REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated January 30, 2004 (the
"Agreement"), is entered into by and among ATA Holdings Corp. (formerly known as
Amtran, Inc.), an Indiana Corporation (the "Company"), ATA Airlines, Inc.
(formerly known as American Trans Air, Inc.), Ambassadair Travel Club, Inc., ATA
Leisure Corp. (formerly known as ATA Vacations, Inc.), Amber Travel, Inc.,
American Trans Air Training Corporation, American Trans Air Execujet, Inc.,
each, an Indiana corporation, ATA Cargo, Inc. (formerly known as Amber Air
Freight Corporation), a California corporation, Chicago Express Airlines, Inc.,
a Georgia corporation, and Wells Fargo Bank Northwest, National Association, as
Trustee (as defined below) for the benefit of the Holders (as defined below).
Pursuant to the terms of the Exchange Offers (as defined below), the
Company has agreed to issue and sell the Securities (as defined below) which
will be guaranteed on an unsecured senior basis by each of the Guarantors (as
defined below) pursuant to the terms of the Exchange Offers. As an inducement to
the Existing Holders (as defined below) to tender the Existing Notes (as defined
below) in exchange for the Securities pursuant to the Exchange Offers, the
Company and each of the Guarantors have agreed to provide to the Existing
Holders and their direct and indirect transferees the registration rights set
forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:
"Business Day" shall mean any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Exchange
Offers.
"Company" shall mean ATA Holdings Corp. and shall also include the
Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Exchange Offers" shall mean the offers by the Company to Existing Holders
to exchange their Existing Notes for the Securities and other consideration
pursuant to the terms set forth in the offers to exchange and the Confidential
Offering Memorandum dated January 9, 2004.
"Exchange Securities" shall mean senior notes issued by the Company to
Holders of Securities in exchange for Securities pursuant to the Registration
Exchange Offer and guaranteed by each of the Guarantors under the Indentures
containing terms identical to the Securities (except that the Exchange
Securities will not be subject to restrictions on transfer or to any increase in
annual interest rate for failure to comply with this Agreement except for
additional interest which has accrued pursuant to a Registration Default but not
been paid prior to the issuance of the Exchange Securities).
"Existing Holders" shall mean holders of the Existing Notes, and each of
their successors, assigns and direct and indirect transferees who become owners
of Existing Notes.
"Existing Notes" shall mean the Company's 10 1/2% Senior Notes due 2004
issued under the indenture dated July 24, 1997, among the Company, the
subsidiaries of the Company party thereto and First Security Bank, N.A., and the
Company's 9 5/8% Senior Notes due 2005 issued under the indenture dated December
11, 1998, among the Company, the subsidiaries of the Company party thereto and
First Security Bank, N.A.
"Guarantors" shall mean ATA Airlines, Inc. (formerly known as American
Trans Air, Inc.), Ambassadair Travel Club, Inc., ATA Leisure Corp. (formerly
known as ATA Vacations, Inc.), Amber Travel, Inc., American Trans Air Training
Corporation, American Trans Air Execujet, Inc., each, an Indiana corporation,
ATA Cargo, Inc. (formerly known as Amber Air Freight Corporation), a California
corporation, and Chicago Express Airlines, Inc., a Georgia corporation, and
shall also include any Guarantor's successors.
"Holders" shall mean the Existing Holders who have tendered their Existing
Notes in exchange for the Securities pursuant to the Exchange Offers, for so
long as they own any Registrable Securities, and each of their successors,
assigns and direct and indirect transferees who become owners of Registrable
Securities under the Indentures; provided that for purposes of Sections 4 and 5
of this Agreement, the term "Holders" shall include Participating
Broker-Dealers.
"Holders' Counsel" shall mean Hale and Dorr LLP unless a different counsel
shall be selected by the Majority Holders (as defined below).
"Holders' Information" shall mean information included in a Shelf
Registration Statement (as defined below) in reliance upon or in conformity with
written information furnished to the Company by or on behalf of any Holder
specifically for use therein.
"Indentures" shall mean the indentures relating to the Securities dated as
of January 30, 2004 among the Company, the Guarantors and Wells Fargo Bank
Northwest, National Association, as trustee, and as each may be amended from
time to time in accordance with the terms thereof.
"Issue Date" shall mean the date upon which the Securities are issued.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of outstanding Registrable Securities; provided that whenever
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities owned directly or
indirectly by the Company or any of its affiliates shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage or amount.
"Omitted Private Exchange Securities" shall mean the Private Exchange
Securities (as defined below) issued pursuant to Section 2(a) hereof to Holders
who are eligible to participate in the Registration Exchange Offer but who do
not so participate.
"Participating Broker-Dealers" shall have the meaning set forth in Section
4 hereof.
"Person" shall mean an individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Principal 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 any
document incorporated by reference therein.
"Private Exchange Securities" shall mean senior notes issued by the Company
and guaranteed by each of the Guarantors identical in all material respects to
the Exchange Securities, except with respect to the transfer restrictions
relating to such Private Exchange Securities and except that provisions for
additional interest shall be included in such Private Exchange Securities to the
extent the holder thereof is entitled to additional interest pursuant to the
terms of this Agreement.
"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 Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.
"Registrable Securities" shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities has been declared effective under the
Securities Act and such Securities have been exchanged or disposed of pursuant
to such Registration Statement, (ii) when such Securities are eligible to be
sold pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or (iii) when such Securities cease to be
outstanding.
"Registration Exchange Offer" shall mean the exchange offer by the Company
and the Guarantors of Exchange Securities for Registrable Securities pursuant to
Section 2(a) hereof.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantors 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
Exchange Securities or Registrable Securities), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus and any amendments or
supplements thereto, any underwriting agreements, securities sales agreements or
other similar agreements and any 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 Indentures under
applicable securities laws, (vi) the fees and disbursements of the Trustee and
its counsel, (vii) the fees and disbursements of counsel for the Company and the
Guarantors and the fees and disbursements of Holders' Counsel and (viii) the
fees and disbursements of the independent public accountants of the Company and
the Guarantors, including the expenses of any special audits or "comfort"
letters required by or incident to the performance of and compliance with this
Agreement, 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 Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company and the Guarantors that covers any of the Exchange Securities or
Registrable Securities 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 any document incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall mean the Company's Senior Notes due 2009 and the
Company's Senior Notes due 2010, in each case issued under the Indentures.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"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 and the Guarantors that covers all the Registrable Securities
(but no other securities unless approved by the Holders whose Registrable
Securities are to be covered by such Shelf Registration Statement) on an
appropriate form under Rule 415 under the Securities 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 any document incorporated
by reference therein.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Trustee" shall mean the trustee with respect to the Securities under the
Indentures.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act. (a) The Company and the
Guarantors shall jointly and severally: (i) use their reasonable best efforts to
prepare and, not later than 45 days following the Issue Date, file with the
Commission the Principal Registration Statement with respect to a proposed offer
to the Holders to issue and deliver to such Holders, in exchange for the
Registrable Securities, a like aggregate principal amount of Exchange
Securities; and (ii) use their reasonable best efforts to cause the Principal
Registration Statement to become effective under the Securities Act no later
than 120 days after the Issue Date and the Registration Exchange Offer to be
consummated no later than 180 days after the Issue Date. The Exchange Securities
will be issued under the Indentures or an indenture between the Company, the
Guarantors party thereto and the Trustee or such other bank or trust company
that is reasonably satisfactory to the Company and the Majority Holders
("Exchange Securities Indenture"), such Exchange Securities Indenture to be
identical in all material respects to the Indentures, except with respect to the
transfer restrictions relating to the Securities (as described above in the
definition of "Exchange Securities").
Upon the effectiveness of the Principal Registration Statement, the Company
and the Guarantors shall as soon as practicable commence the Registration
Exchange Offer, it being the objective of such Registration Exchange Offer to
enable each Holder electing to exchange Registrable Securities for Exchange
Securities to exchange such Registrable Securities and to trade such Exchange
Securities from and after their receipt without any limitations or restrictions
under the Securities Act and without material restrictions under the securities
laws of the several states of the United States.
The Company and the Guarantors shall promptly, upon the request of any
Holder that does not participate in the Registration Exchange Offer, issue and
deliver to any such Holder, in exchange for the Securities held by such Holder,
a like aggregate principal amount of Private Exchange Securities. The Private
Exchange Securities will be issued under the same indenture as the Exchange
Securities, and the Company shall use its reasonable best efforts to cause the
Private Exchange Securities to bear the same CUSIP number as the Exchange
Securities.
The Indenture or the Exchange Securities Indenture, as the case may be,
shall provide that the Securities, the Exchange Securities and the Private
Exchange Securities shall vote and consent together on all matters as one class
and that none of the Securities, the Exchange Securities or the Private Exchange
Securities will have the right to vote or consent as a separate class on any
matter.
Interest on each Exchange Security and Private Exchange Security will
accrue from the last interest payment date on which interest was paid on the
Securities surrendered in exchange therefor or, if no interest has been paid on
the Securities, from the Issue Date.
The Company and the Guarantors shall commence the Registration Exchange
Offer by mailing the related Prospectus, appropriate letters of transmittal and
other accompanying documents to each Holder stating, in addition to such other
disclosures as are required by applicable law:
(i) that the Registration Exchange Offer is being made pursuant to this
Agreement and that all Registrable Securities validly tendered and not
properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least
20 Business Days from the date such notice is mailed);
(iii) that any Registrable Security not tendered will remain outstanding and
continue to accrue interest but will not retain any rights under this
Agreement except as otherwise provided herein;
(iv) that any Holder electing to have a Registrable Security exchanged pursuant
to the Registration Exchange Offer will be required to surrender such
Registrable Security, together with the appropriate letters of
transmittal, to the institution and at the address (located in the Borough
of Manhattan, The City of New York) and in the manner specified in the
notice, prior to the close of business on the last Exchange Date; and
(v) that any Holder will be entitled to withdraw its 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 of Registrable Securities delivered for exchange and a
statement that such Holder is withdrawing its election to have such
Securities exchanged.
As a condition to participating in the Registration Exchange Offer, a
Holder will be required to represent to the Company and the Guarantors that (i)
any Exchange Securities to be received by it will be acquired in the ordinary
course of its business, (ii) at the time of the commencement of the Registration
Exchange Offer it has no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Securities in violation of the provisions of the Securities Act,
(iii) it is not an "affiliate" (within the meaning of Rule 405 under Securities
Act) of the Company or any Guarantor and (iv) if such Holder is a broker-dealer
that will receive Exchange Securities for its own account in exchange for
Registrable Securities that were acquired as a result of market-making or other
trading activities, then such Holder will deliver a Prospectus in connection
with any resale of such Exchange Securities. The Company acknowledges that,
pursuant to current interpretations by the Commission's staff of Section 5 of
the Securities Act, (i) each Holder that is a broker-dealer electing to exchange
Securities acquired for its own account as a result of market-making activities
or other trading activities for Exchange Securities is required to deliver a
prospectus containing substantially the information set forth in Annex A hereto
on the cover of such prospectus, in Annex B hereto in the "Exchange Offer
Procedures" and "Purpose of the Exchange Offer" sections of such prospectus and
in Annex C hereto in the "Plan of Distribution" section of such prospectus in
connection with a sale of any such Exchange Securities received by such
broker-dealer pursuant to the Registration Exchange Offer.
As soon as practicable after the last Exchange Date, the Company and the
Guarantors shall:
(i) accept for exchange Registrable Securities or portions thereof validly
tendered and not properly withdrawn pursuant to the Registration Exchange
Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Registrable Securities or portions thereof so accepted for exchange by the
Company and issue, and cause the Trustee to promptly authenticate and
deliver to each Holder, Exchange Securities equal in principal amount to
the principal amount of the Registrable Securities surrendered by such
Holder.
The Company and the Guarantors shall use their reasonable best efforts to
complete the Registration Exchange Offer as provided above and shall comply with
the applicable requirements of the Securities Act, the Exchange Act and other
applicable laws and regulations in connection with the Registration Exchange
Offer. The Registration Exchange Offer shall not be subject to any conditions,
other than that the Registration Exchange Offer does not violate any applicable
law or applicable interpretations of the Staff of the SEC.
Notwithstanding any other provisions hereof, the Company and each of the
Guarantors will ensure that (i) any Principal Registration Statement and any
amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations of the Commission thereunder, (ii) any Principal Registration
Statement and any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and (iii) any prospectus forming part of any Principal Registration Statement,
and any supplement to such prospectus, does not, as of the consummation of the
Registration Exchange Offer, include an untrue statement of a material fact or
omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(b) If (i) because of any change in law or applicable interpretations
thereof by the staff of the SEC, the Company is not permitted to effect the
Registration Exchange Offer as contemplated by Section 2(a), (ii) any applicable
law or interpretations do not permit any Holder of Registrable Securities to
participate in the Registration Exchange Offer (which shall include, for the
purposes of this Agreement, any Holder that is unable to make the
representations required to participate in the Registration Exchange Offer) or
(iii) any Holder of Registrable Securities that participates in the Registration
Exchange Offer does not receive freely transferable Exchange Securities in
exchange for tendered Registrable Securities, then the Company and the
Guarantors shall use their reasonable best efforts to cause to be filed not
later than 45 days after such determination, date or request, as the case may
be, a Shelf Registration Statement providing for the offer and sale of all the
Registrable Securities other than the Omitted Private Exchange Securities by the
Holders thereof from time to time and to have such Shelf Registration Statement
declared effective by the SEC.
The Company and the Guarantors agree to use their reasonable best efforts
to keep the Shelf Registration Statement continuously effective until the
expiration of the period referred to in Rule 144(k) under the Securities Act
with respect to the Registrable Securities or such shorter period that will
terminate when all the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement. The
Company and Guarantors shall be deemed not to have used their reasonable best
efforts to keep the Shelf Registration Statement effective during the requisite
period if they voluntarily take any action that would result in Holders of
Registrable Securities covered thereby not being able to offer and sell such
Registrable Securities during that period, unless such action is required by
applicable law. The Company and the Guarantors further agree to supplement or
amend the Shelf Registration Statement and the related Prospectus 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 Securities Act or
by any other rules and regulations thereunder for shelf registration or if
reasonably requested by a Holder of Registrable Securities with respect to
information relating to such Holder, and to use their reasonable best efforts to
cause any such amendment to become effective and such Shelf Registration
Statement and Prospectus to become usable as soon as thereafter practicable. The
Company and the Guarantors agree to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
Notwithstanding any other provisions hereof, the Company and each of
Guarantors will ensure that (i) any Shelf Registration Statement and any
amendment thereto and any prospectus forming part thereof and any supplement
thereto complies in all material respects with the Securities Act and the rules
and regulations of the Commission thereunder, (ii) any Shelf Registration
Statement and any amendment thereto (in either case, other than with respect
Holders' Information) does not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements
therein not misleading and (iii) any prospectus forming part of any Shelf
Registration Statement, and any supplement to such prospectus (in either case,
other than with respect to Holders' Information), does not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(c) The Company and the Guarantors shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) and Section 2(b)
hereof. 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 Securities pursuant to the Shelf Registration Statement.
(d) A Principal 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.
The parties hereto agree that the Holders of Registrable Securities will
suffer damages if the Company and the Guarantors fail to fulfill their
obligations under Section 2(a) or Section 2(b) hereof, as applicable, and that
it would not be feasible to ascertain the extent of such damages. Accordingly,
if (i) the applicable Registration Statement is not filed with the SEC on or
prior to 45 days after the Issue Date; (ii) the Principal Registration Statement
or the Shelf Registration Statement, as the case may be, is not declared
effective within 120 days after the Issue Date (or in the case of a Shelf
Registration Statement required to be filed in response to a change in law or
the applicable interpretations of the staff of the SEC, if later, within 45 days
after publication of the change in law or interpretation); (iii) the
Registration Exchange Offer is not consummated on or prior to 180 days after the
Issue Date; or (iv) the Shelf Registration Statement is filed and declared
effective within 180 days after the Issue Date (or in the case of a Shelf
Registration Statement required to be filed in response to a change in law or
the interpretations of the staff of the SEC, if later, within 45 days after
publication of the change in law or interpretation), but shall thereafter cease
to be effective (at any time that the Company and the Guarantors are obligated
to maintain the effectiveness thereof) (each such event referred to in clauses
(i) through (iv), a "Registration Default"), the annual interest rate borne by
the Securities (other than the Exchange Securities from and after their issuance
pursuant to the Registration Exchange Offer) shall be increased by (i) 0.50% per
annum for the first 90-day period immediately following a Registration Default
and (ii) an additional 0.25% per annum with respect to each subsequent 90-day
period of Registration Default, in each case until the applicable Registration
Default is cured. Such accrual of additional interest is the exclusive remedy
for monetary damages available to Holders of Registrable Securities in the case
of any Registration Default. Following the cure of all Registration Defaults,
the accrual of additional interest will cease. The Company and the Guarantors
shall notify the Trustee and the Paying Agent under the Indenture immediately
upon the happening of each and every Registration Default.
(e) Without limiting the remedies available to the Holders, the Company and
the Guarantors acknowledge that any failure by the Company or the Guarantors to
comply with
their obligations under Section 2(a) and Section 2(b) hereof may result in
material irreparable injury to 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, any Holder may obtain such
relief as may be required to specifically enforce the Company's and the
Guarantors' obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with their obligations pursuant
to Section 2(a) and Section 2(b) hereof, the Company and the Guarantors shall as
expeditiously as possible:
(a) furnish to Holders' Counsel without charge, at least five Business Days
(three Business Days in the case of an amendment) prior to the filing thereof
with the SEC, a copy of the Registration Statement and each amendment thereof
and each supplement, if any, to the prospectus included therein and use its
reasonable best efforts to reflect in each such document, when so filed with the
SEC, such comments as Holders' Counsel may reasonably propose; (ii) if
applicable, include the information set forth in Annex A hereto on the cover, in
Annex B hereto in the "Exchange Offer Procedures" and "Purpose of the Exchange
Offer" sections and in Annex C hereto in the "Plan of Distribution" section of
the prospectus forming a part of the Principal Registration Statement, and
include the information set forth in Annex D hereto in the letter of transmittal
delivered pursuant to the Registration Exchange Offer;
(b) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Company and the Guarantors, (y) shall, in the case of a Shelf Registration,
be available for the sale of the Registrable Securities 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 their reasonable best efforts
to cause such Registration Statement to become effective and remain effective
for the applicable period in accordance with Section 2 hereof;
(c) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period in accordance with
Section 2 hereof and cause each Prospectus to be supplemented by any required
prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424
under the Securities Act; and keep each Prospectus current during the period
described in Section 4(3) of and Rule 174 under the Securities Act that is
applicable to transactions by brokers or dealers with respect to the Registrable
Securities or Exchange Securities;
(d) promptly furnish to each Holder of Registrable Securities, to Holders'
Counsel and to each Underwriter of an Underwritten Offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus, including
each preliminary Prospectus, and any amendment or supplement thereto, as is
requested by them (and furnish one copy to each such person without any
request); and the Company and the Guarantors consent 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 Securities and any such Underwriters
in connection with the offering and sale of the Registrable Securities covered
by and in the manner described in such Prospectus or any amendment or supplement
thereto in accordance with applicable law;
(e) by the time the applicable Registration Statement is declared effective
by the SEC, use their reasonable best efforts to register or qualify the
Exchange Securities, Private Exchange Securities (other than Omitted Private
Exchange Securities) or Registrable Securities, or cooperate with the Holders of
such Securities and their respective counsel in connection with the registration
or qualification of such Securities, for offer and sale under all applicable
state securities or blue sky laws of such jurisdictions as any Holder of
Exchange Securities, Private Exchange Securities (other than Omitted Private
Exchange Securities) or Registrable Securities covered by a Registration
Statement shall reasonably request in writing; cooperate with the 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 that may be
reasonably necessary or advisable to enable each Holder to complete the
disposition in each such jurisdiction of the Exchange Securities, Private
Exchange Securities (other than Omitted Private Exchange Securities) or
Registrable Securities owned by such Holder; provided that neither the Company
nor any Guarantor shall be required to (i) qualify as a foreign corporation or
other entity or as a dealer in securities in any such jurisdiction where it
would not otherwise be required to so qualify, (ii) file any general consent to
service of process in any such jurisdiction or (iii) subject itself to taxation
in any such jurisdiction if it is not so subject;
(f) notify each Holder of Exchange Securities, Private Exchange Securities
(other than Omitted Private Exchange Securities) or Registrable Securities and
Holders' Counsel promptly and, if requested by any such Holder or Holders'
Counsel, confirm such advice in writing (i) when a Registration Statement or any
amendment to a Registration Statement has been filed with the SEC and when any
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 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 Securities covered thereby, the representations and
warranties of the Company or any Guarantor contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to an offering of such Registrable Securities cease to be true and
correct in all material respects or if the Company or any Guarantor receives any
notification with respect to the suspension of the qualification of the
Registrable Securities 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 that makes any statement made in
such Registration Statement or the related Prospectus untrue in any material
respect or that 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 or any Guarantor that a post-effective amendment to a Registration
Statement would be appropriate;
(g) use their reasonable best efforts 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;
(h) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without any
documents incorporated therein by reference or exhibits thereto, unless
requested);
(i) cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold pursuant to any Registration Statement and not
bearing any restrictive legends and enable such Registrable Securities to be
issued in such denominations and registered in such names (consistent with the
provisions of the Indentures) as the selling Holders may reasonably request at
least one Business Day prior to the closing of any sale of Registrable
Securities pursuant to such Registration Statement;
(j) upon the occurrence of any event contemplated by Section 3(f)(v) hereof
during the period for which the Company and the Guarantors are required to
maintain an effective Registration Statement, use their reasonable 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 purchasers of the Registrable Securities, 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 the light of the circumstances
under which they were made, not misleading; and the Company and the Guarantors
shall notify the Holders of Registrable Securities to suspend use of the
Prospectus as promptly as practicable after the occurrence of such an event, and
such Holders hereby agree to suspend use of the Prospectus until the Company and
the Guarantors have amended or supplemented the Prospectus to correct such
misstatement or omission;
(k) obtain a CUSIP number for all Exchange Securities, Private Exchange
Securities or Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement and provide the applicable trustee
with printed certificates for the Exchange Securities, the Private Exchange
Securities or the Registrable Securities, as the case may be, in a form eligible
for deposit with The Depository Trust Company;
(l) comply with all applicable rules and regulations of the SEC and make
generally available to its security holders as soon as practicable after the
effective date of the applicable Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act; provided that
in no event shall such earnings statement be
delivered later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's or
such Guarantor's first fiscal quarter commencing after the effective date of the
applicable Registration Statement, which statement shall cover such 12-month
period;
(m) cause the Indentures to be qualified under the Trust Indenture Act in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be; cooperate with the Trustee and the Holders to
effect such changes to the Indentures as may be required for the Indentures to
be so qualified in accordance with the terms of the Trust Indenture Act; and
execute, and use their reasonable best efforts to cause the Trustee 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 Indentures to be so
qualified in a timely manner;
(n) in the case of a Shelf Registration, make available for inspection by a
representative of the Holders of the Registrable Securities (an "Inspector"),
any Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, and attorneys (including Holders' Counsel) and
accountants designated by the Holders, at reasonable times and in a reasonable
manner, all relevant financial and other records, pertinent corporate documents
and properties of the Company and the Guarantors, and cause the respective
officers, directors and employees of the Company and the Guarantors to supply
all relevant information reasonably requested by any such Inspector,
Underwriter, attorney or accountant in connection with a Shelf Registration
Statement; provided that if any such information is identified by the Company or
any Guarantor as being confidential or proprietary, each Person receiving such
information shall take such actions as are reasonably necessary to protect the
confidentiality of such information to the extent such action is otherwise not
inconsistent with, an impairment of or in derogation of the rights and interests
of any Inspector, Holder or Underwriter);
(o) in the case of a Shelf Registration, use their reasonable best efforts
to cause all Registrable Securities to be listed on any securities exchange or
any automated quotation system on which similar securities issued or guaranteed
by the Company or any Guarantor are then listed if requested by the Majority
Holders, to the extent such Registrable Securities satisfy applicable listing
requirements; 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 in principal amount of the
Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities 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 Securities 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, 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 and the Guarantors (which counsel
and opinions, 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 Securities, covering the
matters customarily covered in opinions requested in underwritten offerings,
(iii) obtain "comfort" letters from the independent certified public accountants
of the Company and the Guarantors (and, if necessary, any other certified public
accountant of any subsidiary of the Company or any Guarantor, or of any business
acquired by the Company or any Guarantor 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 Securities, such
letters to be in customary form and covering matters of the type customarily
covered in "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 Securities 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 and the Guarantors 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 Securities to furnish to the Company such information
regarding such Holder and the proposed disposition by such Holder of such
Registrable Securities as the Company and the Guarantors may from time to time
reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder of Registrable
Securities agrees that, upon receipt of any notice from the Company and the
Guarantors of the happening of any event of the kind described in Section
3(f)(iii) or 3(f)(v) hereof, such Holder will forthwith discontinue disposition
of Registrable Securities pursuant to a Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(j) hereof and, if so directed by the Company and the
Guarantors, such Holder will deliver to the Company and the Guarantors all
copies in its possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities that is
current at the time of receipt of such notice.
If the Company and the Guarantors shall give any such notice of the
happening of any event of the kind described in Section 3(f)(iii) or 3(f)(v)
hereof to suspend the disposition of Registrable Securities pursuant to a
Registration Statement, the Company and the Guarantors 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 Company and the Guarantors may give any such
notice only twice during any 365-day period and any such suspensions shall not
exceed 30 days for each suspension and there shall not be more than two
suspensions in effect during any 365-day period.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities 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 Securities included in such offering.
4. Participation of Broker-Dealers in the Registration Exchange Offer. The
Staff of the SEC has taken the position that any broker-dealer that receives
Exchange Securities for its own account in the Registration Exchange Offer in
exchange for Securities 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 Securities Act and
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities.
The Company and the Guarantors understand that it is the Staff's position
that if the Prospectus contained in the Principal 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
Securities, without naming the Participating Broker-Dealers or specifying the
amount of Exchange Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the Securities Act in connection with resales of Exchange Securities for
their own accounts, so long as the Prospectus otherwise meets the requirements
of the Securities Act.
5. Indemnification and Contribution. (a) The Company and each Guarantor,
jointly and severally, agree to indemnify and hold harmless each Holder, its
respective affiliates, directors and officers and each Person, if any, who
controls any Holder within the meaning of 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, legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or any Prospectus or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to any Holder furnished to the Company in writing through any selling Holder
expressly for use therein. In connection with any Underwritten Offering
permitted by Section 3, the Company and the Guarantors, jointly and severally,
will also indemnify the Underwriters, if any, selling brokers, dealers and
similar securities industry professionals participating in the distribution,
their respective affiliates and each Person who controls such Persons (within
the meaning of the Securities Act and the Exchange Act) 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 Guarantors and the selling Holders, their respective
affiliates, the directors of the Company and the Guarantors, each officer of the
Company and the Guarantors who signed the Registration Statement and each
Person, if any, who controls the Company, the Guarantors and any selling Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the indemnity set forth in paragraph (a)
above, but only with respect to any losses, claims, damages or liabilities that
arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any
information relating to such Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement and any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 5. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 5
that the Indemnifying Person may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding, as incurred. In
any such proceeding, any Indemnified Person 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 Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding 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 Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm (y) for any Holder,
its affiliates, directors and officers and any control Persons of such Holder
shall be designated in writing by the Majority Holders and (z) in all other
cases shall be designated in writing by the Company. The Indemnifying Person
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 Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (A) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person 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 and the Guarantors from the offering of the Securities and the Exchange
Securities, on the one hand, and by the Holders from receiving Securities or
Exchange Securities registered under the Securities Act, on the other hand, or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) but also the relative fault of the Company
and the Guarantors on the one hand and the Holders on the other 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 Guarantors on the one hand and the Holders
on the other 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 and the Guarantors or by the Holders and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Company, the Guarantors and the Holders agree that it would not be
just and equitable if contribution pursuant to this Section 5 were determined by
pro rata allocation (even if the Holders were treated as one entity for such
purpose) 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 Person 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 incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 5, in no event
shall a Holder be required to contribute any amount in excess of the amount by
which the total price at which the Securities or Exchange Securities 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 Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
(f) The remedies provided for in this Section 5 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder, its respective affiliates or any Person controlling any Holder, or
by or on behalf of the Company or the Guarantors, their respective affiliates or
the officers or directors of or any Person controlling the Company or the
Guarantors, (iii) acceptance of any of the Exchange Securities and (iv) any sale
of Registrable Securities pursuant to a Shelf Registration Statement.
6. Rules 144 and 144A. Each of the Company and the Guarantors shall use its
commercially reasonable best efforts to file the reports required to be filed by
it under the Securities Act and the Exchange Act in a timely manner and, if at
any time the Company or a Guarantor is not required to file such reports, it
will, upon the written request of any Holder of Registrable Securities, make
publicly available other information for so long as necessary to permit sales of
such Holder's securities pursuant to Rules 144 and 144A. The Company and each of
the Guarantors covenant that they will take such further action as any Holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including, without limitation, the requirements
of Rule 144A(d)(4)). Upon the written request of any Holder of Registrable
Securities, each of the Company and the Guarantors shall deliver to such Holder
a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 6 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
7. General.
(a) No Inconsistent Agreements. The Company and the Guarantors represent,
warrant and agree that (i) 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 any other outstanding securities issued or guaranteed by the Company
or any Guarantor under any other
agreement and (ii) neither the Company nor any Guarantor has entered into, or on
or after the date of this Agreement will enter into, any agreement that is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof.
(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 and the Guarantors have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Exchange Securities, Private Exchange Securities or Registrable Securities
affected by such amendment, modification, supplement, waiver or consent;
provided 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 Securities unless consented to in writing by such
Holder. Any amendments, modifications, supplements, waivers or consents pursuant
to this Section 7(b) shall be by a writing executed by each of the parties
hereto.
(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 7(c)
which address initially is, with respect to each Holder, the address of such
Holder maintained by the Register under the Indenture; (ii) if to the Company
and the Guarantors, initially at the Company's address set forth in the Exchange
Offers and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 7(c); and (iii) to such other
persons at their respective addresses, notice of which is given in accordance
with the provisions of this Section 7(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 the Trustee, at the address specified in the Indentures.
(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 Securities
in violation of the terms of the Indentures. If any transferee of any Holder
shall acquire Registrable Securities in any manner, whether by operation of law
or otherwise, such Registrable Securities shall be held subject to all the terms
of this Agreement, and by taking and holding such Registrable Securities 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.
(e) Purchases and Sales of Securities. The Company and the Guarantors shall
not, and shall use their reasonable best efforts to cause their affiliates (as
defined in Rule 405 under the Securities Act) not to, purchase and then resell
or otherwise transfer any Registrable Securities.
(f) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder by the Company, the Guarantors and
the Trustee, and shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or
the rights of other Holders 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, are not a part of this Agreement 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) Miscellaneous. This Agreement contains the entire agreement between the
parties relating to the subject matter hereof and supersedes all oral statements
and prior writings with respect thereto. If any term, provision, covenant or
restriction contained in this Agreement is held by a court of competent
jurisdiction to be invalid, void or unenforceable or against public policy, the
remainder of the terms, provisions, covenants and restrictions contained herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated. The Company and the Guarantors shall endeavor in good faith
negotiations to replace the invalid, void or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of
the invalid, void or unenforceable provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ATA HOLDINGS CORP.,
by /s/ David Wing
----------------------------------
Name: David M. Wing
Title: Executive Vice President & CFO
ATA AIRLINES, INC., as Guarantor,
by /s/ David Wing
----------------------------------
Name: David M. Wing
Title: Executive Vice President & CFO
AMBASSADAIR TRAVEL CLUB, INC.,
as Guarantor,
by /s/ David Wing
----------------------------------
Name: David M. Wing
Title: Executive Vice President & CFO
ATA LEISURE CORP., as Guarantor,
by /s/ David Wing
----------------------------------
Name: David M. Wing
Title: Executive Vice President & CFO
AMBER TRAVEL, INC., as Guarantor,
by /s/ David Wing
----------------------------------
Name: David M. Wing
Title: Executive Vice President & CFO
AMERICAN TRANS AIR TRAINING
CORPORATION, as Guarantor,
by /s/ David Wing
----------------------------------
Name: David M. Wing
Title: Executive Vice President & CFO
AMERICAN TRANS AIR EXECUJET, INC.,
as Guarantor,
by /s/ David Wing
----------------------------------
Name: David M. Wing
Title: Executive Vice President & CFO
ATA CARGO, INC., as Guarantor,
by /s/ David Wing
----------------------------------
Name: David M. Wing
Title: Executive Vice President & CFO
CHICAGO EXPRESS AIRLINES INC.,
as Guarantor,
by /s/ George Mikelsons
------------------------------
Name: J. George Mikelsons
Title: Chairman, President & CEO
Confirmed and accepted as of the date first above written:
WELLS FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
On behalf of the Holders
By /s/ Michael Hoggan
----------------------------
Authorized Signatory
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Registration Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Company and the
Guarantors have agreed that, for a period of 90 days after the Expiration Date
(as defined herein), they will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account in
exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Registration Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Securities where such Securities were acquired as a
result of market-making activities or other trading activities. The Company and
the Guarantors have agreed that, for a period of 90 days after the Expiration
Date, they will make this prospectus, as amended or supplemented, available to
any broker-dealer for use in connection with any such resale. In addition, until
[DATE], all dealers effecting transactions in the Exchange Securities may be
required to deliver a prospectus.
The Company and the Guarantors will not receive any proceeds from any sale of
Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Registration Exchange Offer
may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Securities or a combination of such methods of resale,
at market prices prevailing at the time of resale, at prices related to such
prevailing market prices or at negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it for its
own account pursuant to the Registration Exchange Offer and any broker or dealer
that participates in a distribution of such Exchange Securities may be deemed to
be an "underwriter" within the meaning of the Securities Act and any profit on
any such resale of Exchange Securities and any commission or concessions
received by any such persons may be deemed to be underwriting compensation under
the Securities Act. The Letter of Transmittal states that, by acknowledging that
it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
For a period of 90 days after the Expiration Date, the Company and the
Guarantors will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal. The Company and the Guarantors have
agreed to pay all expenses incident to the Registration Exchange Offer
(including the expenses of one counsel for the Holders of the Securities) other
than commissions or concessions of any broker-dealers and will indemnify the
Holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
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Address:
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If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.