TRANS WORLD AIRLINES, INC.
10 1/4% Senior Secured Notes Due 2003
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement")
is made and entered into as of June 16, 1998, by and among Trans
World Airlines, Inc., a Delaware corporation (the "Company"),
First Security Bank, National Association, as Owner Trustee (the
"Owner Trustee") under the Trust Agreement N607TW dated as of
March 28, 1995 between the Owner Trustee and Internationale
Nederlanden Aviation Lease Delaware, Inc. (currently known as ING
Lease Delaware, Inc.) (the "Original Beneficiary") and Lazard
Freres & Co. LLC ("Lazard"). (The Original Beneficiary has
assigned its beneficial rights in the trust created by such Trust
Agreement to 767 Leasing HY, LLC ("767 Leasing").) Subject to the
terms and conditions stated in the Aircraft Sale and Note
Purchase Agreement made and entered into as of the 16th day of
June, 1998 among the Company, the Owner Trustee, 767 Leasing and
Lazard (the "Sale Agreement"), the Owner Trustee will sell to the
Company one Boeing 767-231 ETOPS aircraft and its associated
engines for $27,500,000, payable by the issuance by the Company
of (i) $14,500,000 aggregate principal amount of the Company's
10 1/4% Senior Secured Notes due 2003 (the "Notes") and (ii)
$13,000,000 aggregate principal amount of the Company's 10 1/4%
Mandatory Conversion Equity Notes due 1999 (the "Equity Notes").
The Notes will be issued pursuant to an indenture dated as of
June 16, 1998 (the "Indenture"), between the Company and First
Security Bank, National Association, as trustee (the "Trustee").
This Agreement is made pursuant to the Sale Agreement.
In order to fulfill its obligations to Owner Trustee under the
Sale Agreement, the Company hereby agrees with the Owner Trustee
and Lazard for the benefit of the holders of the Notes, the
Exchange Notes (as defined below) and the Private Exchange Notes
(as defined below) (collectively, the "Holders"), as follows:
SECTION 1. EXCHANGE OFFER REGISTRATION
The Company shall, at its cost, use its reasonable best
efforts to prepare and, not later than 60 days after (or if the
60th day is not a business day, the first business day
thereafter) the Issue Date (as defined in the Indenture) of the
Notes, file with the Securities and Exchange Commission (the
"Commission"), a registration statement (the "Exchange Offer
Registration Statement") on an appropriate form under the
Securities Act of 1933, as amended (the "Securities Act"), with
respect to a proposed offer (the "Registered Exchange Offer") to
the Holders of Transfer Restricted Notes (as defined below), who
are not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer, to issue and
deliver to such Holders, in exchange for the Notes, a like
aggregate principal amount of debt securities (the "Exchange
Notes") of the Company issued under the Indenture and identical
in all material respects to the Notes (except for the transfer
restrictions relating to the Notes) that would be registered
under the Securities Act. The Company shall use its reasonable
best efforts to cause such Exchange Offer Registration Statement
to become effective under the Securities Act within
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150 days (or if the 150th day is not a business day, the first
business day thereafter) after the Issue Date of the Notes and
shall keep the Exchange Offer Registration Statement effective
for not less than 20 business days (or longer if required by
applicable law) after the date on which notice of the Registered
Exchange Offer is mailed to the Holders (such period being called
the "Exchange Offer Registration Period").
If the Company effects the Registered Exchange Offer,
the Company will be entitled to close the Registered Exchange
Offer 20 business days after the commencement thereof; provided,
however, that the Company has accepted all the Notes theretofore
validly tendered in accordance with the terms of the Registered
Exchange Offer.
Following the declaration of the effectiveness of the
Exchange Offer Registration Statement, the Company shall promptly
commence the Registered Exchange Offer, it being the objective of
such Registered Exchange Offer to enable each Holder of Transfer
Restricted Notes electing to exchange the Notes for Exchange
Notes (assuming that such Holder is not an affiliate of the
Company within the meaning of the Securities Act, acquires the
Exchange Notes in the ordinary course of such Holder's business,
has no arrangements with any person to participate in the
distribution (within the meaning of the Securities Act) of the
Exchange Notes and is not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer)
to trade such Exchange Notes from and after their receipt without
any limitations or restrictions under the Securities Act and
without material restrictions under the securities laws of the
several states of the United States. In connection with such
Registered Exchange Offer, the Company shall take such further
action, including, without limitation, appropriate filings under
state securities laws, as may be necessary to realize the
foregoing objective subject to the proviso of Section 3(h).
The Company acknowledges that, pursuant to current
interpretations by the Commission's staff of Section 5 of the
Securities Act, in the absence of an applicable exemption
therefrom, (i) each Holder that is a broker-dealer electing to
exchange Notes, acquired for its own account as a result of
market making activities or other trading activities, for
Exchange Notes (an "Exchanging Dealer"), is required to deliver a
prospectus containing the information set forth in Annex A hereto
on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer"
section, and in Annex C hereto in the "Plan of Distribution"
section of such prospectus in connection with a sale of any such
Exchange Notes received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) Lazard selling Exchange Notes
acquired in exchange for Notes constituting any portion of an
unsold allotment is required to deliver a prospectus containing
the information required by Items 507 or 508 of Regulation S-K
under the Securities Act, as applicable, in connection with such
sale.
The Company shall use its reasonable best efforts to
keep the Exchange Offer Registration Statement effective and to
amend and supplement the prospectus contained therein in order to
permit such prospectus to be lawfully delivered by all persons
subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Notes; provided,
however, that (i) in the case where such prospectus and any
amendment or supplement thereto must be
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delivered by an Exchanging Dealer, such period shall be the
lesser of 180 days after the expiration date of the Registered
Exchange Offer and the date on which all Exchanging Dealers have
sold all Exchange Notes held by them (unless such period is
extended pursuant to Section 3(j) below), and (ii) the Company
shall make such prospectus and any amendment or supplement
thereto available to any broker-dealer for use in connection with
any resale of any Exchange Notes for a period not less than 90
days after the consummation of the Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer,
Lazard holds Notes which constitute some or all of the Notes that
it acquired pursuant to the Sale Agreement, the Company,
simultaneously with the delivery of the Exchange Notes pursuant
to the Registered Exchange Offer, shall issue and deliver to
Lazard upon the written request of Lazard in exchange (the
"Private Exchange") for the Notes held by Lazard, a like
principal amount of debt securities of the Company issued under
the Indenture and identical in all material respects (including
the existence of restrictions on transfer under the Securities
Act and the securities laws of the several states of the United
States) to the Notes (the "Private Exchange Notes"). The Notes,
the Exchange Notes and the Private Exchange Notes are herein
collectively called the "Securities".
In connection with the Registered Exchange Offer, the
Company shall:
(a) 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;
(b) keep the Registered Exchange Offer open for not
less than 20 business days (or longer, if required by applicable
law) after the date notice thereof is mailed to the Holders;
(c) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of
Manhattan, The City of New York, which may be the Trustee or an
affiliate of the Trustee;
(d) permit Holders to withdraw tendered Notes at any
time prior to the close of business, New York time, on the last
business day on which the Registered Exchange Offer shall remain
open; and
(e) otherwise comply in all material respects with all
applicable law.
As soon as practicable after the close of the
Registered Exchange Offer or the Private Exchange, as the case
may be, the Company shall:
(i) accept for exchange all the Notes validly
tendered and not withdrawn pursuant to the Registered
Exchange Offer or the Private Exchange, as the case may be;
(ii) deliver to the Trustee for cancellation all
the Notes so accepted for exchange; and
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(iii) cause the Trustee to authenticate and
promptly deliver, to each Holder of the Notes, Exchange
Notes or Private Exchange Notes, as the case may be, equal
in principal amount to the Notes of each Holder so accepted
for exchange.
The Indenture will provide that the Exchange Notes will not
be subject to the transfer restrictions set forth in the
Indenture, that all the Securities will vote and consent together
on all matters as one class and that none of the Securities will
have the right to vote or consent as a class separate from one
another on any matter.
Each Holder participating in the Registered Exchange
Offer shall be required to represent to the Company that, at the
time of the consummation of the Registered Exchange Offer, (i)
any Exchange Notes received by such Holder will be acquired in
the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in
the distribution of the Notes or the Exchange Notes within the
meaning of the Securities Act, (iii) such Holder is not an
"affiliate", as defined in Rule 405 of the Securities Act, of the
Company or, if it is an affiliate, such Holder will comply with
the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (iv) if such Holder is
not a broker-dealer, it is not engaged in, and does not intend to
engage in, the distribution of the Exchange Notes, and (v) if
such Holder is a broker-dealer, it will receive Exchange Notes
for its own account in exchange for Notes that were acquired as a
result of market-making activities or other trading activities
and it will deliver a prospectus in connection with any resale of
such Exchange Notes.
Notwithstanding any other provisions hereof, the
Company will ensure that (i) any Exchange Offer Registration
Statement and any amendment thereto and any prospectus forming
part thereof and any supplement thereto will comply in all
material respects with the Securities 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, will not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
that in no such case shall the Company be responsible for
information concerning Lazard included in the Exchange Offer
Registration Statement, the prospectus contained therein, or any
amendment or supplement thereto, as the case may be.
SECTION 2. SHELF REGISTRATION STATEMENT
(a) If (i) because of any change in law or in
applicable interpretations thereof by the staff of the
Commission, the Company is not permitted to effect a Registered
Exchange Offer, as contemplated by Section 1 hereof, (ii) the
Registered Exchange Offer is not consummated within 180 days of
the date of this Agreement, (iii) Lazard so requests with respect
to the Notes (or the Private Exchange Notes) not eligible to be
exchanged for Exchange Notes in
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the Registered Exchange Offer and held by it following
consummation of the Registered Exchange Offer or (iv) any Holder
(other than an Exchanging Dealer) is not eligible to participate
in the Registered Exchange Offer or, in the case of any Holder
(other than an Exchanging Dealer) that participates in the
Registered Exchange Offer, such Holder does not receive freely
tradable Exchange Notes on the date of the exchange, the Company
shall take the following actions:
(i) The Company shall use its reasonable best efforts,
at its cost, as promptly as practicable (but in no event more
than the later of (i) 60 days after the Issue Date and (ii)
30 days after so required or requested pursuant to this
Section 2), to file with the Commission and thereafter
shall use its reasonable best efforts to cause to be
declared effective a registration statement (the "Shelf
Registration Statement" and, together with the Exchange
Offer Registration Statement, a "Registration Statement")
on an appropriate form under the Securities Act relating to
the offer and sale of the Transfer Restricted Notes (as
hereinafter defined) by the Holders thereof from time to
time in accordance with the methods of distribution set
forth in the Shelf Registration Statement and Rule 415
under the Securities Act (hereinafter, the "Shelf
Registration"); provided, however, that no Holder (other
than the Owner Trustee and Lazard) shall be entitled to
have the Securities held by it covered by such Shelf
Registration Statement unless such Holder agrees in writing
to be bound by all the provisions of this Agreement
applicable to such Holder (including certain
indemnification obligations).
(ii) The Company shall use its reasonable best
efforts to keep the Shelf Registration Statement
continuously effective in order to permit the prospectus
included therein to be lawfully delivered by the Holders of
the relevant Securities, for a period of two years (or for
such longer period if extended pursuant to Section 3(j)
below) from the Issue Date or such shorter period that will
terminate when all the Securities covered by the Shelf
Registration Statement have been sold pursuant thereto or
can be sold pursuant to Rule 144(k) thereof. Subject to
Section 6(b), the Company shall be deemed not to have used
its reasonable best efforts to keep the Shelf Registration
Statement effective during the requisite period if it
voluntarily takes any action that would result in Holders
of Securities covered thereby not being able to offer and
sell such Securities during that period, unless such action
is required by applicable law; provided, however, that the
Company shall not be deemed to have voluntarily taken any
such action if it enters, in good faith, into negotiations
concerning, or executes and delivers any agreement or other
document relating to, any business combination, acquisition
or disposition.
(iii) Notwithstanding any other provision of this
Agreement to the contrary, the Company shall cause the
Shelf Registration Statement and the related prospectus and
any amendment or supplement thereto, as of the effective
date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the
applicable requirements of the Securities Act and the rules
and regulations of the Commission and (ii) not to contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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(b) No Holder of Securities may include any of its
Securities in the Shelf Registration Statement unless such Holder
furnishes to the Company in writing, within 10 business days
after receipt of a request therefor (which initial request shall
be made within 40 days after the Issue Date to the Holders of
record on a date not more than 5 days prior to such request),
such information and representations and warranties as the
Company may reasonably request for use in connection with the
Shelf Registration Statement or prospectus or preliminary
prospectus included therein. No Holder of Securities shall be
entitled to Special Interest, pursuant to Section 6 hereof, if
such Holder's Securities are excluded from the Shelf Registration
Statement because such Holder failed to furnish the Company in
writing such information and representations and warranties
reasonably requested by the Company for use in connection with
the Shelf Registration Statement or prospectus or preliminary
prospectus included therein. Each Holder as to which the Shelf
Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed
in order to make the information previously provided to the
Company by such Holder not misleading.
SECTION 3. REGISTRATION PROCEDURES
In connection with the Shelf Registration contemplated
by Section 2 hereof and, to the extent applicable, any Registered
Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Company shall (i) furnish to the Owner Trustee
and Lazard, prior to the filing thereof with the Commission, a
copy of the Registration Statement and each amendment thereof and
each supplement, if any, to the prospectus included therein, and
in the event that (x) Lazard (with respect to securities acquired
in other than market making or trading activity) is participating
in the Registered Exchange Offer or (y) either the Owner Trustee
or Lazard is making use of the Shelf Registration Statement,
shall use its reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as the
Owner Trustee and Lazard, as applicable, reasonably may propose;
(ii) include the information set forth in Annex A hereto on the
cover, in Annex B hereto in the "Exchange Offer Procedures"
section and the "Purpose of the Exchange Offer" section and in
Annex C hereto in the "Plan of Distribution" section of the
prospectus forming a part of the Exchange Offer Registration
Statement and include the information set forth in Annex D hereto
in the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; (iii) if requested by Lazard, include the
information required by Items 507 or 508 of Regulation S-K under
the Securities Act, as applicable, in the prospectus forming a
part of the Exchange Offer Registration Statement; (iv) include
within the prospectus contained in the Exchange Offer
Registration Statement a section entitled "Plan of Distribution",
reasonably acceptable to Lazard, which shall contain a summary
statement of the positions taken or policies made by the staff of
the Commission with respect to the potential "underwriter" status
of any broker-dealer that is the beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) of Exchange Notes received by such
broker-dealer in the Registered Exchange Offer (a "Participating
Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the staff of the Commission or such
positions or policies, in the reasonable judgment of Lazard based
upon advice of counsel (which may be in-house counsel), represent
the prevailing views of the staff of
7
the Commission; and (v) in the case of a Shelf Registration
Statement, include the names of the Holders who propose to sell
Securities pursuant to the Shelf Registration Statement as
selling securityholders.
(b) The Company shall give written notice to the Owner
Trustee, Lazard, the Holders of the Securities and any
Participating Broker-Dealer from whom the Company has received
prior written notice that it will be a Participating
Broker-Dealer in the Registered Exchange Offer (which notice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the prospectus until the
requisite changes have been made):
(i) when the Registration Statement or any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the Commission for
amendments or supplements to the Registration Statement or
the prospectus included therein or for additional
information (provided, however, that with respect to any
requests prior to the effectiveness of the Registration
Statement, the Company shall be required to give written
notice only to the Owner Trustee and to Lazard and its
counsel, Xxxxxx Xxxxxxx & Xxxx LLP);
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the suspension
of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires the
Company to make changes in the Registration Statement or
the prospectus in order that the Registration Statement or
the prospectus does not contain an untrue statement of a
material fact nor omit to state a material fact required to
be stated therein or necessary to make the statements
therein, in light of the circumstances under which they
were made, not misleading.
(c) The Company shall use its reasonable best efforts
to obtain the withdrawal at the earliest possible time of any
order suspending the effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of
Securities included within the coverage of the Shelf
Registration, without charge, at least one copy of the Shelf
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder
so requests in writing, all exhibits thereto (including those, if
any, incorporated by reference).
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(e) The Company shall deliver to each Exchanging Dealer
or Participating Broker-Dealer, to the Owner Trustee, to Lazard,
and to any other Holder who so requests, without charge, at least
one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements
and schedules, and, if the Owner Trustee, Lazard or any such
Holder requests, all exhibits thereto (including those
incorporated by reference).
(f) The Company shall deliver to each Holder of
Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as
such person may reasonably request. The Company consents, subject
to the provisions of this Agreement, to the use of the prospectus
or any amendment or supplement thereto included in the Shelf
Registration Statement by each of the selling Holders of the
Securities in connection with the offering and sale of the
Securities covered by such prospectus, or any such amendment or
supplement.
(g) The Company shall deliver to Lazard, any Exchanging
Dealer, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered
Exchange Offer, without charge, as many copies of the final
prospectus included in the Exchange Offer Registration Statement
and any amendment or supplement thereto as such persons may
reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by Lazard, if necessary, any
Exchanging Dealer, any Participating Broker-Dealer and such other
persons required to deliver a prospectus following the Registered
Exchange Offer in connection with the offering and sale of the
Exchange Notes covered by the prospectus, or any amendment or
supplement thereto, included in such Exchange Offer Registration
Statement.
(h) Prior to any public offering of the Securities,
pursuant to any Registration Statement, the Company shall use its
reasonable best efforts to register or qualify or cooperate with
the Holders of the Securities included therein and their
respective counsel in connection with the registration or
qualification of the Securities for offer and sale under the
securities or "blue sky" laws of such states of the United States
as any Holder of the Securities reasonably requests in writing
and do any and all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the Securities
covered by such Registration Statement; provided, however, that
the Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it is not then so qualified,
(ii) take any action which would subject it to general service of
process or to taxation in any jurisdiction where it is not then
so subject or (iii) register or qualify Securities or take any
other action under the securities or "blue sky" laws of any
jurisdiction if, in the judgment of the Board of Directors of the
Company, the consequences of such registration, qualification or
other action would be unduly burdensome to the Company.
(i) The Company shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to
any Registration Statement free of any restrictive legends and in
such denominations and
9
registered in such names as the Holders may request a reasonable
period of time prior to sales of the Securities pursuant to such
Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 3(b) above during the
period for which the Company is required to maintain an effective
Registration Statement, the Company shall promptly prepare and
file a post-effective amendment to the Registration Statement or
a supplement to the related prospectus and any other required
document so that, as thereafter delivered to Holders of the Notes
or the Exchange Notes or purchasers of Securities, the prospectus
will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the
Company notifies the Owner Trustee, Lazard, the Holders of the
Securities and any known Exchanging Dealer or Participating
Broker-Dealer in accordance with paragraphs (ii) through (v) of
Section 3(b) above to suspend the use of the prospectus until the
requisite changes to the prospectus have been made, then the
Owner Trustee, Lazard, the Holders of the Securities and any such
Exchanging Dealer or Participating Broker-Dealer shall suspend
use of such prospectus, and the period of effectiveness of the
Shelf Registration Statement provided for in Section 2 above and
the Exchange Offer Registration Statement provided for in Section
1 above shall each be extended (i) by the number of days from and
including the date of the giving of such notice to and including
the date when the Owner Trustee, Lazard, the Holders of the
Securities and any known Exchanging Dealer or Participating
Broker-Dealer shall have received such amended or supplemented
prospectus pursuant to this Section 3(j) or (ii) if earlier,
until the date when none of the Securities represent Transfer
Restricted Notes (as defined in Section 6(d)).
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number
for the Notes, the Exchange Notes or the Private Exchange Notes,
as the case may be, and provide the applicable trustee with
printed certificates for the Notes, the Exchange Notes or the
Private Exchange Notes, as the case may be, in a form eligible
for deposit with The Depository Trust Company.
(l) The Company will comply with all rules and
regulations of the Commission to the extent and so long as they
are applicable to the Registered Exchange Offer or the Shelf
Registration and will make generally available to its security
holders (or otherwise provide in accordance with Section 11(a) of
the Securities Act) an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no later than
45 days after the end of a 12-month period (or 90 days, if such
period is a fiscal year) beginning with the first month of the
Company's first fiscal quarter commencing after the effective
date of the Registration Statement, which statement shall cover
such 12-month period.
(m) The Company shall cause the Indenture to be
qualified under the Trust Indenture Act of 1939, as amended, in a
timely manner and containing such changes, if any, as shall be
necessary for such qualification. In the event that such
qualification would require the appointment of a new trustee
under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the
Indenture.
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(n) The Company may require each Holder of Securities
to be sold pursuant to the Shelf Registration Statement to
furnish to the Company such information regarding the Holder and
the distribution of the Securities as the Company may from time
to time reasonably require for inclusion in the Shelf
Registration Statement, and the Company may exclude from such
registration the Securities of any Holder that unreasonably fails
to furnish such information within a reasonable time after
receiving such request.
(o) The Company shall enter into such customary
agreements (including, if requested, an underwriting agreement in
customary form) and take all such other action, if any, as may be
required in order to facilitate the disposition of the Securities
pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, subject to
appropriate confidentiality arrangements being entered into, the
Company shall (i) make available at reasonable times for
inspection by the Holders of the Securities, any underwriter
participating in any disposition pursuant to the Shelf
Registration Statement and any attorney, accountant or other
agent retained by the Holders of the Securities or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and (ii) cause
the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested
by the Holders of the Securities or any such underwriter,
attorney, accountant or agent in connection with the Shelf
Registration Statement, in each case, as shall be reasonably
necessary, in the judgment of the Holder or any such underwriter,
attorney, accountant or agent referred to in this paragraph, to
conduct a reasonable investigation within the meaning of Section
11 of the Securities Act.
(q) In the case of any Shelf Registration, the Company,
if requested by any Holder of Securities covered thereby, shall
cause (i) its counsel to deliver an opinion and updates thereof
relating to the Securities in customary form addressed to such
Holders and the managing underwriters, if any, thereof and dated,
in the case of the initial opinion, the effective date of such
Shelf Registration Statement covering the matters customarily
covered in opinions of counsel requested in underwritten
offerings and such other matters as may be reasonably requested
by the managing underwriter or underwriters; (ii) its officers to
execute and deliver all customary documents and certificates and
updates thereof reasonably requested by any underwriters of the
applicable Securities; and (iii) its independent public
accountants to provide to the selling Holders of the applicable
Securities and any underwriter therefor a comfort letter in
customary form and covering matters of the type customarily
covered in comfort letters in connection with primary
underwritten offerings, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if
requested by the Owner Trustee, Lazard or any known Exchanging
Dealer or Participating Broker-Dealer, the Company shall cause
(i) its counsel to deliver to the Owner Trustee, Lazard or such
Exchanging Dealer or Participating Broker-Dealer, signed opinions
in the forms set forth in Section 7.04(e) of the Sale Agreement
with such changes as are customary in connection with the
preparation of a Registration Statement and (ii) its independent
public accountants to deliver to the Owner
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Trustee, Lazard or such Exchanging Dealer or Participating
Broker-Dealer a comfort letter, in customary form, meeting the
requirements as to the substance thereof as set forth in Section
7.04(f) of the Sale Agreement, with appropriate date changes.
(s) If a Registered Exchange Offer or a Private
Exchange is to be consummated, upon delivery of the Notes by
Holders to the Company (or to such other Person as directed by
the Company) in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be, the Company shall xxxx, or
cause to be marked, on the Notes so exchanged that such Notes are
being canceled in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be; in no event shall the Notes
be marked as paid or otherwise satisfied.
(t) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a
member of an underwriting syndicate or selling group or "assist
in the distribution" (within the meaning of the Conduct Rules and
the By-Laws of the National Association of Securities Dealers,
Inc. ("NASD")) thereof, whether as a Holder of such Securities or
as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof,or otherwise, the Company shall assist
such broker-dealer in complying with the requirements of such
Rules and By-Laws (including without limitation the
indemnification of any "qualified independent underwriter"
required thereby).
(u) The Company will use its reasonable best efforts to
cause the Transfer Restricted Notes to be eligible for inclusion
in the National Association of Securities Dealers, Inc. Private
Offerings, Resales and Trading through Automated Linkages trading
system.
(v) The Company shall use its reasonable best efforts
to take all other steps necessary to effect the registration of
the Securities covered by a Registration Statement contemplated
hereby.
(w) The Company agrees that it will not include in the
registration contemplated by the Shelf Registration Statement any
securities other than the Securities.
(x) The Company hereby agrees to use its reasonable
best efforts to list the Exchange Notes or the Notes on the
American Stock Exchange or on such other stock exchange or market
as the common stock, par value $.01 per share, of the Company is
then principally traded no later than the earliest to occur of
(i) the effectiveness of the initial Exchange Offer Registration
Statement and (ii) the effectiveness of the initial Shelf
Registration Statement, provided that such Exchange Notes or
Notes meet the minimum requirements for listing on any such
exchange or market, and, if applicable, to maintain such listing
for so long as any of the Exchange Notes or Notes are
outstanding.
SECTION 4. REGISTRATION EXPENSES
The Company shall bear all fees and expenses incurred
in connection with the performance of its obligations under
Sections 1 through 3 hereof (including the reasonable fees and
expenses of Xxxxxx Xxxxxxx & Xxxx LLP, counsel for Lazard,
incurred in connection with the Registered Exchange Offer),
whether or not the Registered Exchange Offer or a Shelf
12
Registration is filed or becomes effective, and, in the event of
a Shelf Registration, shall bear, or reimburse the Holders of the
Securities covered thereby for, the reasonable fees and
disbursements of one firm of counsel designated by the Holders of
a majority in principal amount of the Securities covered thereby
to act as counsel for the Holders of the Securities in connection
therewith, it being understood that the Company shall not be
responsible for the fees and expenses of more than one counsel
employed at any one time.
The Company will, in any event, bear its internal
expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit, and the fees
and expenses of any Person, including special experts, retained
by the Company. The Holders shall bear the expense of any
broker's commission or underwriters' discount or commission.
SECTION 5. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless
each Holder of the Securities, any Exchanging Dealer, any
Participating Broker-Dealer and each person, if any, who
controls such Holder, Exchanging Dealer or Participating
Broker-Dealer within the meaning of the Securities Act or the
Exchange Act (each Holder, any Exchanging Dealer, any
Participating Broker-Dealer and such controlling persons referred
to in this Section 5(a) and the Company and its controlling
persons referred to in Section 5(b), being collectively referred
to herein, as the case may be, as the "indemnified parties") from
and against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not
limited to, any losses, claims, damages, liabilities or actions
relating to purchases and sales of the Securities) to which each
indemnified party may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in a Registration Statement or prospectus or in
any amendment or supplement thereto or in any preliminary
prospectus relating to a Registration Statement, or arise out of,
or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and
shall reimburse, as incurred, the indemnified parties for any
legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage,
liability or action in respect thereof; provided, however, that
(i) the Company shall not be liable in any such case to the
extent that such loss, claim, damage or liability arises out of
or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in a Registration Statement
or prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Registration Statement in
reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company by or on
behalf of such Holder specifically for inclusion therein, (ii)
with respect to any untrue statement or omission or alleged
untrue statement or omission made in any prospectus relating to
such Registration Statement, the indemnity agreement contained in
this subsection (a) shall not inure to the benefit of any person
as to which there is a prospectus delivery requirement (a
"Delivering Seller") that sold the Securities to the person
asserting any such losses, claims,
13
damages or liabilities to the extent that any such loss, claim,
damage or liability of such Delivering Seller results from the
fact that there was not sent or given to such person, on or prior
to the written confirmation of such sale, a copy of the relevant
prospectus, as amended and supplemented, provided that (I) the
Company shall have previously furnished copies thereof to such
Delivering Seller in accordance with this Agreement and (II) such
furnished prospectus, as amended and supplemented, would have
corrected any such untrue statement or omission or alleged untrue
statement or omission, and (iii) this indemnity agreement will be
in addition to any liability which the Company may otherwise have
to such indemnified party. The Company shall also indemnify
underwriters, selling brokers, dealer-managers and similar
securities industry professionals participating in the
distribution (in each case as described in the Registration
Statement), their officers and directors and each person who
controls such persons within the meaning of the Securities Act or
the Exchange Act to the same extent as provided above with
respect to the indemnification of the Holders of the Securities
if requested by such Holders; provided, however, that the Company
shall not indemnify any such party to the extent its liability
arises from its failure to comply with the requirements described
in Annexes A, B and C hereto.
(b) Each Holder of the Securities, severally and not
jointly, will indemnify and hold harmless the Company, each other
Holder and each person, if any, who controls the
Company and each such Holder within the meaning of the Securities
Act or the Exchange Act from and against any losses, claims,
damages or liabilities or any actions in respect thereof to which
the Company, each other Holder or any such controlling person may
become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to a
Shelf Registration, or arise out of or are based upon the
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, but in
each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company by or on
behalf of such Holder specifically for inclusion therein; and,
subject to the limitation set forth immediately preceding this
clause, shall reimburse, as incurred, the Company, each such
Holder for any legal or other expenses reasonably incurred by the
Company, each other Holder or any such controlling person in
connection with investigating or defending any loss, claim,
damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Holder
may otherwise have to the Company, each other Holder or any of
their controlling persons.
(c) Promptly after receipt by an indemnified party
under this Section 5 of notice of the commencement of any action
or proceeding (including a governmental investigation), such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 5, notify
the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not, in any
event, relieve the indemnifying party from any obligations to any
indemnified party, except to the extent that it is prejudiced or
harmed in any material respect by failure to give such prompt
notice. In case any such action is
14
brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with one
counsel (and local counsel as necessary) reasonably satisfactory
to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party
under this Section 5 for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. No
indemnifying party shall, without the prior written consent of
the indemnified party, not to be unreasonably withheld, effect
any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are
the subject matter of such action and does not include any
injunctive relief against such indemnified party. No indemnifying
party shall be liable for any amounts paid in settlement of any
action or claim without its written consent, which consent shall
not be unreasonably withheld.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification
provided for in the foregoing paragraphs of this Section 5 is
applicable in accordance with its terms but for any reason is
held to be unavailable or insufficient, then each indemnifying
party will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and
other expenses reasonably incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or
any claim asserted, but after deducting any contribution received
by the indemnifying party from persons other than the party to be
indemnified), to which the indemnifying party and the party to be
indemnified may be subject in such proportion as shall be
appropriate to reflect the relative fault of the indemnifying
party, on the one hand, and the party to be indemnified, on the
other, with respect to the statements or omissions which resulted
in such loss, claim, liability, expense or damage, or action in
respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or such
Holder or such other indemnified person, as the case may be, on
the other the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The parties hereto agree that it would not
be just and equitable if contributions pursuant to this Section
5(d) were to be determined by pro rata allocation or by any other
method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the losses,
claims, liabilities, expenses or damages, or actions in respect
thereof, referred to above in this Section 5(d) shall be deemed
to include, for purpose of this Section 5(d), any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim
which is the subject of this subsection (d). Notwithstanding the
provisions of this Section 5(d), the Holders of the Securities
shall not be required to contribute any amount in
15
excess of the amount by which the net proceeds received by such
Holders from the sale of the Securities pursuant to a
Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person found guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section
5(d), any person who controls a party to this Agreement within
the meaning of the Securities Act or the Exchange Act will have
the same rights to contribution as that party, subject in each
case to the provisions hereof. Any party entitled to
contribution, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim for
contribution may be made under this Section 5(d), will notify any
such party or parties from whom contribution may be sought, but
the omission so to notify will not relieve the party or parties
from whom contribution may be sought from any other obligation it
or they may have under this Section 5(d). Except for a settlement
entered into pursuant to the penultimate sentence of Section 5(c)
hereof, no party will be liable for contribution with respect to
any action or claim settled without its written consent (which
consent will not be unreasonably withheld or delayed).
(e) The agreements contained in this Section 5 shall survive
the sale of the Securities pursuant to a Registration Statement
and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
SECTION 6. SPECIAL INTEREST
(a) If any of the following events occurs (each such
event in clauses (i) through (v) below a "Registration Default"):
(i) if by August 15, 1998, neither the Exchange
Offer Registration Statement nor a Shelf Registration
Statement has been filed with the Commission;
(ii) if by November 13, 1998, neither the Exchange
Offer Registration Statement nor the Shelf Registration
Statement is declared effective;
(iii) if by December 13, 1998, neither the
Registered Exchange Offer is consummated nor, if required
in lieu thereof, the Shelf Registration Statement is
declared effective by the Commission;
(iv) if, notwithstanding the filing of the Exchange
Offer Registration Statement or the effectiveness thereof
or the consummation of the Registered Exchange Offer,
pursuant to the terms of subparagraph (i) of Section 2(a)
hereof, by the later of (x) August 15, 1998 and (y) 30 days
after a request made pursuant to Section 2, a Shelf
Registration Statement has not been filed with the
Commission or such Shelf Registration Statement has not
been declared effective by the Commission within 150 days
after any such request; or
16
(v) if after either the Exchange Offer Registration
Statement or the Shelf Registration Statement is declared
effective (A) such Registration Statement thereafter ceases
to be effective; or (B) such Registration Statement or the
related prospectus ceases to be usable (except as permitted
in paragraph (b)) in connection with resales of Transfer
Restricted Notes during the periods specified herein,
the Company will pay special interest ("Special Interest") to
each Holder of Transfer Restricted Notes, during the first 90-day
period immediately following such Registration Default at a per
annum rate of 0.50% per Transfer Restricted Note held by such
Holder. The amount of Special Interest will increase by an
additional 0.50% per annum per Transfer Restricted Note, for each
subsequent 90-day period until the date on which the Exchange
Offer Registration Statement or Shelf Registration Statement is
filed or declared effective, as the case may be, or such
Registration Statement again becomes effective, or such
Registration Statement prospectus becomes usable as the case may
be, up to a maximum rate of Special Interest with respect to any
Registration Default of 1.50% per annum per Transfer Restricted
Note. Such Special Interest is payable in addition to any other
interest payable from time to time with respect to the
Securities.
(b) A Registration Default referred to in Section
6(a)(v) shall be deemed not to have occurred and be continuing in
relation to a Shelf Registration Statement or the related
prospectus if (i) such Registration Default has occurred solely
as a result of (x) the filing of a post-effective amendment to
such Shelf Registration Statement to incorporate annual audited
or, if required by the rules and regulations under the Securities
Act, quarterly unaudited financial information with respect to
the Company where such post-effective amendment is not yet
effective and needs to be declared effective to permit Holders to
use the related prospectus or (y) other material events or
developments with respect to the Company that would need to be
described in such Shelf Registration Statement or the related
prospectus and (ii) in the case of clause (y), the Company is
proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related prospectus to describe
such events; provided, however, that in no event shall the
Company be required to disclose the business purpose for such
suspension if the Company determines in good faith that such
business purpose must remain confidential; provided further,
however, that in any case if such Registration Default occurs for
a continuous period in excess of 45 days, Special Interest shall
be payable in accordance with the above paragraph from the day
following such 45 day period until the date on which such
Registration Default is cured.
(c) All accrued Special Interest shall be payable by
the Company in cash on the regular interest payment dates with
respect to the Notes, the Exchange Notes or the Private Exchange
Notes to the Holders of record on the applicable record dates.
The parties hereto agree that Special Interest provided in this
Section constitutes a reasonable estimate of the damages that
will be incurred by the Holders by reason of the failure of the
Exchange Offer Registration Statement or the Shelf Registration
Statement to be filed, declared effective or to remain effective
or such Registration Statement or related prospectus to be
usable, as the case may be.
(d) "Transfer Restricted Notes" means each Note until
(i) the date on which such Transfer Restricted Note has been
exchanged by a person other than a broker-dealer for a
17
freely transferable Exchange Note in the Registered Exchange
Offer, (ii) following the exchange by a broker-dealer in the
Registered Exchange Offer of a Transfer Restricted Note for an
Exchange Note, the date on which such Exchange Note is sold to a
purchaser who receives from such broker-dealer on or prior to the
date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (iii) the date on which
such Transfer Restricted Note has been effectively registered
under the Securities Act and disposed of in accordance with the
Shelf Registration Statement or (iv) the date on which such
Transfer Restricted Note is distributed to the public pursuant to
Rule 144 under the Securities Act or is salable pursuant to Rule
144(k) under the Securities Act.
SECTION 7. RULE 144 AND RULE 144A
The Company shall use its reasonable best efforts to file on
a timely basis all such reports required to be filed under the
Exchange Act as, and endeavor in good faith to take such other
actions as, are reasonably necessary to enable Holders to sell
Transfer Restricted Notes without registration under the
Securities Act within the limitation of the exemptions provided
under (a) Rule 144 under the Securities Act, as such Rule may be
amended from time to time, (b) Rule 144A under the Securities
Act, as such Rule may be amended from time to time, and (c) any
similar rules or regulations hereafter adopted by the Commission.
Upon request of any Holder of Transfer Restricted Notes, the
Company will provide a written statement as to whether it has
complied with such requirements and will, at its expense,
forthwith upon the request of the Owner Trustee or Lazard,
deliver to the Owner Trustee or Lazard a certificate, signed by
the Company's principal financial officer, stating (i) the
Company's name, address and telephone number (including area
code), (ii) the Company's Internal Revenue Service identification
number, (iii) the Company's Commission file number, (iv) the
number of shares of each class of capital stock outstanding as
shown by the most recent report or statement published by the
Company, and (v) whether the Company has filed the reports
required to be filed under the Exchange Act for a period of at
least ninety (90) days prior to the date of such certificate and
in addition has filed the most recent annual report required to
be filed thereunder.
SECTION 8. UNDERWRITING
If any of the Transfer Restricted Notes covered by any
Shelf Registration Statement are to be sold in an underwritten
offering, the investment banker(s) and manager(s) that will
manage the offering will be selected by the Holders of a majority
of the then outstanding Transfer Restricted Notes (determined in
accordance with Section 9(d)) included in such offering (after
consultation with the Company as to such selection and upon the
written consent of the Company, which consent will not be
unreasonably withheld or delayed). If requested by the
underwriters, the Company will promptly enter into an
underwriting agreement reasonably acceptable to the Company with
such underwriters for such offering, such agreement to contain
such representations and warranties by the Company and such other
terms and conditions as are customary for underwriting agreements
with respect to secondary offerings, including without
limitation, indemnities to the effect and to the extent provided
in Section 5 hereof. The Holders of Transfer Restricted Notes on
whose behalf such securities are being distributed shall be party
to any such underwriting agreement. Such Holders shall not be
18
required by the Company to make any representations or warranties
to the underwriters with respect to the Company or the Transfer
Restricted Notes (other than that the Holders are conveying such
securities free and clear of all pledges, securities interests,
liens, charges, encumbrances, agreements, equities, claims and
options of whatever nature), and the Holders shall not be
required to indemnify the Company or the underwriters (other than
with respect to the matters, and to the extent, provided in
Section 5). Furthermore, the Company shall make available for
inspection by the Holders, any underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and
any attorney, accountant or other agent retained by any Holder or
underwriter, all financial and other records and other
information, pertinent corporate documents and properties of the
Company as shall be reasonably necessary to enable them to
exercise their due diligence responsibilities.
No Holder of Transfer Restricted Notes may participate
in any underwritten distribution hereunder unless such holder (a)
agrees to sell such Holder's Transfer Restricted Notes on the
basis provided in any underwriting arrangements approved in
accordance with the terms hereof, and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such
underwriting arrangements.
SECTION 9. MISCELLANEOUS
(a) Remedies. Each Holder of Securities, in addition to
being entitled to exercise all rights provided herein, and as
provided in the Sale Agreement and granted by law, including the
recovery of damages, shall be entitled to specific performance of
such Holder's rights under this Agreement. Except with respect to
the payment of Special Interest in the event of the occurrence of
a Registration Default, the Company agrees that monetary damages
would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and
hereby agrees in any action for specific performance to waive the
defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not and
shall not on or after the date of this Agreement enter into any
agreement with respect to its securities that is inconsistent
with the rights granted to the Holders of Securities in this
Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders of Securities hereunder do not and
will not in any way conflict with and are not and will not be
inconsistent with the rights granted to the holders of the
Company's other securities under any other agreements. No holder
of any securities of the Company has rights to the registration
of any securities of the Company because of the execution,
delivery or performance by the Company of this Agreement or as a
result of the filing of the Exchange Offer Registration Statement
or the Shelf Registration Statement.
(c) No Adverse Action Affecting the Securities. The
Company has not taken and will not take, any action, or permit
any change to occur with respect to the Securities which would
adversely affect the ability of any of the Holders of Securities
to include such Securities in a registration undertaken pursuant
to this Agreement.
19
(d) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of
Holders of a majority of the outstanding principal amount of
Transfer Restricted Notes. Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders of Transfer
Restricted Notes whose Transfer Restricted Notes are being sold
pursuant to the Shelf Registration Statement and that does not
directly or indirectly affect the rights of other Holders of
Transfer Restricted Notes may be given by the Holders of a
majority of the Transfer Restricted Notes being sold.
(e) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier
guaranteeing overnight delivery:
(i) if to a Holder of Securities, at the address
set forth on the records of the Company or the Trustee
under the Indenture, with a copy to the Trustee, or if to
the Owner Trustee or Lazard, at the address set forth in
the Sale Agreement; and
(ii) if to the Company, initially at its address
set forth in the Sale Agreement and thereafter at such
other address, notice of which is given in accordance with
the provisions of this Section.
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 on a
business day (or otherwise on the first business day following
such answer back); when receipt acknowledged, if telecopied on a
business day (or otherwise on the first business day following
such acknowledgment); and on the next business day, if timely
delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person
giving the same to the Trustee under the Indenture at the address
specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns
of each of the parties, including without limitation and without
the need for an express assignment, subsequent Holders of
Securities.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
20
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF SUCH
STATE.
(j) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to
be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or
referred to herein with respect to the registration rights
granted by the Company with respect to the Securities except as
provided in the Indenture and the Sale Agreement. Except as set
forth in the prior sentence, this Agreement supersedes all prior
agreements and understandings between the parties with respect to
the subject matter hereof.
[Remainder of this page is blank.]
21
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
TRANS WORLD AIRLINES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and
Deputy Counsel
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual
capacity but as Owner Trustee
By: /s/ Arge Pavlos
----------------------
Name: Arge Pavlos
Title: Assistant Trust Officer
LAZARD FRERES & CO. LLC
By: /s/ Xxxxxxx X. Xxxx
----------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
ANNEX A
Each broker-dealer that receives Exchange Notes for its
own account pursuant to the Exchange Offer must acknowledge that
it will deliver a prospectus in connection with any resale of
such Exchange Notes. The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities Act. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Notes
received in exchange for Notes where such Notes were acquired by
such broker-dealer as a result of market-making activities or
other trading activities. The Company has agreed that, for a
period of 180 days after the Expiration Date (as defined herein),
it will make this Prospectus available to any broker-dealer for
use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its
own account in exchange for Notes, where such Notes were acquired
by such broker-dealer as a result of market-making activities or
other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes.
See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its
own account pursuant to the Registered Offer must acknowledge
that it will deliver a prospectus in connection with any resale
of such Exchange Notes. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in
connection with resales of Exchange Notes received in exchange
for Notes where such Notes were acquired as a result of
market-making activities or other trading activities. The Company
has agreed that, for a period of 180 days after the Expiration
Date, it will make this prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any
such resale. In addition, until _____, 199_, all dealers
effecting transactions in the Exchange Notes may be required to
deliver a prospectus.*
The Company will not receive any proceeds from any sale
of Exchange Notes by broker-dealers. Exchange Notes received by
broker-dealers for their own account pursuant to the Exchange
Offer may be sold from time to time in one or more transactions
in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or
dealers who may receive compensation in the form of commissions
or concessions from any such broker-dealer or the purchasers of
any such Exchange Notes. Any broker-dealer that resells Exchange
Notes that were received by it for its own account pursuant to
the Exchange Offer and any broker or dealer that participates in
a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Notes and any commission or
concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of
Transmittal states that, by acknowledging that it will deliver
and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
For a period of 180 days after the Expiration Date the
Company will promptly send additional copies of this Prospectus
and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of
Transmittal. The Company has agreed to pay all expenses incident
to the Exchange Offer (including the reasonable expenses of one
counsel for the Holders of the Notes) other than commissions or
concessions of any brokers or dealers and will indemnify the
Holders of Securities (including any broker-dealers) against
certain liabilities, including liabilities under the Securities
Act.
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* In addition, the legend required by Item 502(e) of Regulation
S-K will appear on the back cover page of the Exchange Offer
prospectus.
ANNEX D
_ CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
-----------------------------------------------------------------
Address:
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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 Notes. If the undersigned
is a broker-dealer that will receive Exchange Notes for its own
account in exchange for Notes that were acquired as a result of
market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Notes; 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 Securities Act.
