Exhibit 10.1
MIDWAY AIRLINES CORPORATION
PLACEMENT AGREEMENT
September 22, 2000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Seabury Securities LLC
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs and Mesdames:
Midway Airlines Corporation, a Delaware corporation (the "Company"),
in connection with the financing of eight (8) new Boeing model 737-700 aircraft,
proposes that Allfirst Bank, as trustee (the "Trustee") under each of the Trusts
(as hereinafter defined), issue and sell to the placement agents named in
Schedule II hereto its Pass Through Certificates, Series 2000-1 in the aggregate
principal amounts and with the interest rates and final distribution dates set
forth on Schedule I hereto (the "Certificates") on the terms and conditions
stated herein. As used herein, unless the context otherwise requires, the term
"Placement Agents" shall mean the firms named as Placement Agents in Schedule II
hereto, and the term "you" shall mean ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇
▇▇▇▇▇▇▇").
The Certificates will be issued pursuant to three separate pass
through trust agreements each to be dated as of the Closing Date (as defined in
Section 3 hereof below) between the Company and the Trustee (collectively, the
"Pass Through Trust Agreements"). The Pass Through Trust Agreements are related
to the creation and administration of Midway Airlines Corporation Pass Through
Trust Series 2000-1A (the "Class A Trust"), Midway Airlines Corporation Pass
Through Trust Series 2000-1B (the "Class B Trust") and Midway Airlines
Corporation Pass Through Trust Series 2000-1C (the "Class C Trust"; and together
with the Class A Trust and the Class B Trust, the "Trusts").
The cash proceeds of the offering of Certificates by each Trust will
be paid to First Union Trust Company, National Association, as escrow agent (the
"Escrow Agent"), under an Escrow and Paying Agent Agreement among the Escrow
Agent, the Placement Agents, the Trustee of such Trust and Allfirst Bank, as
paying agent (the "Paying Agent"), for the benefit of the holders of
Certificates issued by such Trust (each, an "Escrow Agreement"). The Escrow
Agent will deposit such cash proceeds (each, a "Deposit") with Allfirst Bank
(the "Depositary"), in accordance with a Deposit Agreement relating to such
Trust (each, a "Deposit Agreement"), and will withdraw Deposits upon request to
allow the Trustee to purchase Equipment Notes (as defined in the Note Purchase
Agreement referred to herein) from time to time pursuant to a Note Purchase
Agreement to be dated as of the Closing Date (the "Note Purchase Agreement")
among the Company, Allfirst Bank, as Trustee of each of the Trusts, as
Subordination Agent (as hereinafter defined) and as Paying Agent, and the Escrow
Agent. Each Escrow Agent will issue receipts to be attached to each related
Certificate ("Escrow Receipts") representing each holder's fractional undivided
interest in amounts deposited with such Escrow Agent and will pay to such
holders through the related Paying Agent interest accrued on the Deposits and
received by such Paying Agent pursuant to the related Deposit Agreement at a
rate per annum equal to the interest rate applicable to the corresponding
Certificates.
Certain amounts of interest payable on the Certificates to be issued
by the Class A Trust, the Class B Trust and the Class C Trust will be entitled
to the benefits of a separate liquidity facility for each such Trust. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Capital Services Inc. (the "Liquidity Provider"), will enter into three
separate revolving credit agreements (each, a "Liquidity Facility") to be dated
as of the Closing Date for the benefit of the holders of the Certificates issued
by the Class A Trust, the Class B Trust and the Class C Trust, respectively.
The Liquidity Provider and the holders of the Certificates will be entitled to
the benefits of an Intercreditor Agreement to be dated as of the Closing Date
(the "Intercreditor Agreement") among the Trusts, Allfirst Bank as Trustee and
as Subordination Agent (the "Subordination Agent"), and the Liquidity Provider.
The Certificates will be offered without being registered under the
Securities Act of 1933, as amended (the "Securities Act"), in reliance on
exemptions therefrom.
The Placement Agents and their direct and indirect transferees will be
entitled to the benefits of a Registration Rights Agreement (the "Registration
Rights Agreement"), to be dated the Closing Date and to be substantially in the
form attached hereto as Exhibit A, pursuant to which the Company will file a
registration statement (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") registering the Exchange Certificates
referred to in such Registration Rights Agreement (the "Exchange Certificates")
or the Certificates under the Securities Act.
In connection with the sale of the Certificates, the Company has
prepared a preliminary offering memorandum (such preliminary offering
memorandum, including the documents incorporated by reference therein, the
"Preliminary Memorandum") and will prepare a final offering memorandum (such
final offering memorandum, including the documents incorporated by reference
therein, the "Final Memorandum" and, with the Preliminary Memorandum, each a
"Memorandum") setting forth or including a description of the terms of the
Certificates, the terms of the offering and a description of the Company and its
business. The terms "supplement," "amendment" and "amend" as used herein with
respect to a Memorandum shall include all documents deemed to be incorporated by
reference in the Preliminary Memorandum or Final Memorandum that are filed
subsequent to the date of such Memorandum with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). The Company
hereby confirms that it has authorized the use of both of the Memoranda in
connection with the offer and resale of the Certificates by the Placement
Agents.
Capitalized terms not otherwise defined in this Agreement shall have
the meanings specified therefor in the Pass Through Trust Agreements or in the
Note Purchase Agreement or Intercreditor Agreement referred to in the Pass
Through Trust Agreements; provided that, as used in this Agreement, the term
--------
"Operative Documents" shall mean this Agreement, the Indentures, the Leases, the
Note Purchase Agreement, the Participation Agreements, the Pass Through Trust
Agreements, the Deposit Agreements, the Escrow
2
Agreements, the Intercreditor Agreement, the Liquidity Facilities and the
Registration Rights Agreement.
1. Representations and Warranties. The Company represents and
------------------------------
warrants to, and agrees with, you that as of the date hereof:
(a) (i) The Preliminary Memorandum does not contain and the Final
Memorandum, in the form used by the Placement Agents to confirm sales
and on the Closing Date, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. The preceding sentence does not apply to
statements in or omissions from either Memorandum based upon written
information relating to any Placement Agent furnished to the Company
by such Placement Agent through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ expressly for use
therein ("Placement Agent Information"); and (ii) each document filed
or to be filed pursuant to the Exchange Act and incorporated by
reference in either Memorandum complied or will comply when so filed
in all material respects with the requirements of the Exchange Act and
the applicable rules and regulations thereunder.
(b) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in each Memorandum
and to perform its obligations under this Agreement and the Operative
Documents to which it is, or is to be, a party; and the Company is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company (a "Material Adverse
Effect").
(c) The Company has no subsidiaries.
(d) This Agreement has been duly authorized, executed and delivered by
the Company. The Operative Documents to which the Company will be a
party will be duly executed and delivered by the Company on or prior
to the Closing Date or the applicable Funding Date.
(e) On or prior to the Closing Date, the issuance of the Certificates
will be duly authorized by the Trustee. When executed, authenticated,
issued and delivered in the manner provided for in the related Pass
Through Trust Agreement and sold and paid for as provided in this
Agreement, each of the Certificates will be valid and binding
obligations of the Trust entitled to the benefits of the related Pass
Through Trust Agreement, enforceable against the Trust in accordance
with its terms, except as limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and general
equitable principles (whether considered in
3
a proceeding in equity or at law). When executed, authenticated,
issued and delivered in the manner provided for in the Escrow
Agreements, the Escrow Receipts will be legally and validly issued and
will be entitled to the benefits of the related Escrow Agreements.
(f) The Operative Documents to which the Company is, or is to be, a
party, have each been duly authorized by the Company, are or will be
substantially in the form heretofore supplied to you and, when duly
executed and delivered by Company, will constitute valid and binding
obligations of the Company, except (i) as limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a
proceeding in equity or at law) and (ii) in the case of each Lease, as
limited by applicable laws which may affect the remedies provided in
such Lease, which laws, however, do not make the remedies provided in
such Lease inadequate for the practical realization of the rights and
benefits provided thereby. On each Funding Date, the related Leases
and the other Operative Documents to which the Company is, or is to
be, a party will constitute the valid and binding obligations of the
Company, except (i) as limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and general equitable
principles (whether considered in a proceeding in equity or at law)
and (ii) in the case of each Lease, as limited by applicable laws
which may affect the remedies provided in such Lease, which laws,
however, do not make the remedies provided in such Lease inadequate
for the practical realization of the rights and benefits provided
thereby. The Certificates, the Equipment Notes, the Indentures, the
Leases and the other Operative Documents to which the Company is, or
is to be, a party will conform in all material respects to the
descriptions thereof in the Final Memorandum.
(g) The execution and delivery by the Company of this Agreement and
the Operative Documents to which the Company is, or is to be, a party,
the consummation by the Company of the transactions contemplated in
this Agreement and such Operative Documents, and compliance by the
Company with the terms of this Agreement and such Operative Documents
will not contravene (i) any provision of applicable law or the
certificate of incorporation or by-laws of the Company, (ii) any
agreement or other instrument binding upon the Company or (iii) any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company other than, in the case of
clauses (ii) and (iii) above, such contraventions that would not
individually or in the aggregate have a Material Adverse Effect, and
no consent, approval, authorization or order of, or qualification
with, any governmental body or agency is required for the valid
authorization, execution, delivery and performance by the Company of
this Agreement and the Operative Documents to which the Company is, or
is to be, a party, or the consummation by the Company of the
transactions contemplated by this Agreement and such Operative
Documents, except (x) 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 and the Equipment Notes, (y) such as
4
may be required under the Securities Act, the Trust Indenture Act or
rules of the National Association of Securities Dealers in connection
with the registration of the Certificates or the Exchange Certificates
under the Securities Act pursuant to the Registration Rights Agreement
and (z) filings or recordings with the Federal Aviation Administration
(the "FAA") and under the Uniform Commercial Code as in effect in
North Carolina and Delaware, which filings or recordings referred to
in this clause (z) shall have been made or obtained in connection with
the purchase of Equipment Notes relating to each Aircraft on or prior
to the Funding Date for such Aircraft.
(h) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company from that set forth in the Preliminary
Memorandum.
(i) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, 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 each
Memorandum and proceedings that would not have a Material Adverse
Effect or adversely affect the power or ability of the Company to
perform its obligations under this Agreement or any of the Operative
Documents, to which it is, or is to be, a party, or to consummate the
transactions contemplated by the Final Memorandum.
(j) The Company has all necessary consents, authorizations, approvals,
orders, certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the manner
described in the Final Memorandum, except to the extent that the
failure to obtain such consents, authorizations, approvals, orders,
certificates and permits or make such declarations and filings would
not have a Material Adverse Effect on the Company. The Company has
not received any notice of proceedings relating to the revocation or
modification of any such consent, authorization, approval, order,
certificate or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in
a material adverse change in the condition, financial or otherwise, or
in the earnings, business or operations of the Company, except as
described in or contemplated by the Final Memorandum.
(k) Neither the Company nor any of the Trusts is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), in each case required to
register under the Investment Company Act; and after giving effect to
the offering and sale of the Certificates and the application of the
proceeds thereof as described in the Final Memorandum, none of the
Trusts will be an "investment company" as defined in the Investment
Company Act, nor will the escrow arrangements contemplated by
5
the Escrow Agreement result in the creation of, an "investment
company" as defined in the Investment Company Act, in each case
required to register under the Investment Company Act.
(l) The Company (i) is in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) has received all permits, licenses or other approvals
required of it under applicable Environmental Laws to conduct its
business and (iii) is in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the
aggregate, have a Material Adverse Effect on the Company.
(m) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) for which the Company is now liable
which would, singly or in the aggregate, have a Material Adverse
Effect on the Company.
(n) The Company is not in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which it is a party or by which it may be
bound or to which any of its properties may be subject, except for
such defaults that would not have a Material Adverse Effect.
(o) Subsequent to the dates as of which information is given in each
of the Memorandum, (i) the Company has not incurred any material
liability or obligation, direct or contingent, nor entered into any
material transaction not in the ordinary course of business; (ii) the
Company has not purchased any of its outstanding capital stock, nor
declared, paid or otherwise made any dividend or distribution of any
kind on its capital stock; and (iii) there has not been any material
change in the capital stock, short-term debt or long-term debt of the
Company except in each case as described in or contemplated by the
Final Memorandum.
(p) The Company has good and marketable title in fee simple to all
real property and good and marketable title to all personal property
owned by it which is material to the business of the Company, in each
case free and clear of all liens, encumbrances and defects except such
as are described in the Final Memorandum or such as do not materially
affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company; and any
real property and buildings held under lease by the Company are held
by
6
it under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company, in
each case except as described in or contemplated by the Final
Memorandum.
(q) The Company owns or possesses, or can acquire on reasonable terms,
all material patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names currently
employed by it in connection with the business now operated by it, and
the Company has not received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business or operations of the Company.
(r) No material labor dispute with the employees of the Company
exists, except as described in or contemplated by the Final
Memorandum, or, to the knowledge of the Company, is imminent; and the
Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business or operations of the Company.
(s) Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D under the Securities Act, an "Affiliate") of the
Company has directly, or through any agent, (i) sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect of,
any security (as defined in the Securities Act) which is or will be
integrated with the sale of the Certificates in a manner that would
require the registration under the Securities Act of the Certificates
or (ii) engaged in any form of general solicitation or general
advertising in connection with the offering of the Certificates (as
those terms are used in Regulation D under the Securities Act) or in
any manner involving a public offering within the meaning of Section
4(2) of the Securities Act.
(t) None of the Company, its Affiliates or any person acting on its or
their behalf (other than the Placement Agents) has engaged in any
directed selling efforts (as that term is defined in Regulation S
under the Securities Act ("Regulation S")) with respect to the
Certificates and the Company and its Affiliates and any person acting
on its or their behalf (other than the Placement Agents) have complied
with the offering restrictions requirement of Regulation S.
(u) The Company is subject to Section 13 or 15(d) of the Securities
Exchange Act.
(v) The Certificates satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
7
(w) It is not necessary in connection with the offer, sale and
delivery of the Certificates to the Placement Agents in the manner
contemplated by this Agreement to register the Certificates under the
Securities Act or to qualify any of the Indentures or the Pass Through
Trust Agreements under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act").
(x) The accountants that examined and issued an auditors report with
respect to the financial statements of the Company included or
incorporated by reference in the Final Memorandum are independent
public accountants within the meaning of the Securities Act and the
regulations thereunder.
(y) The financial statements included or incorporated by reference in
the Final Memorandum present fairly the financial position of the
Company as of the dates indicated and the results of operations and
cash flows or changes in financial position of the Company for the
periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as expressly
disclosed in such financial statements as to such application). The
financial statement schedules, if any, included or incorporated by
reference in the Final Memorandum present fairly the information
required to be stated therein.
(z) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which it is engaged;
the Company has not been refused any insurance coverage sought or
applied for; and the Company has no reason to believe that it will not
be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not
materially and adversely affect the condition, financial or otherwise,
or the earnings, business or operations of the Company, except as
described in or contemplated by the Final Memorandum.
(aa) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(bb) The Company has no customer sales which account for ten percent
or more of the Company's revenues.
8
(cc) The Company has not taken and will not take, directly or
indirectly, any action prohibited by Regulation M under the Exchange
Act, to the extent applicable, in connection with the offering of the
Certificates.
(dd) 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 of public
convenience and necessity issued by the Secretary of Transportation
pursuant to Section 41102 of ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code. There is
in force with respect to the Company an air carrier operating
certificate issued by the Federal Aviation Administration pursuant to
14 C.F.R. Part 119.
(ee) No Appraiser is an affiliate of the Company or, to the knowledge
of the Company, has a substantial interest, direct or indirect, in the
Company. To the knowledge of the Company, none of the officers and
directors of any of such Appraisers are connected with the Company or
any of its affiliates as an officer, employee, promoter, underwriter,
trustee, partner, director or person performing similar functions.
(ff) The parties agree that any certificate signed by a duly
authorized officer of the Company and delivered to a Placement Agent,
or to counsel for the Placement Agents, on the Closing Date and in
connection with this Agreement or the offering of the Certificates,
shall be deemed a representation and warranty by (and only by) the
Company to the Placement Agents as to the matters covered thereby.
(gg) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of
Cuba or with any person or affiliate located in Cuba.
The representations and warranties contained in this Agreement shall
be true and correct as of the date of this Agreement and as of the Closing Date.
2. Offering. The Placement Agents have advised the Company that the
--------
Placement Agents will make an offering of the Certificates purchased by the
Placement Agents hereunder on the terms to be set forth in the Final Memorandum
as soon as practicable after this Agreement is entered into as in your judgment
is advisable.
3. Purchase and Delivery. The Company hereby agrees to cause the
---------------------
Trusts to sell to the several Placement Agents, and the Placement Agents, upon
the basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agree, severally and not jointly, to purchase
from the Trusts the principal amount of Certificates set forth in Schedule II
hereto opposite their names at a purchase price of 100% of the principal amount
thereof. Concurrently with the issuance of the Certificates, the Escrow Agents
shall issue and deliver to the Trustees the Escrow Receipts in accordance with
the terms of the Escrow Agreements, which Escrow Receipts shall be attached to
the related Certificates.
Payment for the Certificates (with attached Escrow Receipts) shall be
made against delivery of the Certificates (with attached Escrow Receipts) at a
closing (the "Closing")
9
to be held at the office of Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 A.M., local time, on September 27, 2000, or at such
other time on the same or such other date, not later than October 4, 2000, as
shall be designated in writing by you (such date of Closing being the "Closing
Date"). The time and date of such payment are herein referred to as the Closing
Date. Delivery of the Certificates (with attached Escrow Receipts) shall be made
to your respective accounts at The Depository Trust Company against payment by
the Placement Agents of the purchase price thereof to the accounts and in the
manner specified in the related Escrow Agreement by wire transfer. The
Certificates (with attached Escrow Receipts) shall be in definitive or global
form and registered in the name of Cede & Co. or in such other names, and in
such denominations as you may request in writing at least one full business day
in advance of the Closing Date in definitive or global form. The Company agrees
to have the Certificates (with attached Escrow Receipts) available for
inspection, checking and packaging by you in New York, New York not later than
1:00 P.M. on the business day prior to the Closing Date.
As compensation to the Placement Agents for their commitments and
obligations hereunder in respect of the Certificates, including their
undertakings to distribute the Certificates, the Company will pay to each
Placement Agent an amount equal to that percentage of the aggregate principal
amount of Certificates purchased by it as set forth in Schedule II. Such payment
shall be made on the Closing Date simultaneously with the issuance and sale of
the Certificates (with attached Escrow Receipts) to the Placement Agents and
shall be made by Federal funds check or other immediately available funds.
It is understood that each Placement Agent has authorized you for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Certificates (with attached Escrow Receipts) that it has agreed
to purchase. You, individually and not as a representative, may (but shall not
be obligated to) make payment of the purchase price for the Certificates to be
purchased by any Placement Agent whose check or checks shall not have been
received by the Closing Date.
4. Conditions to Closing. The several obligations of the Placement
---------------------
Agents under this Agreement to purchase the Certificates will be subject to the
following conditions:
(a) Subsequent to the date of this Agreement and prior to the Closing
Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities,
including the Certificates, by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations, of the Company from that set
forth in the Preliminary Memorandum that, in your judgment, is material and
adverse and that makes it, in your judgment,
10
impracticable to market the Certificates on the terms and in the manner
contemplated in the Final Memorandum.
(b) You shall have received on the Closing Date a certificate, dated
the Closing Date and signed by an executive officer of the Company, to the
effect set forth in clause (a)(i) above and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date (i) an opinion of
Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., independent counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit B, (ii) an opinion of General
Counsel of the Company, dated the Closing Date, to the effect set forth in
Exhibit C, (iii) an opinion of Ober, Kaler, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, a Professional
Corporation, independent counsel for the Trustee and Paying Agent, dated the
Closing Date, to the effect set forth in Exhibit D, (iv) an opinion of ▇▇▇▇▇▇
▇▇▇▇▇ Hitchens & ▇▇▇▇▇▇▇▇, counsel for the Escrow Agent, dated the Closing Date,
to the effect set forth in Exhibit E, (v) an opinion of Ober, Kaler, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, a Professional Corporation, counsel for the Depositary, dated the
Closing Date, to the effect set forth in Exhibit F and (vi) an opinion of
Shearman & Sterling, independent counsel for the Liquidity Provider, dated the
Closing Date, to the effect set forth in Exhibit G.
(d) You shall have received on the Closing Date an opinion of Shearman
& Sterling, counsel for the Placement Agents, dated the Closing Date, in form
and substance satisfactory to you.
(e) You shall have received on each of the date hereof and the Closing
Date a letter, dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from Ernst & Young L.L.P., the Company's
independent public accountants, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Final Memorandum.
(f) The Company shall have furnished to you and to counsel for the
Placement Agents, in form and substance satisfactory to you, such other
documents, certificates and opinions as such counsel may reasonably request in
order to pass upon the matters referred to in Section 4(d) and in order to
evidence the accuracy and completeness of any of the representations, warranties
or statements, the performance of any covenant by the Company theretofore to be
performed, or the compliance with any of the conditions herein contained.
(g) Each of the Appraisers shall have furnished to you a letter from
such Appraiser, addressed to the Company and dated the Closing Date, confirming
that such Appraiser and each of its directors and officers (i) is not an
affiliate of the Company or any of its affiliates, (ii) does not have any
substantial interest, direct or indirect, in the Company or any of
11
its affiliates, (iii) is not connected with the Company or any of its affiliates
as an officer, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions and (iv) is undertaking to provide its
consent to the use of its appraisal in the Registration Statement.
(h) At the Closing Date, each of the Operative Documents (other than
the Indentures, Leases and Participation Agreements) shall have been duly
executed and delivered by each of the parties thereto; the representations and
warranties of the Company contained in each of such executed Operative Documents
shall be true and correct as of the Closing Date (except to the extent that they
relate solely to an earlier date in which case they shall be true and correct as
of such earlier date) and you shall have received a certificate of a Vice
President of the Company, dated as of the Closing Date, to such effect.
(i) On the Closing Date, the Certificates shall be rated A- in the
case of the Certificates of the Class A Trust, BBB- in the case of the
Certificates of the Class B Trust, and BB+ in the case of the Certificates of
the Class C Trust, by Standard & Poor's Ratings Services, a Division of The
McGraw Hill Companies, Inc.; and Baa1 in the case of the Certificates of the
Class A Trust, Ba1 in the case of the Certificates of the Class B Trust, and Ba2
in the case of the Certificates of the Class C Trust by ▇▇▇▇▇'▇ Investors
Service, Inc.
(j) At the Closing Date, the Registration Rights Agreement, attached
as Exhibit A hereto, shall have been duly executed and delivered and be in full
force and effect.
5. Covenants of the Company. In further consideration of the
------------------------
agreements of the Placement Agents contained in this Agreement, the Company
covenants as follows:
(a) To furnish to you, without charge, during the period mentioned in
paragraph (c) below, as many copies of the Final Memorandum, any documents
incorporated by reference therein and any supplements and amendments
thereto as you may reasonably request and to use its best efforts to
deliver such copies to you by 5 p.m. (New York time) on the business day
next following the execution of this Agreement.
(b) Before amending or supplementing either Memorandum, to furnish to
you a copy of each such proposed amendment or supplement and not to use any
such proposed amendment or supplement to which you reasonably object.
(c) If, during such period after the date hereof and prior to the
Closing Date, any event shall occur or condition exist as a result of which
it is necessary in your judgment to amend or supplement the Final
Memorandum in order to make the statements therein, in the light of the
circumstances when such Memorandum is delivered to a purchaser, not
misleading, or if, with the opinion of counsel to the Placement Agents it
is necessary to amend or supplement such Memorandum to comply with
applicable law, forthwith to prepare and furnish, at their own expense, to
the Placement Agents, either amendments or supplements to such Memorandum
so that the statements in such Memorandum as so amended or supplemented
will not, in the light of the circumstances when such Memorandum is
delivered to a purchaser, be misleading or so that such Memorandum, as so
amended or supplemented, will comply with applicable law.
12
(d) During the period mentioned in paragraph (c) above, to notify you
immediately (i) of the transmittal to the Commission for filing of any
document that would as a result thereof be incorporated by reference in the
Final Memorandum and (ii) the request by the Commission for any amendment,
supplement or for additional information relating to any document
incorporated by reference in the Final Memorandum.
(e) To endeavor to qualify the Certificates for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(f) The Company agrees to furnish to the Placement Agents, promptly
after each Funding Date, a copy of each opinion required to be delivered
under the applicable Participation Agreement addressed to the Placement
Agents and of such other documents furnished in connection with the
fulfillment of the conditions precedent therein as the Placement Agents or
counsel for the Placement Agents may reasonably request.
(g) Whether or not any sale of such Certificates is consummated, to
pay all expenses incident to the performance of their obligations under
this Agreement, including: (i) the preparation of each Memorandum and all
amendments and supplements thereto, (ii) the preparation, issuance and
delivery of the Certificates, (iii) the fees and disbursements of the
Company's counsel and accountants and the Indenture Trustee, the
Subordination Agent, the Escrow Agent, the Depositary, the Trustees and
their counsel, (iv) the qualification of such Certificates under securities
or Blue Sky laws in accordance with the provisions of Section 5(d),
including filing fees and the fees and disbursements of counsel for the
Placement Agents in connection therewith and in connection with the
preparation of any Blue Sky or legal investment memoranda, (v) the printing
and delivery to the Placement Agents in quantities as hereinabove stated of
copies of each Memorandum and any amendments or supplements thereto, (vi)
any fees charged by rating agencies for the rating of such Certificates,
(vii) all document production charges and fees and expenses of counsel to
the Placement Agents, and the Liquidity Provider (viii) the fees and
expenses, if any, incurred in connection with the admission of such
Certificates for trading in PORTAL or any other appropriate market system,
(ix) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the Certificates, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expense of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the
road show, and (x) all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not
otherwise made in this Section.
(h) Neither the Company nor any Affiliate will sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any security (as
defined in the Securities Act) which could be integrated with the sale of
the Certificates in a manner which would require the registration under the
Securities Act of such Certificates.
13
(i) Not to solicit any offer to buy or offer or sell the Certificates
by means of any form of general solicitation or general advertising (as
those terms are used in Regulation D under the Securities Act) or in any
manner involving a public offering within the meaning of Section 4(2) of
the Securities Act.
(j) While any of the Certificates remain outstanding, to make
available, upon request, to any seller of such Certificates the information
specified in Rule 144A(d)(4) under the Securities Act, unless the Company
is then subject to Section 13 or 15(d) of the Exchange Act.
(k) None of the Company, its Affiliates or any person acting on its or
their behalf (other than the Placement Agents) will engage in any directed
selling efforts (as that term is defined in Regulation S) with respect to
the Certificates, and the Company and their Affiliates and each person
acting on its or their behalf (other than the Placement Agents) will comply
with the offering restrictions of Regulation S.
(l) For a period of five years after the Closing Date, upon request,
to make available to the Placement Agents, copies of all annual reports,
quarterly reports and current reports filed by the Company with the
Securities and Exchange Commission (the "Commission") on Forms 10-K, 10-Q
and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports and information as shall be
furnished by the Company to the holders of Certificates or the Company to
its security holders generally.
(m) During the period of two years after the Closing Date, upon
request, to furnish to the Placement Agent and any holder of Certificates a
copy of the restrictions on transfer applicable to the Certificates.
(n) During the period of two years after the Closing Date, not to, and
not to permit any of its Affiliates to, resell any of the Certificates that
have been reacquired by any of them.
(o) During the period of two years after the Closing Date, not to
become an open-end investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under Section 8
of the Investment Company Act, or a closed-end investment company required
to be registered, but not registered, under the Investment Company Act.
(p) In connection with the offering, until the Placement Agents shall
have notified the Company of the completion of the resale of the
Certificates, neither the Company nor any of its Affiliates has bid for or
purchased or will bid for or purchase, either alone or with one or more
other persons, for any account in which it or any of its Affiliates has a
beneficial interest any Certificates; and neither it nor any of its
Affiliates will make bids or purchases for the purpose of creating actual,
or apparent, active trading in, or of raising the price of, the
Certificates.
(q) Between the date of this Agreement and the Closing Date, the
Company will not without your prior written consent offer, sell, or enter
into any agreement to sell,
14
any public debt securities registered under the Securities Act or any debt
securities which may be resold in a transaction exempt from the
registration requirements of the Securities Act in reliance on Rule 144A
thereunder and which are marketed through the use of a disclosure document
containing substantially the same information as a prospectus for similar
debt securities registered under the Securities Act (other than the
Certificates).
(r) If requested by you, to use its best efforts to permit the
Certificates to be designated PORTAL securities in accordance with the
rules and regulations adopted by the National Association of Securities
Dealers, Inc. relating to trading in the PORTAL Market; unless so requested
by you, the Company will not take any action to permit the Certificates to
be designated PORTAL securities without your prior consent, which shall not
be unreasonably withheld.
6. Offering of Certificates; Restrictions on Transfer. (a) ▇▇▇▇▇▇
--------------------------------------------------
▇▇▇▇▇▇▇ & Co. Incorporated represents that it is a qualified institutional
buyer, as defined in Rule 144A under the Securities Act (a "QIB"). Seabury
Securities LLC represents that it is an institutional accredited investor (as
defined in Rule 501(a) (1), (2), (3) or (7) under the Securities Act)
("institutional accredited investor"). Each Placement Agent, severally and not
jointly, agrees with the Company that (i) it will not solicit offers for, or
offer or sell, such Certificates by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities Act)
or in any manner involving a public offering within the meaning of Section 4(2)
of the Securities Act and (ii) it will solicit offers for such Certificates only
from, and will offer such Certificates only to, persons that it reasonably
believes to be (A) in the case of offers inside the United States, (x) QIBs or
(y) other institutional accredited investors that, prior to their purchase of
the Certificates, deliver to such Placement Agent a letter containing the
representations and agreements set forth in Annex III to the Final Memorandum
and (B) in the case of offers outside the United States, to persons other than
U.S. persons ("foreign purchasers", which term shall include dealers or other
professional fiduciaries in the United States acting on a discretionary basis
for foreign beneficial owners (other than an estate or trust)) that, in each
case, in purchasing such Certificates are deemed to have represented and agreed
as provided in the Final Memorandum under the caption "Transfer Restrictions."
(b) Each Placement Agent, severally and not jointly, represents,
warrants, and agrees with respect to offers and sales outside the United States
that:
(i) it understands that no action has been or will be taken in any
jurisdiction by the Company that would permit a public offering of the
Certificates, or possession or distribution of either Memorandum or any
other offering or publicity material relating to the Certificates, in any
country or jurisdiction where action for that purpose is required;
(ii) such Placement Agent will comply with all applicable laws and
regulations in each jurisdiction in which it acquires, offers, sells or
delivers Certificates or has in its possession or distributes either
Memorandum or any such other material, in all cases at its own expense;
(iii) the Certificates have not been and will not be registered under
the Securities Act and may not be offered or sold within the United States
or to, or for the
15
account or benefit of, U.S. persons except in accordance with Regulation S
under the Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act;
(iv) such Placement Agent has offered the Certificates and will
offer and sell the Certificates (A) as part of its distribution at any time
and (B) otherwise until 40 days after the later of the commencement of the
offering of the Certificates and the Closing Date, only in accordance with
Rule 903 of Regulation S or another exemption from the registration
requirements of the Securities Act. Accordingly, neither such Placement
Agent, its Affiliates nor any persons acting on its or their behalf have
engaged or will engage in any directed selling efforts (within the meaning
of Regulation S) with respect to the Certificates, and any such Placement
Agent, its Affiliates and any such persons have complied and will comply
with the offering restrictions requirements of Regulation S;
(v) such Placement Agent (A) has not offered or sold and will not
offer or sell any Certificates to persons in the United Kingdom prior to
the expiring of the period six months from the issue date of the
Certificates except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public in
the United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995 (the "Regulations"); (B) has complied and will comply with
all applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ and the
Regulations with respect to anything done by it in relation to the
Certificates in, from or otherwise involving the United Kingdom; and (C)
has only issued or passed on and will only issue or pass on in the United
Kingdom any document received by it in connection with the issue of the
Certificates to a person who is of a kind described in Article 11(3) of the
Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order
1996 or is a person to whom such document may otherwise lawfully be issued
or passed on;
(vi) such Placement Agent understands that the Certificates have not
been and will not be registered under the Securities and Exchange Law of
Japan, and represents that it has not offered or sold, and agrees that it
will not offer or sell, any Certificates, directly or indirectly in Japan
or to any resident of Japan except (A) pursuant to an exemption from the
registration requirements of the Securities and Exchange Law of Japan and
(B) in compliance with any other applicable requirements of Japanese law;
and
(vii) it agrees that, at or prior to confirmation of sales of the
Certificates, it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
Certificates from it during the restricted period a confirmation or notice
to substantially the following effect:
The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may
not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons (i) as part
16
of their distribution at any time or (ii) otherwise until 40
days after the later of the commencement of the offering and
the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meanings given to them by
Regulation S.
Terms used in this Section 6 have the meanings given to them by Regulation S.
7. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each Placement Agent, and each person, if any, who
controls such Placement Agent within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, or is under common control
with, or is controlled by, such Placement Agent, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Placement Agent or any such
controlling or affiliated person in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in either Memorandum (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 required to be stated or necessary to make the statements therein
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 furnished to
the Company in writing by such Placement Agent through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated expressly for use therein; provided, however, that the foregoing
indemnity agreement with respect to any Preliminary Memorandum 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 Memorandum (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 Memorandum (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 5(a) hereof.
(b) Each Placement Agent agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors, its officers and
each person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in either
Memorandum, 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, but only with reference to information relating to any
Placement Agent furnished to the Company in writing by such Placement Agent
through ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated expressly for use in either
Memorandum.
17
(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 (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of an indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated in the case of
parties indemnified pursuant to paragraph (a) above and by the Company in the
case of parties indemnified pursuant to paragraph (b) above. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. 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 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 claims that are the subject matter of
such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 7 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 (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Placement Agents, on the other hand, from the
offering of such Certificates or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Placement Agents
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 benefits received by the Company on the
one hand and the Placement Agents on the other hand in connection with the
offering of such Certificates shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Certificates (before
deducting expenses) received by the Trusts and the total discounts and
commissions received by the Placement Agents in respect thereof bear to the
aggregate offering price of such Certificates.
18
The relative fault of the Company on the one hand and of the Placement Agents on
the other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Placement Agents and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Placement Agent's respective obligations to contribute pursuant to
this Section 7 are several, and not joint, in proportion to the respective
principal amounts of Certificates they have purchased hereunder.
(e) The Company and the Placement Agents agree that it would not be
just or equitable if contribution pursuant to this Section 7 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 7, no Placement Agent shall be required to contribute
any amount in excess of the amount by which the total price at which the
Certificates resold by it in the initial placement of such Certificates were
offered to investors exceeds the amount of any damages that such Placement Agent
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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The indemnity and contribution provisions
contained in this Section 7 and the representations and warranties of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of the Placement Agents or any person
controlling any Placement Agent or by or on behalf of the Company, its officers
or directors or any person controlling the Company and (iii) acceptance of and
payment for any of the Certificates. The remedies provided for in this Section 7
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.
8. Termination. This Agreement shall be subject to termination by
-----------
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event singly or
together with any other such event makes it, in your judgment, impracticable to
market the Certificates on the terms and in the manner contemplated in the Final
Memorandum. If this Agreement is terminated by the Placement Agents in
accordance with the provisions of this Section 8, the Company shall reimburse
the Placement
19
Agents for all their reasonable out-of-pocket expenses, including the fees and
disbursements of counsel for the Placement Agents.
9. Effectiveness; Defaulting Placement Agents. (a) This Agreement
------------------------------------------
shall become effective upon the execution and delivery hereof by the parties
hereto.
(b) If, on the Closing Date, any one or more of the Placement Agents
shall fail or refuse to purchase Certificates that it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of
Certificates which such defaulting Placement Agent or Placement Agents agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of Certificates to be purchased on such date, the non-
defaulting Placement Agent shall be obligated to purchase the Certificates that
such defaulting Placement Agent has agreed but failed or refused to purchase on
such date; provided that in no event shall the principal amount of Certificates
that any Placement Agent has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9(b) by an amount in excess of one-ninth of
such principal amount of Certificates without the written consent of such
Placement Agent. If, on the Closing Date any Placement Agent or Placement Agents
shall fail or refuse to purchase Certificates which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of
Certificates with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Certificates to be purchased on such date, and
arrangements satisfactory to you and the Company for the purchase of such
Certificates are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Placement
Agent or the Company. In any such case either you or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Final Memorandum or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Placement Agent from liability in
respect of any default of such Placement Agent under this Agreement.
10. Notices. All notices and other communications under this Agreement
-------
shall be in writing, and, if sent to the Placement Agents, shall be mailed,
delivered or sent by facsimile transmission to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
or, if sent to the Company, will be mailed, delivered or sent by facsimile
transmission to it at:
Midway Airlines Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
20
with a copy to:
Fulbright & ▇▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇
11. Miscellaneous. This Agreement may be signed in any number of
-------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
If this Agreement shall be terminated by the Placement Agents, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Placement Agents or such Placement
Agents as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Placement Agents in connection
with this Agreement or the offering contemplated hereunder.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
21
Please confirm your agreement to the foregoing by signing in the space
provided below for that purpose and returning to us a copy hereof, whereupon
this Agreement shall constitute a binding agreement between us.
Very truly yours,
MIDWAY AIRLINES CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
General Counsel
Agreed, as of the date first written above.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
SEABURY SECURITIES LLC
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Principal
22
SCHEDULE I
Pass Through Aggregate Final Expected
Certificate Principal Interest Distribution
Designation Amounts Rate Date
------------ --------- -------- --------------
2000-1A $129,801,000 8.82% April 1, 2019
2000-1B $ 51,110,000 10.07% April 1, 2014
2000-1C $ 16,661,000 11.19% April 1, 2006
SCHEDULE II
Principal Amount of Certificates
To Be Purchased
---------------
Placement Agent Class A Class B Class C
Certificates Certificates Certificates
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated...... $ 64,901,000 $25,555,000 $ 8,331,000
Seabury Securities LLC................. $ 64,900,000 $25,555,000 $ 8,330,000
Total............................... $129,801,000 $51,110,000 $16,661,000
Placement fees, discounts, commissions or other compensation: $1,975,720.
This sum represents 1% of the aggregate principal amount of the Certificates.
EXHIBIT A
---------
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into on September 27, 2000, among MIDWAY AIRLINES CORPORATION, a
Delaware corporation (the "Company"), ALLFIRST BANK, as Trustee under each of
the Trust Agreements (as defined below), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
and SEABURY SECURITIES LLC (the "Placement Agents").
This Agreement is made pursuant to the Placement Agreement dated
September 27, 2000, among the Company and the Placement Agents (the "Placement
Agreement"),which provides for the sale to the Placement Agents of (i)
$129,801,000 aggregate principal amount of 8.82% 2000-1A Pass Through
Certificates (the "Class A Certificates"), (ii) $51,110,000 aggregate principal
amount of 10.07% 2000-1B Pass Through Certificates (the "Class B Certificates"),
and (iii) $16,661,000 aggregate principal amount of 11.19% 2000-1C Pass Through
Certificates (the "Class C Certificates", and together with the Class A
Certificates and the Class B Certificates, the "Certificates"), respectively. In
order to induce the Placement Agents to enter into the Placement 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 Placement
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
--------
to time.
"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, and (iii) with
respect to the Class C Certificates, the Class C Holders or the Class C
Trustee, the Class C Trust Agreement.
"Certificates" shall have the meaning set forth in the second
------------
paragraph of this Agreement.
25
"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 the
Closing Date, (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 the Closing Date between
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 Allfirst Bank, 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.
"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
26
paid, from the Closing Date, (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 the Closing Date between 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 Allfirst Bank, 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.
"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 the Closing Date, (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
27
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 the Closing Date between
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 Allfirst Bank, 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.
"Closing Date" shall mean the Closing Date as defined in the Placement
------------
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
-------
also include the Company's successors.
"Exchange Certificates" shall mean, together, the Class A Exchange
---------------------
Certificates, the Class B Exchange Certificates and the Class C Exchange
Certificates.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
--------------
of this Agreement.
"Exchange Offer" shall mean the exchange offer by the Company of
--------------
Exchange Certificates for Registrable Certificates pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
---------------------------
Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean 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
28
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Holder" shall mean a Class A Holder, a Class B Holder, or a Class C
------
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 ▇▇▇▇ ▇▇▇) (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.
----------------
"Placement 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 and the
Class C 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 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
29
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.
"Trust Agreement" shall mean the Class A Trust Agreement, the Class B
---------------
Trust Agreement or the Class C Trust Agreement, as applicable, and when
used in the plural shall mean, together, the Class A Trust Agreement, the
Class B Trust Agreement and the Class C Trust Agreement.
"Trustee" shall mean the Class A Trustee, the Class B Trustee or the
-------
Class C Trustee, as applicable, and when used in the plural shall mean,
together, the Class A Trustee, the Class B Trustee and the Class C Trustee.
"Underwritten Registration" or "Underwritten Offering" shall mean a
------------------------- ---------------------
registration in which Registrable Certificates are sold to an Underwriter (as
hereinafter defined) for re-offering to the public.
2. Registration Under the 1933 Act. (a) To the extent not prohibited
-------------------------------
by any applicable law or applicable interpretation of the Staff of the SEC, the
Company shall use its best
30
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
(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;
31
(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;
and
(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.
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 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.
(b) In the event that (i) the Company determines that the Exchange
Offer Registration provided for in Section 2(a) above is not available or may
not be consummated as soon as practicable after the last Exchange Date because
it would violate applicable law or the applicable interpretations of the 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 within 210 days after the Closing Date 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
32
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.
(c) 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.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective 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 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 and the Class C Certificates shall be 8.82%, 10.07% and 11.19%, 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 (each a "Registration Event")
on or prior to the 210/th/ day after the Closing Date, the interest rate borne
by the Certificates will increase by 0.50% per annum, effective from and
including such 210/th/ day to but excluding the date on which the Exchange Offer
is consummated or a Shelf Registration Statement is declared effective.
(e) 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;
33
(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 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
34
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 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 ▇▇▇▇ ▇▇▇) after initial filing
35
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 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;
36
(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 ▇▇▇▇ ▇▇▇);
(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
37
of the supplemented or amended Prospectus contemplated by Section 3(i) hereof,
and, if so directed by the Company, such Holder will deliver to the Company (at
its expense) all copies in its possession, other than permanent file copies then
in such Holder's possession, of the Prospectus covering such Registrable
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 as provided in clause (ii) below, in order to expedite or facilitate the
disposition of any Exchange
38
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 ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & 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 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
39
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 ▇▇▇▇ ▇▇▇) 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 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
40
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 ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇, (▇) 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & 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 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
41
losses, claims, damages and liabilities referred to in paragraph (d) above shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at which
Registrable Certificates were sold by such Holder exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any 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 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 Placement Agreement; and (ii) if to the Company,
initially at the
42
Company's address set forth in the Placement Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 6(c).
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 Placement 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.
(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.
43
(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.
44
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
MIDWAY AIRLINES CORPORATION
By ____________________________
Name:
Title:
ALLFIRST BANK,
not in its individual capacity, but solely as
Trustee under each of the Trust Agreements
By ____________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
SEABURY SECURITIES LLC
By ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By _______________________
Name:
Title
45
