disclosure is made in connection
with a court proceeding or required by law, or such information
becomes available to the public generally or through a third party
without an accompanying obligation of confidentiality; and provided,
further, that the foregoing inspection and information gathering
shall, to the extent reasonably possible, be coordinated on behalf of
the Holders
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and the other parties entitled thereto by one counsel designated by
and on behalf of such Holders and other parties;
(o) (i) a reasonable time prior to the filing of any
Exchange Offer Registration Statement, any Prospectus forming a part
thereof, any amendment to an Exchange Offer Registration Statement or
amendment or supplement to a Prospectus, provide copies of such
document to the Initial Purchasers, and use its best efforts to
reflect in any such document when filed such comments as any of the
Initial Purchasers or their counsel may reasonably request; (ii) in
the case of a Shelf Registration, a reasonable time prior to filing
any Shelf Registration Statement, any Prospectus forming a part
thereof, any amendment to such Shelf Registration Statement or
amendment or supplement to such Prospectus, provide copies of such
document to the Holders of Registrable Certificates, to the Initial
Purchasers, to counsel on behalf of the Holders and to the underwriter
or underwriters of an underwritten offering of Registrable
Certificates, if any, and use its best efforts to reflect such
comments in any such document when filed as the Holders of Registrable
Certificates, their counsel and any underwriter may reasonably
request; and (iii) cause the representatives of the Company to be
available for discussion of such document as shall be reasonably
requested by the Holders of Registrable Certificates, the Initial
Purchasers on behalf of such Holders or any underwriter and not at any
time make any filing of any such document of which such Holders, the
Initial Purchasers on behalf of such Holders, their counsel or any
underwriter shall not have previously been advised and furnished a
copy or to which such Holders, the Initial Purchasers on behalf of
such Holders, their counsel or any underwriter shall reasonably
object;
(p) in the case of a Shelf Registration, use its best
efforts to cause the Registrable Certificates to be rated with the
appropriate rating agencies at the time of effectiveness of such Shelf
Registration Statement, unless the Registrable Certificates are
already so rated; and
(q) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and make generally
available to its security holders, as soon as reasonably practicable
after the effective date of a Registration Statement, an earnings
statement which shall satisfy the provisions of Section 11(a) of the
1933 Act and Rule 158 thereunder.
In the case of a Shelf Registration Statement, the Company may
(as a condition to such Holder's participation in the Shelf Registration)
require each Holder of Registrable Certificates to furnish to the Company such
information regarding such Holder and the proposed distribution by such Holder
of such Registrable Certificates as the Company may from time to time
reasonably request and the Company may exclude from such registration the
Registrable Certificates of any Holder that fails to furnish such information
within a reasonable time after receiving such request.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company of the happening of
any event or the discovery of any facts, each
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of the kind described in Sections 3(d)(i)(B) or 4(e)(ii)-(vi), such Holder
shall forthwith discontinue disposition of Registrable Certificates pursuant to
such Shelf Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 4(j), and, if so
directed by the Company, such Holder shall deliver to the Company (at the
Company's expense) all copies in its possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Certificates current at the time or receipt of such notice. If the
Company shall give any such notice to suspend the disposition of Registrable
Certificates pursuant to a Shelf Registration Statement as a result of the
happening of any event or the discovery of any facts, each of the kind
described in Sections 3(d)(i)(B) or 4(e)(ii)-(vi), the Company shall be deemed
to have used best efforts to keep the Shelf Registration Statement effective
during such period of suspension, provided that the Company shall use its best
efforts to file and have declared effective (if an amendment) as soon as
practicable an amendment or supplement to the Shelf Registration Statement and
shall extend the period during which the Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days during
the period from and including the date of the giving of such notice to and
including the date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions.
5. Underwritten Offering. The Holders of Registrable
Certificates covered by a Shelf Registration Statement who desire to do so may
sell such Registrable Certificates in an underwritten offering. In any such
underwritten offering, the investment banker or bankers and manager or managers
that will administer the offering will be selected by, and the underwriting
arrangements with respect thereto will be approved by, the Holders of a
majority of the Registrable Securities to be included in such offering;
provided, however, that (i) such investment bankers and managers and
underwriting arrangements must be reasonably satisfactory to the Company and
(ii) the Company shall not be obligated to arrange for more than one
underwritten offering during the period such Shelf Registration Statement is
required to be effective pursuant to Section 3(b)(i)(B). No Holder may
participate in any underwritten offering contemplated hereby unless such Holder
(a) agrees to sell such Holder's Registrable Certificates in accordance with
any approved underwriting arrangements, (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of
such approved underwriting arrangements and (c) at least 20% of the outstanding
Registrable Certificates are included in such underwritten offering. The
Holders participating in any underwritten offering shall be responsible for any
expenses customarily borne by selling security holders, including underwriting
discounts and commissions and fees and expenses of counsel to the selling
security holders.
6. Indemnification and Contribution. (a) The Company
will indemnify and hold harmless each Holder, including Participating Broker
Dealers, each underwriter who participates in an offering of Registrable
Certificates and their respective directors, officers, employees, agents and
each Person, if any, who controls any of such parties within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act against any losses,
claims, damages or liabilities, joint or several, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained
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in the Registration Statement pursuant to which Exchange Certificates or
Registrable Certificates were registered under the 1933 Act, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact necessary in order to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a material
fact contained in any Prospectus or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and will
reimburse each Holder, including Participating Broker-Dealers, each underwriter
who participates in an offering of Registrable Certificates, their respective
affiliates and their respective directors, officers, employees and agents and
each Person, if any, who controls any of such parties within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act for any legal or other
expenses reasonably incurred by such party as such expenses are incurred in
connection with investigating or defending against any litigation, or any
investigation or proceeding by any court or governmental agency or body,
commenced or threatened, or any claim whatsoever arising out of or based upon
any such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid pursuant to clause
(i) of this Section 6(a); provided, however, that the Company shall not be
liable in any such case (a) to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Purchaser, any Holder, including Participating
Broker-Dealers, or any underwriter specifically for use in the Registration
Statement or the Prospectus or (b) to the extent that such loss, claim, damage,
liability or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission contained in any
preliminary prospectus if the Initial Purchasers, such Holder, including a
Participating Broker-Dealer, or such underwriter from whom the Person asserting
any such losses, claims, damages or liabilities purchased the securities
concerned to the extent that a prospectus relating to such securities was
required to be delivered by such Purchaser, Holder, Participating Dealer or
underwriter and such Purchaser, Holder, Participating Broker-Dealer or
underwriter failed to send or deliver a copy of the Prospectus to the Person
asserting such losses, claims, damages or liabilities on or prior to the
delivery of written confirmation of any sale of securities covered thereby to
such Person in any case where such Prospectus corrected such untrue statement
or omission if the Company had previously furnished copies thereof to such
Purchaser, Holder, Participating Broker-Dealer or underwriter. Any amounts
advanced by the Company to an indemnified party pursuant to this Section 6 as a
result of such losses shall be returned to the Company if it shall be finally
determined by such a court in a judgment not subject to appeal of final review
that such indemnified party was not entitled to indemnification by the Company.
(b) In the case of a Shelf Registration Statement, each
Holder will severally and not jointly indemnify and hold harmless the Company,
each Purchaser, each underwriter who participates in an offering of Registrable
Certificates and the other selling Holders and each of their respective
directors, officers (including each officer of the Company who signed the
Registration Statement), employees and agents and each Person, if any, who
controls the Company, any Purchaser, any underwriter or selling Holder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
against any losses, claims, damages or liabilities described in the indemnity
contained in Section 6(a), as incurred but only to the extent, that such untrue
statement
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or alleged untrue statement or omission or alleged omission was made in the
Registration Statement or the Prospectus in reliance upon and in conformity
with written information furnished to the Company by such Holder specifically
for use in the Registration Statement, or the Prospectus, and will reimburse
any legal or other expenses reasonably incurred by the Company, each Purchaser,
each underwriter who participates in an offering of Registrable Certificates
and the other selling Holders and each of their respective directors and
officers (including each officer of the Company who signed the Registration
Statement) and each Person, if any, who controls the Company, any Purchaser,
any underwriter or selling Holder within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that no such Holder shall be liable for any claims
hereunder in excess of the amount of net proceeds received by such Holder for
the sale of Registrable Certificates pursuant to such Shelf Registration
Statement. Any amounts advanced by any Holder to an indemnified party pursuant
to this Section 6 as a result of such losses shall be returned to such Holder
if it shall be finally determined by such a court in a judgment not subject to
appeal of final review that such indemnified party was not entitled to
indemnification by such Holder.
(c) Promptly after receipt by an indemnified party under
this Section 6 of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under Section 6 (a) or (b) above, notify the indemnifying
party of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under Section 6 (a) or (b) above, except
to the extent that such indemnifying party is materially prejudiced by such
failure to give notice. If any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof, the
indemnifying party shall 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 counsel 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 shall not be liable to such indemnified party
under this Section 6 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that if any such
indemnified party reasonably determines that there may be legal defenses
available to such indemnified party that are different from or in addition to
those available to such indemnifying party or that representation of such
indemnifying party and any indemnified party by the same counsel would present
a conflict of interest, then such indemnifying party or parties shall not be
entitled to assume such defense. If an indemnifying party is not entitled to
assume the defense of such action as a result of the proviso to the preceding
sentence, counsel for such indemnifying party shall be entitled to conduct the
defense of such indemnifying party and counsel for each indemnified party or
parties shall be entitled to conduct the defense of such indemnified party or
parties. If an indemnifying party assumes the defense of an action in
accordance with and as permitted by the provisions of this paragraph, such
indemnifying party shall not be liable for any fees and expenses of counsel for
the indemnified parties incurred thereafter in connection with such action,
except as provided for in the immediately preceding sentence. In no
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event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from its own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified party, 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.
(d) If the indemnification provided for in this Section 6
is unavailable to an indemnified party under Section 6 (a) or (b) above, then
each indemnifying party in lieu of indemnification such indemnified party shall
contribute to the aggregate losses, claims, damages, liabilities or expenses
incurred by such indemnified party referred to in Section 6 (a) or (b) above
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company, the Initial Purchasers and the Holders from the
offering of the Exchange Certificates or Registrable Certificates included in
such offering or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company, the Initial Purchasers and the Holders in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations, provided that no Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to
contribution from any Person that was not guilty of such fraudulent
misrepresentation. The relative fault 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, the Initial Purchasers or a
Holder and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company, the Initial Purchasers and the Holders agree that it would not be just
and equitable if contribution pursuant to this Section 6 were to be determined
by pro rata allocation or by any other method of allocation that does not take
into account the relevant equitable considerations.
For purposes of this Section 6 (d), each director, officer, employee,
agent and Person, if any, who controls a Purchaser or Holder within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as such Purchaser or Holder, and each director, officer,
employee and agent of the Company, and each Person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. No party
shall be liable with respect to any action, suit, proceeding or claim settled
without its written consent. 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 Section 6 (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigation or defending any action or claim which is the subject of this
Section 6 (d). Notwithstanding the provisions of this Section 6, no Purchaser,
Holder or Participating Broker-Dealer shall be required to contribute or
indemnify any amount in excess
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of the amount by which the total price at which Registrable Certificates were
sold by such Purchaser, Holder or Participating Broker-Dealer exceeds the
amount of any damages that such Purchaser, Holder or Participating
Broker-Dealer has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. The Initial
Purchasers' obligations in this Section 6 (d) to contribute are several in
proportion to their respective purchase obligations and not joint.
(e) The obligations of the Company under this Section 6
shall be in addition to any liability which the Company may otherwise have.
7. Miscellaneous. (a) Rule 144 and Rule 144A. For so
long as the Company is subject to the reporting requirements of Section 13 or
15 of the 1934 Act, the Company shall file the reports required to be filed by
it under Section 13(a) or 15(d) of the 1934 Act and the rules and regulations
adopted by the SEC thereunder, that if it ceases to be so required to file such
reports, it shall upon the request of any Holder of Registrable Certificates
(i) make publicly available such information as is necessary to permit sales
pursuant to Rule 144 under the 1933 Act, (ii) deliver such information to a
prospective purchaser as is necessary to permit sales pursuant to Rule 144A
under the 1933 Act and it will take such further action as any Holder of
Registrable Certificates may reasonably request, and (iii) take such further
action that is reasonable in the circumstances, in each case, to the extent
required from time to time to enable such Holder to sell its Registrable
Certificates without registration under the 1933 Act within the limitation of
the exemptions provided by (x) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (y) Rule 144A under the 1933 Act, as such Rule may
be amended from time to time, or (z) any similar rules or regulations hereafter
adopted by the SEC. Upon the written request of any Holder of Registrable
Certificates, the Company shall deliver to such Holder a written statement as
to whether it has complied with such requirements.
(b) Other Registration Rights. The Company may grant
registration rights that would permit any Person the right to piggy-back on any
Shelf Registration Statement; provided, however, that if the managing
underwriter, if any, of an offering pursuant to such Shelf Registration
Statement delivers an opinion of the selling Holders that the total amount of
securities which they and the holders of such piggy-back rights intend to
include in any Shelf Registration Statement materially adversely affects the
success of such offering (including the price at which such securities can be
sold), then the amount, number or kind of securities to be offered for the
account of holders of such piggy-back rights shall be reduced to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount, number or kind recommended by such managing
underwriter; and provided, further, that such piggy-back registration rights
shall in no event materially adversely affect the interests of any Holder.
(c) Trustees. The Trustee shall take such action as may
be reasonably requested by the Company in connection with the Company
satisfying its obligations arising under this Agreement.
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(d) No Inconsistent Agreements. The Company has not
entered into nor will the Company on or after the date of this Agreement enter
into any agreement which is inconsistent with the rights granted to the Holders
of Registrable Certificates in this Agreement or otherwise conflicts with the
provisions hereof.
(e) 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 at least a majority in aggregate principal amount of the
outstanding Registrable Certificates affected by such amendment, modification,
supplement, waiver or departure; provided, however, that no amendment,
modification, supplement or waiver or consent to any departure from the
provisions of Section 6 shall be effective as against any Holder of Registrable
Certificates unless consented to in writing by such Holder.
(f) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder
to the Company by means of a notice given in accordance with the provisions of
this Section 7(f), which address initially is, with respect to the Initial
Purchasers, the address set forth in the applicable Purchase Agreements; and
(ii) if to the Company, initially at the Company's address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 7(f).
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is 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 Trustees,
at the address specified in the Pass Through Trust Agreements.
(g) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors, assigns and transferees
of each of the parties, including, without the need for an express assignment,
subsequent Holders; provided, however, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable
Certificates in violation of the terms hereof or of the Purchase Agreement or
the Pass Through Trust Agreements. If any transferee of any Holder shall
acquire Registrable Certificates, in any manner, whether by operation of law or
otherwise, such Registrable Certificates shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable
Certificates, such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement,
including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.
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(h) Third Party Beneficiary. The Holders shall be third
party beneficiaries to the agreements made hereunder and to the obligations of
the Company hereunder and shall have the right to enforce such agreements and
obligations directly to the extent any such Holder deems such enforcement
necessary or advisable to protect its rights hereunder.
(i) 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.
(j) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(k) 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 PROVISIONS THEREOF (OTHER THAN SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW).
(l) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
UNITED AIR LINES, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President & Treasurer
S-1 REGISTRATION RIGHTS AGREEMENT
25
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, as Trustee under each of
the Trusts
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
S-2 REGISTRATION RIGHTS AGREEMENT
26
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
BT ALEX. ▇▇▇▇▇ INCORPORATED
CITICORP SECURITIES, INC.,
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-fact
S-3 REGISTRATION RIGHTS AGREEMENT
27
Confirmed and accepted as of
the date first above written:
BY: KREDITANSTALT FUR WIEDERAUFBAU
By: /s/ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: VP
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Project Manager
S-4 REGISTRATION RIGHTS AGREEMENT