EXECUTION COPY
FIRST NATIONWIDE ESCROW CORP.
105/8% Senior Subordinated Notes Due 2003
REGISTRATION AGREEMENT
September 13, 1996
XXXXX XXXXXX INC.
BEAR, XXXXXXX & CO. INC.
CS FIRST BOSTON CORPORATION
CITICORP SECURITIES, INC.
NATIONSBANC CAPITAL MARKETS, INC.
c/o Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
First Nationwide Escrow Corp., a Delaware corporation (the
"Company"), proposes to issue and sell to Xxxxx Xxxxxx Inc., Bear, Xxxxxxx &
Co. Inc., CS First Boston Corporation, Citicorp Securities, Inc. and
Nationsbanc Capital Markets, Inc. (the "Initial Purchasers"), upon the terms
set forth in a purchase agreement of even date herewith, among First
Nationwide Holdings Inc. ("Holdings"), the Company and the Initial Purchasers
(the "Purchase Agreement"), $575,000,000 principal amount of its 105/8% Senior
Subordinated Notes Due 2003 (the "Securities"). As used herein, the "Issuer"
shall refer to the Company prior to the FN Escrow Merger and to Holdings and
any successor thereto following the FN Escrow Merger. Capitalized terms used
but not specifically defined herein are defined in the Purchase Agreement. As
an inducement to the Initial Purchasers to enter into the Purchase Agreement
and in satisfaction of a condition to your obligations thereunder, each of the
Company and Holdings agrees with you, for the benefit of the holders of the
Securities (including the Initial Purchasers) (the "Holders"), as follows:
1. Registered Exchange Offer. The Issuer shall prepare and,
not later than 75 days following the consummation of the Cal Fed Acquisition
(or if the 75th day is not a business day, the first business day thereafter),
shall file with the Securities and Exchange Commission (the "Commission") a
registration statement (the "Exchange Offer Registration Statement") on an
appropriate form under the Securities Act of 1933, as amended (the "1933 Act")
with respect to a proposed offer (the "Registered Exchange Offer") to the
Holders to issue and deliver to such Holders, in exchange for the Securities,
a like principal amount of debt securities of the Issuer (the "Exchange
Notes") identical in all material respects to the Securities (except that the
interest rate increase provisions and the transfer restrictions will be
modified or eliminated, as appropriate), shall use its best efforts to cause
the Exchange Offer Registration Statement to become effective under the 1933
Act within 150 days following the consummation of the Cal Fed Acquisition (or
if the 150th day is not a business day, the first business day thereafter) and
shall use its best efforts to keep the Exchange Offer Registration Statement
effective under the 1933 Act until the close of business on the 180th day
following the expiration of the Registered Exchange Offer (such period being
called the "Exchange Offer Registration Period") for use by
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Exchanging Dealers (as defined below) as contemplated in Section 3(g) below.
The Issuer shall be deemed not to have used its best efforts to keep the
Exchange Offer Registration Statement effective during the Exchange Offer
Registration Period if it voluntarily takes any action that would result in
Exchanging Dealers not being able to use such Registration Statement as
contemplated in such Section 3(g), unless (i) such action is required by
applicable law, or (ii) such action is taken by the Issuer in good faith and
for valid business reasons (not including avoidance of the Issuer's
obligations hereunder), including the acquisition or divestiture of assets, so
long as the Issuer promptly thereafter complies with the requirements of
Section 3(j) hereof, if applicable. The Exchange Notes will be issued under
the Indenture or an indenture (the "Exchange Notes Indenture") between the
Issuer and the Trustee or such other bank or trust company reasonably
satisfactory to you, as trustee (the "Exchange Notes Trustee"), such indenture
to be identical in all material respects with the Indenture except for the
interest rate increase provisions and the transfer restrictions relating to
the Securities (as described above).
Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuer shall promptly commence the Registered Exchange Offer,
it being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Securities for Exchange Notes (assuming that such Holder
is not an affiliate of the Issuer within the meaning of the 1933 Act, acquires
the Exchange Notes in the ordinary course of such Holder's business and has no
arrangements with any person to participate in the distribution of the
Exchange Notes) to trade such Exchange Notes from and after their receipt
without any limitations or restrictions under the 1933 Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States. Notwithstanding the foregoing, the
Initial Purchasers, the Issuer and the Company acknowledge that, pursuant to
current interpretations by the Commission's staff of Section 5 of the 1933
Act, and in the absence of an applicable exemption therefrom, (i) each Holder
(including any Initial Purchaser) which is a broker-dealer electing to
exchange Securities, acquired for its own account as a result of market making
activities or other trading activities, for Exchange Notes (an "Exchanging
Dealer"), is required to deliver a prospectus containing the information set
forth in Annex A hereto on the cover, in Annex B hereto in "The Exchange
Offer" section, and in Annex C hereto in the "Plan of Distribution" section of
such prospectus in connection with a sale of any such Exchange Notes received
by such Exchanging Dealer pursuant to the Registered Exchange offer and (ii)
each Initial Purchaser which elects to sell Exchange Notes acquired in
exchange for Securities constituting any portion of an unsold allotment is
required to deliver a prospectus, containing the information required by Items
507 and/or 508 of Regulation S-K under the 1933 Act, as applicable, in
connection with such a sale.
In connection with the Registered Exchange Offer, the Issuer
shall:
(a) mail to each Holder a copy of the prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than
30 days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City
of New York;
(d) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last business
day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all applicable laws.
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As soon as practicable after the close of the Registered
Exchange Offer, the Issuer shall:
(a) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(b) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(c) cause the Trustee or the Exchange Notes Trustee, as the
case may be, promptly to authenticate and deliver to each Holder of
Securities Exchange Notes equal in principal amount to the
Securities of such Holder so accepted for exchange.
Interest on each Exchange Note will accrue from the last
interest payment date on which interest was paid on the Securities surrendered
in exchange therefor or, if no interest has been paid on the Securities, from
the date interest began to accrue on the Securities.
Notwithstanding any other provisions hereof, the Issuer will
ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange offer Registration
Statement, and any supplement to such prospectus, does not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements, in the light of the circumstances under which
they were made, not misleading.
Each Holder participating in the Registered Exchange offer
shall be required to represent to the Issuer that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Notes received
by such Holder will be acquired in the ordinary course of business, (ii) such
Holder will have no arrangements or understanding with any person to
participate in the distribution of the Notes or the Exchange Notes within the
meaning of the 1933 Act, (iii) such Holder is not an "affiliate," as defined
in Rule 405 of the 1933 Act, of the Issuer or if it is an affiliate, such
Holder acknowledges that it must comply with the registration and prospectus
delivery requirements of the 1933 Act to the extent applicable, (iv) if such
Holder is not a broker-dealer, that it is not engaged in, and does not intend
to engage in, a distribution of the Exchange Notes and (v) if such Holder is a
broker-dealer, that it will receive Exchange Notes in exchange for Notes that
were acquired as a result of market-making activities or other trading
activities and that it will be required to acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes.
In the event that any Initial Purchaser determines upon
advice of its outside counsel that it is not eligible to participate in the
Registered Exchange Offer with respect to the exchange of Securities
constituting any portion of an unsold allotment, as soon as practicable upon
receipt by the Issuer of an opinion of outside counsel for such Initial
Purchaser, reasonably satisfactory in form and substance to outside counsel of
the Issuer, to the effect that such exchange does not require compliance with
the registration requirements under the 1933 Act, the Issuer shall issue and
deliver to such Initial Purchaser, in exchange for such Securities, a like
principal amount of Exchange Notes.
2. Shelf Registration. If, because of any change in law or
applicable interpretations thereof by the Commission's staff, the Issuer
determines that it is not permitted to effect the Registered Exchange Offer as
contemplated by Section 1 hereof, or if for any other reason the Registered
Exchange Offer is not consummated within 180 days after the consummation of
the Cal Fed Acquisition (or if such day is not a business
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day, the first business day thereafter), or if any Initial Purchaser so
requests with respect to Securities held by it following consummation of the
Registered Exchange Offer, or if any Holder (other than an Initial Purchaser)
is not eligible to participate in the Registered Exchange Offer or, in the
case of any Initial Purchaser that participates in the Registered Exchange
Offer or acquires Exchange Notes pursuant to the last paragraph of Section 1
hereof, such Initial Purchaser does not receive freely tradeable Exchange
Notes in exchange for exchanged Securities constituting any portion of an
unsold allotment (it being understood that the requirement that an Initial
Purchaser deliver a prospectus in connection with sales of Exchange Notes
acquired in the Registered Exchange Offer in exchange for Securities acquired
as a result of market-making activities or other trading activities, shall not
result in such Exchange Notes not being "freely tradeable" for purposes of
this Section 2) or if the Issuer so elects, the following provisions shall
apply:
(a) The Issuer shall as promptly as practicable file with
the Commission and thereafter shall use its best efforts to cause to
be declared effective a registration statement on an appropriate form
under the 1933 Act relating to the offer and sale of the Securities
by the Holders or the Exchange Notes by the Initial Purchasers, as
applicable, from time to time in accordance with the methods of
distribution elected by such Holders or the Initial Purchasers, as
applicable, and set forth in such registration statement (hereafter,
a "Shelf Registration Statement" and, together with any Exchange
Offer Registration Statement, a "Registration Statement").
(b) The Issuer shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be usable by Holders or the
Initial Purchasers, as applicable, for a period of three years from
the date the Shelf Registration Statement is declared effective by
the Commission (or, if the Issuer has consummated the Registered
Exchange Offer, for a period only until September 19, 1999) or such
shorter period that will terminate when all the Securities or
Exchange Notes, as applicable, covered by the Shelf Registration
Statement have been sold pursuant to the Registration Statement or
when, in the opinion of outside counsel to the Issuer, which is
reasonably satisfactory in form and substance to counsel for the
Initial Purchasers, all such Securities may be sold without
registration under the 1933 Act and unlegended certificates
representing the Securities may be given to the holders thereof (in
any such case, such period being called the "Shelf Registration
Period"). The Issuer shall be deemed not to have used its best
efforts to keep the Shelf Registration Statement effective during the
requisite period if it voluntarily takes any action that would result
in Holders of securities covered thereby not being able to offer and
sell such securities during that period, unless (i) such action is
required by applicable law, or (ii) such action is taken by the
Issuer in good faith and for valid business reasons (not including
avoidance of the Issuer's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Issuer promptly
thereafter complies with the requirements of Section 3(j) hereof, if
applicable.
(c) Notwithstanding any other provisions hereof, the Issuer
will ensure that (i) any Shelf Registration Statement and any
amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933
Act and the rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any
prospectus forming part of any Shelf Registration Statement, and any
supplement to such prospectus, does not include an untrue statement
of a material fact or omit to state a material fact necessary in
order to make the statements, in the light of the circumstances under
which they were made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
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(a) The Issuer shall (i) furnish to the Initial Purchasers,
prior to the filing thereof with the Commission, a copy of the
Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and shall use
its best efforts to reflect in each such document, when so filed with
the Commission, such comments as the Initial Purchasers reasonably
may propose, (ii) include the information set forth in Annex A hereto
on the cover, in Annex B hereto in "The Exchange Offer" section, and
in Annex C hereto in the "Plan of Distribution" section of the
prospectus forming a part of the Exchange Offer Registration
Statement, and include the information set forth in Annex D hereto in
the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer, and (iii) if requested by the Initial Purchasers,
include the information required by Items 507 and/or 508 of
Regulation S-K under the 1933 Act, as applicable, in the prospectus
forming a part of the Registration Statement; and (iv) in the case of
a Shelf Registration Statement, include the names of the Holders who
propose to sell Securities pursuant to the Shelf Registration
Statement, as selling security holders.
(b) (1) the Issuer shall advise you and, in the case of a
Shelf Registration Statement, the Holders of securities included
therein, and, if requested by you or any such Holder, confirm such
advice in writing:
(i) when the Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment
thereto has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the
prospectus included therein or for additional information.
(2) The Issuer shall advise you and, in the case of a Shelf
Registration Statement, the Holders of securities included therein,
and, in the case of an Exchange Offer Registration Statement, any
Exchanging Dealer which has provided in writing to the Issuer a
telephone or facsimile number or address for notices, and, if
requested by you or any such Holder or Exchanging Dealer, confirm
such advice in writing;
(i) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) of the receipt by the Issuer of any notification
with respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction
or the initiation or threatening of any proceeding for
such purpose; and
(iii) of the happening of any event that requires the
making of any changes in the Registration Statement or the
prospectus so that, as of such date, the statements
therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary
to make the statements therein (in the case of the
prospectus, in light of the circumstances under which they
were made) not misleading (which advise shall be
accompanied by an instruction to suspend the use of the
prospectus until the requisite changes have been made).
(c) The Issuer will make every reasonable effort to obtain
the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(d) The Issuer will furnish to each Holder of securities
included within the coverage of any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration
Statement and
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any post-effective amendment thereto, including financial statements
and schedules, and, if the Holder so requests in writing, all
exhibits (including those incorporated by reference).
(e) The Issuer will, during the Shelf Registration Period,
deliver to each Holder of securities included within the coverage of
any Shelf Registration Statement, without charge, as many copies of
the prospectus (including each preliminary prospectus) included in
such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; and the Issuer
consents to the use of the prospectus or any amendment or supplement
thereto by each of the selling Holders of securities in connection
with the offering and sale of the securities covered by the
prospectus or any amendment or supplement thereto.
(f) The Issuer will furnish to each Exchanging Dealer or
Initial Purchaser, as applicable, which so requests, without charge,
at least one copy of the Exchange Offer Registration Statement and
any posteffective amendment thereto, including financial statements
and schedules, and, if the Exchanging Dealer or Initial Purchaser, as
applicable, so requests in writing, all exhibits (including those
incorporated by reference).
(g) The Issuer will, during the Exchange Offer Registration
Period, promptly deliver to each Exchanging Dealer, without charge,
as many copies of the prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as
such Exchanging Dealer may reasonably request for delivery by such
Exchanging Dealer in connection with a sale of Exchange Notes
received by it pursuant to the Registered Exchange Offer; and the
Issuer consents to the use of the prospectus or any amendment or
supplement thereto by any such Exchanging Dealer, as aforesaid.
(h) Prior to any public offering of securities pursuant to
any Shelf Registration Statement, the Issuer will register or qualify
or cooperate with the Holders of securities included therein and
their respective counsel in connection with the registration or
qualification of such securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Holder
reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such
jurisdictions of the securities covered by such Shelf Registration
Statement; provided, however, that the Issuer will not be required to
qualify generally to do business in any jurisdiction where it is not
then so qualified or to take any action which would subject it to
general service of process or to taxation in any such jurisdiction
where it is not then so subject.
(i) The Issuer will cooperate with the Holders of securities
to facilitate the timely preparation and delivery of certificates
representing securities to be sold pursuant to any Shelf Registration
Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request prior to sales of
securities pursuant to such Shelf Registration Statement.
(j) Upon the occurrence of any event contemplated by
paragraph (b)(2)(iii) above, the Issuer will promptly prepare a
post-effective amendment to the Registration Statement or a
supplement to the related prospectus or file any other required
document so that, as thereafter delivered to purchasers of the
securities included therein, the prospectus will not include an
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(k) Not later than the effective date of the applicable
Registration Statement, the Issuer will provide a CUSIP number for
the Securities or Exchange Notes, as the case may be, and provide the
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applicable trustee with printed certificates for the Securities or
Exchange Notes, as the case may be, in a form eligible for deposit
with The Depository Trust Company.
(l) The Issuer will comply with all applicable rules and
regulations of the Commission and will make generally available to
its security holders as soon as practicable after the effective date
of the applicable Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the 0000 Xxx.
(m) The Issuer will cause the Indenture or the Exchange
Notes Indenture, as the case may be, to be qualified under the Trust
Indenture Act of 1939, as amended, in a timely manner.
(n) The Issuer may require each Holder of the securities to
be sold pursuant to any Shelf Registration Statement to furnish to
the Issuer such information regarding the holder and the distribution
of such securities as the Issuer may from time to time reasonably
require for inclusion in such Registration Statement, and the Issuer
may exclude from such Registration Statement the Securities of any
Holder that fails to furnish such information within a reasonable
time after receiving such request.
(o) The Issuer shall enter into such customary agreements
(including if requested an underwriting agreement in customary form)
and take all such other action, if any, as any Holder shall
reasonably request in order to facilitate the disposition of the
securities pursuant to any Shelf Registration Statement.
(p) In the case of any Shelf Registration Statement, the
Issuer shall (i) make reasonably available for inspection by the
Holders, and any underwriter participating in any disposition
pursuant to a Registration Statement, and any attorney, accountant or
other agent retained by the Holders or any such underwriter all
relevant financial and other records, pertinent corporate documents
and properties of the Issuer and (ii) cause the Issuer's officers,
directors and employees to supply all relevant information reasonably
requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with any such Registration
Statement.
(q) In the case of any Exchange Offer Registration
Statement, the Issuer shall (i) make reasonably available for
inspection by the Initial Purchasers, but in each case only in such
firm's capacity as an Exchanging Dealer and with the express
understanding that each such firm shall be acting solely for itself
and not on behalf of any other party, including, without limitation,
any other Exchanging Dealer, all relevant financial and other
records, pertinent corporate documents and properties of the Issuer
and (ii) cause the Issuer's officers, directors and employees to
supply all information reasonably requested by any of them.
(r) In the case of any Shelf Registration Statement, the
Issuer, if requested by any Holders, shall cause (x) its counsel to
deliver an opinion relating to the securities included within the
coverage of such Shelf Registration Statement in customary form, (y)
its officers to execute and deliver all customary documents and
certificates requested by any underwriters of the securities and (z)
its independent public accountants to provide to the selling Holders
and any underwriter therefor a comfort letter in customary form.
(s) In the case of any Exchange Offer Registration
Statement, the Issuer, if requested by the Initial Purchasers, but in
each case only in such firm's capacity as an Exchanging Dealer and
with the express understanding that each such firm shall be acting
solely for itself and not on behalf of any other party, including,
without limitation, any other Exchanging Dealer, in connection with
any prospectus
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delivery as contemplated in paragraph (g) above, shall use its best
efforts to cause, on and as of the effective date of the Exchange
Offer Registration Statement, (x) its counsel to deliver an opinion
relating to the Exchange Offer Registration Statement and the
Exchange Notes in customary form, (y) its officers to execute and
deliver all customary documents and certificates requested and (z)
its independent public accountants to provide a comfort letter in
customary form, subject to receipt of appropriate documentation
(including the delivery of a customary representation letter), as
contemplated by Statement on Auditing Standards No. 72.
4. Registration Expenses. The Issuer will bear all expenses
incurred in connection with the performance of its obligations under Sections
1, 2 and 3 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of one firm or
counsel designated by the Holders of a majority in principal amount of the
securities to be registered thereunder to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchasers, as applicable, for the
reasonable fees and disbursements of counsel in connection therewith.
5. Indemnification.
(a) In the event of a Shelf Registration or in connection
with any prospectus delivery pursuant to a Registered Exchange Offer
by an Exchanging Dealer as contemplated in Section 3(g) above, the
Issuer shall indemnify and hold harmless each Holder and each person,
if any, who controls such Holder within the meaning of Section 15 of
the 1933 Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "1934 Act") as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of
any untrue statement or alleged untrue statement of a
material fact contained in any such Registration Statement
or any prospectus forming part thereof or the omission or
alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein
(in the case of any prospectus, in the 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 any investigation or proceeding by any governmental or
regulatory agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission;
and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 5(c) hereof, the
fees and disbursements of counsel chosen by the indemnified
party) reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental or regulatory agency or body,
commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged
untrue statement or omission;
provided, however, that (i) this indemnity shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Issuer by the
indemnified party expressly for use in such Registration Statement and (ii)
such indemnity with respect to any preliminary prospectus shall not inure to
the benefit of any Holder (or any person controlling such Holder) from whom
the person asserting any
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such loss, claim, damage or liability purchased the securities which are the
subject thereof if such person did not receive a copy of the final prospectus
(or the final prospectus as supplemented) at or prior to the confirmation of
the sale of such securities to such person and (A) the untrue statement or
omission of a material fact contained in such preliminary prospectus was
corrected in the final prospectus (or the final prospectus as supplemented)
and (B) such Holder had previously been furnished by or on behalf of the
Issuer (prior to the date of mailing by such Holder of the applicable
confirmation) with a sufficient number of copies of the final prospectus as so
amended or supplemented.
(b) In the event of a Shelf Registration Statement, each
Holder shall indemnify and hold harmless the Issuer, its directors
and officers and each person, if any, who controls the Issuer within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 5(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration
Statement (or any amendment or supplement thereto) in reliance on and
in conformity with written information furnished to the Issuer by
such Holder expressly for use in the Registration Statement (or in
such amendment or supplement); provided, however, that no such Holder
shall be liable for any indemnity claims hereunder in excess of the
amount of net proceeds received by such Holder from the sale of
securities pursuant to the Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability which it may have
otherwise than on account of this indemnity agreement, except to the
extent actually prejudiced thereby. If any such claim or action shall
be brought against an indemnified party, the indemnified party shall
notify 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 reasonably 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 5 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, if the defendants in any such
action include both an indemnified party and an indemnifying party
and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties under this
Section 5 shall have the right to employ not more than one counsel to
represent them and, in that event, the fees and expenses of not more
than one such separate counsel shall be paid by the indemnifying
party, as such expenses are incurred. No indemnifying party shall be
liable for any settlement effected without its written consent of any
claim or action. An indemnifying party will not, without the prior
written consent of the indemnified party, 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.
(d) To provide for just and equitable contribution in
circumstances in which the indemnity provided for in Section
5(a)-5(c) hereof is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms,
the Issuer and the applicable Holder or Holders shall contribute to
the aggregate losses, liabilities, claims, damages and expenses of
the nature
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contemplated by said indemnity incurred by the Issuer and such Holder
or Holders, as incurred, in such proportions that the Issuer is
responsible for that portion represented by the percentage that the
aggregate consideration received by the Company from the sale by it
of the Securities sold by such Holder bears to the aggregate
principal amount of Securities sold by such Holder and such Holder is
responsible for the balance; provided, however, that no person found
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) by a court of competent jurisdiction shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 5, each
person, if any, who controls a Holder within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as such Holder and each director and officer
of the Issuer and each person, if any, who controls the Issuer within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as the Issuer.
6. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement
may not be-amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the
Issuer has obtained the written consent of Holders of a majority in
aggregate principal amount of the Securities.
(b) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier, or air courier guaranteeing
overnight delivery:
(1) if to a Holder, at the most current address given
by such Holder to the Issuer in accordance with the
provisions of this Section 6(b), which address initially
is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture,
with a copy in like manner to the Initial Purchasers;
(2) if to the Initial Purchasers, initially at the
respective addresses set forth in the Purchase Agreement
with copies to the parties specified therein; and
(3) if to the Company or Holdings, initially at its
respective address set forth in the Purchase Agreement,
with copies to the parties specified therein.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchasers, Holdings or the Company by notice to
the other may designate additional or different addresses for subsequent
notices or communications.
(c) Successors and Assigns. This Agreement shall be binding
upon the Company, Holdings and their successors and assigns.
(d) 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.
(e) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
10
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK. Specified times of day refer to New York City time.
11
Please confirm that the foregoing correctly sets forth the agreement
among the Company, Holdings and you.
Very truly yours,
FIRST NATIONWIDE ESCROW CORP.
By: /s/ Xxxxx X. Xxxxxx
Name:
Title:
FIRST NATIONWIDE HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxxx
Name:
Title:
CONFIRMED AND ACCEPTED as of the date first above written:
XXXXX XXXXXX INC.
BEAR, XXXXXXX & CO. INC.
CS FIRST BOSTON CORPORATION
CITICORP SECURITIES, INC.
NATIONSBANC CAPITAL MARKETS, INC.
By: XXXXX XXXXXX INC.
By: /s/ X. Xxxxxx
Name:
Title:
ANNEX A TO
REGISTRATION AGREEMENT
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the 1933 Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a brokerdealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Issuer has agreed that, for a period of 180 days
after the expiration of the Registered Exchange Offer (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX B TO
REGISTRATION AGREEMENT
Each broker-dealer that receives Exchange Notes for its own
account in exchange for Notes, where such Notes were acquired by such
broker-dealer as a result of marketmaking activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution."
ANNEX C TO
REGISTRATION AGREEMENT
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Notes received
in exchange for Existing Notes where such Existing Notes were acquired as a
result of marketmaking activities or other trading activities. The Issuer has
agreed that for a period of 180 days after the expiration of the Registered
Exchange Offer, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until ____________, 199_, all dealers effecting transactions in the
Exchange Notes may be required to deliver a prospectus.1/
The Issuer will not receive any proceeds from any sale of
Exchange Notes by broker-dealers. Exchange Notes received by broker-dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such
Exchange Notes. Any broker-dealer that resells Exchange Notes that were
received by it for its own account pursuant to the Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Notes
may be deemed to be an "underwriter" within the meaning of the 1933 Act and
any profit on any such resale of Exchange Notes and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the 1933 Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the 1933 Act.
For a period of 180 days after the expiration of the
Registered Exchange Offer, the Issuer will promptly send additional copies of
this Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Issuer has agreed to pay all expenses incident to the Exchange Offer other
than commissions or concessions of any brokers or dealers and will indemnify
the holders of the Notes (including any broker-dealers) against certain
liabilities, including liabilities under the 1933 Act.
--------
1. The legend required by Item 502(e) of Regulation S-K must appear on the
back page of the Exchange Offer Prospectus.
ANNEX D TO
REGISTRATION AGREEMENT
Rider A
o CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
Address:
Rider B
If the undersigned is not a broker-dealer, the undersigned represents that it
is not engaged in, and does not intend to engage in, a distribution of
Exchange Notes. If the undersigned is a broker-dealer that will receive
Exchange Notes for its own account in exchange for Existing Notes, it
represents that the Existing Notes to be exchanged for Exchange Notes were
acquired by it as a result of marketmaking or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale
of such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the 1933 Act.
