EXHIBIT 4.7
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REGISTRATION RIGHTS AGREEMENT
Dated as of July 9, 1999
Among
ALLFIRST PREFERRED CAPITAL TRUST,
ALLFIRST PREFERRED ASSET TRUST,
FIRST MARYLAND BANCORP
and
XXXXXX BROTHERS INC.
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TABLE OF CONTENTS
Table of Contents
Page
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Section 1. Definitions................................................................ 1
Section 2. Securities Subject to This Agreement....................................... 5
Section 3. Registered Exchange Offer.................................................. 5
Section 4. Shelf Registration......................................................... 6
Section 5. Additional Interest and Additional Distributions Under
Certain Circumstances...................................................... 8
Section 6. Registration Procedures.................................................... 9
Section 7. Registration Expenses...................................................... 18
Section 8. Indemnification and Contribution........................................... 18
Section 9. Rule 144A.................................................................. 21
Section 10. Participation in Underwritten Registrations................................ 21
Section 11. Selection of Underwriters.................................................. 22
Section 12. Miscellaneous.............................................................. 22
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This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of July 9, 1999 by and among Allfirst Preferred Capital Trust, a
Delaware statutory business trust (the "Capital Trust"), Allfirst Preferred
Asset Trust, a Delaware statutory business trust (the "Asset Trust"), First
Maryland Bancorp, a Maryland corporation ("the Company"), and Xxxxxx Brothers
Inc. (the "Initial Purchaser").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of July 9, 1999, among the Company, the Capital Trust, the
Asset Trust and the Initial Purchaser (the "Purchase Agreement") which provides
for the sale or sales by the Capital Trust to the Initial Purchaser of the
Capital Trust's Floating Rate Non-Cumulative Subordinated Capital Trust Enhanced
Securities, Series A, liquidation amount $1,000 per security (the "Capital Trust
Preferred Securities"). The Company will be the owner of all of the beneficial
ownership interests represented by the common securities (the "Capital Trust
Common Securities") of the Capital Trust. The Capital Trust Preferred Securities
and the Capital Trust Common Securities will be guaranteed by a Series A Capital
Trust Guarantee (the "Capital Trust Guarantee") by the Company, to the extent
described in such Capital Trust Guarantee. Concurrently with the issuance of the
Capital Trust Preferred Securities, the Capital Trust Guarantee and the Capital
Trust Common Securities, the Capital Trust will invest the proceeds of each
thereof in the Asset Trust's Floating Rate Non-Cumulative Subsidiary Trust
Preferred Securities, Series A (the "Asset Trust Preferred Securities"),
representing preferred undivided beneficial ownership interests in the assets of
the Asset Trust. The Company will own all the common securities (the "Asset
Trust Common Securities"), representing undivided beneficial ownership interests
in the assets of the Asset Trust. The Asset Trust Preferred Securities will be
guaranteed by a Series A Asset Trust Guarantee (the "Asset Trust Guarantee") by
the Company, to the extent described in the Asset Trust Guarantee. The Asset
Trust will invest the proceeds of the issuance of the Asset Trust Preferred
Securities in the Company's Floating Rate Junior Subordinated Debentures due
July 15, 2029, Series A (the "Debentures" and, together with the Capital Trust
Preferred Securities, the Asset Trust Preferred Securities, the Capital Trust
Guarantee and the Asset Trust Guarantee, the "Securities") and other permitted
investments. In order to induce the Initial Purchaser to enter into the
Purchase Agreement, the Capital Trust, the Asset Trust and the Company have
agreed to provide the registration rights set forth in this Agreement for the
benefit of the Initial Purchaser and their direct and indirect transferees and
assigns. The execution and delivery of this Agreement is a condition to the
Initial Purchaser's obligations to purchase the Capital Trust Preferred
Securities under the Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following
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capitalized terms shall have the following meanings:
"Additional Distributions" has the meaning set forth in Section
5(a) of this Agreement.
"Additional Interest" has the meaning set forth in Section 5(a) of
this Agreement.
"Asset Trust Declaration" means the Amended and Restated Declaration
of Trust, to be dated as of July 13, 1999, among the Company, as sponsor, The
Bank of New York, as Asset Property Trustee, The Bank of New York (Delaware), as
Asset Delaware Trustee, and the Asset Trust Administrators named therein,
pursuant to which the Asset Trust Preferred Securities and the Exchange Asset
Trust Preferred Securities may be issued, as amended or supplemented from time
to time in accordance with the terms thereof.
"Asset Trust Guarantee Agreement" has the meaning set forth in the
preamble to this Agreement.
"Broker-Dealer" means any broker or dealer registered under the
Exchange Act.
"Capital Trust Declaration" means the Amended and Restated Declaration
of Trust, dated as of July 13, 1999, among the Company, as Capital Sponsor, The
Bank of New York, as Capital Property Trustee, The Bank of New York (Delaware),
as Capital Delaware Trustee, and the Capital Trust Administrators named therein,
pursuant to which the Capital Trust Preferred Securities and the Exchange Trust
Preferred Securities may be issued, as amended or supplemented from time to time
in accordance with the terms thereof.
"Capital Trust Guarantee Agreement" has the meaning set forth in the
preamble to this Agreement.
"Closing Date" means the date on which the Securities were sold.
"Commission" means the Securities and Exchange Commission.
"Consummate" or "Consummation" means the Exchange Offer shall be
deemed "Consummated" for purposes of this Agreement upon the occurrence of (i)
the filing and effectiveness under the Securities Act of the Exchange Offer
Registration Statement, (ii) the maintenance of the effectiveness of the
Exchange Offer Registration Statement and the keeping of the Exchange Offer open
for a period not less than the minimum period required pursuant to Section 3(b)
of this Agreement, and (iii) the exchange of the Exchange Securities for the
Transfer Restricted Securities pursuant to the Exchange Offer.
"Debentures" has the meaning set forth in the preamble to this
Agreement.
"Distribution" has the meaning set forth in the Capital Trust
Declaration.
"Effectiveness Target Date" has the meaning set forth in Section 5 of
this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Asset Trust Preferred Securities" means the Asset Trust's
Floating Rate Non-Cumulative Subsidiary Trust Preferred Securities, Series B
issued by the Asset Trust
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pursuant to the Asset Trust Declaration and exchanged for the Asset Trust
Preferred Securities upon Consummation of the Exchange Offer.
"Exchange Capital Trust Preferred Securities" means the Series B
Floating Rate Non-Cumulative Subordinated Capital Trust Enhanced Securities,
Series B issued by the Capital Trust pursuant to the Capital Trust Declaration
and exchanged for the Capital Trust Preferred Securities pursuant to the
Exchange Offer.
"Exchange Debentures" means the Company's Floating Rate Junior
Subordinated Debentures due July 15, 2029, Series B to be issued pursuant to the
Indenture and exchanged for the Debentures upon Consummation of the Exchange
Offer.
"Exchange Guarantees" means, collectively, the Company's Series B
Capital Trust Guarantee and the Series B Asset Trust Guarantee to be exchanged
for the Capital Trust Guarantee and the Asset Trust Guarantee, respectively,
pursuant to the Exchange Offer.
"Exchange Offer" means the registration by the Company, the Capital
Trust and the Asset Trust under the Securities Act of the Exchange Securities
pursuant to an Exchange Offer Registration Statement pursuant to which the
Company, the Capital Trust and the Asset Trust will offer the Holders of all
outstanding Transfer Restricted Securities the opportunity to exchange all such
outstanding Transfer Restricted Securities held by such Holders for Exchange
Securities in an aggregate liquidation amount or principal amount, as
applicable, equal to the aggregate liquidation amount or principal amount, as
applicable, of the Transfer Restricted Securities tendered by such Holders.
"Exchange Offer Registration Statement" means the Registration
Statement relating to the Exchange Offer, including the Prospectus which forms a
part thereof.
"Exchange Securities" means, collectively, the Exchange Capital Trust
Preferred Securities, the Exchange Asset Trust Preferred Securities, the
Exchange Debentures and the Exchange Guarantees.
"Exempt Resales" means the transactions in which the Initial Purchaser
proposes to sell the Securities to certain "qualified institutional buyers," as
such term is defined in Rule 144A under the Securities Act, to certain
institutional "accredited investors," as such term is defined in Rule 501(a)(1),
(2), (3) and (7) of Regulation D under the Securities Act ("Accredited
Institutions") and to certain non-"U.S. persons" in "offshore transactions," as
such terms are defined in Regulation S under the Securities Act.
"Holders" has the meaning set forth in Section 2(b) of this Agreement.
"Indenture" means the Indenture, dated as of July 13, 1999, between
the Company and The Bank of New York, as trustee (the "Indenture Trustee"),
pursuant to which the Debentures and the Exchange Debentures are to be issued,
as such Indenture is amended or supplemented from time to time in accordance
with the terms thereof.
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"Initial Purchaser" has the meaning set forth in the preamble to this
Agreement.
"NASD" means the National Association of Securities Dealers, Inc.
"Person" means an individual, partnership, limited partnership,
corporation, limited liability company, trust or unincorporated organization, or
a government or agency or political subdivision thereof.
"Prospectus" means the prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
"Registration Default" has the meaning set forth in Section 5 of this
Agreement.
"Registration Statement" means any registration statement of the
Company, the Capital Trust and the Asset Trust relating to (a) an offering of
Exchange Securities pursuant to an Exchange Offer or (b) the registration for
resale of Transfer Restricted Securities pursuant to the Shelf Registration
Statement, which is filed pursuant to the provisions of this Agreement, in
either case, including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all exhibits and
material incorporated by reference therein.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Filing Deadline" has the meaning set forth in Section 4 of this
Agreement.
"Shelf Registration Statement" has the meaning set forth in Section 4
of this Agreement.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Transfer Restricted Securities" means each Security, until the
earliest to occur of (a) the date on which such Security has been exchanged by a
person other than a Broker-Dealer for Exchange Securities in the Exchange Offer,
(b) following the exchange by a Broker-Dealer in the Exchange Offer of such
Security for one or more Exchange Securities, the date on which such Exchange
Securities are sold to a purchaser who receives from such Broker-Dealer on or
prior to the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (c) the date on which such Security has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (d) the date on which such
Security is distributed to the public pursuant to Rule 144 under the Securities
Act;
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"Underwritten Registration" or "Underwritten Offering" means a
registration in which securities of the Company, the Capital Trust and the Asset
Trust are sold to an underwriter for reoffering to the public.
Section 2. Securities Subject to This Agreement.
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(a) Transfer Restricted Securities. The securities entitled to the
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benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed
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to be a holder of Transfer Restricted Securities (each, a "Holder") whenever
such Person beneficially owns Transfer Restricted Securities.
Section 3. Registered Exchange Offer.
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(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with), the Company, the Capital Trust and the
Asset Trust shall (i) use their reasonable best efforts to cause to be filed
with the Commission as soon as practicable after the Closing Date, but in no
event later than 90 days after the date of this Agreement, a Registration
Statement under the Securities Act relating to the Exchange Securities and the
Exchange Offer, (ii) use their reasonable best efforts to cause such
Registration Statement to become effective at the earliest possible time, but in
no event later than 180 days after the date of this Agreement, (iii) in
connection with the foregoing, file (A) all pre-effective amendments to such
Registration Statement as may be necessary in order to cause such Registration
Statement to become effective, (B) if applicable, a post-effective amendment to
such Registration Statement pursuant to Rule 430A under the Securities Act and
(C) cause all necessary filings in connection with the registration and
qualification of the Exchange Securities to be made under the Blue Sky laws of
such jurisdictions as are necessary to permit Consummation of the Exchange
Offer, and (iv) unless the Exchange Offer would not be permitted by applicable
law or Commission policy, the Company will commence the Exchange Offer and use
their reasonable best efforts to issue, on or prior to 30 days after the date on
which such Registration Statement was declared effective by the Commission,
Exchange Securities in exchange for all Securities tendered and not withdrawn in
the Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting registration of the Exchange Securities to be offered in exchange for
the Transfer Restricted Securities and to permit resales of Exchange Securities
held by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company, the Capital Trust and the Asset Trust shall cause
the Exchange Offer Registration Statement to be effective continuously and shall
keep the Exchange Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be less
than 20 business days. The Company, the Capital Trust and the Asset Trust shall
cause the Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Exchange Securities shall be
included in the Exchange Offer
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Registration Statement. The Company, the Capital Trust and the Asset Trust shall
use their reasonable best efforts to cause the Exchange Offer to be Consummated
on the earliest practicable date after the Exchange Offer Registration Statement
has become effective, but in no event later than 30 days thereafter.
(c) The Company, the Capital Trust and the Asset Trust shall
indicate in a "Plan of Distribution" section contained in the Prospectus
contained in the Exchange Offer Registration Statement that any Broker-Dealer
who holds Transfer Restricted Securities that were acquired for its own account
as a result of market-making activities or other trading activities (other than
Transfer Restricted Securities acquired directly from the Company, the Capital
Trust and the Asset Trust), may exchange such Securities pursuant to the
Exchange Offer; however, such Broker-Dealer may be deemed to be an "underwriter"
within the meaning of the Securities Act and must, therefore, deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resales of the Exchange Securities received by such Broker-Dealer in the
Exchange Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also contain
all other information with respect to such resales by Broker-Dealers that the
Commission may require in order to permit such resales pursuant thereto, but
such "Plan of Distribution" shall not name any such Broker-Dealer or disclose
the amount of Exchange Securities held by any such Broker-Dealer except to the
extent required by the Commission as a result of a change in policy announced
after the date of this Agreement.
The Company, the Capital Trust and the Asset Trust shall use their
reasonable best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Section 6(c) below to the extent necessary to ensure that it is available for
resales of Exchange Securities acquired by Broker-Dealers for their own accounts
as a result of market-making activities or other trading activities, and to
ensure that it conforms with the requirements of this Agreement, the Securities
Act and the policies, rules and regulations of the Commission as announced from
time to time, for a period of 90 days from the date on which the Exchange Offer
Registration Statement is declared effective or such shorter period until all
Transfer Restricted Securities covered by the Exchange Offer Registration
Statement have been sold.
The Company, the Capital Trust and the Asset Trust shall provide
sufficient copies of the latest version of such Prospectus to Broker-Dealers
promptly upon request at any time during such 90-day period in order to
facilitate such resales.
Section 4. Shelf Registration.
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(a) Shelf Registration. If (i) the Company, the Capital Trust and
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the Asset Trust are not required to file an Exchange Offer Registration
Statement or to Consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the procedures set forth
in Section 6(a) below have been complied with), (ii) the Company has received an
opinion of counsel, rendered by a law firm having a nationally
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recognized tax practice, to the effect that, as a result of the Consummation of
the Exchange Offer there is more than an insubstantial risk that (A) the Capital
Trust would be subject to United States Federal income tax with respect to
income received on the Asset Trust Preferred Securities or the Exchange Asset
Trust Preferred Securities, (B) the Capital Trust would be subject to more than
a minimal amount of other taxes, duties or other governmental charges, (C) the
Asset Trust would be subject to United States Federal income tax with respect to
income accrued or received on the Debentures, Exchange Debentures or its
permitted investments, (D) the Asset Trust would be subject to more than a
minimal amount of other taxes, duties or other governmental charges or (E)
interest payable by the Company with respect to the Debentures or the Exchange
Debentures would not be deductible by the Company, in whole or in part, for
United States Federal income tax purposes or (iii) if any Holder of Transfer
Restricted Securities that is a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act) or an "accredited investor" (as defined in
Rule 501(A)(1), (2), (3) or (7) under the Securities Act) or a non-U.S. person
that acquired Securities pursuant to Regulation S under the Securities Act shall
notify the Company at least 20 days prior to the Consummation of the Exchange
Offer (A) that such Holder is prohibited by applicable law or Commission policy
from participating in the Exchange Offer, or (B) that such Holder may not resell
the Exchange Securities acquired by it in the Exchange Offer to the public
without delivering a prospectus and that the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder, or (C) that such Holder is a Broker-Dealer and holds
Securities acquired directly from the Capital Trust, the Asset Trust and the
Company or one of its affiliates, then, in addition to effecting the Exchange
Offer Registration Statement, the Capital Trust, the Asset Trust and the Company
shall use their reasonable best efforts to:
(x) cause to be filed a shelf registration statement pursuant to Rule
415 under the Securities Act, which may be an amendment to the Exchange
Offer Registration Statement (in either event, the "Shelf Registration
Statement"), on or prior to the earliest to occur of (1) the 90th day after
the date on which the Capital Trust, the Asset Trust and the Company
determines that they are not required to file the Exchange Offer
Registration Statement or (2) the 120th day after the date on which the
Capital Trust, the Asset Trust and the Company receive notice from a Holder
of Transfer Restricted Securities as contemplated by clause (iii) above
(such earliest date being the "Shelf Filing Deadline"), which Shelf
Registration Statement shall provide for resales of all Transfer Restricted
Securities the Holders of which shall have provided the information
required pursuant to Section 4(b) of this Agreement; and
(y) cause such Shelf Registration Statement to be declared effective
by the Commission on or before the 180th day after the Shelf Filing
Deadline.
The Capital Trust, the Asset Trust and the Company shall use their
reasonable best efforts to keep such Shelf Registration Statement continuously
effective, supplemented and amended as required by the provisions of Sections
6(b) and (c) of this Agreement to the extent necessary to ensure that it is
available for resales of Securities by the Holders of Transfer Restricted
Securities entitled to the benefit of this Section 4(a), and to ensure that it
conforms
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with the requirements of this Agreement, the Securities Act and the policies,
rules and regulations of the Commission as announced from time to time until the
earlier of two years after the date of this Agreement (or such shorter period
then required by Rule 144(k) under the Securities Act) or until one year after
its effective date if such Shelf Registration Statement is filed at the request
of the Initial Purchaser or such time as all of the applicable Securities have
been sold thereunder or otherwise cease to be Transfer Restricted Securities.
(b) Provision by Holders of Certain Information in Connection with
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the Shelf Registration Statement. No Holder of Transfer Restricted Securities
--------------------------------
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Capital Trust, the Asset Trust and the Company in writing, within 20 days
after receipt of a request therefor, such information as the Capital Trust, the
Asset Trust and the Company may reasonably request for use in connection with
any Shelf Registration Statement or Prospectus or preliminary Prospectus
included therein. No Holder of Transfer Restricted Securities shall be entitled
to Additional Distributions pursuant to Section 5 of this Agreement unless and
until such Holder shall have used its best efforts to provide all such
reasonably requested information. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Capital Trust, the
Asset Trust and the Company all information required to be disclosed in order to
make the information previously furnished to the Capital Trust, the Asset Trust
and the Company by such Holder not materially misleading.
Section 5. Additional Interest and Additional Distributions Under Certain
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Circumstances.
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(a) If (i) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date specified for
such filing in this Agreement, (ii) any of such Registration Statements has not
been declared effective by the Commission on or prior to the date specified for
such effectiveness in this Agreement (the "Effectiveness Target Date"), (iii)
the Exchange Offer has not been Consummated within 30 days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) any Shelf Registration Statement required by this Agreement is
filed and declared effective but shall thereafter cease to be effective at any
time prior to two years after the date of this Agreement (or such shorter period
then required by Rule 144(k) under the Securities Act) (or one year if a Shelf
Registration Statement is filed at the request of the Initial Purchaser) other
than after such time as all Securities have been disposed of thereunder or
otherwise cease to be Transfer Restricted Securities (each such event referred
to in clauses (i) through (iv), a "Registration Default"), additional interest
(the "Additional Interest") shall become payable in respect of the Debentures
(including in respect of amounts accruing during any Extension Period (as
defined in the Indenture)) and corresponding additional Distributions (the
"Additional Distributions") shall become payable to each Holder of Asset Trust
Preferred Securities (in its capacity as such and not in its capacity as an
indirect holder of a pro rata share of the Debentures) and to each Holder of
Capital Trust Preferred Securities (in its capacity as such and not in its
capacity as an indirect holder of a pro rata share of the Asset Trust Preferred
Securities) with respect to the first 90-day period immediately following the
occurrence of such Registration Default at a rate per annum
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equal to 0.50% of the liquidation amount of the Capital Trust Preferred
Securities, 0.50% of the liquidation amount of the Asset Trust Preferred
Securities or 0.50% of the principal amount of the Debentures for each 90-day
period or portion thereof that the Registration Default continues, provided,
however, the rate at which any Additional Distributions are payable on the
liquidation amount of the Capital Trust Preferred Securities and the Asset Trust
Preferred Securities and the rate at which any Additional Interest is payable on
the Debentures may not exceed in the aggregate 0.50% per annum. All accrued
Additional Interest (and corresponding Additional Distributions) shall be paid
to Holders by the Capital Trust, the Asset Trust and the Company by wire
transfer of immediately available funds or by federal funds check on the last
day of each such 90-day period. Following the cure of all Registration Defaults
relating to any particular Transfer Restricted Securities, the accrual of
Additional Interest (and corresponding Additional Distributions) with respect to
such Transfer Restricted Securities will cease.
All obligations of the Capital Trust, the Asset Trust and the Company
set forth in the preceding paragraph that are outstanding with respect to any
Transfer Restricted Security at the time such security ceases to be a Transfer
Restricted Security shall survive until such time as all such obligations with
respect to such Transfer Restricted Security shall have been satisfied in full.
(b) The Capital Trust, the Asset Trust and the Company shall notify
the Capital Property Trustee within one business day after each and every date
on which an event occurs in respect of which Additional Distributions or
Additional Interest, as the case may be, are required to be paid. Additional
Distributions shall be paid by depositing Additional Interest with the Asset
Property Trustee for the benefit of the Holders thereof, on or before the
applicable Interest Payment Date (as defined in the Indenture) (whether or not
any payment other than Additional Distributions is payable on the Asset Trust
Preferred Securities or the Capital Trust Preferred Securities), in immediately
available funds in sums sufficient to pay the Additional Distributions then due
to Holders of Transfer Restricted Securities. Any Additional Distributions and
Additional Interest due will be payable in cash on January 15th, April 15th,
July 15th, and October 15th of each year to the holder of record entitled to
receive distributions or interest on the relevant payment date. Each obligation
to pay Additional Interest and Additional Distributions shall be deemed to
accrue from the applicable date of the occurrence of the Registration Default.
Section 6. Registration Procedures.
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(a) Exchange Offer Registration Statement. In connection with the
-------------------------------------
Exchange Offer, the Capital Trust, the Asset Trust and the Company shall comply
with all of the provisions of Section 6(c) below, shall use their reasonable
best efforts to effect such exchange to permit the sale of Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Capital Trust,
the Asset Trust and the Company there is a question as to whether the
Exchange Offer is permitted by applicable law, the Capital Trust, the Asset
Trust and the Company hereby agree to seek a no-action letter from the
Commission allowing the Capital Trust, the Asset Trust and
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the Company to Consummate an Exchange Offer for such Securities. The
Capital Trust, the Asset Trust and the Company hereby agree to pursue the
issuance of such a decision to the Commission staff level but shall not be
required to take commercially unreasonable action to effect a change of
Commission policy. The Capital Trust, the Asset Trust and the Company
hereby agree, however, to (A) participate in telephonic conferences with
the Commission, (B) deliver to the Commission staff an analysis prepared by
counsel to the Capital Trust, the Asset Trust and the Company setting forth
the legal bases, if any, upon which such counsel has concluded that such an
Exchange Offer should be permitted and (C) diligently pursue a resolution
(which need not be favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Capital Trust, the Asset
Trust or the Company, prior to the Consummation thereof, a written
representation to the Capital Trust, the Asset Trust or the Company (which
may be contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not an affiliate
of the Capital Trust, the Asset Trust or the Company, (B) it is not engaged
in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
Exchange Securities to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Securities in its ordinary course of business. In
addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company's, the Capital Trust's and the Asset
Trust's preparations for the Exchange Offer. Each Holder hereby
acknowledges and agrees that any Broker-Dealer and any such Holder using
the Exchange Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission
enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted
in the Commission's letters to Shearman & Sterling dated July 2, 1993, and
to Xxxxx & Xxxx llp (available February 7, 1997), and similar no-action
letters (including any no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction should be covered
by an effective registration statement containing the selling security
holder information required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of Exchange Securities obtained by such
Holder in exchange for Securities acquired by such Holder directly from the
Capital Trust, the Asset Trust or the Company.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company, the Capital Trust and the Asset Trust shall provide
a supplemental letter to the Commission (A) stating that the Company, the
Capital Trust and the Asset Trust are registering the Exchange Offer in
reliance on the position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and
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Co., Inc. (available June 5, 1991), Xxxxx & Wood llp (available February 7,
1997) and, if applicable, any no-action letter obtained pursuant to clause
(i) above and (B) including a representation that the Company, the Capital
Trust and the Asset Trust have not entered into any arrangement or
understanding with any Person to distribute the Exchange Securities to be
received in the Exchange Offer and that, to the best of the Company's, the
Capital Trust's and the Asset Trust's information and belief, based only on
written representations received under clause (ii) above, that each Holder
participating in the Exchange Offer is acquiring the Exchange Securities in
its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange
Securities received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
----------------------------
Registration Statement, the Company, the Capital Trust and the Asset Trust shall
comply with all the provisions of Section 6(c) below and shall use their
reasonable best efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended method
or methods of distribution thereof, and pursuant thereto the Company, the
Capital Trust and the Asset Trust will as expeditiously as possible prepare and
file with the Commission a Registration Statement relating to the registration
on any appropriate form under the Securities Act, which form shall be available
for the sale of the Transfer Restricted Securities in accordance with the
intended method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration Statement
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and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Securities by
Broker-Dealers), the Company, the Capital Trust and the Asset Trust shall:
(i) use their reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this Agreement, as
applicable; upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the period required by this
Agreement, the Company, the Capital Trust and the Asset Trust shall file
promptly an appropriate amendment to such Registration Statement, in the
case of clause (A), correcting any such misstatement or omission, and, in
the case of either clause (A) or (B), use their reasonable best efforts to
cause such amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for their intended
purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and post-
effective amendments to the Registration Statement as may be necessary to
keep the Registration Statement effective for the applicable period set
forth in Section 3 or 4 of this Agreement, as applicable, or such shorter
period as will terminate when all Transfer Restricted
11
Securities covered by such Registration Statement have been sold; cause the
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 to comply fully with the applicable provisions of Rules 424 and 430A
under the Securities Act in a timely manner; and comply with the provisions
of the Securities Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement to
the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders promptly
and, if requested by such Persons, to confirm such advice in writing, (A)
when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any Registration Statement
or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or
for additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Securities Act or of the suspension by any
state securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, and (D) of the existence
of any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes
in the Registration Statement or the Prospectus in order to make the
statements therein not misleading; provided that the Company shall not be
required to disclose the nature or substance of any such fact or event as
long as it is acting in good faith. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities
or Blue Sky laws, the Capital Trust, the Asset Trust and the Company shall
use their reasonable best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(iv) furnish to each of the selling or exchanging Holders and each
of the underwriter(s), if any, before filing with the Commission, copies of
any Shelf Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Shelf Registration Statement or
Prospectus (excluding all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review of such Holders and underwriter(s), if any, for a
period of at least five business days, and the Capital Trust, the Asset
Trust and the Company will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (excluding all documents incorporated by reference)
to which a selling Holder of Transfer Restricted Securities covered by such
Registration Statement or the
12
underwriter(s), if any, shall reasonably object within five business days
after the receipt thereof. A selling Holder or underwriter, if any, shall
be deemed to have reasonably objected to such filing if such Registration
Statement, amendment, Prospectus or supplement, as applicable, as proposed
to be filed, contains a material misstatement or omission;
(v) promptly after the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the selling Holders and to the
underwriter(s), if any, make the Capital Trust's, the Asset Trust's and the
Company's representatives available for discussion of such document and
other customary due diligence matters;
(vi) make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition pursuant
to such Shelf Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the underwriter(s), all
financial and other records, pertinent corporate documents and properties
of the Capital Trust, the Asset Trust and the Company and cause the Capital
Trust's, the Asset Trust's and the Company's officers, directors, managers
and employees to supply all information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with such
Registration Statement subsequent to the filing thereof and prior to its
effectiveness;
(vii) if requested by any selling Holders under the Shelf
Registration Statement or the underwriter(s), if any, promptly incorporate
in any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling
Holders and underwriter(s), if any, may reasonably request to have included
therein, including, without limitation, information relating to the "Plan
of Distribution" of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being
sold to such underwriter(s), the purchase price being paid therefor and any
other terms of the offering of the Transfer Restricted Securities to be
sold in such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Capital Trust, the Asset Trust and the Company are notified of the matters
to be incorporated in such Prospectus supplement or post-effective
amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if
so requested by the Holders of a majority in aggregate liquidation amount
or principal amount of Securities covered thereby or the underwriter(s), if
any;
(ix) furnish to each selling Holder and each of the underwriter(s),
if any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto, including
all documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
13
(x) deliver to each selling Holder and each of the underwriter(s), if
any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such
Persons reasonably may request; the Capital Trust, the Asset Trust and the
Company hereby consent to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment
or supplement thereto;
(xi) enter into such agreements (including an underwriting agreement),
and make such representations and warranties, and take all such other
actions in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any Shelf
Registration Statement contemplated by this Agreement, all to such extent
as may be reasonably requested by any purchaser or by any Holder of
Transfer Restricted Securities or underwriter in connection with any sale
or resale pursuant to any Shelf Registration Statement contemplated by this
Agreement; and in connection with an Underwritten Registration, the Capital
Trust, the Asset Trust and the Company shall:
(A) upon request, furnish to each selling Holder and each
underwriter, if any, in such substance and scope as they may reasonably
request and as are customarily made by issuers to underwriters in primary
underwritten offerings, upon the date of the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date of the effectiveness of the
Shelf Registration Statement, signed by (x) the Chairman of the Board,
the President or a Vice President and (y) the Chief Financial Officer
of the Company, confirming, as of the date thereof, such matters as
are customarily made by issuers to underwriters in underwritten
offerings as such parties may reasonably request;
(2) an opinion, dated the date of the effectiveness of the Shelf
Registration Statement, of counsel for the Company (who may be
internal counsel), the Capital Trust and the Asset Trust, covering
such matters customarily covered in opinions requested in underwritten
offerings as such parties may reasonably request, and in any event
including a statement to the effect that such counsel has participated
in conferences with officers and other representatives of the Company,
the Capital Trust and the Asset Trust, representatives of the
independent public accountants for the Company, the Initial
Purchaser's representatives and the Initial Purchaser's counsel in
connection with the preparation of such Registration Statement and the
related Prospectus and have considered the matters required to be
stated therein and the statements contained therein, although such
counsel has not independently verified the accuracy, completeness or
fairness of such statements; and that such counsel advises that, on
the basis of the foregoing (relying as to materiality to a large
extent upon facts
14
provided to such counsel by officers and other representatives of the
Company, the Capital Trust and the Asset Trust and without independent
check or verification), no facts came to such counsel's attention that
caused such counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or any post-
effective amendment thereto became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus contained in such
Registration Statement as of its date, contained an untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Without limiting the
foregoing, such counsel may state further that such counsel assumes no
responsibility for, and has not independently verified, the accuracy,
completeness or fairness of the financial statements, notes and
schedules and other financial data included in any Registration
Statement contemplated by this Agreement or the related Prospectus;
and
(3) a customary comfort letter, dated the date of the
effectiveness of the Shelf Registration Statement, from the Company's
independent accountants, in the customary form and covering matters of
the type customarily covered in comfort letters by underwriters in
connection with primary underwritten offerings.
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 of this Agreement with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with clause (A)
above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company, the Capital Trust
and the Asset Trust pursuant to this clause (xi), if any.
If at any time the representations and warranties of the Company
contemplated in clause (A)(1) above cease to be true and correct, the
Company shall so advise the Initial Purchaser and the underwriter(s), if
any, and each selling Holder promptly and, if requested by such Persons,
shall confirm such advice in writing;
(xii) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of
the Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as the selling Holders or underwriter(s) may reasonably
request and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement; provided, however,
that neither the Company nor the Asset Trust or the Capital Trust shall not
be required to register or qualify as a foreign
15
corporation where it is not now so qualified or to take any action that
would subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration Statement,
in any jurisdiction where it is not now so subject;
(xiii) shall issue, upon the request of any Holder of Securities
covered by the Shelf Registration Statement, Exchange Securities in the
same amount as the Securities surrendered to the Company, the Capital Trust
and the Asset Trust by such Holder in exchange therefor or being sold by
such Holder; such Exchange Securities to be registered in the name of such
Holder or in the name of the purchaser(s) of such Securities, as the case
may be; in return, the Securities held by such Holder shall be surrendered
to the Company, the Capital Trust and the Asset Trust for cancellation;
(xiv) cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted Securities to be
in such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two business days prior to any
sale of Transfer Restricted Securities made by such underwriter(s);
(xv) if any fact or event contemplated by clause (c)(iii)(D) above
shall exist or have occurred, as promptly as is practicable under the
circumstances in the good faith determination of the Company prepare a
supplement or post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Registration Statement
will not contain an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not misleading;
and any Prospectus will not contain an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(xvi) provide CUSIP numbers for all Transfer Restricted Securities
not later than the effective date of the Registration Statement and provide
certificates for the Transfer Restricted Securities;
(xvii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter" that is
required to be retained in accordance with the rules and regulations of the
NASD), and use their reasonable best efforts to cause such Registration
Statement to become effective and approved by such governmental agencies or
authorities as may be necessary to enable the Holders selling Transfer
Restricted Securities to Consummate the disposition of such Transfer
Restricted Securities;
(xviii) otherwise use their reasonable best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security
16
holders, as soon as practicable, a consolidated earnings statement meeting
the requirements of Rule 158 (which need not be audited) for the twelve-
month period (A) commencing at the end of any fiscal quarter in which
Transfer Restricted Securities are sold to underwriters in a firm or best
efforts Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration Statement;
(xix) cause the Indenture, the Capital Trust Declaration and the
Asset Trust Declaration to be qualified under the TIA not later than the
effective date of the first Registration Statement required by this
Agreement, and, in connection therewith, cooperate with the Trustee and the
Holders of Securities to effect such changes to the Indenture, the Capital
Trust Declaration and the Asset Trust Declaration as may be required for
such Indenture, Capital Trust Declaration and Asset Trust Declaration to be
so qualified in accordance with the terms of the TIA; and execute and use
their reasonable best efforts to cause the Indenture Trustee, the Capital
Trust Guarantee Trustee, the Asset Trust Guarantee Trustee, the Capital
Property Trustee and the Asset Property Trustee to execute, all documents
that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such Indenture
to be so qualified in a timely manner; and
(xx) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13(a) and
Section 15(d) of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company, the Asset Trust or the
Capital Trust of the existence of any fact or event of the kind described in
Section 6(c)(iii)(D) of this Agreement, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the applicable
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) of this
Agreement, or until it is advised in writing (the "Advice") by the Company, the
Asset Trust or the Capital Trust that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus. If so directed by the Company, the
Asset Trust or the Capital Trust, each Holder will deliver to the Company, the
Asset Trust or the Capital Trust (at the Company's, the Asset Trust's and the
Capital Trust's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
the Company, the Asset Trust or the Capital Trust shall give any such notice,
the time period regarding the effectiveness of such Registration Statement set
forth in Section 3 or 4 of this Agreement, as applicable, shall be extended by
the number of days during the period from and including the date of the giving
of such notice pursuant to Section 6(c)(iii)(D) of this Agreement to and
including the date when each selling Holder covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(xvi) of this Agreement or shall have
received the Advice.
17
Section 7. Registration Expenses.
---------------------
All expenses incident to the Company's, the Asset Trust's and the
Capital Trust's performance of or compliance with this Agreement, other than the
expenses of any Holder, will be borne by the Company, the Capital Trust and the
Asset Trust, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses
under federal and state securities laws in connection with the Registration
Statement; (ii) all fees and expenses of compliance with federal securities and
state Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates for the Exchange Securities to be issued in the Exchange
Offer and printing of Prospectuses), and associated messenger and delivery
services and telephone; (iv) all fees and disbursements of counsel for the
Company, the Capital Trust and the Asset Trust; (v) all application and filing
fees in connection with listing Securities on a national securities exchange or
automated quotation system pursuant to the requirements of this Agreement; and
(vi) all fees and disbursements of independent certified public accountants of
the Company, the Capital Trust and the Asset Trust (including the expenses of
any special audit and comfort letters required by or incident to such
performance).
The Company, the Capital Trust and the Asset Trust will, in any
event, bear their internal expenses (including, without limitation, all salaries
and expenses of their officers and employees performing legal or accounting
duties), the expenses of any annual audit and the fees and expenses of any
Person, including special experts, retained by the Company, the Asset Trust or
the Capital Trust.
Section 8. Indemnification and Contribution.
--------------------------------
(a) In connection with a Shelf Registration Statement or in
connection with any delivery of a Prospectus contained in an Exchange Offer
Registration Statement by any participating Broker-Dealer or Initial Purchaser,
as applicable, who seeks to sell Exchange Securities, the Company, the Capital
Trust and the Asset Trust shall, jointly and severally, indemnify and hold
harmless each Holder of Transfer Restricted Securities included within any such
Shelf Registration Statement and each participating Broker-Dealer or Initial
Purchaser selling Exchange Securities, and each person, if any, who controls any
such person within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act (each, a "Participant") from and against any loss, claim,
damage or liability, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to purchases
and sales of Securities) to which such Participant or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any
such Registration Statement or any prospectus forming part thereof or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and shall reimburse each Participant
promptly upon demand for any legal or other expenses reasonably incurred by such
Participant in connection with investigating or
18
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that (i) the
Company, the Capital Trust and the Asset Trust shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any such Registration Statement or any
prospectus forming a part thereof or in any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company, the Capital Trust and the Asset Trust by or on behalf of such
Participant specifically for inclusion therein; and provided further that (ii)
as to any preliminary Prospectus, the indemnity agreement contained in this
Section 8(a) shall not inure to the benefit of any such Participant or any
controlling person of such Participant on account of any loss, claim, damage,
liability or action arising from the sale of the Exchange Securities to any
person by that Participant if (i) that Participant failed to send or give a copy
of the Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Securities Act and (ii) the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact in such preliminary Prospectus was corrected in the
Prospectus, unless, in each case, such failure resulted from non-compliance by
the Company, the Capital Trust and the Asset Trust with Section 6(c). The
foregoing indemnity agreement is in addition to any liability which the Company,
the Capital Trust and the Asset Trust may otherwise have to any Participant or
to any controlling person of that Participant.
(b) Each Participant, severally and not jointly, shall indemnify and
hold harmless the Company, the Capital Trust and the Asset Trust, each of its
directors, officers, employees or agents and each person, if any, who controls
the Company, the Capital Trust and the Asset Trust within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company, the Capital Trust and the Asset Trust or any such
director, officer, employees or agents or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
Prospectus, Registration Statement or Prospectus or in any amendment or
supplement thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company, the Capital Trust and the Asset Trust by or on behalf of that
Participant specifically for inclusion herein, and shall reimburse the Company,
the Capital Trust and the Asset Trust and any such director, officer, employees
or agents or controlling person for any legal or other expenses reasonably
incurred by the Company, the Capital Trust and the Asset Trust or any such
director, officer, employees or agents or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Participant may
otherwise have to the Company, the Capital Trust and the Asset Trust or any such
director, officer or controlling person.
19
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall have notified the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the
defense thereof with counsel satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Initial Purchaser shall have the right to employ counsel to represent
jointly the Initial Purchaser and those other Participants and their respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Participants against the Company, the Capital Trust and the Asset Trust under
this Section 8 if, in the reasonable judgment of the Initial Purchaser it is
advisable for the Initial Purchaser and those Participants, officers, employees
and controlling persons to be jointly represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall be paid by the
Capital Trust, the Asset Trust and the Company. Each indemnified party, as a
condition of the indemnity agreements contained in Section 8, shall use its best
efforts to cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be unreasonably
withheld), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with its written consent or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss of liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss,
20
claim, damage or liability, or action in respect thereof, in such proportion as
shall be appropriate to reflect the relative fault of the Capital Trust, the
Asset Trust and the Company on the one hand and the Participants on the other
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Capital Trust, the Asset Trust and the Company or the Participants, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Capital Trust and the Asset Trust and the Participants agree that it would not
be just and equitable if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation (even if the Participants were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
8(d) shall be deemed to include, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Participant shall be required to contribute
any amount in excess of the amount by which proceeds received by such
Participant from an offering of the Notes exceeds the amount of any damages
which such Participant has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Participants'
obligations to contribute as provided in this Section 8(d) are several and not
joint.
Section 9. Rule 144A.
---------
The Company, the Capital Trust and the Asset Trust hereby agree
with each Holder, for so long as any Transfer Restricted Securities remain
outstanding, to make available to any Holder or beneficial owner of Transfer
Restricted Securities in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Securities from such Holder or beneficial
owner, upon request, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A.
Section 10. Participation in Underwritten Registrations.
-------------------------------------------
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
21
Section 11. Selection of Underwriters.
-------------------------
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company. All expenses related to an Underwritten
Offering, other than those of the Company, the Capital Trust and the Asset Trust
described in Section 7, shall be borne by participating Holders.
Section 12. Miscellaneous.
-------------
(a) Remedies. The Company, the Capital Trust and the Asset Trust
--------
agree that monetary damages (including the Additional Interest and Additional
Distributions contemplated hereby) would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agree to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company, the Capital Trust and
--------------------------
the Asset Trust will not on or after the date of this Agreement enter into any
agreement with respect to their securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions of this Agreement. The Company, the Capital Trust and the Asset Trust
have not previously entered into any agreement granting any registration rights
with respect to their securities to any Person. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Capital Trust's, the Asset Trust's and
the Company's securities under any agreement in effect on the date of this
Agreement.
(c) Adjustments Affecting the Securities. The Company, the Capital
------------------------------------
Trust and the Asset Trust will not take any action, or permit any change to
occur, with respect to Securities that would materially and adversely affect the
ability of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may
----------------------
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions of this Agreement may not be given unless the
Company, the Capital Trust and the Asset Trust have obtained the written consent
of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions of this Agreement that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered.
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(e) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Declaration; and
(ii) if to the Company, the Capital Trust and the Asset Trust:
First Maryland Bancorp
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
General Counsel
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 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 Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign acquired Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning of this
Agreement.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable,
23
the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
(k) Entire Agreement. This Agreement together with the other
----------------
transaction documents is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company, the Capital Trust and the Asset
Trust with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(l) Required Consents. Whenever the consent or approval of Holders
-----------------
of a specified percentage of Transfer Restricted Securities is required
hereunder, Transfer Restricted Securities held by the Company or its affiliates
(as such term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FIRST MARYLAND BANCORP
By:XXXXX X.XXXXXX
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Name:
Title: Executive Vice President
ALLFIRST PREFERRED CAPITAL TRUST
By:XXXXX X. XXXXXX
-----------------------------------------------
Name:
Title: Capital Trust Administrator
ALLFIRST PREFERRED ASSET TRUST
By:XXXXX X.XXXXXX
-----------------------------------------------
Name:
Title: Asset Trust Administrator
XXXXXX BROTHERS INC.
By:/S/
-----------------------------------------------
Name:
Title:
25
