REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into on August 13, 1998, among MIDWAY AIRLINES CORPORATION, a Delaware
corporation (the "Company"), THE FIRST NATIONAL BANK OF MARYLAND, as Trustee
under each of the Trust Agreements (as defined below), XXXXXX XXXXXXX & CO.
INCORPORATED and CREDIT SUISSE FIRST BOSTON CORPORATION (the "Placement
Agents").
This Agreement is made pursuant to the Purchase Agreement dated
August 6, 1998, between the Company and the Placement Agents (the "Purchase
Agreement"),which provides for the sale by the Trustee to the Placement Agents
of (i) $58,426,000 aggregate principal amount of 7.14% 1998-1A Pass Through
Certificates (the "Class A Certificates"), (ii) $25,266,000 aggregate principal
amount of 8.14% 1998-1B Pass Through Certificates (the "Class B Certificates"),
(iii) $20,528,000 aggregate principal amount of 8.92% 1998-1C Pass Through
Certificates (the "Class C Certificates") and (iv) $5,502,000 aggregate
principal amount of 8.86% 1998-1D Pass Through Certificates (the "Class D
Certificates", and together with the Class A Certificates, the Class B
Certificates and the Class C Certificates, the "Certificates"). In order to
induce the Placement Agents to enter into the Purchase Agreement, the Company
has 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 Purchase 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.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Applicable Trust Agreement" shall mean, (i) with respect to the
Class A Certificates, the Class A Holders or the Class A Trustee, the
Class A Trust Agreement, (ii) with respect to the Class B Certificates,
the Class B Holders or the Class B Trustee, the Class B Trust Agreement,
(iii) with respect to the Class C Certificates, the Class C Holders or the
Class C Trustee, the Class C Trust Agreement and (iv) with respect to the
Class D Certificates, the Class D Holders or the Class D Trustee, the
Class D Trust Agreement.
"Certificates" shall have the meaning set forth in the second
paragraph of this Agreement.
"Class A Certificates" shall have the meaning set forth in the
second paragraph of this Agreement.
"Class A Exchange Certificates" shall mean securities issued under
the Class A Trust Agreement of equal outstanding principal amount as and
containing terms identical to the Class A Certificates (except that (i)
interest thereon shall accrue from the last date on which interest was
paid on the Class A Certificates or, if no such interest has been paid,
from August 13, 1998, (ii) the transfer restrictions thereon shall be
modified or eliminated, as appropriate and (iii) certain provisions
relating to an increase in the stated rate of interest thereon shall be
eliminated), to be offered to Holders of the Class A Certificates in
exchange for such Class A Certificates pursuant to the Exchange Offer.
"Class A Holder" shall mean any Placement Agent, for so long as it
owns any Class A Registrable Certificates, and each of its successors,
assigns and direct and indirect transferees who become registered owners
of Class A Registrable Certificates under the Class A Trust Agreement;
provided that for purposes of Sections 4 and 5 of this Agreement, the term
"Class A Holder" shall include Participating Broker-Dealers (as defined in
Section 4(a)).
"Class A Registrable Certificates" shall mean the Class A
Certificates; provided, however, that the Class A Certificates shall cease
to be Class A Registrable Certificates upon the earliest to occur of (i)
the consummation of the Exchange Offer, (ii) a Registration Statement with
respect to such Class A Certificates shall have been declared effective
under the 1933 Act and such Class A Certificates shall have been disposed
of pursuant to such Registration Statement, (iii) such Class A
Certificates shall have been sold to the public pursuant to Rule 144(k)
(or any similar provision then in force, but not Rule 144A) under the 1933
Act or (iv) such Class A Certificates shall have ceased to be outstanding.
"Class A Trust Agreement" shall mean the Pass Through Trust
Agreement relating to the Class A Certificates dated as of August 13, 1998
among the Company and the Class A Trustee, as the same may be amended from
time to time in accordance with the terms thereof.
"Class A Trustee" shall mean The First National Bank of Maryland,
not in its individual capacity except as expressly set forth in the Class
A Trust Agreement, but solely as Trustee under the Class A Trust
Agreement, together with any successor Trustee under the terms of the
Class A Trust Agreement.
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"Class B Certificates" shall have the meaning set forth in the
second paragraph of this Agreement.
"Class B Exchange Certificates" shall mean securities issued under
the Class B Trust Agreement of equal outstanding principal amount as and
containing terms identical to the Class B Certificates (except that (i)
interest thereon shall accrue from the last date on which interest was
paid on the Class B Certificates or, if no such interest has been paid,
from August 13, 1998, (ii) the transfer restrictions thereon shall be
modified or eliminated, as appropriate and (iii) certain provisions
relating to an increase in the stated rate of interest thereon shall be
eliminated), to be offered to Holders of the Class B Certificates in
exchange for such Class B Certificates pursuant to the Exchange Offer.
"Class B Holder" shall mean any Placement Agent, for so long as it
owns any Class B Registrable Certificates, and each of its successors,
assigns and direct and indirect transferees who become registered owners
of Class B Registrable Certificates under the Class B Trust Agreement;
provided that for purposes of Sections 4 and 5 of this Agreement, the term
"Class B Holder" shall include Participating Broker-Dealers (as defined in
Section 4(a)).
"Class B Registrable Certificates" shall mean the Class B
Certificates; provided, however, that the Class B Certificates shall cease
to be Class B Registrable Certificates upon the earliest to occur of (i)
the consummation of the Exchange Offer, (ii) a Registration Statement with
respect to such Class B Certificates shall have been declared effective
under the 1933 Act and such Class B Certificates shall have been disposed
of pursuant to such Registration Statement, (iii) such Class B
Certificates shall have been sold to the public pursuant to Rule 144(k)
(or any similar provision then in force, but not Rule 144A) under the 1933
Act or (iv) such Class B Certificates shall have ceased to be outstanding.
"Class B Trust Agreement" shall mean the Pass Through Trust
Agreement relating to the Class B Certificates dated as of August 13, 1998
among the Company and the Class B Trustee, as the same may be amended from
time to time in accordance with the terms thereof.
"Class B Trustee" shall mean The First National Bank of Maryland,
not in its individual capacity except as expressly set forth in the Class
B Trust Agreement, but solely as Trustee under the Class B Trust
Agreement, together with any successor Trustee under the terms of the
Class B Trust Agreement.
"Class C Certificates" shall have the meaning set forth in the
second paragraph of this Agreement.
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"Class C Exchange Certificates" shall mean securities issued under
the Class C Trust Agreement of equal outstanding principal amount as and
containing terms identical to the Class C Certificates (except that (i)
interest thereon shall accrue from the last date on which interest was
paid on the Class C Certificates or, if no such interest has been paid,
from August 13, 1998, (ii) the transfer restrictions thereon shall be
modified or eliminated, as appropriate and (iii) certain provisions
relating to an increase in the stated rate of interest thereon shall be
eliminated), to be offered to Holders of the Class C Certificates in
exchange for such Class C Certificates pursuant to the Exchange Offer.
"Class C Holder" shall mean any Placement Agent, for so long as it
owns any Class C Registrable Certificates, and each of its successors,
assigns and direct and indirect transferees who become registered owners
of Class C Registrable Certificates under the Class C Trust Agreement;
provided that for purposes of Sections 4 and 5 of this Agreement, the term
"Class C Holder" shall include Participating Broker-Dealers (as defined in
Section 4(a)).
"Class C Registrable Certificates" shall mean the Class C
Certificates; provided, however, that the Class C Certificates shall cease
to be Class C Registrable Certificates upon the earliest to occur of (i)
the consummation of the Exchange Offer, (ii) a Registration Statement with
respect to such Class C Certificates shall have been declared effective
under the 1933 Act and such Class C Certificates shall have been disposed
of pursuant to such Registration Statement, (iii) such Class C
Certificates shall have been sold to the public pursuant to Rule 144(k)
(or any similar provision then in force, but not Rule 144A) under the 1933
Act or (iv) such Class C Certificates shall have ceased to be outstanding.
"Class C Trust Agreement" shall mean the Pass Through Trust
Agreement relating to the Class C Certificates dated as of August 13, 1998
among the Company and the Class C Trustee, as the same may be amended from
time to time in accordance with the terms thereof.
"Class C Trustee" shall mean The First National Bank of Maryland,
not in its individual capacity except as expressly set forth in the Class
C Trust Agreement, but solely as Trustee under the Class C Trust
Agreement, together with any successor Trustee under the terms of the
Class C Trust Agreement.
"Class D Certificates" shall have the meaning set forth in the
second paragraph of this Agreement.
"Class D Exchange Certificates" shall mean securities issued under
the Class D Trust Agreement of equal outstanding principal amount as and
containing terms identical to the Class D Certificates (except that (i)
interest thereon shall accrue from the last date on which interest was
paid on the Class D Certificates or, if no such interest has been paid,
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from August 13, 1998, (ii) the transfer restrictions thereon shall be
modified or eliminated, as appropriate and (iii) certain provisions
relating to an increase in the stated rate of interest thereon shall be
eliminated), to be offered to Holders of the Class D Certificates in
exchange for such Class D Certificates pursuant to the Exchange Offer.
"Class D Holder" shall mean any Placement Agent, for so long as it
owns any Class D Registrable Certificates, and each of its successors,
assigns and direct and indirect transferees who become registered owners
of Class D Registrable Certificates under the Class D Trust Agreement;
provided that for purposes of Sections 4 and 5 of this Agreement, the term
"Class D Holder" shall include Participating Broker-Dealers (as defined in
Section 4(a)).
"Class D Registrable Certificates" shall mean the Class D
Certificates; provided, however, that the Class D Certificates shall cease
to be Class D Registrable Certificates upon the earliest to occur of (i)
the consummation of the Exchange Offer, (ii) a Registration Statement with
respect to such Class D Certificates shall have been declared effective
under the 1933 Act and such Class D Certificates shall have been disposed
of pursuant to such Registration Statement, (iii) such Class D
Certificates shall have been sold to the public pursuant to Rule 144(k)
(or any similar provision then in force, but not Rule 144A) under the 1933
Act or (iv) such Class D Certificates shall have ceased to be outstanding.
"Class D Trust Agreement" shall mean the Pass Through Trust
Agreement relating to the Class D Certificates dated as of August 13, 1998
among the Company and the Class D Trustee, as the same may be amended from
time to time in accordance with the terms thereof.
"Class D Trustee" shall mean The First National Bank of Maryland,
not in its individual capacity except as expressly set forth in the Class
D Trust Agreement, but solely as Trustee under the Class D Trust
Agreement, together with any successor Trustee under the terms of the
Class D Trust Agreement.
"Closing Date" shall mean the Closing Date as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Exchange Certificates" shall mean, together, the Class A Exchange
Certificates, the Class B Exchange Certificates, the Class C Exchange
Certificates and the Class D Exchange Certificates.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Certificates for Registrable Certificates pursuant to Section
2(a) hereof.
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"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.
"Holder" shall mean a Class A Holder, a Class B Holder, a Class C
Holder or a Class D Holder; 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)).
"Majority Holders" shall mean, together, the Holders of a majority
in aggregate principal amount of the Registrable Certificates then
outstanding; 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 0000 Xxx) (other than the
Placement Agents or subsequent holders of Registrable Certificates if such
subsequent holders are deemed to be such affiliates solely by reason of
their holding of such Registrable Certificates) 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.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"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 such prospectus,
and in each case including all material incorporated by reference therein.
"Registrable Certificates" shall mean, together, the Class A
Registrable Certificates, the Class B Registrable Certificates, the Class
C Registrable Certificates and the Class D Registrable Certificates.
"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
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limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all 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 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 disbursements relating to the qualification
of the Trust Agreements under applicable securities laws, (vi) the fees
and disbursements of the Trustees and their counsel, (vii) the fees and
disbursements of counsel for the Company and, in the case of a Shelf
Registration Statement, the 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 (viii) the fees
and disbursements 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, 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 Certificates by a Holder.
"Registration Statement" shall mean any registration statement of
the Company that covers any of the Exchange Certificates or Registrable
Certificates pursuant to the provisions of this Agreement and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
"Shelf Registration" shall mean a registration 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 all of the Registrable Certificates (but no
other securities unless approved by the Holders whose Registrable
Certificates are 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.
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"Trust Agreement" shall mean the Class A Trust Agreement, the Class
B Trust Agreement, the Class C Trust Agreement or the Class D Trust
Agreement, as applicable, and when used in the plural shall mean,
together, the Class A Trust Agreement, the Class B Trust Agreement, the
Class C Trust Agreement and the Class D Trust Agreement.
"Trustee" shall mean the Class A Trustee, the Class B Trustee, the
Class C Trustee or the Class D Trustee, as applicable, and when used in
the plural shall mean, together, the Class A Trustee, the Class B Trustee,
the Class C Trustee and the Class D Trustee.
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which Registrable Certificates are sold to an Underwriter
(as hereinafter defined) for reoffering to the public.
2. Registration Under the 0000 Xxx. To the extent not prohibited by
any applicable law or applicable interpretation of the Staff of the SEC, the
Company shall use its best efforts (A) to file with the SEC within 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 and (B) to cause such Exchange Offer
Registration Statement to be declared effective by the SEC within 180 days after
the Closing Date. The Company shall commence the Exchange Offer promptly after
the Exchange Offer Registration Statement has been declared effective by the
SEC. The Company 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 Certificates
validly tendered will be accepted for exchange;
(ii) the period for exchange (which shall be a period of at
least 20 consecutive business days from the date such notice is
mailed) (such days being the "Exchange Dates");
(iii) that any Registrable Certificate not tendered will
remain outstanding and continue to accrue interest, but will not
retain any rights under this Registration Rights Agreement;
(iv) that Holders electing to have a Registrable Certificate
exchanged pursuant to the Exchange Offer will be required to
surrender such Registrable Certificate, together with the enclosed
letters of transmittal, to the institution and at the office
specified in the notice prior to the close of business on the last
Exchange Date; and
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(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 office specified in the
notice, a telegram, telex, facsimile transmission or letter setting
forth the name of such Holder, the principal amount of Registrable
Certificates delivered for exchange, and a statement that such
Holder is withdrawing his election to have such Certificates
exchanged.
As soon as practicable after the last Exchange Date, the Company
shall or shall cause the Trustees to:
(i) accept for exchange Registrable Certificates or portions
thereof tendered and not validly withdrawn pursuant to the Exchange
Offer;
(ii) deliver, or cause to be delivered, to the Class A Trustee
for cancellation all Class A Registrable Certificates or portions
thereof so accepted for exchange by the Company, and issue, and
cause the Class A Trustee to promptly authenticate and mail to each
Class A Holder, Class A Exchange Certificates equal in principal
amount to the principal amount of the Class A Registrable
Certificates surrendered by such Class A Holder;
(iii) deliver, or cause to be delivered, to the Class B
Trustee for cancellation all Class B Registrable Certificates or
portions thereof so accepted for exchange by the Company, and issue,
and cause the Class B Trustee to promptly authenticate and mail to
each Class B Holder, Class B Exchange Certificates equal in
principal amount to the principal amount of the Class B Registrable
Certificates surrendered by such Class B Holder;
(iv) deliver, or cause to be delivered, to the Class C Trustee
for cancellation all Class C Registrable Certificates or portions
thereof so accepted for exchange by the Company, and issue, and
cause the Class C Trustee to promptly authenticate and mail to each
Class C Holder, Class C Exchange Certificates equal in principal
amount to the principal amount of the Class C Registrable
Certificates surrendered by such Class C Holder; and
(v) deliver, or cause to be delivered, to the Class D Trustee
for cancellation all Class D Registrable Certificates or portions
thereof so accepted for exchange by the Company, and issue, and
cause the Class D Trustee to promptly authenticate and mail to each
Class D Holder, Class D Exchange Certificates equal in principal
amount to the principal amount of the Class D Registrable
Certificates surrendered by such Class D Holder.
The Company shall use its best efforts to complete the Exchange Offer as
provided above and shall comply with the applicable requirements of the 1933
Act, the 1934 Act and other applicable
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laws and regulations in connection with the Exchange Offer. 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 Staff of the
SEC. 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 Certificates in the Exchange Offer.
(a) 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 Staff
of the SEC, (ii) the Exchange Offer Registration Statement is not declared
effective by within 180 days after the Closing Date, (iii) the Exchange Offer is
not for any other reason consummated by March 11, 1999 or (iv) the Exchange
Offer has been completed and in the opinion of counsel for the Placement Agents
a Registration Statement must be filed and a Prospectus must be delivered by the
Placement Agents in connection with any offering or sale of Registrable
Certificates, the Company shall file as soon as practicable after such
determination, date or notice of such opinion of counsel is given to the
Company, as the case may be, a Shelf Registration Statement providing for the
sale by the Holders of all of the Registrable Certificates, and shall use its
best efforts to have such Shelf Registration Statement declared effective by the
SEC by the 180th day after the Closing Date. The Company agrees to use its 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 Certificates covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement. The Company further agrees 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 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 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 agrees
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.
(b) The Company 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 Certificates
pursuant to the Shelf Registration Statement.
(c) 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 Shelf
Registration Statement is interfered with by any stop order, injunction or other
order or
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requirement of the SEC or any other governmental agency or court, such Shelf
Registration Statement will be deemed not to have become effective during the
period of such interference until the offering of Registrable Certificates
pursuant to such Registration Statement may legally resume. As provided for in
the Trust Agreements, the interest rate on the Class A Certificates, the Class B
Certificates, the Class C Certificates and the Class D Certificates shall be
7.14%, 8.14%, 8.92% and 8.86% per annum, respectively; however, in the event
that the Exchange Offer is not consummated and, if a Shelf Registration
Statement is required hereby, the Shelf Registration Statement is not declared
effective on or prior to March 11, 1999, the interest rate will increase by
0.50% per annum until the Exchange Offer is consummated or a Shelf Registration
Statement is declared effective.
(d) Without limiting the remedies available to the Placement Agents
and the Holders, the Company acknowledges that any failure by the Company to
comply with its obligations under Section 2(a) and Section 2(b) hereof may
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 obligations under Section 2(a)
and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of
the Company with respect to the Registration Statements pursuant to Section 2(a)
and Section 2(b) hereof, the Company 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 (y) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Certificates by the selling
Holders thereof and (z) shall comply as to form in all material respects
with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith, and use its best
efforts to cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to (x) keep
such Registration Statement effective for the applicable period under this
Registration Rights Agreement, and (y) 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 and (z)
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 Certificates or
Exchange Certificates;
(c) in the case of a Shelf Registration, furnish to each Holder of
Registrable Certificates, to counsel for the Placement Agents, to counsel
for the Holders and to each Underwriter of an Underwritten Offering of
Registrable Certificates, if any, and each such
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Underwriter's Counsel, 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 sale or other
disposition of the Registrable Certificates; and the Company consents 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 Certificates and any such Underwriters in connection with the
offering and sale of the Registrable Certificates covered by and in the
manner described in such Prospectus or any amendment or supplement thereto
in accordance with applicable law;
(d) use their best efforts to register or qualify the 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 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 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 Certificates owned by such Holder;
provided, however, that the Company shall not 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), (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, notify each Holder of
Registrable Certificates, 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 become 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, in each case 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
Certificates covered thereby, 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 or if the Company
receives any notification with respect to the suspension of the
qualification of the Registrable Certificates 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
12
such Registration Statement or Prospectus in order to make the statements
therein not misleading, and (vi) of any determination by the Company 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 immediate notice to each Holder of
the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Certificates, without charge, at least one conformed copy of
each Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto,
unless requested)
(h) in the case of a Shelf Registration, cooperate and cause the
Trustee to cooperate with the selling Holders of Registrable Certificates
to facilitate the timely preparation and delivery of certificates
representing Registrable Certificates to be sold and not bearing any
restrictive legends and enable such Registrable Certificates to be in such
denominations (consistent with the provisions of the Applicable Trust
Agreement) 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 Certificates;
(i) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(e)(v) hereof, use its 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
Certificates, 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 has amended or supplemented the Prospectus to
correct such misstatement or omission;
(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
(other than filings pursuant to the 0000 Xxx) 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 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 time file or make any
amendment to the Registration
13
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 Registration
Statement, the Holders or their counsel) shall object;
(k) obtain a CUSIP number for all Exchange Certificates or
Registrable Certificates, as the case may be, not later than the effective
date of a Registration Statement and provide the Trustees with printed
certificates evidencing the Exchange Certificates or the Registrable
Certificates, as the case may be, held in book entry form in a form
eligible for deposit with The Depository Trust Company;
(l) cause the Trust Agreements to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Certificates or Registrable Certificates, as
the case may be, cooperate with the Trustees and the Holders to effect
such changes to the Trust Agreements as may be required for the Trust
Agreements to be so qualified in accordance with the terms of the TIA and
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 Trust
Agreements to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable
Certificates, 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 cause the respective officers, directors and employees of the
Company to supply all information reasonably requested by any such
representative, Underwriter, attorney or accountant in connection with a
Shelf Registration Statement;
(n) in the case of a Shelf Registration, use its best efforts to
cause all Registrable Certificates 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 Certificates satisfy applicable listing
requirements;
(o) use its best efforts to cause the Exchange Certificates or
Registrable Certificates, as the case may be, to be rated by two
nationally recognized statistical rating organizations (as such term is
defined in Rule 436(g)(2) under the 0000 Xxx);
14
(p) if reasonably requested by any Holder of Registrable
Certificates 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 satisfactory notification of the matters to be incorporated in
such filing; and
(q) 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 class of
Registrable Certificates being sold) in order to expedite or facilitate
the disposition of such Registrable Certificates 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 Certificates with respect to the
business of the Company, 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 similar underwritten offerings and confirm
the same if and when requested, (ii) obtain an opinion of counsel to the
Company (which counsel and opinion, 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 Certificates, covering the matters customarily covered in
opinions requested in similar underwritten offerings, (iii) obtain "cold
comfort" letters from the independent certified public accountants of the
Company addressed to each selling Holder and Underwriter of Registrable
Certificates, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings, and (iv) deliver such documents and certificates
as may be reasonably requested by the Holders of a majority in principal
amount of the Registrable Certificates 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 Certificates to furnish to the Company such
information regarding the Holder and the proposed distribution by such Holder of
such Registrable Certificates as the Company may from time to time reasonably
request in writing.
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 Certificates pursuant to a Shelf
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
15
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 Certificates current at
the time of receipt of such notice. If the disposition of Registrable
Certificates pursuant to a Shelf Registration Statement shall be suspended for
more than an aggregate of 60 days, whether or not consecutive, during any
12-month period, the interest rate per annum borne by the Certificates will be
increased by 0.50% from the 61st day of the applicable 12-month period until
such time as disposition of Registrable Certificates is no longer suspended. If
the Company shall give any such notice to suspend the disposition of Registrable
Certificates pursuant to a Registration Statement, the Company shall extend the
period during which the Registration Statement shall be maintained effective
pursuant to this Registration Rights 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 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 investment bankers and manager or managers (the
"Underwriters") that will administer the offering will be selected by the
Majority Holders of the Registrable Certificates included in such offering.
4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff
of the SEC has taken the position that any broker-dealer that receives Exchange
Certificates for its own account in the Exchange Offer in exchange for
Certificates that were acquired by such broker-dealer 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 Certificates.
The Company understands that it is the Staff's 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 Certificates, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Certificates 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 Certificates for their own accounts,
so long as the Prospectus otherwise meets the requirements of the 1933 Act.
(b) In light of Section 4(a) above, notwithstanding the other
provisions of this Registration Rights Agreement, the Company agrees that the
provisions of this Registration Rights 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
16
as provided in clause (ii) below, in order to expedite or facilitate the
disposition of any Exchange Certificates by Participating Broker-Dealers
consistent with the positions of the Staff recited in Section 4(a) above;
provided that:
(i) the Company 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 90 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 Registration Rights Agreement to an
Exchange Offer Registration, to the extent not required by the
positions of the Staff of the SEC 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; provided that in connection with such application of
the Shelf Registration procedures set forth in Section 3 to an
Exchange Offer Registration, the Company shall be obligated (x) to
deal only with one entity representing the Participating
Broker-Dealers, which shall be Xxxxxx Xxxxxxx & Co. Incorporated
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.
(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 each Placement Agent, each Holder and each person,
if any, who controls any Placement Agent 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, any Placement Agent or any Holder,
from and against all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred by any Placement
Agent, 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
17
fact contained in any Registration Statement (or any amendment thereto) pursuant
to which Exchange Certificates or Registrable Certificates 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 any Placement
Agent or any Holder furnished to the Company in writing by such Placement Agent
or 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 Placement Agent from whom the person asserting
any such losses, claims, damages or liabilities purchased Certificates, or any
person controlling such Placement Agent, if a copy of the final Prospectus (as
then amended or supplemented if the Company shall have furnished any amendment
or supplements thereto) was not sent or given by or on behalf of such Placement
Agent to such person, if required by law so to have been delivered, at or prior
to the written confirmation of the sale of the 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, unless such
failure is the result of noncomplicance by the Company with Section 3 hereof. 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 1933 Act and the 0000 Xxx) 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, each Placement Agent 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, each Placement
Agent 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 each Placement Agent 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).
(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
18
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 any Placement Agent within the meaning of either
Section 15 of the 1933 Act or Xxxxxxx 00 xx xxx 0000 Xxx, (x) 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 any Placement Agent and persons who control such Placement Agent, such
firm shall be designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated. 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. 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 4 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
19
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 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 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 0000 Xxx) 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 Placement Agent, any Holder or any person controlling any Placement Agent 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
Certificates and (iv) any sale of Registrable Certificates pursuant to a Shelf
Registration Statement.
6. Miscellaneous. (a) No Inconsistent Agreements. The Company has
not entered into, and on or after the date of this Registration Rights Agreement
will not enter into, any agreement which is inconsistent with the rights granted
to the Holders of Registrable Certificates in this Registration Rights 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 other issued and outstanding
securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Registration
Rights Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Certificates affected by such
20
amendment, modification, supplement, waiver or consent; provided, however, that
no amendment, modification, supplement, 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.
(c) 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(c), which address initially is, with respect to the Placement Agents,
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(c).
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 each Trustee, at the
address specified in the Applicable Trust Agreement.
(d) Successors and Assigns. This Registration Rights 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 of the Purchase Agreement
or the Trust Agreements. If any transferee of any Holder shall acquire
Registrable Certificates, in any manner, whether by operation of law or
otherwise, such Registrable Certificates shall be held subject to all of the
terms of this Registration Rights 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
Registration Rights 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 any other Holder to comply with, or any breach by any other Holder of, any of
the obligations of such other Holder under this Registration Rights Agreement.
(e) Purchases and Sales of Certificates. The Company shall not, and
shall use its best efforts to cause its affiliates (as defined in Rule 405 under
the 1933 Act), not to purchase and then resell or otherwise transfer any
Certificates.
21
(f) Trustees. The Trustees shall take such action as may be
reasonably requested by the Company pursuant to Sections 2(a), 3(h), and 3(l)
hereof.
(g) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder and shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights hereunder.
(h) Counterparts. This Registration Rights 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.
(i) Headings. The headings in this Registration Rights Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(j) Governing Law. This Registration Rights Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York
(k) 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.
22
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
MIDWAY AIRLINES CORPORATION
By /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President
General Counsel
THE FIRST NATIONAL BANK OF MARYLAND, not
in its individual capacity, but solely
as Trustee under each of the Trust
Agreements
By
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistrant Vice Pesident
Confirmed and accepted as of
the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON
By Xxxxxx Xxxxxxx & Co. Incorporated
By /s/ Xxx Xxxxxx
------------------------------------
Name: Xxx Xxxxxx
Title: Principal
23
EXHIBIT B
Form of Opinion of
Fulbright & Xxxxxxxx L.L.P.
(i) No authorization, approval or other action by, and no notice to,
consent of, order of, or filing with, any United States Federal or New
York, governmental authority or regulatory body is required for the
consummation of the transactions contemplated by the Purchase Agreement,
except such as may be required under the blue sky laws of any jurisdiction
in connection with the purchase and distribution of the Certificates by
the Placement Agents and except for filings or recordings with the Federal
Aviation Administration and under the Uniform Commercial Code as in effect
in various jurisdictions, which filings or recordings shall have been
made, or duly presented for filing, on or prior to the respective Delivery
Date (as defined in the Note Purchase Agreement); the issuance and sale of
the Certificates to the Placement Agents pursuant to the Purchase
Agreement, the issuance of the Escrow Receipts attached to the
Certificates, the valid authorization, execution and delivery of the Pass
Through Trust Agreements and Note Purchase Agreement (the "Company Pass
Through Trust Documents") and the performance by the Company of its
respective obligations under the Company Pass Through Trust Documents do
not require the Company to obtain or effect any consent, approval,
authorization, registration or qualification of or with any governmental
agency or body of the United States or of the State of New York, except
such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Certificates by the
Placement Agents;
(ii) The statements in the Final Memorandum under the caption "ERISA
Considerations" fairly summarize the matters therein described;
(iii) Assuming (i) the accuracy of the representations and
warranties of the Company and you set forth in the Purchase Agreement,
(ii) the due performance by the Company and you of the covenants and
agreements set forth in the Purchase Agreement, (iii) your compliance with
the offering and transfer procedures and restrictions described in the
Final Memorandum and (iv) the accuracy of the representations and
warranties made in accordance with the Purchase Agreement and the Final
Memorandum by purchasers to whom you initially resell the Certificates
(with attached Escrow Receipts), the offer, sale and delivery of the
Certificates (with attached Escrow Receipts) to you in the manner
contemplated by the Purchase Agreement and the Final Memorandum and the
initial resale of the Certificates (with attached Escrow Receipts) by you
in the manner contemplated in the Final Memorandum and the Purchase
Agreement, do not require registration under the Securities Act of 1933,
as amended, and the Pass Through Trust Agreements do not require
qualification under the Trust Indenture Act of 1939, as amended, it being
understood that no opinion is expressed as to any subsequent resale of any
Certificates;
(iv) Neither the Company nor any of the Original Trusts is an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "Investment Company Act"); as of the Successor Pass
Through Trust Effective Date, assuming that all facts and circumstances
relevant to such matter are the same as is the case on the date hereof,
none of the Successor Trusts will be an "investment company" within the
meaning of the Investment Company Act; and none of the Original Trusts or
Successor Trusts, after giving effect to the offering and sale of the
Certificates and the application of the proceeds thereof as described in
the Final Memorandum, will be an "investment company" as defined in the
Investment Company Act;
(v) The Purchase Agreement, the Registration Rights Agreement and
the Company Pass Through Trust Agreements constitute legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with each of their terms (subject to applicable bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing,
regardless of whether such enforceability is considered in a proceeding in
equity or at law);
(vi) When each Successor Pass Through Trust Agreement becomes
effective in accordance with the terms of Section [___] of the related
successor Pass Through Trust Agreement (the "Successor Pass Through Trust
Effective Date"), the applicable conditions precedent set forth in Section
[___] of the corresponding Original Pass Through Trust Agreement and in
Section [___] of such Successor Pass Through Trust Agreement have been
satisfied and the related Assignment and Assumption Agreement has been
executed and delivered by each of the parties thereto, assuming that all
facts and circumstances relevant to such matter are the same as is the
case of the date hereof, each of the Certificates lawfully and validly
Outstanding (as such term is defined in the Original Pass Through Trust
Agreements) under the Original Pass Through Trust Agreement at such time
will be entitled to the benefits of such Successor Pass Through Trust
Agreement.
(vii) Assuming due authorization, execution and delivery of the Pass
Through Trust Agreements by the Trustee, each of the Successor Pass
Through Trust Agreements is a valid and biding obligation of the
applicable Successor Trustee enforceable against the applicable Successor
Trustee in accordance with its terms, in each case, enforceable in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity; when executed and delivered in accordance with the terms of the
Original Pass Through Trust Agreement and the Successor Pass Through Trust
Agreements and in the form of the applicable Form Assignment and
Assumption Agreement, properly completed, assuming that all facts and
circumstances relevant to such matter are the same as is the case on the
date hereof, each of the
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assignment and assumption agreements contemplated under the Original Pass
Through Trust Agreements to be executed and delivered by the Trustees and
the Successor Trustees (collectively, the "Assignment and Assumption
Agreements") will be a valid and binding obligation of each of the parties
thereto enforceable against each of such parties in accordance with its
terms; each of the Escrow Agreements, the Deposit Agreements and the Note
Purchase Agreement is a valid and binding obligation of each Escrow Agent
that is a party thereto enforceable against each such Escrow Agent in
accordance with its terms; the Escrow Receipts are validly issued and
outstanding and are entitled to the benefits of the applicable Escrow
Agreement; each of the Escrow Agreements and the Note Purchase Agreement
is valid and binding obligation of the Paying Agent that is a party
thereto enforceable against such Paying Agent in accordance with its
terms;
(viii) The statements set forth under the headings "Summary",
"Description of the Certificates", "Description of the Deposit
Agreements", "Description of the Escrow Agreements", "Description of the
Liquidity Facilities", "Description of the Intercreditor
Agreement","Description of the Equipment Notes" and "Exchange Offer;
Registration Rights" in the Final Memorandum, insofar as such statements
purport to summarize certain provisions of the Certificates, the Pass
Through Trust Agreements, the Deposit Agreements, the Escrow Agreements,
the Escrow Receipts, the Liquidity Facilities, the Intercreditor
Agreement, the Equipment Notes and the forms of "Leased Aircraft
Indenture", "Leased Aircraft Participation Agreement", "Lease", "Owned
Aircraft Indenture", "Owned Aircraft Participation Agreement" and "Special
Indenture" attached to the Note Purchase Agreement (collectively, the
"Form Aircraft Financing Documents"), and the Registration Rights
Agreement, fairly summarize such provisions referred to therein; Section
1110 of the Bankruptcy Code conforms in all material respects to the
description thereof contained in "Description of the Equipment Notes -
Remedies" in the Final Memorandum; and the statements in the Final
Memorandum under the caption "Certain U.S. Federal Income Tax
Consequences" insofar as they purport to describe the material tax
consequences of an investment in the Certificates (with attached Escrow
Receipts) fairly summarize the matters therein described;
(ix) While there is no authority addressing the characterization of
entities that are similar to the Trusts in all material respects, each of
the Original Trusts should be classified as a grantor trust for U.S.
federal income tax purposes. If, as may be the case, the Original Trusts
are not classified as grantor trusts, they will be classified as
partnerships for U.S. federal income tax purposes and will not be
classified as publicly traded partnerships taxable as corporations,
provided that at least 90% of each such Original Trust's gross income for
each taxable year of its existence is "qualifying income" within the
meaning of the Section 7704(b) of the Internal Revenue Code of 1986, as
amended; each of the Successor Trusts will be classified as a grantor
trust for U.S. federal income tax purposes;
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(x) Each of the Escrow Agreements creates a valid escrow under New
York law and a valid equitable interest in the escrowed property in favor
of the corresponding Trustee; neither a New York court nor a United States
Federal Court applying New York law or the U.S. Bankruptcy Code, if
properly presented with the issue and after having properly considered
such issue, would permit any holder of an Escrow Receipt to terminate the
related Escrow Agreement, except in accordance with its terms;
(xi) So long as an Escrow Agreement has not been terminated,
creditors of any person that is a holder of an Escrow Receipt thereunder
or holders of a lien against the assets of any such person, such as
trustees, receivers or liquidators (whether or not any insolvency
proceeding has been commenced) (collectively, the "Creditors"), may
acquire valid claims and liens, as to the Deposits established thereunder
and as to the related Deposit Agreement and Escrow Agreement, only against
the rights of the holder of such Escrow Receipt under such Escrow
Agreement, and do not have, and may not through the enforcement of such
Creditors' rights acquire, any greater right than the holder of such
Escrow Receipt with respect to such Deposits, Deposit Agreement or Escrow
Agreement;
(xii) No creditor of the Company or any of its subsidiaries, and no
holder of a lien against the assets of any such person, such a trustees,
receivers or liquidators (whether or not any insolvency proceeding has
been commenced), may acquire valid claims or liens as to the Deposits and
the related Deposit Agreements and Escrow Agreements;
and to such further effect with respect to other legal matters relating to the
Purchase Agreement, the Financing Agreements, the Pass Through Trust Agreements
and other Operative Documents and the sale of the Certificates thereunder as
counsel for the Placement Agents may reasonably request.
Such opinion shall also state that, in connection with the preparation of
the Final Memorandum, such counsel has participated in conferences with certain
officers of, and with the accountants and counsel for, the Company concerning
the preparation of the Final Memorandum. Such opinion may state that although
such counsel has made certain inquiries and investigations in connection with
the preparation of the Final Memorandum, the limitations inherent in the role of
outside counsel are such that such counsel cannot does not assume responsibility
for the accuracy or completeness of the statements made in the Final Memorandum,
except insofar as the statements relate to such counsel and except to the extent
set forth in paragraph (ii) of such counsel's opinion dated the date hereof.
Subject to the foregoing, such opinion shall state that such counsel advises the
Placement Agents that their work in connection with this matter did not disclose
any information that gave such counsel reason to the believe that the Final
Memorandum (except the financial statements and other information of a
statistical, accounting or financial nature included therein, as to which such
counsel does not express any view) as of its date or the date hereof, included
or includes an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
B-4
In such opinion, such counsel may assume that each of the parties to each
of the applicable documents, other than the Company, has full power, authority
and legal right to enter into such documents and that each such document has
been duly authorized, executed and delivered by each of such parties. In
addition, such counsel may rely upon the opinion of counsel for the Company and
counsel for the Trustee and may state that their opinion is limited to matters
governed by the laws of the State of New York and the federal law of the United
States.
B-5
EXHIBIT C
Form of Opinion of the General Counsel
of the Company
(i) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the state of its incorporation with
corporate power and authority under such laws to own, lease and operate
its properties and conduct its business as described in the Final
Memorandum and to perform its obligations under the Purchase Agreement,
the Pass Through Trust Agreements, the Note Purchase Agreement and the
Registration Rights Agreement;
(ii) The Company is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which it
owns or leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except to the extent that the
failure to so qualify or be in good standing would not have a Material
Adverse Effect;
(iii) The Company is a "citizen of the United States" (as defined in
Section 40102(a)(15) of Title 49 of the United States Code, as amended)
and is an air carrier operating under a certificate issued by the
Secretary of Transportation pursuant to Chapter 447 of Title 49, United
States Code, for aircraft capable of carrying 10 or more individuals or
6,000 pounds or more of cargo. There is in force with respect to the
Company an air carrier operating certificate issued pursuant to Part 121
of the regulations under the Federal Aviation Act; [all of the outstanding
shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable and are owned by the
Company, free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind];
(iv) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
valid authorization, issuance and delivery of the Certificates or the
Escrow Receipts, the valid authorization, execution, delivery and
performance by the Company of the Purchase Agreement, the Pass Through
Trust Agreements, the Note Purchase Agreement and the Registration Rights
Agreement (the "Subject Documents") or the consummation by the Company of
the transactions contemplated by such Subject Documents, except such as
may be required by the securities or blue sky laws of the various states
in connection with the offer and sale of the Certificates;
(v) The execution and delivery by the Company of the Subject
Documents, the issuance and sale of the Certificates (with attached Escrow
Receipts), the consummation by the Company of the transactions
contemplated in Subject Documents and compliance by the Company with the
terms thereof will not contravene (i) any provision of applicable
law, (ii) the certificate of incorporation or by-laws of the Company,
(iii) to such counsel's
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knowledge, any agreement or other instrument binding upon the Company that
is material to the Company or (iv) to such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company; assuming that all facts and circumstances
relevant to such matter are the same on the Successor Pass Through Trust
Effective Date as is the case on the date hereof, neither the execution
and delivery of the Assignment and Assumption Agreements on such Successor
Pass Through Trust Effective Date in accordance with the terms of the
Original Pass Through Trust Agreements and the Successor Pass Through
Trust Agreements and in the form of the applicable Form Assignment and
Assumption Agreement, nor the consummation by the parties thereto of the
transactions contemplated to be consummated thereunder on such Successor
Pass Through Trust Effective Date, will violate any law or governmental
rule or regulation applicable to the transactions contemplated by the
Assignment and Assumption Agreements;
(vi) The Subject Documents have each been duly authorized, executed
and delivered by the Company;
(vii) The sale of the Certificates (with the attached Escrow
Receipts) by the Company pursuant to the Purchase Agreement has been duly
authorized; and
(viii) There are no legal or governmental proceedings pending or
threatened to which the Company is a party or to which any of the
properties of the Company is subject other than proceedings accurately
described in all material respects in the Final Memorandum and proceedings
that would not have a Material Adverse Effect, or a Material Adverse
Effect on the power or ability of the Company to perform its obligations
under any Subject Document to which it is a party, or to consummate the
transactions contemplated by the Final Memorandum.
In addition, counsel shall state that such counsel or lawyers on his staff
have participated in the preparation of the Final Memorandum and nothing has
come to such counsel's attention that leads him to believe that the Final
Memorandum as of the date of the Purchase Agreement or at the Closing Date
contained or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein in
the light of the circumstances under which they were made not misleading, except
that such counsel need express no opinion with respect to the financial
statements, schedules and other financial data included in the Final Memorandum.
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EXHIBIT D
Form of Opinion of
Ober, Kaler, Xxxxxx & Xxxxxxx
(i) The First National Bank of Maryland ("First National") is a
national banking association duly organized and validly existing in good
standing under the laws of the United States and, in its individual
capacity, or as Pass Through Trustee, Indenture Trustee [,Paying Agent] or
Subordination Agent, has the full corporate power and authority to
execute, deliver and perform its obligations under the Pass Through Trust
Agreements, the Intercreditor Agreement, the Note Purchase Agreement, the
Liquidity Facilities, and the Escrow Agreements (collectively, the
"Transaction Documents") [and First National is a "citizen of the United
States" as defined in 49 U.S.C. ss. 40102];
(ii) Each of the Transaction Documents has been duly authorized,
executed and delivered by First National, in its individual capacity, or
as Pass Through Trustee, Indenture Trustee [,Paying Agent] or
Subordination Agent, as the case may be, and constitutes the legal, valid
and binding obligation of First National, in its individual capacity, or
as Pass Through Trustee, Indenture Trustee [,Paying Agent], or
Subordination Agent, as the case may be, enforceable against First
National, in its individual capacity, or as Pass Through Trustee,
Indenture Trustee [,Paying Agent], or Subordination Agent, as the case may
be, in accordance with their respective terms; each of the Original Pass
Through Trust Agreements is a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms;
(iii) The Certificates to be issued and dated the Closing Date have
been duly authenticated and delivered by First National pursuant to the
terms of the Original Pass Through Trust Agreements;
(iv) The Certificates are the legal, valid and binding obligations
of the Original Trusts, enforceable against the Original Trusts in
accordance with their terms and the terms of the Original Pass Through
Trust Agreements and are entitled to the benefits of the related Pass
Through Trust Agreements; the Exchange Certificates when issued in
accordance with the terms of the Original Pass Through Trust Agreements
and the Registration Rights Agreement, will be entitled to the benefits
and security afforded by the Original Pass Through Trust Agreements in
accordance with the terms of the Original Pass Through Trust Agreements;
(v) The execution, delivery and performance by First National, in
its individual capacity, or as Pass Through Trustee or as Indenture
Trustee [,Paying Agent] or Subordination Agent, as the case may be, of the
Transaction Documents or the Certificates will not contravene (i) any
provision of applicable law of the United States or the State of Maryland
governing the banking or trust powers of First National, (ii) the
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certificate of incorporation or by-laws of First National, (iii) to such
counsel's knowledge, any agreement or other instrument binding upon First
National or any of its subsidiaries that is material to First National and
its subsidiaries, taken as a whole, or (iv) to such counsel's knowledge,
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over First National or any subsidiary;
(vi) No authorization, consent or approval of, notice to or order
of, or filing with, any governmental authority or agency of the United
States or the State of Maryland governing the banking or trust powers of
First National is required for the execution, delivery or performance by
First National, in its individual capacity, or as Pass Through Trustee,
Indenture Trustee [,Paying Agent] or Subordination Agent, as the case may
be, of the Transaction Documents or the Certificates;
(vii) Assuming that the Trusts will not be taxable as corporations,
but, rather, will be classified as grantor trusts under subpart E, Part I
of Subchapter J of (or as a partnership under) the United States Internal
Revenue Code of 1986, as amended, (i) the Trusts will not be subject to
any tax (including, without limitation, net or gross income, tangible or
intangible property, net worth, capital, franchise or doing business tax),
fee or other governmental charge under the laws of the State of Maryland
or any political subdivision thereof and (ii) Certificateholders that are
not residents of or otherwise subject to tax in Maryland will not be
subject to any tax (including, without limitation, net or gross income,
tangible or intangible property, net worth, capital, franchise or doing
business tax), fee or other governmental charge under the laws of the
State of Maryland or any political subdivision thereof as a result of
purchasing, holding (including receiving payments with respect to) or
selling an Certificate;
(viii) To such counsel's knowledge, there are no proceedings pending
or threatened against or affecting First National in any court or before
any governmental authority, agency, arbitration board or tribunal which,
if adversely determined, individually or in the aggregate, would
materially and adversely affect any Trust or question the right, power and
authority of First National, in its individual capacity, or as Pass
Through Trustee, Indenture Trustee, [Paying Agent] or Subordination Agent,
as the case may be, to enter into or perform its obligation under the
Transaction Documents; and
(ix) Each of the Equipment Notes to be delivered to and registered
in the name of the Subordination Agent pursuant to the Participation
Agreements shall be held by the Subordination Agent as the trustee of the
Trustee under each Trust on behalf of the Certificateholders of such
Trust.
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