EXHIBIT 4.17
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into May 18, 2001, among AMERICAN AIRLINES, INC., a Delaware
corporation (the "Company"), STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION, as trustee under each of the Trusts (as defined below)
(the "Trustee") and XXXXXX XXXXXXX & CO. INCORPORATED ("Xxxxxx Xxxxxxx"), Credit
Suisse First Boston Corporation, Xxxxxxx Xxxxx Barney Inc. and Dresdner
Kleinwort Xxxxxxxxxxx Securities LLC (collectively with Xxxxxx Xxxxxxx, the
"Placement Agents").
This Agreement is made pursuant to the Placement Agreement
dated May 18, 2001, among the Company and the Placement Agents (the "Placement
Agreement"), which provides for the sale to the Placement Agents of (i)
$420,880,000 aggregate principal amount of 6.977% 2001-1A-1 Pass Through
Certificates (the "Class A-1 Certificates"), (ii) $392,209,000 aggregate
principal amount of 6.817 % 2001-1A-2 Pass Through Certificates (the "Class A-2
Certificates"), (iii) $297,430,000 aggregate principal amount of 7.377% 2001-1B
Pass Through Certificates (the "Class B Certificates"), (iv)$183,530,000
aggregate principal amount of 7.379% 2001-1C Pass Through Certificates, (the
"Class C Certificates) and (v) $25,600,000 aggregate principal amount of 7.686%
2001-1D Pass Through Certificates, and together with the Class A-1 Certificates,
the Class A-2 Certificates, the Class B Certificates and the Class C
Certificates, (the "Offered Certificates.) 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.
The Offered Certificates will be issued pursuant to the Pass
Through Trust Agreement, dated as of May 24, 2001, between the Company and the
Trustee (the "Basic Agreement"), as supplemented with respect to each series of
Certificates by a separate Pass Through Trust Supplement between the Company and
the Trustee to be dated as of the date on which the Closing Time (as defined in
the Placement Agreement) will occur (the "Closing Time") (individually, a "Trust
Supplement") (the Basic Agreement, as supplemented by each such Trust
Supplement, being referred to herein as the "Pass Through Trust Agreements").
The Pass Through Trust Agreements are related to the creation and administration
of American Airlines, Inc., Pass Through Trust Series 2001-1A-1 (the "Class A-1
Trust"), American Airlines, Inc., Pass Through Trust Series 2001-1A-2 (the
"Class A-2 Trust"), American Airlines, Inc., Pass Through Trust Series 2001-1B
(the "Class B Trust"), American Airlines, Inc., Pass Through Trust Series
2001-1C (the "Class C Trust") and American Airlines, Inc., Pass Through Trust
Series 2001-1D (the "Class D Trust"; and together with the Class A-1 Trust, the
Class A-2 Trust, the Class B Trust and the Class C Trust, the "Trusts").
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.
"Agreement" shall have the meaning set forth in the preamble.
"Applicable Trust Agreement" shall mean, (i) with respect to
the Class A-1 Certificates, the Class A-1 Holders or the Class A-1
Trustee, the Class A-1 Trust Agreement, (ii) with respect to the Class
A-2 Certificates, the Class A-2 Holders or the Class A-2 Trustee, the
Class A-2 Trust Agreement, (iii) with respect to the Class B
Certificates, the Class B Holders or the Class B Trustee, the Class B
Trust Agreement, (iv) with respect to the Class C Certificates, the
Class C Holders or the Class C Trustee, the Class C Trust Agreement and
(v) with respect to the Class D Certificates, the Class D Holders or
the Class D Trustee, the Class D Trust Agreement.
"Class A-1 Certificates" shall have the meaning set forth in
the second paragraph of this Agreement.
"Class A-1 Exchange Certificates" shall mean securities issued
under the Class A-1 Trust Agreement of equal outstanding principal
amount as and containing terms identical to the Class A-1 Certificates
(except that (i) interest thereon shall accrue from the last date on
which interest was paid on the Class A-1 Certificates or, if no such
interest has been paid, from the Closing Time, (ii) the transfer
restrictions thereon shall be modified or eliminated, as appropriate
and (iii) provisions relating to an increase in the stated rate of
interest thereon shall be eliminated), to be offered to Holders of the
Class A-1 Certificates in exchange for such Class A-1 Certificates
pursuant to the Exchange Offer.
"Class A-1 Holder" shall mean each Placement Agent, for so
long as it owns any Class A-1 Registrable Certificates, and each of its
successors, assigns and direct and indirect transferees who become
registered owners of Class A-1 Registrable Certificates under the Class
A-1 Trust Agreement; provided that for purposes of Sections 4 and 5 of
this Agreement, the term "Class A-1 Holder" shall include Participating
Broker-Dealers (as defined in Section 4(a)).
"Class A-1 Registrable Certificates" shall mean the Class A-1
Certificates; provided, however, that the Class A-1 Certificates shall
cease to be Class A-1 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-1 Certificates
shall have been
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declared effective under the 1933 Act and such Class A-1 Certificates
shall have been disposed of pursuant to such Registration Statement,
(iii) such Class A-1 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-1 Certificates
shall have ceased to be outstanding.
"Class A-1 Trust Agreement" shall mean the Pass Through Trust
Agreement relating to the Class A-1 Certificates, as may be amended
from time to time in accordance with the terms thereof.
"Class A-1 Trustee" shall mean State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity except as expressly set forth in the Class A-1 Trust
Agreement, but solely as Trustee under the Class A-1 Trust Agreement,
together with any successor Trustee under the terms of the Class A-1
Trust Agreement.
"Class A-2 Certificates" shall have the meaning set forth in
the second paragraph of this Agreement.
"Class A-2 Exchange Certificates" shall mean securities issued
under the Class A-2 Trust Agreement of equal outstanding principal
amount as and containing terms identical to the Class A-2 Certificates
(except that (i) interest thereon shall accrue from the last date on
which interest was paid on the Class A-2 Certificates or, if no such
interest has been paid, from the Closing Time, (ii) the transfer
restrictions thereon shall be modified or eliminated, as appropriate
and (iii) provisions relating to an increase in the stated rate of
interest thereon shall be eliminated), to be offered to Holders of the
Class A-2 Certificates in exchange for such Class A-2 Certificates
pursuant to the Exchange Offer.
"Class A-2 Holder" shall mean each Placement Agent, for so
long as it owns any Class A-2 Registrable Certificates, and each of its
successors, assigns and direct and indirect transferees who become
registered owners of Class A-2 Registrable Certificates under the Class
A-2 Trust Agreement; provided that for purposes of Sections 4 and 5 of
this Agreement, the term "Class A-2 Holder" shall include Participating
Broker-Dealers (as defined in Section 4(a)).
"Class A-2 Registrable Certificates" shall mean the Class A-2
Certificates; provided, however, that the Class A-2 Certificates shall
cease to be Class A-2 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-2 Certificates
shall have been declared effective under the 1933 Act and such Class
A-2 Certificates shall have been disposed of pursuant to such
Registration Statement, (iii) such Class A-2 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-2 Certificates shall have ceased to be outstanding.
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"Class A-2 Trust Agreement" shall mean the Pass Through Trust
Agreement relating to the Class A-2 Certificates, as may be amended
from time to time in accordance with the terms thereof.
"Class A-2 Trustee" shall mean State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity except as expressly set forth in the Class A-2 Trust
Agreement, but solely as Trustee under the Class A-2 Trust Agreement,
together with any successor Trustee under the terms of the Class A-2
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 paid, from the Closing Time, (ii) the transfer restrictions
thereon shall be modified or eliminated, as appropriate and (iii)
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 each 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, as may be amended from
time to time in accordance with the terms thereof.
"Class B Trustee" shall mean State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity except as expressly set
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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 Time, (ii) the transfer restrictions
thereon shall be modified or eliminated, as appropriate and (iii)
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 each Placement Agent, for so long
as it owns any Class C Registrable Certificates, and each of its
successors, assigns and direct and indirect transferees who become
registered owners of Class C Registrable Certificates under the Class C
Trust Agreement; provided that for purposes of Sections 4 and 5 of this
Agreement, the term "Class C Holder" shall include Participating
Broker-Dealers (as defined in Section 4(a)).
"Class C Registrable Certificates" shall mean the Class C
Certificates; provided, however, that the Class C Certificates shall
cease to be Class C Registrable Certificates upon the earliest to occur
of (i) the consummation of the Exchange Offer, (ii) a Registration
Statement with respect to such Class C Certificates shall have been
declared effective under the 1933 Act and such Class C Certificates
shall have been disposed of pursuant to such Registration Statement,
(iii) such Class C Certificates shall have been sold to the public
pursuant to Rule 144(k) (or any similar provision then in force, but
not Rule 144A) under the 1933 Act or (iv) such Class C Certificates
shall have ceased to be outstanding.
"Class C Trust Agreement" shall mean the Pass Through Trust
Agreement relating to the Class C Certificates, as may be amended from
time to time in accordance with the terms thereof.
"Class C Trustee" shall mean State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity except as expressly set forth in the Class C Trust Agreement,
but solely as Trustee under the Class C Trust Agreement, together with
any successor Trustee under the terms of the Class C Trust Agreement.
"Class D Certificates" shall have the meaning set forth in the
second paragraph of this Agreement.
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"Class D Exchange Certificates" shall mean securities issued
under the Class D Trust Agreement of equal outstanding principal amount
as and containing terms identical to the Class D Certificates (except
that (i) interest thereon shall accrue from the last date on which
interest was paid on the Class D Certificates or, if no such interest
has been paid, from the Closing Time, (ii) the transfer restrictions
thereon shall be modified or eliminated, as appropriate and (iii)
provisions relating to an increase in the stated rate of interest
thereon shall be eliminated), to be offered to Holders of the Class D
Certificates in exchange for such Class D Certificates pursuant to the
Exchange Offer.
"Class D Holder" shall mean each Placement Agent, for so long
as it owns any Class D Registrable Certificates, and each of its
successors, assigns and direct and indirect transferees who become
registered owners of Class D Registrable Certificates under the Class D
Trust Agreement; provided that for purposes of Sections 4 and 5 of this
Agreement, the term "Class D Holder" shall include Participating
Broker-Dealers (as defined in Section 4(a)).
"Class D Registrable Certificates" shall mean the Class D
Certificates; provided, however, that the Class D Certificates shall
cease to be Class D Registrable Certificates upon the earliest to occur
of (i) the consummation of the Exchange Offer, (ii) a Registration
Statement with respect to such Class D Certificates shall have been
declared effective under the 1933 Act and such Class D Certificates
shall have been disposed of pursuant to such Registration Statement,
(iii) such Class D Certificates shall have been sold to the public
pursuant to Rule 144(k) (or any similar provision then in force, but
not Rule 144A) under the 1933 Act or (iv) such Class D Certificates
shall have ceased to be outstanding.
"Class D Trust Agreement" shall mean the Pass Through Trust
Agreement relating to the Class D Certificates, as may be amended from
time to time in accordance with the terms thereof.
"Class D Trustee" shall mean State Street Bank and Trust
Company of Connecticut, National Association, not in its individual
capacity except as expressly set forth in the Class D Trust Agreement,
but solely as Trustee under the Class D Trust Agreement, together with
any successor Trustee under the terms of the Class D Trust Agreement.
"Closing Time" shall mean the Closing Time 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-1
Exchange Certificates, the Class A-2 Exchange Certificates, the Class B
Exchange Certificates, the Class C Exchange Certificates and the Class
D Exchange Certificates.
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"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 Prospectus contained
therein, all exhibits thereto and all material incorporated by
reference therein.
"Holder" shall mean a Class A-1 Holder, a Class A-2 Holder, a
Class B Holder, a Class C Holder or a Class D Holder.
"Majority Holders" shall mean, together, the Holders of a
majority in aggregate principal amount of the Registrable Certificates
then outstanding; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Certificates is
required hereunder, Registrable Certificates held by the Company or any
of its affiliates (as such term is defined in Rule 405 under the 0000
Xxx) (other than the Placement Agents or subsequent holders of
Registrable Certificates if such subsequent holders are deemed to be
such affiliates solely by reason of their holding of such Registrable
Certificates) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage or
amount.
"Xxxxxx Xxxxxxx" shall have the meaning set forth in the
preamble.
"Offered Certificates" shall have the meaning set forth in the
second paragraph of this Agreement.
"Pass Through Trust Agreements" shall have the meaning set
forth in the third paragraph of this Agreement.
"Person" shall mean an individual, partnership, limited
liability company, 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
second paragraph of this Agreement.
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"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-1
Registrable Certificates, the Class A-2 Registrable Certificates, the
Class B Registrable Certificates, the Class C Registrable Certificates
and the Class D Registrable Certificates.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company 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 in connection with blue sky
qualification of any of the Exchange Certificates or Registrable
Certificates), (iii) all reasonable expenses of any Persons in
preparing or assisting in preparing word processing, printing and
distributing of any Registration Statement, any Prospectus any
amendments or supplements thereto and other documents relating to the
performance of and compliance with this Agreement, (iv) all rating
agency fees (it being understood that no rating agency shall be engaged
by a Placement Agent), (v) all fees and disbursements relating to the
qualification of the Trust Agreements under applicable securities laws,
(vi) the fees and disbursements of the Trustees and their counsel,
(vii) the fees and disbursements of counsel for the Company and, in the
case of a Shelf Registration Statement, the fees and disbursements of
one counsel for the Holders (which counsel shall be selected by the
Majority Holders and which counsel may also be counsel for the
Placement Agents) and (viii) the fees and disbursements of the
independent public accountants of the Company, including the expenses
of any special audits or "cold comfort" letters required by or incident
to such performance and compliance, but excluding fees and expenses of
counsel to the underwriters (other than reasonable 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.
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"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.
"TIA" shall have the meaning set forth in Section 3(l) of this
Agreement.
"Trustee" shall have the meaning set forth in the first
paragraph of this Agreement and shall also include the Trustee's
successors.
"Underwriters" shall have the meaning set forth in Section 3
of this Agreement.
"Underwritten Registration" or "Underwritten Offering" shall
mean a registration in which Registrable Certificates are sold to an
Underwriter for reoffering to the public.
2. Registration Under the 1933 Act. (a) To the extent not
prohibited by any applicable law or applicable interpretation of the Staff of
the SEC, the Company shall use its reasonable best efforts (i) to cause to be
filed with the SEC an Exchange Offer Registration Statement covering the offer
to the Holders to exchange (A) all of the Class A-1 Registrable Certificates for
Class A-1 Exchange Certificates, (B) all of the Class A-2 Registrable
Certificates for Class A-2 Exchange Certificates, (C) all of the Class B
Registrable Certificates for Class B Exchange Certificates, (D) all of the Class
C Registrable Certificates for Class C Exchange Certificates and (E) all of the
Class D Registrable Certificates for Class D Exchange Certificates, (ii) to have
the Exchange Offer Registration Statement declared effective and (iii) to have
such Registration Statement remain effective until the closing of the Exchange
Offer. The Company shall commence the Exchange Offer promptly after the Exchange
Offer Registration Statement has been declared effective by the SEC and use its
reasonable best efforts to have the Exchange Offer consummated not later than
the date that is 270 days (or, if such date is not a business day, the first
business day thereafter) after the Closing Time. The Company shall, or shall
cause the Trustees to, 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;
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(ii) the dates of acceptance for exchange (which shall be a
period of at least 30 days (or such shorter period as allowed by
applicable law or SEC rules and interpretations) from the date such
notice is mailed) (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 address (located in the
Borough of Manhattan, The City of New York) specified in the notice
prior to the close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election,
not later than the close of business on the last Exchange Date, by
sending to the institution and at the address (located in the Borough
of Manhattan, The City of New York) specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount and class 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-1
Trustee for cancellation all Class A-1 Registrable Certificates or
portions thereof so accepted for exchange by the Company, and issue,
and cause the Class A-1 Trustee to promptly authenticate and mail to
each Class A-1 Holder, Class A-1 Exchange Certificates equal in
principal amount to the principal amount of the Class A-1 Registrable
Certificates surrendered by such Class A-1 Holder;
(iii) deliver, or cause to be delivered, to the Class A-2
Trustee for cancellation all Class A-2 Registrable Certificates or
portions thereof so accepted for exchange by the Company, and issue,
and cause the Class A-2 Trustee to promptly authenticate and mail to
each Class A-2 Holder, Class A-2 Exchange Certificates equal in
principal amount to the principal amount of the Class A-2 Registrable
Certificates surrendered by such Class A-2 Holder;
(iv) 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
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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;
(v) deliver, or cause to be delivered, to the Class C Trustee
for cancellation all Class C Registrable Certificates or portions
thereof so accepted for exchange by the Company, and issue, and cause
the Class C Trustee to promptly authenticate and mail to each Class C
Holder, Class C Exchange Certificates equal in principal amount to the
principal amount of the Class C Registrable Certificates surrendered by
such Class C Holder; and
(vi) deliver, or cause to be delivered, to the Class D Trustee
for cancellation all Class D Registrable Certificates or portions
thereof so accepted for exchange by the Company, and issue, and cause
the Class D Trustee to promptly authenticate and mail to each Class D
Holder, Class D Exchange Certificates equal in principal amount to the
principal amount of the Class D Registrable Certificates surrendered by
such Class D Holder.
The Company shall use its reasonable 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, rules 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.
Each Holder participating in the Exchange Offer shall be
required to represent to the Company at or prior to the consummation of the
Exchange Offer that (i) any Exchange Certificates received by such Holder will
be acquired in the ordinary course of business, (ii) such Holder will have no
arrangements or understanding with any person to participate in the distribution
of the Offered Certificates or the Exchange Certificates within the meaning of
the 1933 Act, and (iii) such Holder is not an "affiliate," as defined in Rule
405 of the 1933 Act, of the Company or any Trustee, nor a broker-dealer
tendering Offered Certificates acquired directly from the Company for its own
account. If such Holder is a broker-dealer, it will be required to represent
that the Offered Certificates were acquired as a result of market-marking
activities or other trading activities and that it will deliver a prospectus in
connection with any resale of such Exchange Certificates. Each such Holder,
whether or not it is a broker-dealer, shall also represent that it is not acting
on behalf of any person that could not truthfully make any of the foregoing
representations contained in this paragraph.
Upon consummation of the Exchange Offer in accordance with
this Section 2(a), the provisions of this Agreement shall continue to apply (to
the extent applicable) solely with respect to Registrable Certificates held by
the Placement Agents or any Participating
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Broker-Dealers (as defined in Section 4(a)) as provided in (and subject to)
Section 2(b)(ii), and the Company shall have no further obligation to register
Offered Certificates (other than such Registrable Certificates of the Placement
Agents and Participating Broker-Dealers) pursuant to Section 2(b) of this
Agreement.
(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, or (ii) 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 primary offering or sale of Registrable Certificates, the Company shall
use its reasonable best efforts to cause to be filed 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 (in the case of
clause (i) above) or by the Placement Agents (in the case of clause (ii) above)
and to have such Shelf Registration Statement declared effective by the SEC. In
the event the Company is required to file a Shelf Registration Statement solely
as a result of the matters referred to in clause (iii) of the preceding
sentence, the Company shall use its reasonable best efforts to file and have
declared effective by the SEC both an Exchange Offer Registration Statement
pursuant to Section 2(a) with respect to all Registrable Certificates and a
Shelf Registration Statement (which may be a combined Registration Statement
with the Exchange Offer Registration Statement) with respect to offers and sales
of Registrable Certificates held by the Placement Agents after completion of the
Exchange Offer. The Company agrees to use its reasonable best efforts to keep
the Shelf Registration Statement continuously effective for a period of two
years after its effective date with respect to the Registrable Certificates 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 or may be freely sold pursuant to Rule 144(k) under the
1933 Act. The Company further agrees to supplement or amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the 1933 Act or by any other rules and regulations
thereunder for shelf registration or if reasonably requested by a Holder with
respect to information relating to such Holder, and to use its best efforts to
cause any such amendment to become effective and such Shelf Registration
Statement to become usable as soon as thereafter practicable. The Company agrees
to furnish to the Holders of Registrable Certificates copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(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,
12
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. In the event that neither the consummation of the Exchange Offer nor the
declaration by the SEC of a Shelf Registration to be effective (each a
"Registration Event") occurs on or prior to the 270th day (or, if such 270th day
is not a business day, the first business day thereafter) after the Closing
Time, the interest rate per annum borne by the Offered Certificates shall be
increased by 0.50%, effective from and including such 270th day (or, if such
270th day is not a business day, the first business day thereafter), to but
excluding the date on which a Registration Event occurs provided that if, to
permit additional Holders of Offered Certificates (who have notified the Company
in writing its intention to participate in the Exchange Offer) to participate in
the Exchange Offer, the length of such Exchange Offer is extended beyond such
270th day (or, if such 270th day is not a business day, the first business day
thereafter), the interest rate shall not be increased if the Exchange Offer is
consummated within 60 days of such extension. In the event that the Shelf
Registration Statement required to be effective pursuant to Section 2(b) hereof
ceases to be effective at any time during the period specified by Section 2(b)
hereof for more than 60 days, whether or not consecutive, during any 12-month
period, the interest rate borne by the Offered Certificates shall be increased
by 0.50% per annum from the 61st day of the applicable 12-month period such
Shelf Registration Statement ceases to be effective until such time as the Shelf
Registration Statement again becomes effective.
(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, each Placement Agent 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 reasonably 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, (y) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Certificates
by the selling Holders thereof and (z) shall comply as to form in all
material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed
therewith, and use its best efforts to cause such Registration
Statement to become effective and remain effective in accordance with
Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to (x) keep such
13
Registration Statement effective for the applicable period under this
Agreement, (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 its reasonable 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 becomes effective, (ii) of any request by
the SEC or any state securities authority for amendments and
supplements to a Registration Statement and Prospectus or for material
additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Certificates
covered thereby, the
14
representations and warranties of the Company contained in any
underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and
correct in all material respects or if the Company receives any
notification with respect to the suspension of the qualification of the
Registrable 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 (in the case of the Prospectus, in light of
the circumstances under which they were made) 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 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
15
Statement or a Prospectus after initial filing of a Registration
Statement, provide copies of such document to the Placement Agents and
their counsel (and, in the case of a Shelf Registration Statement, the
Holders and their counsel) and make such of the representatives of the
Company 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;
(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, upon execution of
customary confidentiality agreements reasonably satisfactory to the
Company and its counsel, (other than a Placement Agent) 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 as shall
be necessary to enable such persons to conduct a reasonable
investigation within the meaning of Section 11 of the 1933 Act;
(n) use its reasonable best efforts to cause the Exchange
Certificates or Registrable Certificates, as the case may be, to be
rated by two nationally recognized statistical rating organizations (as
such term is defined in Rule 436(g)(2) under the 0000 Xxx);
16
(o) 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 notification of the matters to be incorporated
in such filing; and
(p) in the case of a Shelf Registration, enter into such
customary agreements and take all such other actions in connection
therewith (including those requested by the Holders of a majority of
the Registrable 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 and its subsidiaries, the
Registration Statement, Prospectus and documents incorporated by
reference or deemed incorporated by reference therein, if any, in each
case, in form, substance and scope as are customarily made by issuers
to underwriters in underwritten offerings and confirm the same if and
when requested, (ii) obtain opinions of counsel to the Company (which
counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Holders of a majority in principal amount of
Registrable Certificates being sold 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 underwritten offerings, (iii) obtain "cold
comfort" letters from the independent certified public accountants of
the Company (and, if necessary, any other certified public accountant
of any subsidiary of the Company, or of any business acquired by the
Company for which financial statements and financial data are or are
required to be included in the Registration Statement) addressed to
each selling Holder and Underwriter of Registrable 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. The Company may exclude from such registration the
Registrable Certificates of any Holder who fails to furnish such information
within a reasonable time after receiving such request.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company of the happening of any
event of the kind described in
17
Section 3(e)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Certificates pursuant to a Shelf Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof, and, if so directed by the Company, such
Holder will deliver to the Company (at the Company's expense) all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Certificates current at the time of
receipt of such notice. If the Company shall give any such notice to suspend the
disposition of Registrable Certificates pursuant to a Registration Statement,
the Company shall extend the period during which the Registration Statement
shall be maintained effective pursuant to this Agreement by the number of days
during the period from and including the date of the giving of such notice to
and including the date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions.
The 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,
subject to the consent of the Company (which shall not be unreasonably
withheld).
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
Offered 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. No Participating Broker-Dealers other
than the Placement Agents and persons who have obtained the Company's prior
written consent to act as a market maker shall have any rights as Participating
Broker-Dealers under this Agreement.
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 Agreement, the Company agrees that the provisions of this
Agreement as they relate to a Shelf Registration shall also apply to the
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
Certificates by Participating
18
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
discontinued and extended pursuant to the penultimate paragraph of
Section 3 of this Agreement) and Participating Broker-Dealers shall not
be authorized by the Company to deliver and shall not deliver such
Prospectus after such period in connection with the resales
contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures set
forth in Section 3 of this Agreement to an Exchange Offer Registration,
to the extent not required by the positions of the 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 in accordance with Section 4(a); provided that in
connection with such application of the Shelf Registration procedures
set forth in Section 3 to an Exchange Offer Registration, the Company
shall be obligated (x) to deal only with one entity representing the
Participating Broker-Dealers, which shall be Xxxxxx Xxxxxxx 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 the Placement Agents, 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 the Placement
Agent, any such 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
19
statement of a material fact contained in any Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to the Placement Agents or any Holder furnished to the Company in
writing through Xxxxxx Xxxxxxx or any selling Holder expressly for use therein
provided, however, that the foregoing indemnity agreement shall not inure to the
benefit of any Holder to the extent that any such losses, claims, damages or
liabilities result from the fact that such Holder sold securities to a person to
whom there was not sent or given by or on behalf of such Holder (if required by
law so to have been delivered) a copy of the final Prospectus (in the case of
any preliminary Prospectus) or a prospectus amendment or supplement (in the case
of any Prospectus) at or prior to the written confirmation of the sale of the
Registrable Certificates to such person if the Company had previously furnished
copies thereof to such Holder and such untrue statement or omission or alleged
untrue statement or omission was corrected in such final Prospectus or
prospectus amendment or supplement, nor shall this indemnity agreement inure to
the benefit of any Holder from whom the person asserting any such losses,
claims, damages or liabilities purchased the Registrable Certificates concerned
if at the time of such purchase such Holder had received written notice from the
Company that the use of such Prospectus, amendment, supplement or preliminary
Prospectus was suspended as provided in the penultimate paragraph of Section 3.
In connection with any Underwritten Offering permitted by Section 3, the Company
will also indemnify the Underwriters, if any, selling brokers, dealers and
similar securities industry professionals participating in the distribution,
their officers and directors and each Person who controls such Persons (within
the meaning of the 1933 Act and the 0000 Xxx) to the same extent as provided
above with respect to the indemnification of the Holders, if requested in
connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Placement Agents and the other
selling Holders and each of their respective directors, officers who sign the
Registration Statement and each Person, if any, who controls the Company, any
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 the Placement Agents and the
Holders, but only with reference to information relating to such Holder
furnished to the Company in writing by such Holder expressly for use in any
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto).
(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 of 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
20
any others the indemnifying party may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such proceeding. In any
such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for (a) the fees and expenses of more than one separate
firm (in addition to any local counsel) for the Placement Agents and all
Persons, if any, who control any Placement Agent within the meaning of either
Section 15 of the 1933 Act or Xxxxxxx 00 xx xxx 0000 Xxx, (x) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Company, its directors, its officers who sign the Registration Statement and
each Person, if any, who controls the Company within the meaning of either such
Section and (c) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Holders and all Persons, if any, who
control any Holders within the meaning of either such Section, and that all such
fees and expenses shall be reimbursed as they are incurred. In such case
involving the Placement Agents and Persons who control the Placement Agents,
such firm shall be designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated.
In such case involving the Holders and such Persons who control Holders, such
firm shall be designated in writing by the Majority Holders. In all other cases,
such firm shall be designated by the Company. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent (which consent shall not be unreasonably withheld) but, if settled with
such consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 90 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party for such fees and expenses of counsel in accordance with such
request prior to the date of such settlement. 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 (which consent shall not be
unreasonably withheld), unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
21
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 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
principle amount of Registrable Certificates of such Holder that were registered
pursuant to a Registration Statement.
(e) The Company and each Holder agree that it would not be
just or equitable if contribution pursuant to this Section 5 were determined by
pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 5, no Holder shall be required to indemnify or
contribute any amount in excess of the amount by which the total price at which
Registrable Certificates were sold by such Holder exceeds the amount of any
damages that such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of the Placement Agents, 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 Agreement will not enter
into, any agreement that is inconsistent with the rights granted to the Holders
of Registrable Certificates in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's other issued and outstanding securities under any such agreements.
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(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Company 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 consents 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 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 applicable
Trustee, at the address specified in the Applicable Trust Agreement.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
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
Agreement, and by taking and holding such Registrable Certificates, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement 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
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 0000 Xxx) to not, purchase
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and then resell or otherwise transfer any Certificates prior to consummation of
the Exchange Offer or a Shelf Registration Statement being declared effective.
(f) 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.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Trustees. The Trustees shall take such action as may be
reasonably requested by the Company in connection with the Company satisfying
its obligations arising under this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
AMERICAN AIRLINES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director,
Corporate Finance and Banking
STATE STREET BANK AND TRUST
COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee
By: /s/ Alison Della Bella
----------------------
Name: Alison Della Bella
Title: Assistant Vice President
Confirmed and accepted as of
the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX BARNEY INC.
DRESDNER KLEINWORT XXXXXXXXXXX SECURITIES LLC
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ P.M. Xxxxxx
-----------------
Name: Xxxxxxx X. Xxxxxx
Title: Principal
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