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EXHIBIT 4.5
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REGISTRATION RIGHTS AGREEMENT
Dated November 19, 1997
between
KITTY HAWK, INC.,
Issuer,
KITTY HAWK CHARTER, INC.,
AIRCRAFT LEASING, INC.,
KITTY HAWK AIRCARGO, INC.,
AMERICAN INTERNATIONAL AIRWAYS, INC.,
KALITTA FLYING SERVICES, INC.,
FLIGHT ONE LOGISTICS, INC.,
O.K. TURBINES, INC. AND
AMERICAN INTERNATIONAL TRAVEL, INC.
Subsidiary Guarantors
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
BT ALEX. ▇▇▇▇▇ INCORPORATED
FIELDSTONE FPCG SERVICES, L.P.,
Placement Agents
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into November 19, 1997, between Kitty Hawk, Inc, a Delaware
corporation (the "Company"), Kitty Hawk Charter, Inc., a Texas corporation,
Aircraft Leasing, Inc., a Texas corporation, Kitty Hawk Aircargo, Inc., a Texas
corporation, American International Airways, Inc., a Michigan corporation,
Kalitta Flying Services, Inc., a Michigan corporation, Flight One Logistics,
Inc., a Michigan corporation, O.K. Turbines, Inc., a Michigan corporation and
American International Travel, Inc., a Michigan corporation (collectively, the
"Subsidiary Guarantors") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, BT Alex. ▇▇▇▇▇
Incorporated and Fieldstone FPCG Services, L.P. (the "Placement Agents").
This Agreement is made pursuant to the Placement Agreement
dated November 13, 1997, between the Company, the Subsidiary Guarantors, the
Kalitta Companies (as defined in the Placement Agreement), M. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Placement Agents
(the "Placement Agreement"), which provides for the sale by the Company and the
Subsidiary Guarantors to the Placement Agents of an aggregate of $340 million
principal amount of the Company's 9.95% Senior Secured Notes due 2004 (the
"Securities"). The obligations of the Company under the Securities and the
Indenture will be guaranteed by the Subsidiary Guarantors pursuant to the terms
of the Indenture (the "Subsidiary Guarantees"). The Trustee and the Placement
Agents and their direct and indirect transferees will have a first priority
security interest in the Collateral (as defined in the Indenture). In order to
induce the Placement Agents to enter into the Placement Agreement, the Company
and the Subsidiary Guarantors have agreed to provide to the Placement Agents
and their direct and indirect transferees the registration rights set forth in
this Agreement. The execution of this Agreement is a condition to the closing
under the Placement Agreement.
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.
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"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Business Day" shall mean any day except a Saturday, Sunday or
other day in the City of New York, or in the city of the corporate
trust office of the Trustee on which banks are authorized to close.
"Closing Date" shall mean the Closing Date as defined in the
Placement Agreement.
"Company" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
"Exchange Offer" shall mean the exchange offer by the Company
of Exchange Securities for Registrable Securities pursuant to Section
2(a) hereof.
"Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean 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.
"Exchange Securities" shall mean securities issued by the
Company under the Indenture containing terms identical to the
Securities (except that (i) interest thereon shall accrue from the
last date on which interest was paid on the Securities or, if no such
interest has been paid, from the date of issuance and (ii) the
interest rate per annum on the Exchange Securities shall be the rate
initially payable on the Securities) and to be offered to Holders of
Securities in exchange for Securities pursuant to the Exchange Offer.
"Holder" shall mean the Placement Agents, for so long as it
owns any Registrable Securities, and each of their respective
successors, assigns and direct and indirect transferees who become
registered owners of Registrable Securities under the Indenture;
provided that for purposes of Sections 4 and 5 of this Agreement, the
term "Holder" shall include Participating Broker-Dealers (as defined
in Section 4(a)).
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"Indenture" shall mean the Indenture relating to the
Securities dated as of November 19, 1997 between the Company, the
Subsidiary Guarantors and Bank One, N.A., as trustee, and as the same
may be amended from time to time in accordance with the terms thereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities;
provided that whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by (i) for purposes of Section 6(b)
hereof, the Company or any of its affiliates (as such term is defined
in Rule 405 under the ▇▇▇▇ ▇▇▇) and (ii) for all other purposes
hereof, the Company and its subsidiaries shall not be counted in
determining whether such consent or approval was given by the Holders
of such required percentage or amount.
"Person" shall mean an individual, partnership, corporation,
trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Placement Agents" shall have the meaning set forth in the
preamble.
"Placement Agreement" shall have the meaning set forth in the
preamble.
"Prospectus" shall mean the prospectus included in a
Registration Statement at the same time such Registration Statement is
declared effective, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Securities covered by a
Shelf Registration Statement, and by all other amendments and
supplements to such prospectus, and in each case including all
material incorporated by reference therein.
"Registrable Securities" shall mean the Securities and the
Subsidiary Guarantees; provided, however, that the Securities and the
Subsidiary Guarantees shall cease to be Registrable Securities upon
the earliest of (i) when a Registration Statement with respect to such
Securities and the Subsidiary Guarantees shall have been declared
effective under the 1933 Act and such Securities and the Subsidiary
Guarantees shall have been disposed of pursuant to such Registration
Statement, (ii) when such Securities and the Subsidiary Guarantees
have been sold to the public
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pursuant to Rule 144(k) (or any similar provision then in force, but
not Rule 144A) under the 1933 Act, (iii) when such Securities and the
Subsidiary Guarantees shall have ceased to be outstanding or (iv) the
date on which such Securities and such Subsidiary Guarantees are
exchanged in the Exchange Offer.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company and the
Subsidiary Guarantors with this Agreement, including without
limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all
reasonable fees and expenses incurred in connection with compliance
with state securities or blue sky laws (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Securities or
Registrable Securities), (iii) all reasonable expenses of any Persons
in preparing or assisting in preparing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements and
other documents relating to the performance of and compliance with
this Agreement, (iv) all reasonable fees and disbursements relating to
the qualification of the Indenture under applicable securities laws,
(v) the reasonable fees and disbursements of the Trustee and its
counsel, (vi) the fees and disbursements of counsel for the Company
and the Subsidiary Guarantors and, in the case of a Shelf Registration
Statement, the reasonable fees and disbursements of one counsel for
the Holders (which counsel shall be selected by the Majority Holders
and which counsel may also be counsel for the Placement Agents) and
(vii) the reasonable fees and disbursements of the independent public
accountants of the Company and the Subsidiary Guarantors, including
the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, but excluding fees
and expenses of counsel to the underwriters (other than fees and
expenses set forth in clause (ii) above) or the Holders and
underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a
Holder.
"Registration Statement" shall mean any registration statement
of the Company that covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement
and all amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
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"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company and the Subsidiary Guarantors
pursuant to the provisions of Section 2(b) of this Agreement which
covers all of the Registrable Securities (but no other securities
unless approved by the Holders of a majority of the Registrable
Securities covered by such Shelf Registration Statement) on an
appropriate form under Rule 415 under the 1933 Act, or any similar
rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference
therein.
"Subsidiary Guarantees" shall have the meaning set forth in
the preamble.
"Subsidiary Guarantors" shall have the meaning set forth in
the preamble and shall include the Subsidiary Guarantors' successors.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
"Underwritten Registration" or "Underwritten Offering" shall
mean a registration in which Registrable Securities are sold to an
Underwriter (as hereinafter defined) for reoffering to the public.
2. Registration Under the 1933 Act.
(a) To the extent not prohibited by any applicable law or
applicable interpretation of the SEC or its staff, the Company and the
Subsidiary Guarantors shall use their reasonable best efforts to cause to be
filed an Exchange Offer Registration Statement covering the offer by the
Company and the Subsidiary Guarantors to the Holders to exchange all of the
Registrable Securities for Exchange Securities and to have such Registration
Statement remain effective until the closing of the Exchange Offer. The
Exchange Securities will be issued under the Indenture. The Company and the
Subsidiary Guarantors shall use their reasonable best efforts to commence the
Exchange Offer promptly after the Exchange Offer Registration Statement has
been declared effective by the SEC
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and use their reasonable best efforts to have the Exchange Offer consummated
not later than 120 days after such effective date. If the Company and the
Subsidiary Guarantors effect the Exchange Offer, the Company and the Subsidiary
Guarantors will be entitled to close the Exchange Offer twenty Business Days
after the commencement thereof provided that the Company and the Subsidiary
Guarantors have accepted all the Notes validly tendered in accordance with the
terms of the Exchange Offer. The Company and the Subsidiary Guarantors shall
commence the Exchange Offer by mailing the related exchange offer Prospectus
and accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to
this Registration Rights Agreement and that all Registrable Securities
validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which dates
extend for a period of at least 20 Business Days from the date such
notice is mailed) (the "Exchange Dates");
(iii) that any Registrable Security not tendered will
remain outstanding and continue to accrue interest from the last
interest payment date on which interest was paid on the Notes
surrendered in exchange therefore or, if no interest has been paid on
the Notes, from the date of original issue of the Notes, but will not
retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Security
exchanged pursuant to the Exchange Offer will be required to surrender
such Registrable Security, together with the enclosed letters of
transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) specified in the notice
prior to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their
election, not later than the close of business on the last Exchange
Date, by sending to the institution and at the address (located in the
Borough of Manhattan, The City of New York) specified in the notice a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Securities
delivered for exchange and a statement that such Holder is withdrawing
his election to have such Securities exchanged.
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As soon as practicable after the last Exchange Date, the
Company and the Subsidiary Guarantors shall:
(i) accept for exchange Registrable Securities or
portions thereof tendered and not validly withdrawn pursuant to the
Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so
accepted for exchange by the Company and the Subsidiary Guarantors and
issue, and cause the Trustee to promptly authenticate and mail to each
Holder, an Exchange Security equal in principal amount to the
principal amount of the Registrable Securities surrendered by such
Holder.
The Company and the Subsidiary Guarantors shall use their reasonable best
efforts to complete the Exchange Offer as provided above and shall comply in
all material respects with the applicable requirements of the 1933 Act, the
1934 Act and other applicable laws and regulations in connection with the
Exchange Offer. Except as set forth in the immediately succeeding sentence or
as customary in similar transactions, the Exchange Offer shall not be subject
to any conditions, other than that the Exchange Offer does not violate
applicable law or any applicable interpretation of the SEC or its staff. As a
condition to its participation in the Exchange Offer pursuant to the terms of
this Agreement, each Holder of Registerable Securities shall furnish, upon the
request of the Company but prior to consummation of the Exchange Offer, a
written representation to the Company and the Subsidiary Guarantors (which may
be contained in the letter of transmittal contemplated by the Exchange Offer)
to the effect that (i) it is not an affiliate of the Company, (ii) it is not
engaged in, does not intend to engage in, and has no arrangement or
understanding with any person to participate in, and has no arrangement or
understanding with any person to participate in, a distribution of the Exchange
Securities to be issued in the Exchange Offer and (iii) it is acquiring the
Exchange Securities in the ordinary course of its business. The Company shall
inform the Placement Agents of the names and addresses of the Holders to whom
the Exchange Offer is made, and the Placement Agents shall have the right,
subject to applicable law, to contact such Holders and otherwise facilitate the
tender of Registrable Securities in the Exchange Offer.
(b) In the event that (i) the Company determines that the
Exchange Offer Registration provided for in Section 2(a) above is not available
or may not be consummated as soon as practicable after the last Exchange Date
because it would violate applicable law or the applicable interpretations of
the SEC or its staff, or (ii) the Exchange Offer is not for any other reason
consummated by May 19, 1998, the Company shall use its reasonable best efforts
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to cause to be filed as soon as practicable after such determination or date,
as the case may be, a Shelf Registration Statement providing for the sale by
the Holders of all of the Registrable Securities and to have such Shelf
Registration Statement declared effective by the SEC. The Company and the
Subsidiary Guarantors agree to use their reasonable best efforts to keep the
Shelf Registration Statement continuously effective until the second
anniversary of the Closing Date or such shorter period that will terminate when
all of the Registrable Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement. The Company and
the Subsidiary Guarantors further agree to supplement or amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company and the Subsidiary
Guarantor, for such Shelf Registration Statement or by the 1933 Act or by any
other rules and regulations thereunder for shelf registration or if reasonably
requested by a Holder with respect to information relating to such Holder, and
to use its reasonable best efforts to cause any such amendment to become
effective and such Shelf Registration Statement to become usable as soon as
thereafter practicable. The Company and the Subsidiary Guarantors agree to
furnish to the Holders of Registrable Securities copies of any such supplement
or amendment promptly after its being used or filed with the SEC.
(c) The Company and the Subsidiary Guarantors shall pay
all Registration Expenses in connection with the registration pursuant to
Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or disposition
of such Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
(d) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b)
hereof will not be deemed to have become effective until it has been declared
effective by the SEC; provided, however, that, if, after it has been declared
effective, the offering of Registrable Securities pursuant to a Shelf
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court, such Registration Statement will be deemed not to have become effective
during the period of such interference until the offering of Registrable
Securities pursuant to such Registration Statement may legally resume.
(e) Without limiting the remedies available to the
Placement Agents and the Holders, the Company and the Subsidiary Guarantors
acknowledge that any failure by the Company and the Subsidiary Guarantors to
comply with their obligations under Section 2(a) and Section 2(b) hereof may
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result in material irreparable injury to the Placement Agents or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Placement Agents or any Holder may obtain such relief as may be
required to specifically enforce the Company's and the Subsidiary Guarantors'
obligations under Section 2(a) and Section 2(b) hereof.
(f) No Holder of Registerable Securities may include any
of its Registerable Securities in any Shelf Registration Statement pursuant to
this Agreement unless and until such Holder furnishes to the Company, in
writing, such information specified in item 507 of Regulation S-K under the
1933 Act and such other information as the Company may reasonably request for
use in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. Each Holder as to which any Shelf
Registration Statement is being declared effective 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.
(g) If the Exchange Offer is not consummated or, if
required, a Shelf Registration Statement under the Securities Act with respect
to resales of the Notes is not declared effective by the Commission, on or
before May 19, 1998, in accordance with the terms of this Agreement, then the
interest rate per annum accruing on the Notes shall, effective May 19, 1998, be
increased by 0.5% from 9.95% per annum, payable in cash semiannually, in
arrears, on each May 15 and November 15, commencing November 15, 1998, until
the Exchange Offer is completed or such Shelf Registration Statement is
declared effective. The foregoing shall constitute liquidated damages for
failure to have consummated the Exchange Offer or, if required, caused such
Shelf Registration Statement to have been declared effective by May 19, 1998.
3. Registration Procedures.
In connection with the obligations of the Company and the
Subsidiary Guarantors' with respect to the Registration Statements pursuant to
Section 2(a) and Section 2(b) hereof, the Company and the Subsidiary Guarantors
shall as expeditiously as possible:
(a) prepare and file with the SEC a Registration
Statement on the appropriate form under the 1933 Act, which form (x)
shall be selected by the Company and the Subsidiary Guarantors' and
(y) shall, in the case of a Shelf Registration, be available for the
re-sale of the Registrable Securities by the selling Holders thereof
and (z) shall comply as to form in all material
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respects with the requirements of the applicable form and include all
financial statements required by the SEC to be filed therewith, and
use their reasonable best efforts to cause such Registration Statement
to become effective and remain effective in accordance with Section 2
hereof;
(b) use their reasonable best efforts to prepare and file
with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary 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; to keep each Prospectus current during the period described
under Section 4(3) and Rule 174 under the 1933 Act that is applicable
to transactions by brokers or dealers with respect to the Registrable
Notes or Exchange Notes;
(c) in the case of a Shelf Registration, subject to any
confidentiality requirements, furnish to each Holder of Registrable
Securities, to counsel for the Placement Agents, to counsel for the
Holders and to each Underwriter of an Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment
or supplement thereto and such other documents as such Holder or
Underwriter may reasonably request, in order to facilitate the public
re-sale or other disposition of the Registrable Securities; and the
Company consents, subject to the provisions of this Agreement, to the
use of such Prospectus and any amendment or supplement thereto in
accordance with applicable law by each of the selling holders of
Registrable Securities and any such Underwriters in connection with
the offering and re-sale of the Registrable Securities covered by and
in the manner described in such Prospectus or any amendment or
supplement thereto in accordance with applicable law;
(d) use their reasonable best efforts to register or
qualify the Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions as any Holder of
Registrable Securities covered by a Registration Statement shall
reasonably request in writing by the time the applicable Registration
Statement is declared effective by the SEC, to cooperate with such
Holders in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. and to do any and all
other acts and things which may be reasonably necessary or advisable
to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that neither the Company nor the Subsidiary
Guarantors shall be
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required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), (ii) file any general
consent to service of process or (iii) subject itself to taxation in
any such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, use all
reasonable efforts to notify each Holder of Registrable Securities,
counsel for the Holders and counsel for the Placement Agents promptly
and, if requested by any such Holder or counsel, confirm such advice
in writing (i) when a Registration Statement has become effective and
when any post-effective amendment thereto has been filed and becomes
effective, (ii) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement
and Prospectus or for additional information after the 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 Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company or the Subsidiary Guarantors contained in any underwriting
agreement, securities sales agreement or other similar agreement, if
any, relating to the offering cease to be true and correct in all
material respects or if the Company receives any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the happening of any event during
the period a Shelf Registration Statement is effective which makes any
statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which requires the making
of any changes in such Registration Statement or Prospectus in order
to make the statements therein not misleading and (vi) of any
determination by the Company and the Subsidiary Guarantors that a
post-effective amendment to a Registration Statement would be
appropriate;
(f) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement
at the earliest possible moment and provide prompt notice to each
Holder of the withdrawal of any such order;
(g) in the case of a Shelf Registration, take reasonable
measures to furnish to each Holder of Registrable Securities, without
charge, at least one conformed copy of each Registration Statement and
any post-effective
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amendment thereto (without documents incorporated therein by reference
or exhibits thereto, unless a Holder so requests in writing);
(h) in the case of a Shelf Registration, cooperate with
the selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends and
enable such Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in
such names as the selling Holders may reasonably request at least two
business days prior to the closing of any sale of Registrable
Securities;
(i) in the case of a Shelf Registration, upon the
occurrence of any event contemplated by Section 3(e)(v) hereof, use
their reasonable best efforts to prepare and file with the SEC a
supplement or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, such
Prospectus will not contain 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 the Holders to suspend use
of the Prospectus as promptly as practicable after the occurrence of
such an event, and the Holders hereby agree to suspend use of the
Prospectus until the Company and the Subsidiary Guarantors have
amended or supplemented the Prospectus to correct such misstatement or
omission; provided, however, that not withstanding anything herein to
the contrary, the Company shall not be required to prepare and file
such documents if such misstatement or omission or the event which
caused such misstatement or omission no longer exists;
(j) a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a Prospectus or
any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after initial filing of a
Registration Statement, provide copies of such document to the
Placement Agents and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) and make such
of the representatives of the Company and the Subsidiary Guarantors as
shall be reasonably requested by the Placement Agents or their counsel
(and, in the case of a Shelf Registration Statement, the Holders or
their counsel) available for discussion of such document, and shall
not at any
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time file or make any amendment to the Registration Statement, any
Prospectus or any amendment of or supplement to a Registration
Statement or a Prospectus or any document which is to be incorporated
by reference into a Registration Statement or a Prospectus, of which
the Placement Agents and their counsel (and, in the case of a Shelf
Registration Statement, the Holders and their counsel) shall not have
previously been advised and furnished a copy or to which the Placement
Agents or their counsel (and, in the case of a Shelf Registration
Statement, the Holders or their counsel) shall object, except for any
amendment or supplement or document (a copy of which has been
previously furnished to the Placement Agents and their counsel and, in
the case of a Shelf Registration Statement, the Holders and their
counsel) which counsel to the Company and the Subsidiary Guarantors
shall advise the Company and the Subsidiary Guarantors, in the form of
a written legal opinion, is required in order to comply with
applicable law; the Placement Agents agree that, if they receive
timely notice and drafts under this clause (j), they will not
unreasonably object to any such filing;
(k) obtain a CUSIP number for all Exchange Securities not
later than the first Exchange Date of the Exchange Offer;
(l) to the extent required, cause the Indenture to be
qualified under the Trust Indenture Act of 1939, as amended (the
"TIA"), in connection with the registration of the Exchange Securities
or Registrable Securities, as the case may be, cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may
be required for the Indenture to be so qualified in accordance with
the terms of the TIA and execute, and use their reasonable best
efforts to cause the Trustee to execute, all documents as may be
required to effect such changes and all other forms and documents
required to be filed with the SEC to enable the Indenture to be so
qualified in a timely manner;
(m) in the case of a Shelf Registration, use their
reasonable best efforts to make available for inspection by a
representative of the Holders of the Registrable Securities, any
Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and attorneys and accountants designated by
the Holders, at reasonable times and in a reasonable manner, all
financial and other records, pertinent documents and properties of the
Company and the Subsidiary Guarantors, and cause the respective
officers, directors and employees of the Company and the Subsidiary
Guarantors to supply all information reasonably requested by
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any such representative, Underwriter, attorney or accountant in
connection with a Shelf Registration Statement;
(n) in the case of a Shelf Registration, use their
reasonable best efforts to cause all Registrable Securities to be
listed on any securities exchange or any automated quotation system on
which similar securities issued by the Company are then listed if
requested by the Majority Holders, to the extent such Registrable
Securities satisfy applicable listing requirements;
(o) if reasonably requested by any Holder of Registrable
Securities covered by a Registration Statement, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment
such information with respect to such Holder as such Holder reasonably
requests to be included therein and (ii) make all required filings of
such Prospectus supplement or such post-effective amendment as soon as
the Company has received notification of the matters to be
incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such
customary agreements and take all such other actions in connection
therewith (including those requested by the Holders of a majority of
the Registrable Securities being sold) in order to expedite or
facilitate the disposition of such Registrable Securities including,
but not limited to, an Underwritten Offering and in such connection,
(i) to the extent possible, make such representations and warranties
to the Holders and any Underwriters of such Registrable Securities
with respect to the business of the Company and its subsidiaries, the
Registration Statement, Prospectus and documents incorporated by
reference or deemed incorporated by reference, if any, in each case,
in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and
when requested, (ii) obtain opinions of counsel to the Company (which
counsel and opinions, in form, scope and substance, shall be
reasonably satisfactory to the Holders and such Underwriters and their
respective counsel) addressed to each selling Holder and Underwriter
of Registrable Securities, covering the matters customarily covered in
opinions requested in underwritten offerings, (iii) obtain "cold
comfort" letters from the independent certified public accountants of
the Company (and, if necessary, any other certified public accountant
of any subsidiary of the Company, or of any business acquired by the
Company for which financial statements and financial data are or are
required to be included in the Registration Statement) addressed to
each selling Holder and Underwriter of Registrable Securities, such
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letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings, subject to receipt of appropriate
documentation as contemplated by SAS No. 72 and (iv) deliver such
documents and certificates as may be reasonably requested by the
Holders of a majority in principal amount of the Registrable
Securities being sold or the Underwriters, and which are customarily
delivered in underwritten offerings, to evidence the continued
validity of the representations and warranties of the Company made
pursuant to clause (i) above and to evidence compliance with any
customary conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Company may
require each Holder of Registrable Securities to furnish to the Company such
information regarding the Holder and the proposed distribution by such Holder
of such Registrable Securities as the Company may from time to time reasonably
request in writing. No Holder may participate in any Underwritten Offering
hereunder unless such Holder (a) agrees to sell such Holder's Registerable
Securities on the basis provided in customary underwriting agreements entered
into in connection therewith, and (b) completes and executes all reasonable
questionnaires, powers of attorney, and other documents required under the
terms of such underwriting agreements.
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 of the kind described in Section 3(e)(v) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof, and, if
so directed by the Company, such Holder will deliver to the Company (at its
expense) all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. If the Company shall
give any such notice to suspend the disposition of Registrable Securities
pursuant to a Registration Statement, the Company 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. The Company may give any such notice
only for four non-consecutive 30 day periods during any 365 day period.
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By acquiring a Registrable Security each Holder agrees that,
upon receipt of any notice from the Company or the Subsidiary Guarantors of the
existence of any fact or event of the kind described in Section 3(e) hereof,
such Holder shall (i) keep the fact of such notice confidential and (ii)
refrain from selling or offering for sale Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of copies of a supplemented
or amended Prospectus, as contemplated by Section 3(i) hereof, or until it
receives advice, in writing, from the Company or the Subsidiary Guarantors that
the use of any Prospectus may be resumed and has received copies of any
additional or supplemental filings that are incorporated by reference therein.
If so directed by the Company or the Subsidiary Guarantors, each Holder shall
deliver to the Company or the Subsidiary Guarantors (at the expense of the
Company or the Subsidiary Guarantors) all copies, other than permanent file
copies then in such Holder's possession, of any Prospectus covering such
Registrable Securities that was current at the time of receipt of such notice.
The Company and the Subsidiary Guarantors shall have no
obligation to keep a Prospectus or any supplements or amendments thereto usable
or to give notice that such documents are not usable by a particular Holder to
the extent such documents are not usable by such Holder because information
with respect to such Holder is not included therein because such Holder has not
provided such information to the Company and the Subsidiary Guarantors in
accordance with the provisions of this Agreement.
The Holders of Registrable Securities covered by a Shelf
Registration Statement who desire to do so may sell such Registrable Securities
in an Underwritten Offering. In any such Underwritten Offering, the investment
banker or investment bankers and manager or managers (the "Underwriters") that
will administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering, subject to the right of the
Company to reasonably object to such selections up to three times.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The SEC or its staff has taken the position that any
broker-dealer that receives Exchange Securities for its own account in the
Exchange Offer in exchange for Securities that were acquired by such
broker-dealer for its own account as a result of market-making or other trading
activities (a "Participating Broker-Dealer"), may be deemed to be an
"underwriter" within the meaning of the 1933 Act and must deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale of such
Exchange Securities.
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The Company and the Subsidiary Guarantors understands that it
is the SEC or its staff's current position that if the Prospectus contained in
the Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Securities, without naming the
Participating Broker-Dealers or specifying the amount of Exchange Securities
owned by them, such Prospectus may be delivered by Participating Broker-Dealers
to satisfy their prospectus delivery obligation under the 1933 Act in
connection with resales of Exchange Securities for their own accounts, so long
as the Prospectus otherwise meets the requirements of the 1933 Act.
(b) In light of the above and subject to any change in
SEC policy prior to the effectiveness of the Exchange Offer Registration
Statement, the Company and the Subsidiary Guarantors agree that the provisions
of this Agreement as they relate to a Shelf Registration shall also apply to an
Exchange Offer Registration to the extent, and with such reasonable
modifications thereto as may be, reasonably requested by the Placement Agents
or by one or more Participating Broker-Dealers, in each case as provided in
clause (ii) below, in order to expedite or facilitate the disposition of any
Exchange Securities by Participating Broker-Dealers consistent with the
positions of the Staff recited in Section 4(a) above; provided that:
(i) the Company and the Subsidiary Guarantors shall not
be required to amend or supplement the Prospectus contained in the
Exchange Offer Registration Statement, as would otherwise be
contemplated by Section 3(i), for a period exceeding 180 days after
the last Exchange Date (as such period may be extended pursuant to the
penultimate paragraph of Section 3 of this Agreement) and
Participating Broker-Dealers shall not be authorized by the Company to
deliver and shall not deliver such Prospectus after such period in
connection with the resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures
set forth in Section 3 of this Agreement to an Exchange Offer
Registration, to the extent not required by the positions of the SEC
or its staff or the 1933 Act and the rules and regulations thereunder,
will be in conformity with the reasonable request to the Company by
the Placement Agents or with the reasonable request in writing to the
Company by one or more broker-dealers who certify to the Placement
Agents and the Company in writing that they anticipate that they will
be Participating Broker-Dealers; and provided further that, in
connection with such application of the Shelf Registration procedures
set forth in Section 3 to an Exchange Offer Registration, the
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Company shall be obligated (x) to deal only with one entity
representing the Participating Broker-Dealers, which shall be the
Placement Agents unless it elects not to act as such representative,
(y) to pay the fees and expenses of only one counsel representing the
Participating Broker-Dealers, which shall be counsel to the Placement
Agents unless such counsel elects not to so act and (z) to cause to be
delivered only one, if any, "cold comfort" letter with respect to the
Prospectus in the form existing on the last Exchange Date and with
respect to each subsequent amendment or supplement, if any, effected
during the period specified in clause (i) above; provided, further
that in no event shall the provisions applicable to Underwritten
Offerings apply to the Exchange Offer Registration.
(c) The Placement Agents shall have no liability to the
Company or any Holder with respect to any request that it may make pursuant to
Section 4(b) above.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Placement Agents, each Holder and each person, if any, who controls the
Placement Agents or any Holder within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act, or is under common control with, or is
controlled by, the Placement Agents or any Holder, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by the Placement Agents, any Holder
or any such controlling or affiliated person in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which Exchange Securities or
Registrable Securities were registered under the 1933 Act, including all
documents incorporated therein by reference, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or caused by any
untrue statement or alleged untrue statement of a material fact contained in
any Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to the Placement Agents or any Holder
furnished to the Company in writing by the Placement Agents or any selling
Holder expressly for use in any Registration
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Statement or Prospectus, or amendment or supplement thereto; provided that the
foregoing indemnity agreement with respect to any Prospectus shall not inure to
the benefit of any Holder from whom the person asserting any such losses,
claims, damages or liabilities purchased Registrable Securities, or any person
controlling or affiliated with such Holder, if a copy of the Prospectus (as
then amended or supplemented if the Company or Subsidiary Guarantor shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Holder to such person at or prior to the written confirmation of
the sale of the Registrable Securities to such person, and if the Prospectus
(as so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability. In connection with any Underwritten Offering
permitted by Section 3, the Company will also indemnify the Underwriters, if
any, selling brokers, dealers and similar securities industry professionals
participating in the distribution, their officers and directors and each Person
who controls such Persons (within the meaning of the Securities Act and the
Exchange Act) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any
Registration Statement. In any case where indemnification is sought against
the Company and the Subsidiary Guarantors under this Section 5(a), the parties
seeking indemnification shall promptly notify the Company and Subsidiary
Guarantors in writing of any claims under this Section 5(a).
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Subsidiary Guarantors, the
Placement Agents and the other selling Holders, and each of their respective
directors, officers who sign the Registration Statement and each Person, if
any, who controls the Company, the Subsidiary Guarantors, the Placement Agents
and any other selling Holder within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing
indemnity from the Company to the Placement Agents and the Holders, but only
with reference to information relating to such Holder furnished to the Company
in writing by such Holder expressly for use in any Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto). In claims brought under this Section 5(b), parties seeking
indemnification shall have the same rights as parties seeking indemnification
under Section 5(a) and parties against whom indemnification is sought under
this Section 5(b) shall have the same rights as parties against whom
indemnification is sought in Section 5(a).
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or paragraph (b)
above, such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the
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indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (a)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for the Placement Agents and all persons, if any, who control the
Placement Agents within the meaning of either Section 15 of the 1933 Act or
▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇, (▇) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Company, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either such Section and (c) the fees
and expenses of more than one separate firm (in addition to any local counsel)
for all Holders and all persons, if any, who control any Holders within the
meaning of either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred. In such case involving the Placement Agents
and persons who control the Placement Agents, such firm shall be designated in
writing by the Placement Agents. In such case involving the Holders and such
persons who control Holders, such firm shall be designated in writing by the
Majority Holders. In all other cases, such firm shall be designated by the
Company. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party for such fees and expenses of counsel in accordance with
such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified
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party, effect any settlement of any pending or threatened proceeding in respect
of which such indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a)
or paragraph (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the relative fault
of the indemnifying party or parties on the one hand and of the indemnified
party or parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Company and the Holders shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Holders and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Holders' respective obligations to contribute
pursuant to this Section 5(d) are several in proportion to the respective
number of Registrable Securities of such Holder that were registered pursuant
to a Registration Statement.
(e) The Company, the Subsidiary Guarantors, and any other
Persons with indemnity rights under this Agreement, including each Holder,
agree that it would not be just or equitable if contribution pursuant to this
Section 5 were determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to in paragraph (d) above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages and liabilities referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 5, no Holder shall be
required to indemnify or contribute any amount in excess of the amount by which
the total price at which Registrable Securities were sold by such Holder
exceeds the amount of any damages that such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be
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entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 5 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Placement Agents, any Holder or any person controlling the Placement
Agents or any Holder, or by or on behalf of the Company, its officers or
directors or any person controlling the Company, (iii) acceptance of any of the
Exchange Securities and (iv) any sale of Registrable Securities pursuant to a
Shelf Registration Statement.
6. Miscellaneous.
(a) No Inconsistent Agreements. Neither the Company nor
the Subsidiary Guarantors have entered into, nor on or after the date of this
Agreement, will the Company or Subsidiary Guarantors enter into, any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's or
the Subsidiary Guarantors's other issued and outstanding securities under any
such agreements.
(b) 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 and the Subsidiary
Guarantors has obtained the written consent of Holders of at least a majority
in aggregate principal amount of the outstanding Registrable Securities
affected by such amendment, modification, supplement, waiver or consent;
provided, however, that with respect to Section 5 hereof, no amendment,
modification, supplement, waiver or consents shall be effective as against any
Holder of Registrable Securities unless consented to in writing by such Holder.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail (registered or certified, return receipt
requested), telex, 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 6(c), which address initially is, with
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respect to the Placement Agents, the address set forth in the Placement
Agreement; and (ii) if to the Company or the Subsidiary Guarantors, initially
at the Company's address set forth in the Placement Agreement and thereafter at
such other address, notice of which is given in accordance with the provisions
of this Section 6(c), with a copy to ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, 3100 Nations Bank
Plaza, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied;
and on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
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.
(d) 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 limitation and without the need for
an express assignment, subsequent Holders; provided that nothing herein shall
be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Placement Agreement.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such person shall be entitled to receive the benefits
hereof. The Placement Agents (in their capacity as Placement Agents) shall
have no liability or obligation to the Company with respect to any failure by a
Holder to comply with, or any breach by any Holder of, any of the obligations
of such Holder under this Agreement.
(e) Third Party Beneficiary. The Holders shall be third
party beneficiaries to the agreements made hereunder between the Company and
the Subsidiary Guarantors, on the one hand, and the Placement Agents, on the
other hand, and shall have the right to enforce such agreements directly to the
extent they deem such enforcement necessary or advisable to protect their
rights or the rights of any Holder hereunder.
(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which
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when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York.
(i) 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.
(j) Entire Agreement. This Agreement and the Indenture
are intended by the parties as a final expression of their agreement and are
intended to be the complete and exclusive statement of the agreement and
understanding of the parties hereto with respect to the subject matter hereof.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein and in the Indenture with respect to the
registration rights granted with respect to the Registerable Securities. This
Agreement and the Indenture supersede all prior agreements and understandings
between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
KITTY HAWK, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President -- Finance
KITTY HAWK CHARTER, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President
AIRCRAFT LEASING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
KITTY HAWK AIRCARGO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
AMERICAN INTERNATIONAL AIRWAYS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Senior Vice President
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KALITTA FLYING SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
FLIGHT ONE LOGISTICS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
O.K. TURBINES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
AMERICAN INTERNATIONAL
TRAVEL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
28
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
BT ALEX. ▇▇▇▇▇ INCORPORATED
FIELDSTONE FPCG SERVICES, L.P.
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By ILLEGIBLE
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