Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3 Registration Statement for Securities Offered 92 444K
Pursuant to a Transaction
2: EX-3.1 Articles of Incorporation/Organization or By-Laws 9 27K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws 16 61K
4: EX-4.1 Instrument Defining the Rights of Security Holders 7 21K
5: EX-4.2 Instrument Defining the Rights of Security Holders 7 20K
6: EX-4.3 Instrument Defining the Rights of Security Holders 16 62K
7: EX-10.1 Material Contract 52 215K
8: EX-10.2 Material Contract 74 320K
9: EX-10.3 Material Contract 69 338K
10: EX-10.4 Material Contract 34 126K
11: EX-21.1 Subsidiaries of the Registrant 1 5K
12: EX-24.1 Power of Attorney 1 11K
EX-4.3 — Instrument Defining the Rights of Security Holders
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EXHIBIT 4.3
EXECUTION COPY
A/P I DEPOSIT CORPORATION
AND
THE PARTIES LISTED ON
THE SIGNATURE PAGES HERETO
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into on and as of June 20, 2001 by and between A/P I Deposit
Corporation, a Delaware corporation (the "COMPANY"), and Wells Fargo Bank
Northwest, N.A. (the "TRUSTEE") not individually, but solely as trustee under
the Trust Agreement (as hereinafter defined) (each aforementioned person,
individually a "PARTY" and collectively, the "PARTIES.")
WHEREAS, simultaneously with the execution of this Agreement, the
Company has entered into a Certificate Purchase Agreement of even date herewith,
as it may be amended from time to time (the "CERTIFICATE PURCHASE AGREEMENT"),
among the Company and the Holders (as hereinafter defined) signatories thereto
pursuant to which the Company is selling certificates of the Trust (as
hereinafter defined); and
WHEREAS, it is a condition precedent to the obligation of the
Holders pursuant to the Certificate Purchase Agreement to purchase the
certificates of interest in the Trust (as hereinafter defined) that the Holders
be granted the registration rights provided for herein.
WHEREAS, as an inducement to enter into the Certificate Purchase
Agreement with the Company and purchase the Certificates by the Holders, Amtrak
and the Borrower are entering into a letter agreement of even date herewith (the
"REGISTRATION RIGHTS SIDE LETTER") whereby they are agreeing to assist the
Company, subject to certain exceptions and/or limitations set forth in the
Registration Rights Side Letter, with its obligations hereunder.
NOW THEREFORE, the Parties hereto agree as follows:
1. DEFINITIONS
In addition to the terms defined elsewhere herein, when used herein the
following terms shall have the meanings indicated:
"AMTRAK" shall mean the National Railroad Passenger Corporation, a District of
Columbia corporation.
"BORROWER" shall mean Penn Station Leasing, LLC, a Delaware limited liability
company.
"CERTIFICATES" shall mean (i) the certificates of beneficial interest of the
Trust issued pursuant to the Trust Agreement owned of record by the Holders and
(ii) any such certificates from time to time acquired by the Holders after the
date hereof.
"COMMISSION" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"HOLDERS" shall mean the Persons who purchase Certificates pursuant to the
Certificate Purchase Agreement, and their respective transferees.
"PERSON" shall mean a natural person, corporation, general partnership, limited
partnership, limited liability company, joint stock company, joint venture,
association, company, trust, bank, trust company, land trust, business trust or
other organization, whether or not a legal entity, or a government or agency or
political subdivision thereof.
"REGISTRABLE CERTIFICATES" shall mean at any time any Certificates, PROVIDED,
HOWEVER, that Registrable Certificates shall not include any Certificates (x)
the sale of which has been registered pursuant to the Securities Act and which
shares have been sold pursuant to such registration or (y) which have been sold
pursuant to Rule 144 (or any other similar provision then in force) promulgated
under the Securities Act ("RULE 144").
"SECURITIES ACT" shall mean the United States Securities Act of 1933, as
amended.
"SECURITIES EXCHANGE ACT" shall mean the United States Securities Exchange Act
of 1934, as amended.
"TRUST" shall mean the Amtrak/Pennsylvania Station Lease Finance Trust-2001
formed pursuant to the Trust Agreement.
"TRUST AGREEMENT" means the Trust Agreement, dated as of June 20, 2001, between
the Company and Wells Fargo Bank Northwest, N.A., as Trustee.
"TRUSTEE" means Wells Fargo Bank Northwest, N.A., as trustee under the Trust
Agreement.
Terms used herein but not defined shall have the meanings assigned to them
in the Trust Agreement.
2. DEMAND REGISTRATION
(a) REQUEST FOR REGISTRATION. At any time within thirty (30) days from the
date hereof, the Trustee on behalf of Holders of Registrable Certificates
representing at least 51% of the Fractional Undivided Interest may make a
one-time written request to the Company (a "DEMAND REQUEST"), with a copy
to Amtrak, for the registration under the Securities Act of all or part of
the Holders' Registrable Certificates (a "DEMAND REGISTRATION") so as to
permit a public offering and sale of such Registrable Certificates for up
to 90 days. The Company shall file the Demand Registration within one
hundred and eighty (180) days after receiving a Demand Request (the
"REQUIRED FILING DATE") and shall use its commercially reasonable efforts
to cause the same to be declared effective by the Commission as soon as
reasonably practicable after such filing and in no event later than two
hundred seventy (270) days after the Required Filing Date. In the event
that the Demand Registration is not effective within two hundred seventy
(270) days of the Required Filing Date, following the expiration of such
two hundred seventy (270) day period, the Company may withdraw the
Registration Statement, provided, however, that the provisions of Section
4(d) relating to increased costs to Amtrak and the Borrower shall remain
in effect. Notwithstanding anything herein to the contrary, the Holders of
Registrable Certificates shall be entitled to make only one Demand Request
hereunder for a resale shelf and such Demand Request shall not contemplate
a traditional underwritten offering.
(b) PRIORITY ON DEMAND REGISTRATIONS. No securities to be sold for the account
of any Person (including the Company and including any other holder of
securities of the Company) other than Holders making or joining the
request pursuant to Section 2(a) above shall be included in a Demand
Registration.
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3. [RESERVED]
4. MISCELLANEOUS REGISTRATION RIGHTS PROVISIONS
(a) REGISTRATION PROCEDURES. Whenever the Trustee on behalf of the Holders of
Registrable Certificates representing at least 51% of the Fractional
Undivided Interest has requested that any Registrable Certificates be
registered pursuant to this Agreement in accordance with Section 2(a), the
Company will use its commercially reasonable efforts to effect the
registration and the sale of such Registrable Certificates in accordance
with the intended method of disposition thereof, and pursuant thereto the
Company will as soon as is reasonably practicable:
(i) prepare and file with the Commission a registration statement on any
appropriate form under the Securities Act, with respect to such
Registrable Certificates and use its commercially reasonable efforts
to cause such registration statement to become effective at the
earliest practicable time (provided that before filing a
registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to the counsel
selected by the Holders of a majority of the Fractional Undivided
Interest of Registrable Certificates covered by such registration
statement copies of all such documents proposed to be filed);
(ii) prepare and file with the Commission and notify each seller of such
Registrable Certificates immediately after the filing of such
amendments, post-effective amendments, and supplements to such
registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement
effective for a period of not less than 90 days, and comply with the
provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement;
(iii) furnish to each seller of Registrable Certificates such number of
copies of such registration statement, each amendment and supplement
thereto (in each case including all exhibits), the prospectus
included in such registration statement (including each preliminary
and summary prospectus) and any other prospectus filed under Rule
424 or Rule 430 A under the Securities Act reasonably requested by
such seller, and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable
Certificates owned by such seller;
(iv) use its commercially reasonable efforts to register or qualify such
Registrable Certificates under such other securities or blue sky
laws of such jurisdictions as each seller reasonably requests, to
keep such registration or qualification in effect for so long as
such registration statement remains in effect, and do any and all
other acts and things which may be reasonably necessary or advisable
to enable such seller to consummate the disposition of the
Registrable Certificates owned by such seller in such jurisdictions
(PROVIDED, HOWEVER, that the Company will not
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be required to (A) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this subparagraph, (B) consent to general service of process in
any such jurisdiction or (C) subject itself to any taxation (other
than stamp taxes) in any such jurisdiction);
(v) notify each seller of Registrable Certificates promptly after it
shall receive notice thereof, of the time when such registration
statement has become effective;
(vi) notify each seller of Registrable Certificates promptly of any
request by the Commission for the amending or supplementing of such
registration statement or prospectus or for additional information;
(vii) provide a transfer agent and registrar for all Registrable
Certificates sold under the registration not later than the
effective date of the registration statement;
(viii) furnish to each Holder participating in the registration a signed
counterpart, addressed to such Holder (a) of an opinion of counsel
as to such matters that are customarily covered in an opinion of
counsel delivered to an underwriter, including that the registration
is valid and effective and such other matters as such Holder may
reasonably request and (b) of a "cold comfort" letter signed by the
independent public accountants who have issued a report on the
Company's financial statements included in the registration
statement, covering substantially the same matters with respect to
such registration statement (and the prospectus included therein)
and, in the case of such accountant's letter, with respect to events
subsequent to the date of such financial statements, as are
customarily delivered to underwriters in underwritten public
offerings of securities and such other financial matters as such
Holder may reasonably request;
(ix) advise each seller of such Registrable Certificates, promptly after
it shall receive notice or obtain knowledge thereof, of the issuance
of any stop order by the Commission suspending the effectiveness of
such registration statement or of any order suspending or preventing
the use of any related prospectus in any jurisdiction or the
initiation or threatening of any proceeding for such purpose and
promptly use its commercially reasonable efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop
order should be issued;
(x) notify each seller of Registrable Certificates covered by such
registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, upon
discovery that, or upon the happening of any event as a result of
which, the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances under which they were made, and at the request
of any such seller promptly prepare, file with the Commission and to
furnish such seller a reasonable number of copies of a supplement to
or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such
prospectus shall
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not include an untrue statement of a material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were
made;
(xi) otherwise use its reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, but not
more than eighteen months, beginning with the first full calendar
month after the effective date of such registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act, and Rule 158 promulgated thereunder and will
furnish to each such seller at least two business days prior to the
filing thereof a copy of any amendment or supplement to such
registration statement or prospectus and shall not file any thereof
to which any such seller shall have reasonably objected on the
grounds that such amendment or supplement does not comply in all
material respects with the requirements of the Securities Act or of
the rules or regulations thereunder;
(xii) enter into such customary agreements (excluding underwriting
agreements) and take such other customary actions as the holders of
Registrable Certificates shall reasonably request in order to
expedite or facilitate the disposition of such Registrable
Certificates;
(xiii) make available for inspection by any seller of Registrable
Certificates and any attorney, accountant or other agent retained by
any such seller, all financial and other records, pertinent
corporate documents and properties of such Person and cause its
respective officers, directors, employees and independent
accountants to supply all information reasonably requested by any
such sellers, attorney, accountant or agent in connection with such
registration statement;
(xiv) deliver promptly to each Holder participating in an offering who so
requests in writing the file correspondence and memoranda described
below, copies of all correspondence between the Commission and such
Person, its counsel or auditors with respect to the registration
statement and permit each Holder to do such investigation, upon
reasonable advance notice, with respect to information contained in
or omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or the rules and
regulations of the National Association of Securities Dealers, Inc.
("NASD"). Such investigation shall include reasonable access to
books, records and properties and opportunities to discuss the
business of such Person with its officers and independent auditors,
all to such reasonable extent and at such reasonable times and as
often as any such Holder shall reasonably request;
(xv) permit any Holder of Registrable Certificates which Holder, in its
reasonable judgment, might be deemed to be an underwriter or a
controlling person of such Person, to participate in the preparation
of such registration or comparable statement and to require the
insertion therein of material, furnished to such Person
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in writing, which in the reasonable judgment of such holder and its
counsel should be included; and
(xvi) use its commercially reasonable efforts to cause such Registrable
Certificates covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities
as may be necessary to enable the sellers thereof to consummate the
disposition of such Registrable Certificates.
If any such registration or comparable statement refers to any Holder by name or
otherwise as the Holder of any securities of the Company or the Trust and if, in
its reasonable judgment, such Holder is or might be deemed to be a controlling
person of the Company or the Trust, such Holder shall have the right to require
(i) the insertion therein of language, in form and substance reasonably
satisfactory to such Holder and presented to the Company in writing, to the
effect that the holding by such Holder of such securities is not to be construed
as a recommendation by such Holder of the investment quality of the Company's or
the Trust's securities covered thereby and that such holding does not imply that
such Holder will assist in meeting any future financial requirements of the
Company or the Trust, or (ii) in the event that such reference to such Holder by
name or otherwise is not required by the Securities Act or any similar Federal
statute then in force, the deletion of the reference to such Holder; provided
that with respect to this clause (ii) such Holder shall furnish to the Company
an opinion of counsel to such effect, which opinion and counsel shall be
reasonably satisfactory to the Company.
The Company may require each Holder of Registrable Certificates to be included
in such registration statement to promptly furnish in writing to the Company
such information regarding the distribution of the Registrable Certificates as
the Company may from time to time reasonably request and any such other
information as may be legally required in connection with such registration.
(b) SUSPENSION OF DISPOSITIONS. Each Holder agrees by acquisition of any
Registrable Certificates that, upon receipt of any notice (a "SUSPENSION
NOTICE") from the Company of the happening of any event of the kind which,
in the opinion of the Company, requires the amendment or supplement of any
prospectus, such Holder will forthwith discontinue disposition of
Registrable Certificates until such Holder's receipt of the copies of the
supplemented or amended prospectus (which the Company shall prepare and
file as promptly as practicable), or until it is advised in writing (the
"ADVICE") by the Company that the use of the prospectus may be resumed,
and such Holder has received copies of any additional or supplemental
filings which are incorporated by reference in the prospectus, and, if so
directed by the Company, such Holder will deliver to the Company all
copies, 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. In the event the Company shall give any
such Suspension Notice or after the Demand Registration has become
effective the offering of the Registrable Certificates pursuant to a
registration is interfered with by any stop order, injunction, or other
order or requirement of the Commission or other governmental agency or
court (collectively, an "ORDER"), the time period regarding the
effectiveness of registration statements ----- set forth in Section
4(a)(ii) hereof shall be extended by the number of days (A) in the case of
a Suspension Notice, during the period from and including the date of the
giving of the
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Suspension Notice to and including the earlier to occur of (x) the date on
which each seller of Registrable Certificates covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus and (y) the date of the Advice and (B) in the case of an Order,
during the period from and including the date of the Order to and
including the date on which the Company advises all Holders in writing
that the Order is no longer in effect..
(c) REGISTRATION EXPENSES. All expenses incident to performance by the Company
of or compliance with this Agreement including, without limitation, all
registration and filing fees, invoiced reasonable fees and expenses of one
legal counsel for all Holders of Registrable Certificates to be included
in the registration statement, fees and expenses of compliance with
securities or "blue sky" laws (including reasonable fees and disbursements
of counsel in connection with "blue sky" qualifications of the Registrable
Certificates), all word processing, duplicating and printing expenses
(including expenses of printing certificates for the Registrable
Certificates and of printing prospectuses if the printing of prospectuses
is requested by a holder of Registrable Certificates), messenger and
delivery expenses, fees and expenses of counsel for the Company and the
respective independent certified public accountants (including the
expenses of any special audit or "cold comfort" letters required by or
incident to such performance), securities acts liability insurance (if the
Company elects to obtain such insurance), the fees and expenses of any
special experts retained by the Company in connection with such
registration, and the fees and expenses of other persons retained by the
Company (all such expenses being herein called "REGISTRATION EXPENSES")
will be borne by the Company whether or not any registration statement
becomes effective; PROVIDED that in no event shall Registration Expenses
include any underwriting discounts, commissions, or any out of pocket
expenses of the Holders (or agents who manage their accounts) other than
as expressly provided above.
(d) FAILURE TO FILE DEMAND REGISTRATION. The Parties acknowledge and agree
that, in the event that a Demand Registration is not filed on or prior to
the Required Filing Date and/or such Demand Registration is not effective
within two hundred seventy (270) days after the Required Filing Date,
then: (a) Amtrak will pay such Additional Sub-Rent as is set forth in
Sections 2.1 and 2.2 of the Facility Sublease pursuant to the terms
thereof, and (b) the Borrower will pay such additional interest as is set
forth in Section 2.2 of the Loan and Security Agreement, dated as of the
date hereof, between the Company and the Borrower pursuant to the terms
thereof.
5. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless, to the fullest extent
permitted by law, each seller of Registrable Certificates, and each of its
employees, advisors, agents, representatives, partners, officers,
directors and affiliates and each Person who controls such seller (within
the meaning of the Securities Act or the Securities Exchange Act)
(collectively, the "SELLER AFFILIATES") (i) against any and all losses,
claims, damages, liabilities, and expenses, joint or several (including,
without limitation, reasonable attorneys' fees except as limited by
Section 5(c) below) arising out of or caused by any untrue or alleged
untrue statement of a material fact contained in any registration
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statement, preliminary prospectus, final prospectus, summary prospectus,
or any amendment thereof or supplement thereto if the Company shall have
furnished any amendments or supplements, or any omission or alleged
omission of a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading, (ii) against any and all loss, liability,
claim, damage, and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation or investigation or
proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission
or alleged untrue statement or omission, and (iii) against any and all
costs and expenses (including reasonable fees and disbursements of
counsel) as may be reasonably incurred in investigating, preparing, or
defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission or alleged
untrue statement or omission, to the extent that any such expense or cost
is not paid under subparagraph (i) or (ii) above; except insofar as the
same are made in reliance upon and in strict conformity with information
furnished in writing to the Company by such seller or any Seller Affiliate
for use therein. The reimbursements required by this Section 5(a) will be
made by periodic payments during the course of the investigation or
defense, as and when bills are received or expenses incurred.
(b) In connection with any registration statement in which a seller of
Registrable Certificates is participating, each such seller will furnish
to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration
statement or prospectus and, to the fullest extent permitted by law, each
such seller will indemnify the Company, its directors, agents, officers
and each Person who controls the Company (within the meaning of Section 15
of the Securities Act or Section 20 of the Securities Exchange Act) or the
Company to the same extent as the foregoing indemnity from the Company to
the selling Holders, but only to the extent that such untrue statement or
alleged untrue statement or omission or alleged omission is contained in
any information or affidavit so furnished in writing by such seller or any
of its Seller Affiliates for specific inclusion in such registration
statement; provided that the obligation to indemnify will be several, not
joint and several, among such sellers of Registrable Certificates, and the
liability of each such seller of Registrable Certificates will be in
proportion to, and provided further that such liability will be limited
to, the net amount received by such seller from the sale of Registrable
Certificates pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give such
notice shall not limit the rights of such Person, unless such Person is
materially adversely affected by a failure to receive such written notice)
and (ii) unless in such indemnified party's reasonable judgment a conflict
of interest between such indemnified and indemnifying parties may exist
with respect to such claim, permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the
indemnified party; PROVIDED, HOWEVER, that any person entitled to
indemnification hereunder shall have the right to employ separate
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counsel and to participate in the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such person unless (X)
the indemnifying party has agreed to pay such fees or expenses, (Y) the
indemnifying party shall have failed to assume the defense of such claim
and employ counsel reasonably satisfactory to such person or (Z) in the
reasonable judgment of any indemnified party, a conflict of interest may
exist between such indemnified party and any other of such indemnified
parties with respect to such claim. An indemnifying party will not be
obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim.
If such defense is assumed by the indemnified party as permitted
hereunder, the indemnifying party will not be subject to any liability for
any settlement made by the indemnified party without the written consent
(which consent shall not be unreasonably withheld) of the indemnifying
party. If such defense is assumed by the indemnifying party pursuant to
the provisions hereof, such indemnifying party shall not settle or
otherwise compromise the applicable claim unless (1) such settlement or
compromise contains a full and unconditional release of the indemnified
party from all liabilities arising out of such proceeding or (2) the
indemnified party otherwise consents in writing.
(d) Each Party hereto agrees that, if for any reason the indemnification
provisions contemplated by Section 5(a) or Section 5(b) are unavailable to
or insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages, liabilities, or expenses (or actions in respect
thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, liabilities, or expenses (or actions in
respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or indemnified
party, and the parties' relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Parties
hereto agree that it would not be just and equitable if contribution
pursuant to this Section 5(d) 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 which does not take account of the equitable
considerations referred to in this Section 5(d). The amount paid or
payable by an indemnified party as result of the losses, claims, damages,
liabilities, or expenses (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or,
except as provided in Section 5(c), defending any such action or claim.
Notwithstanding the provisions of this Section 5(d), no Holder shall be
required to contribute an amount greater than the dollar amount of the net
proceeds received by such Holder with respect to the sale of any
Registrable Certificates. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations in this Section
5(d) to contribute shall be several in proportion to the amount of
Registrable Certificates registered by them and not joint.
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(e) The indemnification provided for under this Agreement will remain in full
force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of
such indemnified party and will survive the transfer of securities.
6. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Holders that:
(i) The Company is a corporation duly organized and validly existing and
in good standing under the laws of the State of Delaware, and has
the corporate power and corporate authority to own, operate, and
lease its properties and conduct its business as now conducted. The
Company is duly qualified to do business and is in good standing in
all jurisdictions in which the failure to so qualify would have a
material adverse effect on the operations, business, financial
conditions, assets, or liabilities of the Company and its
Subsidiaries, taken as a whole.
(ii) The Company has the corporate power and is duly authorized and
empowered to enter into and perform its obligations under this
Agreement. This Agreement has been duly and validly executed, and
delivered and constitutes the legal, valid, and binding obligation
of the Company, except as the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting the
enforceability of creditors' rights generally and the application of
general principles of equity and except as the enforceability of the
indemnification provisions in this Agreement may be limited by
applicable state and federal securities laws.
(iii) The execution, delivery, and performance of this Agreement by the
Company shall not, by the lapse of time, the giving of notice or
otherwise, constitute a violation of any applicable statute, law,
rule or regulation of any governmental authority, any applicable
provision contained in the articles of incorporation or bylaws of
the Company or contained in any agreement, instrument, or document
to which the Company is a party or by which it is bound, or any
order, ruling, judgment or decree of any court, arbitral body or
governmental authority.
7. COMPLIANCE WITH RULE 144
With a view to making available the benefits of certain rules and
regulations of the Commission which may at any time permit the sale of
Registrable Certificates to the public without registration, at all times the
Company agrees to use its commercially reasonable efforts to:
(a) Make and keep available adequate current public information, as those
terms are understood and defined in Rule 144 under the Securities Act, at
all times after it has become subject to the reporting requirements of the
Securities Exchange Act;
(b) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the
Securities Exchange Act; and
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(c) Furnish to each Holder of Registrable Certificates forthwith upon request
a written statement by the Company as to its compliance with the reporting
requirements of such Rule 144 ninety (90) days after any registration
statement covering a public offering of securities of the Company under
the Securities Act shall have become effective, and of the Securities Act
and the Securities Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents so
filed by the Company as such Holder may reasonably request availing itself
of any rule or regulation of the Commission allowing such Holder to sell
any Registrable Certificates without registration.
8. SUBSEQUENT INVESTORS
The Company shall not grant registration rights or enter into any
registration rights agreement or similar agreement with any Person which are
equal to, superior to or conflict, impair or interfere in any way with the
rights granted hereunder, without the consent of Holders, at the time of
determination, of a majority of the Registrable Certificates.
9. TERMINATION
The provisions of this Agreement shall terminate upon the date of the
earliest to occur of (i) in the event that the Trustee does not make a Demand
Request in accordance with Section 2(a), the date that is 31 days from the date
hereof, (ii) the date the Demand Registration is withdrawn from the Commission
by the Company in accordance with Section 2(a) hereof, (iii) the date on which
no Registrable Certificates are outstanding, and (iv) the date on which a
Registration Statement has been effective for 90 days (after giving effect to
Section 4(b), if applicable), PROVIDED, HOWEVER, that notwithstanding the
foregoing the provisions of Sections 4(c), 4(d), 5, 10, 11 and 18 shall survive
termination of this Agreement.
10. NOTICES
All notices and communications to be given or otherwise to be made to any
Party to this Agreement shall be deemed to have been duly given or delivered by
any Party, (i) when received by such Party if delivered by hand, (ii) upon
confirmation when delivered by telecopy, or (iii) within one day after being
sent by recognized overnight delivery service, and in each case addressed as
follows:
If to the Company:
A/P I Deposit Corporation
c/o Global Securitization Services, LLC
400 West Main Street
Suite 338
Babylon, New York 11702
Telecopy:
Attention: Andrew Stidd
11
If to Amtrak:
National Railroad Passenger Corporation
60 Massachusetts Avenue, N.E.
Washington, D.C. 20002
Telephone: (202) 906-3311
Telecopy: (202) 906-2174
Attention: Dale Stein
with a copy concurrently to:
Latham & Watkins
885 Third Avenue
New York, NY 10022
Telephone: (212) 906-1241
Facsimile: (212) 751-4864
Attention: Kevin C. Blauch, Esquire
If to the Trustee:
Wells Fargo Bank Northwest, N.A.
MAC U1254-031
79 South Main Street
Salt Lake City, UT 84111
Attention: Corporate Trust Services
Facsimile No.: 801.246.5053
If to any Holder, to the Trustee on behalf of such Holder.
Any Party by written notice to the other Parties pursuant to this Section
may change the address or the Persons to whom notices or copies thereof shall be
directed.
11. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the Parties and their respective
successors and assigns. No Party may assign any of its rights or obligations
under this Agreement, except in connection with sales and transfers of
Certificates made in accordance with the terms and conditions of the Trust
Agreement, or to a successor by merger or similar succession to the business or
assets of such Person, in which case the term "Holder" shall be deemed to
include such transferees or successors.
12. _____________
The Trustee, acting on behalf of the Holders, hereby acknowledges that the
Company is a special purpose vehicle with limited assets and as such is relying
on assistance by Amtrak and the Borrower under, and in accordance with the terms
of, the Registration Rights Side Letter in order to perform its obligations
hereunder.
12
13. MODIFICATION
Except as otherwise provided herein, neither this Agreement nor any
provision hereof can be amended, modified, changed, discharged, waived or
terminated (each, an "AMENDMENT") except by an instrument in writing executed by
the Company and the Trustee on behalf of the Holders, at the time of
determination, of a majority of Fractional Undivided Interest of the Registrable
Certificates, in which event such Amendment shall be binding upon all of the
Parties in accordance with its terms, PROVIDED, that no such Amendment shall (i)
amend the threshold of Registrable Certificates required to effect a Demand
Registration pursuant to Section 2(a), or (ii) amend the provisions of Section
8, 9 or this Section 13, unless such Amendment has been unanimously approved by
all Holders.
14. WAIVER
Any waiver by any Party of a breach of any provision of this Agreement
shall not operate as or be construed to be a waiver of any other breach of that
provision or of any breach of any other provision of this Agreement. The failure
of a Party to insist upon strict adherence to any term of this Agreement on one
or more occasions shall not be considered a waiver or deprive that Party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement. Subject to the provisions of Section 13 hereof, any waiver
must be evidenced by a writing signed by the Party against whom the waiver is
sought to be enforced.
15. AVAILABILITY OF EQUITABLE REMEDIES
Each Party acknowledges that a breach of the provisions of this Agreement
could not adequately be compensated by money damages. Accordingly, it is the
intention of the Parties that any Party shall be entitled, in addition to any
other right or remedy available to it, to an injunction restraining such breach
or a threatened breach and/or to specific performance of any such provision of
this Agreement, and in either case no bond or other security shall be required
in connection therewith, and the Parties hereby consent to such injunction and
to the ordering of specific performance.
16. ENTIRE AGREEMENT
This Agreement, together with the Trust Agreement and the Certificate
Purchase Agreement and the Mortgage Documents with respect to those Parties
hereto that are parties thereto as well, sets forth the entire understanding,
and supersedes all prior agreements and understandings, both written and oral,
among the Parties with respect to the subject matter hereof.
17. SEVERABILITY
If any provision of this Agreement shall be determined to be illegal or
unenforceable by any court of law of competent jurisdiction, the Parties intend
that such provision shall be deemed not to form part of this Agreement and, the
remaining provisions shall be severable and enforceable in accordance with their
terms.
13
18. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York without regard to principles of conflicts of laws.
The Parties agree that any suit, action or proceeding instituted against one or
more of them with respect to this Agreement (including any exhibits hereto)
shall be brought in any federal or state court located in the State of New York.
The Parties, by the execution and delivery of this Agreement, irrevocably waive
any objection or defense to the institution of any action in New York based on
improper venue, the convenience of the forum or the jurisdiction of such courts,
or from the execution of judgments resulting therefrom, and the parties hereto
irrevocably accept and submit to the jurisdiction of the aforesaid courts in any
suit, action or proceeding and consent to the service of process by certified
mail at the address set forth in Section 10 hereof.
19. CAPTIONS
The captions herein are inserted for convenience only and shall not
define, limit, extend or describe the scope of this Agreement or affect the
construction hereof.
20. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original, but all of which taken together shall
constitute one and the same instrument.
14
IN WITNESS WHEREOF, this Agreement has been executed and delivered
as of the date first set forth above.
A/P I DEPOSIT CORPORATION
By:
------------------------------------------
Name:
Title:
WELLS FARGO BANK NORTHWEST, N.A, not in its
individual capacity, but solely on behalf of
Holders as Trustee of Amtrak/Pennsylvania
Station Lease Finance Trust-2001
By:
------------------------------------------
Name:
Title:
15
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-3’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 1/11/02 | | | | | | | None on these Dates |
| | 6/20/01 | | 2 | | 3 |
| List all Filings |
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