1
EXHIBIT 4.18
Exchange and Registration Rights Agreement
Dated as of March 21, 1997
among
Continental Airlines, Inc.
Wilmington Trust Company
as Trustee under
Continental Airlines
Pass Through Trust, Series 1997-1A-O
Continental Airlines
Pass Through Trust, Series 1997-1B-O
Continental Airlines
Pass Through Trust, Series 1997-1C-I-O
Continental Airlines
Pass Through Trust, Series 1997-1C-II-O
and
Credit Suisse First Boston Corporation,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
Chase Securities Inc.
and
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
2
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of March 21, 1997, among Continental Airlines, Inc., a
Delaware corporation (the "Company"), Wilmington Trust Company, as trustee
under each of the Original Trusts (as defined below), Credit Suisse First
Boston Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, Chase Securities Inc.
and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. (collectively, the "Purchasers").
This Agreement is made pursuant to the Certificate Purchase Agreement
dated March 12, 1997 among the Company, the Depositary (as defined below), and
the Purchasers (the "Purchase Agreement"), which provides that the Trustee will
issue and sell $437,876,000 principal amount of the pass through certificates
of the Class A Trust, $148,333,000 principal amount of the pass through
certificates of the Class B Trust, $111,093,000 principal amount of the pass
through certificates of the Class C-I Trust and $10,000,000 principal amount of
the pass through certificates of the Class C-II Trust (the Class A Trust, Class
B Trust, Class C-I Trust and Class C-II Trust together, the "Original Trusts"
and such pass through certificates of the Original Trusts, together, the
"Initial Certificates"), in each case with Escrow Receipts (as defined below)
attached thereto. On the Transfer Date (as defined below), and after
satisfaction of the conditions set forth in the Pass Through Trust Agreements
(as defined below), each of the Original Trusts will transfer and assign all of
its assets and rights to a newly-created successor trust with substantially
identical terms (together, the "Successor Trusts") and the Initial Certificates
will be deemed for all purposes of the Original Trusts and the Successor Trusts
to be certificates representing fractional undivided interests in the Successor
Trusts and their respective trust properties. In order to induce the
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide to the Purchasers and their successors, assigns and direct and indirect
transferees the exchange and registration rights set forth in this Agreement.
The execution and delivery of this Agreement is a condition to the closing
under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
3
2
1. Definitions. The definitions set forth in this Agreement shall apply
equally to both singular and plural forms of the terms defined. 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.
"Agreement" shall have the meaning set forth in the preamble of this
Agreement.
"Business Day" shall mean any day on which the New York Stock
Exchange, Inc. is open for trading and banks in The City of New York are
open for business; references to "day" shall mean a calendar day.
"Class A Trust" shall mean the Continental Airlines Pass Through
Trust, Series 1997-1A-O.
"Class B Trust" shall mean the Continental Airlines Pass Through
Trust, Series 1997-1B-O.
"Class C-I Trust" shall mean the Continental Airlines Pass Through
Trust, Series 1997-1C-I-O.
"Class C-II Trust" shall mean the Continental Airlines Pass Through
Trust, Series 1997-1C-II-O.
"Closing Date" shall mean the Closing Date as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble of this
Agreement and shall include the Company's successors.
"Depositary" shall mean, initially, Credit Suisse First Boston, New
York Branch and any replacement or successor therefor appointed in
accordance with the Depositary Agreement.
"Depositary Agreement" shall have the meaning set forth in the
Purchase Agreement.
4
3
"Depositary Information" shall mean information relating to the
Depositary furnished to the Company in writing by the Depositary
expressly for use in any Exchange Offer Registration Statement or Shelf
Registration Statement.
"Deposits" shall have the meaning set forth in the Purchase
Agreement.
"DTC" 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.
"Escrow Receipts" shall have the meaning set forth in the Purchase
Agreement.
"Exchange Certificates" shall mean the pass through certificates
issued under the Pass Through Trust Agreements or the Successor Pass
Through Trust Agreements, as the case may be, and otherwise containing
terms identical in all material respects to the Initial Certificates
(except that, with respect to the Exchange Certificates of each Trust,
(i) interest thereon shall accrue as set forth in Section 2(a) hereof,
(ii) the transfer restrictions thereon shall be eliminated, (iii) certain
provisions relating to an increase in the stated rate of interest thereon
shall be eliminated and (iv) such Exchange Certificates shall initially
be available only in book-entry form) 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
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 a Registration
Statement on Form S-4 (or, if applicable, on another appropriate form)
filed with the SEC pursuant to Section 2(a) of this Agreement, and all
amendments and
5
4
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 Purchasers, 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.
"Initial Certificates" has the meaning set forth in the preamble of
this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Certificates;
provided 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 Purchasers or
subsequent holders of Registrable Certificates if such subsequent holders
are deemed to be affiliates solely by reason of their holding 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.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"Original Trusts" shall have the meaning set forth in the preamble
of this Agreement.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(f) of this Agreement.
"Pass Through Trust Agreements" shall mean each of the Pass Through
Trust Agreements relating to the Initial Certificates between the Company
and each Trustee, as may be amended from time to time in accordance with
the terms thereof.
"Person" shall mean an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
6
5
"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 Agreement" shall have the meaning set forth in the
preamble of this Agreement.
"Purchasers" shall have the meaning set forth in the preamble of
this Agreement.
"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 or may then be sold to the public pursuant to paragraph (k) of said
Rule 144 (or any similar provision then in force) by Holders other than
"affiliates" or former "affiliates" (as such term is defined in paragraph
(a) of Rule 144) of the Company, (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 Default" shall have the meaning set forth in Section
2(b) of this Agreement.
"Registration Event" shall mean the declaration of the effectiveness
by the SEC of an Exchange Offer Registration Statement or a Shelf
Registration Statement.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Trustees with this
Agreement, including without
7
6
limitation: (i) all SEC, stock exchange or 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 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 and the Successor 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.
8
7
"SEC" shall mean the Securities and Exchange Commission, as from
time to time constituted or created under the United States Securities
Exchange Act of 1934, as amended, or, if at any time after the execution
of this instrument such Commission is not existing and performing the
duties now assigned to it under the TIA, then the body performing such
duties on such date.
"Shelf Registration" shall mean a registration under the 1933 Act
effected pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of
this Agreement which covers some or all of the Registrable Certificates
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.
"Staff" shall mean the Staff of the Division of Corporation Finance
of the SEC.
"Successor Pass Through Trust Agreements" shall mean each of the
Successor Pass Through Trust Agreements entered into on the date hereof
between the Company and each Trustee forming the Successor Trusts, as may
be amended from time to time in accordance with the terms thereof.
"Successor Trusts" shall have the meaning set forth in the preamble
of this Agreement.
"TIA" shall have the meaning set forth in Section 3(l) of this
Agreement.
"Transfer Date" shall have the meaning set forth in the Purchase
Agreement.
"Trustees" shall mean the trustees under the Pass Through Trust
Agreements or the Successor Pass Through Trust Agreements, as the case
may be.
9
8
"Trusts" shall mean the Class A Trust, the Class B Trust, the Class
C-I Trust and the Class C-II Trust, or the Successor Trusts, as the case
may be.
2. Registration under the 1933 Act. (a) Exchange Offer Registration. To
the extent not prohibited by any applicable law or applicable interpretation of
the Staff, the Company shall use its best efforts (A) to file with the SEC
within 120 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 180
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 210 days after the Closing Date. Upon the 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);
10
9
(iii) use the services of DTC 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 its 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 supplement thereto complies 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 as 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 which is an exhibit thereto;
11
10
(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 of such Holder so accepted for exchange.
Interest on each Exchange Certificate will 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.
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, the Company is not permitted
to effect the Exchange Offer as contemplated by Section 2(a) hereof, or (ii) if
for any other reason the Exchange Offer Registration Statement is not declared
effective within 180 days after the Closing Date or the Exchange Offer is not
consummated within 210 days after the Closing Date (a "Registration Default"),
or (iii) if any Holder (other than a Purchaser) is not eligible to participate
in the Exchange Offer or (iv) upon the request of any Purchaser (with respect
to any Registrable Certificates which it acquired directly from the Company)
following the consummation of the Exchange Offer if such Purchaser shall hold
Registrable Certificates which 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 to
participate in the Exchange Offer, the Company shall, at its cost:
12
11
(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). In the event that 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
2(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 2(b)(i) or (ii) hereof,
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 one year 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
13
12
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.
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 3(b) below, to use all reasonable efforts to cause any such amendment
to become effective and such Shelf Registration Statement 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 Default occurs, to cure such Registration Default before the
Company will be required to comply with the requirements of Section 2(b).
(c) Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) or 2(b) and, in the
case of any Shelf Registration Statement, will reimburse the Holders or
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 will 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
14
13
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 that 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, without limitation, the
acquisition or divestiture of assets, so long as the Company promptly complies
with the requirements of Section 3(j) hereof, if applicable.
(ii) 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 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
will 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. In the event that no Registration Event
has occurred on or prior to the 210th day after the Closing Date, the interest
rate per annum payable in respect of the Initial Certificates shall be
increased by 0.50%, effective from and including such 210th day, to but
excluding the earlier of (i) the date on which a Registration Event occurs and
(ii) the date on which there cease to be any Registrable Certificates, which
additional interest shall be paid through a combination of an increase in the
interest rate per annum borne by the Equipment Notes of 0.50% and, if
applicable, an increase in the interest rate per annum payable on the Deposits
of 0.50% pursuant to the Depositary Agreements. In the event that the Shelf
Registration Statement ceases to be effective at any time during the period
specified by Section 2(b)(B) hereof for more than 60 days, whether or not
consecutive, during any 12-month period, the interest rate payable in respect
of the Initial Certificates 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 (or, if earlier, the end of the period specified by Section
2(b)(B) hereof), which
15
14
additional interest shall be paid through a combination of an increase in the
interest rate per annum borne by the Equipment Notes of 0.50% and, if
applicable, an increase in the interest rate per annum payable on the Deposits
of 0.50% pursuant to the Depositary Agreements.
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement, within
the time period specified in Section 2, 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; 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
16
15
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 3, 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;
(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 3(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
17
16
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 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
18
17
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, (iv) subject to the last
paragraph of Section 3, 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 (x) 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
(y) a statement to the effect that by a broker-dealer making the
acknowledgment described in subclause (x) and by delivering a Prospectus
in connection with the exchange of Registrable Certificates, the
broker-dealer 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 Purchasers, unless it elects not to act
19
18
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 3(b), or take any other action as a result of
this Section 3(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 authorized by the Company to, and shall not, deliver such
Prospectus after such period in connection with resales contemplated by
this Section 3;
(g) (A) in the case of an Exchange Offer, furnish counsel for the
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
20
19
restrictive legends; and cause such Registrable Certificates to be in
such denominations (consistent with the provisions of the Pass Through
Trust Agreements or the Successor Pass Through Trust Agreements, as the
case may be) and registered in such names as the selling Holders 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
2(d)(i)(B) or 3(e)(ii)-(vi) hereof, 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 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
21
20
the Registrable Certificates, as the case may be, held in book entry
form, in a form eligible for deposit with DTC;
(l) (i) cause the Pass Through Trust Agreements or Successor Pass
Through Trust Agreements, as the case may be, 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
or Successor Pass Through Trust Agreements as may be required for the
Pass Through Trust Agreements or Successor Pass Through Trust Agreements,
as the case may be, 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 or Successor Pass Through Trust
Agreements, as the case may be, 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 the
general counsel 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
22
21
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 will use its best efforts to have
such letter 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;
(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 the
same to set forth indemnification provisions and procedures
substantially equivalent to the indemnification provisions and
procedures set forth in Section 5 hereof with respect to all
parties to be indemnified pursuant to said Section; 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
23
22
and (ii) each closing under any underwriting 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 and the other parties entitled
thereto by one counsel designated by and on behalf of such Holders and
other parties;
24
23
(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
Purchasers, and use its best efforts to reflect in any such document when
filed such comments as any of the 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 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 Purchasers on
behalf of such Holders or any underwriter and shall not at any time make
any filing of any such document of which such Holders, the 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 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.
25
24
In the case of an Exchange Offer Registration Statement or Shelf
Registration Statement, the Company may request the Depositary to furnish to
the Company such information regarding the Depositary as the Company may from
time to time reasonably request, and the Company may (as a condition to the
inclusion of any such information in a Registration Statement) require the
Depositary to provide written representations as to the accuracy in all
material respects of any such information so furnished.
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 of the kind described in Sections 2(d)(i)(B)
or 3(e)(ii)-(vi) hereof, such Holder will 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 3(j) hereof, and, if so directed by the Company, such
Holder will 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 of
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 2(d)(i)(B) or 3(e)(ii)-(vi)
hereof, the Company shall be deemed to have used its 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
26
25
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.
4. 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 2(b)(B) hereof. 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
securityholders, including underwriting discounts and commissions and fees and
expenses of counsel to the selling securityholders.
5. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Holder and each person, if any, who controls any Holder
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act, from and against all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
by any Holder or any such controlling 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 Certificates or
Registrable Certificates were registered under the 1933 Act,
27
26
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 Depositary Information or based upon information
relating to any Holder furnished to the Company in writing by any selling
Holder expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any preliminary Prospectus shall not inure
to the benefit of any Person from whom the Person asserting any such losses,
claims, damages or liabilities purchased Registerable Certificates, or any
person controlling such seller, if a copy of the final Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such seller to
such purchaser with or prior to the written confirmation of the sale of the
Registerable Certificates to such Person, and if the final Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities. In connection with any underwritten
offering permitted by Section 4, the Company will also indemnify the
underwriters participating in the distribution, their officers and directors
and each Person who controls such Persons (within the meaning of the 1933 Act
and the ▇▇▇▇ ▇▇▇) to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any
Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company 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 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 Holders,
but only with reference to information relating to such Holder furnished to the
Company in writing by
28
27
such Holder expressly for use in any Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto).
(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
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 the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that such fees and expenses shall
be reimbursed as they are incurred. Such firm shall be designated in writing
by the Majority Holders in the case of parties indemnified pursuant to
paragraph (a) above and by the Company in the case of parties indemnified
pursuant to paragraph (b) above. 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 in writing 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
29
28
without its written consent if (i) such settlement is entered into more than 90
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, unless such fees and expenses are being disputed in
good faith. No indemnifying party shall, without the prior written consent of
the indemnified 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 aggregate principal amount of Registrable
Certificates of such Holder that were registered pursuant to a Registration
Statement.
(e) The Company and 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
30
29
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 Certificates 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 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
any Holder or any person controlling 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 Certificates and (iv) any sale of Registrable
Certificates pursuant to a Shelf Registration Statement.
6. 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 covenants that it will 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 will 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
31
30
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 request of any Holder of Registrable Certificates, the
Company will 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 piggyback on any Shelf Registration
Statement, provided 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 piggyback 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 piggyback rights
will 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
piggyback registration rights shall in no event materially adversely affect the
interests of any Holder.
(c) Trustees. The Trustees shall take such action as may be reasonably
requested by the Company in connection with the Company satisfying its
obligations arising under this Agreement.
(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. Except as otherwise expressly permitted in
the Pass Through Trust Agreements or the Successor Pass Through Trust
Agreements, 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
32
31
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
5 hereof 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, 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(f), which address initially is, with respect to the Purchasers,
the address set forth in the Purchase Agreement; 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 6(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
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 Trustees, at the
address specified in the Pass Through Trust Agreements or the Successor Pass
Through Trust Agreements, as the case may be.
(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 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
Certificates in violation of the terms hereof or of the Purchase Agreement or
the Pass Through Trust Agreements or Successor 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
33
32
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. Upon the
occurrence of the transfers contemplated by the Assignment and Assumption
Agreements (as defined in the Pass Through Trust Agreements), the trustee of
each Original Trust shall (without any further act) be deemed to have
transferred all of its rights, title and interest in and to this Agreement to
the trustee of the corresponding Successor Trust and, thereafter, the trustee
of each Successor Trust shall be deemed to be the "Trustee" of such Successor
Trust with the rights and obligations of a "Trustee" hereunder.
(h) Third Party Beneficiaries. 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.
(l) 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.
34
33
(m) Termination. This Agreement shall terminate and be of no further
force or effect when there shall not be any Registrable Certificates
outstanding, except that the provisions of Sections 2(c), 2(e), 5, 6(h) and
6(k) hereof shall survive any such termination.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CONTINENTAL AIRLINES, INC.
By:
---------------------------------
Name:
Title:
WILMINGTON TRUST COMPANY
not in its individual capacity
but solely as Trustee under each
of the Original Trusts
By:
---------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
CHASE SECURITIES INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By: CREDIT SUISSE FIRST
BOSTON CORPORATION
By:
-----------------------------------
Name:
Title: