REGISTRATION RIGHTS AGREEMENT
DATED AS OF DECEMBER 30, 1996
AMONG
BANKUNITED FINANCIAL CORPORATION
AND
BANKUNITED CAPITAL
AND
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
AND
XXXXXXX XXXXX & ASSOCIATES, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 30th day of December, 1996, among BankUnited Capital, a
Delaware business trust (the "Trust"), BankUnited Financial Corporation, a
Florida corporation (the "Company"), and Friedman, Billings, Xxxxxx & Co., Inc.
and Xxxxxxx Xxxxx & Associates, Inc. (each an "Initial Purchaser," and
collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated as of
December 30, 1996, among the Trust and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Trust to the Initial Purchasers
of $50,000,000 aggregate principal amount of 10 1/4% Trust Preferred Securities,
Series A (the "Preferred Securities"). In order to induce the Initial Purchasers
to enter into the Purchase Agreement, the Trust has agreed to provide to the
Initial Purchasers and their direct and indirect transferees the registration
rights set forth in this Agreement. The execution of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. DEFINITIONS.
Capitalized terms used herein without definition shall have
their respective meanings set forth in or pursuant to the Purchase
Agreement or the Offering Memorandum dated December 23, 1996, in
respect of the Preferred Securities, as applicable. All references to
Sections herein are to Sections of this Agreement unless otherwise
indicated. As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"CLOSING TIME" shall mean the Closing Time as defined in the
Purchase Agreement.
"COMMISSION" shall mean the Securities and Exchange
Commission.
"DEBENTURES" shall mean the 10 1/4% Junior Subordinated
Deferrable Interest Debentures, Series A, subject to the Indenture.
"DEPOSITARY" shall mean The Depository Trust Company, or any
other depositary appointed by the Trust, PROVIDED, HOWEVER, that such
depositary must have an address in the Borough of Manhattan, in the
City of New York.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"EXCHANGE PREFERRED SECURITIES" shall mean the 10 1/4% Trust
Preferred Securities, Series B issued by the Trust containing terms
identical to the Preferred Securities in all material respects (except
that (i) interest thereon shall accrue from the last interest payment
date on which interest was paid on the Preferred Securities or, if no
interest has been paid, from the date of original issue of the
Preferred Securities, (ii) the transfer restrictions on the Preferred
Securities shall be modified or eliminated, as appropriate, and (iii)
certain provisions relating to an increase in the stated rate of
interest of the Preferred Securities shall be
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eliminated), to be offered to Holders of the Preferred Securities in
exchange for the Preferred Securities pursuant to the Exchange Offer.
"EXCHANGE OFFER" shall mean the exchange offer by the Trust
of Exchange Preferred Securities for Registrable Preferred Securities
pursuant to Section 2.1. hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such
registration statement, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by
reference therein.
"FAILURE TO REGISTER" shall have the meaning set forth in
Section 3 hereof.
"GUARANTEE" shall mean the guarantee of the Company to make
payments on liquidation or redemption of the Preferred Securities under
the Guarantee Agreement.
"GUARANTEE AGREEMENT" shall mean the Guarantee Agreement
executed and delivered by the Company and The Bank of New York, as
Trustee, for the benefit of the holders of the Preferred Securities.
"HOLDERS" shall mean the Initial Purchasers, for so long as
they own any Registrable Preferred Securities, and each of their
successors, assigns and direct and indirect transferees who become
registered owners of Registrable Preferred Securities.
"INDENTURE" shall mean the Indenture dated as of December 30,
1996 between the Company and The Bank of New York, a New York banking
corporation, as trustee, as the same may be amended from time to time
in accordance with the terms thereof, providing for the issuance of the
Debentures.
"INITIAL PURCHASER" or "INITIAL PURCHASERS" shall have the
meaning set forth in the preamble.
"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Preferred
Securities; PROVIDED that whenever the consent or approval of Holders
of a specified percentage of Registrable Preferred Securities is
required hereunder, Registrable Preferred Securities held by the Trust
shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage or amount.
"PERSON" shall mean an individual, partnership, corporation,
trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus, including
a prospectus supplement with respect to the terms of the offering of
any portion of the Registrable Preferred Securities covered by a Shelf
Registration Statement, and by all other amendments and supplements to
a prospectus, including post-effective amendments, and in each case
including all material incorporated by reference therein.
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"PURCHASE AGREEMENT" shall have the meaning set forth in the
preamble.
"REGISTRABLE PREFERRED SECURITY/REGISTRABLE PREFERRED
SECURITIES" shall mean one or more shares of the Preferred Securities,
the Guarantee and the underlying Debentures subject to the Indenture;
PROVIDED, HOWEVER, that a share of the Preferred Securities shall cease
to be a Registrable Preferred Security when (i) a Registration
Statement with respect to such Preferred Securities shall have been
declared effective under the Securities Act and such shares of
Preferred Securities shall have been transferred pursuant to such
Registration Statement, (ii) such share of Preferred Securities shall
have been sold to the public pursuant to Rule 144 (or any similar
provision then in force, but not Rule 144A) under the Securities Act,
or shall be saleable pursuant to paragraph (k) of Rule 144 (or any
similar provision then in effect) or pursuant to an opinion of counsel
that a transfer may be effected without compliance with the Securities
Act under circumstances which will result in the share of Preferred
Securities being freely tradeable by the purchaser provided such
purchaser is not an affiliate of the Trust or the Company, (iii) such
share of Preferred Securities shall have ceased to be outstanding or
(iv) such share of Preferred Securities shall have been exchanged for
Exchange Preferred Securities upon the consummation of the Exchange
Offer.
"REGISTRATION EXPENSES" shall mean any and all expenses
incident to performance of or compliance by the Trust and the Company
with this Agreement, including without limitation: (i) all SEC, stock
exchange or National Association of Securities Dealers, Inc. (the
"NASD") registration and filing fees, including, if applicable, the
fees and expenses of any "qualified independent underwriter" (and the
reasonable fees of its counsel) that is required to be retained by any
Holder of Registrable Preferred Securities in accordance with the rules
and regulations of the NASD, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws and
compliance with the rules of the NASD (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection
with blue sky qualification of any of the Exchange Preferred Securities
or Registrable Preferred Securities), (iii) all expenses of any Persons
engaged by the Trust or the Company to prepare or assist in preparing,
word processing, printing and distributing any Registration Statement,
any Prospectus, any amendments or supplements thereto, any underwriting
agreements, securities sales agreements and other documents relating to
the performance of and compliance with this Agreement, (iv) all fees
and expenses incurred in connection with the listing, if any, of any of
the Registrable Preferred Securities on any securities exchange or
exchanges, (v) all rating agency fees, (vi) the fees and disbursements
of counsel for the Trust and the Company and of the independent public
accountants of the Trust and the Company, including the expenses of any
special audits or "cold comfort" letters required by or incident to
such performance and compliance, but excluding fees of counsel to the
underwriters or the Holders and underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of
Registrable Preferred Securities by a Holder, (vii) the fees and
expenses of the Trustee, and any escrow agent or custodian, and (viii)
any fees and disbursements of the underwriters customarily required to
be paid by issuers or sellers of securities and the reasonable fees and
expenses of any special experts retained by the Trust and the Company
in connection with any Registration Statement, but excluding
underwriting discounts and commissions and transfer taxes, if any, and
the expenses of any such Holder's counsel relating to the sale or
disposition of Registrable Preferred Securities by a Holder.
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"REGISTRATION STATEMENT" shall mean any registration statement
of the Trust which covers any of the Exchange Preferred Securities or
Registrable Preferred Securities pursuant to the provisions of this
Agreement, and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"RULE 144" shall mean Rule 144 under the 1933 Act, or any
successor rule.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended from time to time.
"SHELF REGISTRATION" shall mean a registration effected
pursuant to Section 2.2 hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf"
registration statement of the Trust pursuant to the provisions of
Section 2.2 of this Agreement which covers all of the Registrable
Preferred Securities required to be registered on an appropriate form
for purposes of an offering on a continuous basis pursuant to Rule 415,
under the Securities Act, or any similar rule that may be adopted by
the Commission, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"TRUST" shall have the meaning set forth in the preamble and
shall also include the Trust's successors.
"TRUSTEE" shall mean the trustee with respect to the Preferred
Securities under the Indenture.
2. REGISTRATION UNDER THE 1933 ACT.
2.1 EXCHANGE OFFER.
(a) The Trust and the Company shall (i) prepare and,
not later than 60 days following the Closing Time, file with
the Commission an Exchange Offer Registration Statement under
the Securities Act with respect to a proposed offer (the
"Exchange Offer") to the Holders to issue and deliver to such
Holders, in exchange for the Registrable Preferred Securities,
a like principal amount of Exchange Preferred Securities, (ii)
use their best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the
Securities Act within 120 days after the Closing Time, (iii)
use their best efforts to keep the Exchange Offer Registration
Statement effective until the closing of the Exchange Offer,
subject to its use by Participating Broker-Dealers (as defined
below) as contemplated in Section 3(f) below, and (iv) use
their best efforts to cause the Exchange Offer to be
consummated not later than 180 days following the Closing
Time. Upon the effectiveness of the Exchange Offer
Registration Statement, the Trust shall promptly commence the
Exchange Offer, it being the objective of such Exchange Offer
to enable each Holder eligible and electing to exchange
Registrable Preferred Securities for Exchange Preferred
Securities (assuming that such Holder is not an affiliate of
the Trust or the
5
Company, within the meaning of Rule 405 under the Securities
Act, acquires the Exchange Preferred Securities in the
ordinary course of such Holder's business and has no
arrangements or understandings with any Person to participate
in the Exchange Offer for the purpose of distributing the
Exchange Preferred Securities and, if such Holder is not a
broker-dealer, such Holder is not engaged in, and does not
intend to engage in, a distribution (within the meaning of the
Securities Act) of such Exchange Preferred Securities) and to
trade such Exchange Preferred Securities from and after each
such Holder's receipt of the Exchange Preferred Securities
without any limitations or restrictions under the Securities
Act and without material restrictions under the securities
laws of a substantial proportion of the several states of the
United States.
(b) In connection with the Exchange
Offer, the Trust shall:
(i) 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;
(ii) keep the Exchange Offer open
for not less than 30 calendar days after the
date notice thereof is mailed to the Holders
(or longer if required by applicable law);
(iii) use the services of the
Depositary for the Exchange Offer;
(iv) permit Holders to withdraw
tendered Registrable Preferred Securities at
any time prior to the close of business, New
York time, on the last business day on which
the Exchange Offer shall remain open, by
sending to the institution specified in the
notice a telegram, telex, facsimile
transmission or letter setting forth the
name of such Holder, the principal amount of
Registrable Preferred Securities delivered
for exchange, and a statement that such
Holder is withdrawing his election to have
such Preferred Securities exchanged; and
(v) otherwise comply in all respects
with all applicable laws relating to the
Exchange Offer.
(c) As soon as practicable after the
close of the Exchange Offer, the Trust shall:
(i) accept for exchange all
Registrable Preferred Securities duly
tendered and not validly withdrawn pursuant
to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration
Statement and the letter of transmittal
which is an exhibit thereto;
(ii) deliver to the Trustee for
cancellation all Registrable Preferred
Securities so accepted for exchange; and
6
(iii) cause the Trustee promptly to
authenticate and deliver Exchange Preferred
Securities to each Holder of Registrable
Preferred Securities equal in principal
amount to the Registrable Preferred
Securities of such Holder so accepted for
exchange.
Interest on each of the Exchange Preferred Securities will accrue from
the last interest payment date on which interest was paid on the Registrable
Preferred Securities surrendered in exchange therefor or, if no interest has
been paid on the Registrable Preferred Securities, from the date of original
issue of the Registrable Preferred Securities. The Exchange Offer shall not be
subject to any conditions, other than that (i) the Exchange Offer, or the making
of any exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the Commission, (ii) no action or proceeding
shall have been instituted or threatened in any court by or before any
governmental agency with respect to the Exchange Offer which, in the Trust's and
the Company's judgment, might impair the ability of the Trust to proceed with
the Exchange Offer, (iii) such Exchange Offer will not result in a "Tax Event"
as defined in the Indenture, or (iv) there shall not have been adopted or
enacted any law, statute, rule or regulation which, in the Trust's and the
Company's judgment, would materially impair the ability of the Trust to proceed
with the Exchange Offer. Each Holder of Registrable Preferred Securities (other
than Participating Broker-Dealers (as defined below)) who wishes to exchange
such Registrable Preferred Securities for Exchange Preferred Securities will be
required to represent that (i) it is not an affiliate of the Trust or the
Company, (ii) any Exchange Preferred Securities to be received by it will be
acquired in the ordinary course of its business, and (iii) it has no arrangement
with any Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Preferred Securities, and (iv) it is not engaged
in, and does not intend to engage in, a distribution (within the meaning of the
Securities Act) of the Exchange Preferred Securities. The Trust shall inform the
Initial Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the right, subject
to applicable law and at their own expense, to contact such Holders and
otherwise facilitate the tender of Registrable Preferred Securities in the
Exchange Offer.
2.2 SHELF REGISTRATION.
(a) (i) If, because of any change in law or
applicable interpretations thereof by the staff of the
Commission, the Trust is not permitted to effect the Exchange
Offer as contemplated by Section 2.1 hereof, (ii) if it is
determined that the Exchange Offer would trigger a Tax Event,
or (iii) if for any other reason the Exchange Offer is not
consummated within 180 days of the date hereof, or (iv) upon
the request of either Initial Purchaser (with respect to any
Registrable Preferred Securities which it acquired directly
from the Trust) following consummation of the Exchange Offer
if such Initial Purchaser shall hold Registrable Preferred
Securities which it acquired directly from the Trust and if
such Initial Purchaser is not permitted, in the opinion of
counsel to such Initial Purchaser, pursuant to applicable law
or applicable interpretation of the staff of the Commission,
to participate in the Exchange Offer, the Trust and the
Company shall, at the Company's cost, subject to Section 2.3
hereof,
(A) as promptly as practicable, file with the
Commission, and thereafter shall use their best
efforts to cause to be declared effective as promptly
as practicable, a Shelf Registration Statement
relating to the offer
7
and sale of the Registrable Preferred Securities by
the Holders from time to time in accordance with the
methods of distribution selected by the Majority
Holders and set forth in such Shelf Registration
Statement. In the event that a Shelf Registration
Statement is required to be filed upon the request of
either Initial Purchaser pursuant to clause (iv)
above, the Trust and the Company shall file and use
their best efforts to have declared effective by the
Commission both an Exchange Offer Registration
Statement pursuant to Section 2.1 hereof with respect
to all Registrable Preferred Securities and a Shelf
Registration Statement (which may be a combined
Registration Statement with the Exchange Offer
Registration Statement) with respect to offers and
sales of Registrable Preferred Securities held by
such Initial Purchasers after completion of the
Exchange Offer;
(B) use their best efforts to keep the Shelf
Registration Statement continuously effective in
order to permit the Prospectus forming a part thereof
to be usable by Holders identified as selling
security holders in such Shelf Registration Statement
for a period of three years from the date the Shelf
Registration Statement is declared effective by the
Commission or until such earlier date as all
Registrable Preferred Securities shall have been
disposed of or on which all Registrable Preferred
Securities shall be saleable without registration
pursuant to Rule 144 (or any similar provision then
in effect), or as a result of any changes in the
existing registration requirements under the
Securities Act which eliminate the Holders' need for
the Shelf Registration Statement, or upon receipt of
an opinion of counsel satisfactory to the Initial
Purchasers which provides that all Registrable
Preferred Securities may be resold without
registration in a transaction that would result in
the Registrable Preferred Securities being freely
tradeable provided that the purchaser is not an
affiliate of the Trust or the Company (the
"Effectiveness Period"); and
(C) notwithstanding any other provisions hereof,
use its best efforts to ensure that (i) any Shelf
Registration Statement and any amendment thereto and
any Prospectus forming a part thereof and any
supplement thereto complies in all material respects
with the Securities 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 a part of any Shelf Registration Statement,
and any supplement to such Prospectus (as amended or
supplemented from time to time), does not include an
untrue statement of a material fact or omit to state
a material fact necessary in order to make the
statements therein, in light of the circumstances
under which they were made, not misleading, except
that the Trust and the Company shall be entitled to
rely on the information provided to them by the
Holders with respect to such Holders.
(b) The Trust and the Company further agree,
if necessary, to supplement or amend the Shelf Registration
Statement if reasonably requested by the Majority Holders with
respect to information relating to the Holders and otherwise
as required
8
by Section 3(b) hereof, to use their best efforts
to cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as thereafter
practicable and to furnish to the Holders of Registrable
Preferred Securities copies of any such supplement or
amendment promptly after its being used or filed with the
Commission.
2.3 EXPENSES. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2 and, in the case
of any Shelf Registration Statement, will reimburse the Holders or Initial
Purchasers for the reasonable fees and disbursements of one firm or counsel
designated in writing by the Majority Holders to act as counsel for the Holders
of the Preferred Securities in connection therewith, and, in the case of an
Exchange Offer Registration Statement, will reimburse the Initial Purchasers, as
applicable, for the reasonable fees and disbursements of one firm or counsel in
connection therewith (however, the reimbursement of such fees and disbursements
on behalf of the Holders or the Initial Purchasers shall not exceed an amount to
be agreed upon by the Company and the Initial Purchasers prior to the filing of
any such Registration Statement). Each Holder shall pay all expenses of its
counsel, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Preferred
Securities pursuant to the Shelf Registration Statement.
2.4. EFFECTIVENESS.
(a) The Trust and the Company will be deemed
not to have used their best efforts to cause the Exchange
Offer Registration Statement or the Shelf Registration
Statement, as the case may be, to become, or to remain,
effective during the requisite period if either voluntarily
takes any action that would result in any such Registration
Statement not being declared effective or in the Holders of
Registrable Preferred Securities covered thereby not being
able to exchange or offer and sell such Registrable Preferred
Securities during the period unless (i) such action is
required by applicable law or (ii) such action is taken by the
Trust or the Company in good faith and for valid business
reasons (not including avoidance of the Trust's obligations
hereunder), including the acquisition or divestiture of
assets, so long as the Trust and the Company comply with the
requirements of Section 3(b) hereof, if applicable, as
promptly as practicable.
(b) An Exchange Offer Registration Statement
pursuant to Section 2.1 hereof or a Shelf Registration
Statement pursuant to Section 2.2 hereof will not be deemed to
have become effective unless it has been declared effective by
the Commission; PROVIDED, however, that if, after a Shelf
Registration Statement has been declared effective, the
offering of Registrable Preferred Securities pursuant to such
Shelf Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the
Commission or any other governmental agency or court, such
Shelf Registration Statement will be deemed not to be
effective during the period of such interference, until the
offering of Registrable Preferred Securities pursuant to such
Shelf Registration Statement may legally resume.
2.5. ADDITIONAL INTEREST. If (i) on or prior to 60 days following the
date of original issuance of the Registrable Preferred Securities the Exchange
Offer Registration Statement, or the Shelf Registration Statement in the event
that (A) the Exchange Offer, or the making of any exchange
9
by a Holder, would violate applicable law or any applicable interpretation of
the staff of the Commission, (B) any action or proceeding shall have been
instituted in any court by or before any governmental agency with respect to the
Exchange Offer which, in the judgment of the Trust and the Company, would
materially impair the ability of the Trust to proceed with the Exchange Offer,
(C) such Exchange Offer will result in a "Tax Event" as defined in the
Indenture, or (D) there shall have been adopted or enacted any law, statute,
rule or regulation which, in the judgment of the Trust and the Company, would
materially impair the ability of the Trust to proceed with the Exchange Offer,
has not been filed with the Commission, or (ii) on or prior to the 120th day
following the issuance of the Registrable Preferred Securities such Exchange
Offer Registration Statement is not declared effective, or (iii) on or prior to
the 180th day following the issuance of the Registrable Preferred Securities the
Exchange Offer is not consummated or a Shelf Registration Statement is not
declared effective (each, a "Registration Default"), additional interest
("Registration Penalty") will accrue on the Debentures and, accordingly,
additional Distributions will accrue on the Preferred Securities, in each case
from and including the day following such Registration Default. A Registration
Penalty will be paid semi-annually in arrears, with the first semi-annual
payment due on the first interest or distribution payment date, as applicable,
following the date on which such Registration Penalty begins to accrue, and will
accrue at a rate per annum equal to an additional one-quarter of one percent
(0.25%) per Registration Default (not to exceed in the aggregate 0.50%) of the
principal amount or liquidation amount, as applicable. Such Registration Penalty
will cease to accrue on the date on which the Exchange Offer is consummated or
the Shelf Registration Statement is declared effective by the Commission, as
applicable. In the event that a Shelf Registration Statement is filed and
declared effective, but subsequently ceases to be effective during the
Effectiveness Period for more than 90 days, whether or not consecutive, during
any 12-month period, then a Registration Penalty will accrue at a rate per annum
equal to one-half of one percent (0.50%) of the principal amount or liquidation
amount, as applicable, from such 91st day until such time as the Shelf
Registration Statement again becomes effective. At no time will a Registration
Penalty in excess of one-half of one percent (0.50%) be payable pursuant to the
provisions of the Registration Rights Agreement.
2.6 SPECIFIC ENFORCEMENT. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Trust and the Company acknowledge
that any failure by the Trust or the Company to comply with its obligations
under Section 2.1 and Section 2.2 hereof may result in material irreparable
injury to the Initial Purchasers or the Holders for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial Purchasers or
any Holder may obtain such relief as may be required to specifically enforce the
Trust's and the Company's obligations under Section 2.1 and Section 2.2 hereof.
3. REGISTRATION PROCEDURES.
In connection with the obligations of the Trust and the Company with
respect to the Registration Statements pursuant to Sections 2.1 and 2.2 hereof,
the Trust and the Company shall:
(a) prepare and file with the Commission a Registration
Statement, within the time period specified in Section 2, on
the appropriate form under the Securities Act, which form (i)
shall be selected by the Trust, (ii) shall, in the case of a
Shelf Registration, be available for the sale of the
Registrable Preferred Securities by the selling Holders
thereof and (iii) shall comply as to form in all material
respects with the requirements of the applicable form and
include or incorporate by reference all
10
financial statements required by the Commission to be filed
therewith, and use their best efforts to cause such
Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
(b) prepare and file with the Commission
such amendments and post-effective amendments to each
Registration Statement and such supplements to the Prospectus
as may be necessary under applicable law; and comply with the
provisions of the Securities Act with respect to the
disposition of all of the Registrable Preferred Securities or
Exchange Preferred Securities, as applicable, covered by each
Registration Statement during the applicable period in
accordance with the intended method or methods of distribution
by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i)
notify each Holder of the Registrable Preferred Securities, at
least five days prior to filing, that a Shelf Registration
Statement with respect to the Registrable Preferred Securities
is being filed and advise such Holders that the distribution
of the Registrable Preferred Securities will be made in
accordance with the method selected by the Holders of a
majority in aggregate principal amount of the Registrable
Preferred Securities being registered; and (ii) furnish to
each Holder of the Registrable Preferred Securities, to
counsel for the Initial Purchasers, to one firm or counsel for
the Holders and to each underwriter of an underwritten
offering of the Registrable Preferred Securities, if any,
without charge, as many copies of each Prospectus, including
each preliminary Prospectus, and any amendment or supplement
thereto and such other documents as such Holder or underwriter
may reasonably request, including financial statements and
schedules and, if the Holder so requests, all exhibits
(including those incorporated by reference) in order to
facilitate the public sale or other disposition of the
Registrable Preferred Securities; and (iii) subject to the
penultimate paragraph of Section 3, hereby consent to the use
of the Prospectus or any amendment or supplement thereto by
each of the selling Holders of the Registrable Preferred
Securities in connection with the offering and sale of the
Registrable Preferred Securities covered by the Prospectus or
any amendment or supplement thereto;
(d) use its best efforts to register or
qualify the Registrable Preferred Securities or Exchange
Preferred Securities, as applicable, under all applicable
state securities or "blue sky" laws of such jurisdiction as
any Holder (or Participating Broker-Dealer with respect to
Exchange Preferred Securities) of the Registrable Preferred
Securities or Exchange Preferred Securities, as applicable,
covered by a Registration Statement and each underwriter of an
underwritten offering of the Registrable Preferred Securities
shall reasonably request by the time the applicable
Registration Statement is declared effective by the
Commission, to cooperate with the Holders in connection with
any filings required to be made with the NASD, and do any and
all other acts and things which may be reasonably necessary or
advisable to enable each such Holder and underwriter to
consummate the disposition in each such jurisdiction of such
Registrable Preferred Securities owned by such Holder;
PROVIDED, HOWEVER, that the Trust shall not be required to (i)
qualify as a foreign corporation or as a dealer in securities
in any jurisdiction where it would not otherwise be required
to qualify but for this Section 3(d) or (ii) take any action
which would subject it or
11
its board of trustees to general service of process or
taxation in any such jurisdiction where it is not then so
subject;
(e) in the case of a Shelf Registration, notify each
Holder of the Registrable Preferred Securities and counsel for
the Initial Purchasers promptly and, if requested by such
Holder or counsel, confirm such advice in writing promptly (i)
when a Shelf Registration Statement has become effective, (ii)
of any request by the Commission or any state securities
authority for post-effective amendments and supplements to a
Shelf Registration Statement and Prospectus or for additional
information after the Shelf Registration Statement has become
effective, (iii) of the issuance by the Commission or any
state securities authority of any stop order suspending the
effectiveness of a Shelf Registration Statement or the
initiation of any proceedings for that purpose, (iv) if,
between the effective date of a Shelf Registration Statement
and the closing of any sale of Registrable Preferred
Securities covered thereby, the representations and warranties
of the Trust and the Company contained in any underwriting
agreement, securities sales agreement or other similar
agreement, if any, relating to the offering of the Registrable
Preferred Securities cease to be true and correct in all
material respects, (v) of the happening of any event or the
discovery of any facts during the period a Shelf Registration
Statement is effective which makes any statement made in such
Shelf Registration Statement or the Prospectus untrue in any
material respect or which requires the making of any changes
in such Shelf Registration Statement or Prospectus in order to
make the statements therein not misleading, (vi) of the
receipt by the Trust of any notification with respect to the
suspension of the qualification of the Registrable Preferred
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vii) of
any determination by the Trust or the Company that a
post-effective amendment to a Shelf Registration Statement
would be appropriate;
(f) (i) in the case of the Exchange Offer (A) include
in the Exchange Offer Registration Statement a "Plan of
Distribution" section covering the use of the Prospectus
included in the Exchange Offer Registration Statement by
broker-dealers who have exchanged their Registrable Preferred
Securities for Exchange Preferred Securities for the resale of
such Exchange Preferred Securities, (B) furnish to each
broker-dealer who desires to participate in the Exchange
Offer, without charge, as many copies of each Prospectus
included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or
supplement thereto, as such broker-dealer may reasonably
request, (C) include in the Exchange Offer Registration
Statement a statement that any broker-dealer who holds
Registrable Preferred Securities acquired for its own account
as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who receives
Exchange Preferred Securities for Registrable Preferred
Securities pursuant to the Exchange Offer, may be a statutory
underwriter and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resale of such Exchange Preferred Securities, (D) subject to
the penultimate paragraph of Section 3, hereby consent to the
use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto,
by any Participating Broker-Dealer in connection with the sale
or transfer of the Exchange Preferred Securities covered by
the Prospectus or any amendment or supplement thereto, and
12
(E) include in the transmittal letter or similar documentation
to be executed by an exchange offeree in order to participate
in the Exchange Offer (x) the following provision:
"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 Preferred Securities. If the undersigned is
a broker-dealer that will receive Exchange Preferred
Securities for its own account in exchange for
Registrable Preferred Securities, the undersigned
represents that the Registrable Preferred Securities
were acquired by it as a result of market-making or
other trading activities and acknowledges that it
will deliver a prospectus meeting the requirements of
the Securities Act in connection with any resale of
such Exchange Preferred Securities; however, by so
acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities
Act;" and
(y) a statement to the effect that by a
Participating Broker-Dealer making the
acknowledgement described in clause (x) and by
delivering a Prospectus in connection with the
exchange of Registrable Preferred Securities, the
Participating Broker-Dealer will not be deemed to
admit that it is an underwriter within the meaning of
the Securities Act; and
(ii) to the extent any Participating
Broker-Dealer participates in the Exchange
Offer, the Trust shall use its best efforts
to cause to be delivered at the request of an
entity representing the Participating
Broker-Dealers (which entity shall be one of
the Initial Purchasers, unless they elect not
to act as such representative) only one, if
any, "cold comfort" letter with respect to
the Prospectus in the form existing on the
last date on which exchanges will be accepted
and with respect to each subsequent amendment
or supplement, if any, effected during the
period specified in clause (D) below; and
(iii) to the extent any Participating
Broker-Dealer participates in the Exchange
Offer, the Trust shall use its best efforts
to maintain the effectiveness of the Exchange
Offer Registration Statement for a period of
180 days following the closing of the
Exchange Offer; and
(iv) the Trust shall not be required to
amend or supplement the Prospectus contained
in the Exchange Offer Registration Statement
commencing on the date which shall be 180
days after the last date for which exchanges
are accepted pursuant to the Exchange Offer
(unless such period may be extended by the
Trust) and Participating Broker-Dealers shall
not be authorized by the Trust and shall not
deliver such Prospectus after such date in
connection with resales contemplated by this
Section 3; and
13
(v) (A) in the case of an Exchange Offer,
furnish counsel for the Initial Purchasers
and (B) in the case of a Shelf Registration,
furnish one firm or counsel for the Holders
of the Registrable Preferred Securities,
copies of any request by the Commission or
any state securities authority for amendments
or supplements to a Registration Statement
and Prospectus or for additional information;
and
(vi) use its best efforts to obtain the
withdrawal of any order suspending the
effectiveness of a Registration Statement at
the earliest possible moment and provide
immediate notice to each Holder of the
withdrawal of any such order.
(g) in the case of a Shelf Registration, furnish to each
Holder of the Registrable Preferred Securities, and each
underwriter, if any, without charge, at least one conformed
copy of each Registration Statement and any post-effective
amendment thereto, including financial statements and
schedules (without documents incorporated therein by reference
and all exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with
the selling Holders of the Registrable Preferred Securities to
facilitate the timely preparation and delivery of certificates
representing the Registrable Preferred Securities to be sold
and not bearing any restrictive legends; and enable such
Registrable Preferred Securities to be in such denominations
(consistent with the provisions of the Trust Agreement), and
registered in such names as the selling Holders or the
underwriters, if any, may reasonably request at least three
business days prior to the closing of any sale of the
Registrable Preferred Securities;
(i) in the case of a Shelf Registration, upon the
occurrence of any event or the discovery of any facts, each as
contemplated by Section 3(e)(ii)-(vii) hereof, use its best
efforts to prepare a supplement or post-effective amendment to
the Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the
purchasers of the Registrable Preferred Securities, such
Prospectus will not contain at the time of such delivery any
untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading. The Trust agrees to notify each Holder to suspend
use of the Prospectus as promptly as practicable after the
occurrence or discovery of such an event, and each Holder
hereby agrees to suspend use of the Prospectus until the Trust
has amended or supplemented the Prospectus to correct such
misstatement or omission. At such time as such public
disclosure is otherwise made or the Trust determines that such
disclosure is not necessary, the Trust agrees promptly to
notify each Holder of such determination, to amend or
supplement the Prospectus if necessary to correct any untrue
statement or omission therein and to furnish each Holder such
numbers of copies of the Prospectus, as amended or
supplemented, as such Holder may reasonably request;
14
(j) a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a
Prospectus or any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, provide copies of
such document to the Initial Purchasers, on behalf of such
Holders, and their counsel and make representatives of the
Trust as shall be reasonably requested by the Majority Holders
of the Registrable Securities, or the Initial Purchasers on
behalf of such Holders, available for discussion of such
document and shall not at any time file or make any amendment
to the Registration Statement, any Prospectus or any amendment
of or supplement to a Registration Statement or a Prospectus
or any document which is to be incorporated by reference into
a Registration Statement or a Prospectus, of which the Initial
Purchasers, on behalf of such Holders, and its counsel shall
not have previously been advised and furnished a copy or to
which the Initial Purchasers, on behalf of such Holders, or
its counsel shall reasonably object;
(k) obtain a CUSIP number for all Exchange Preferred
Securities or Registrable Preferred Securities or the
Debentures, as the case may be, not later than the effective
date of a Registration Statement, and provide the Trustee with
printed certificates for the Exchange Preferred Securities or
the Registrable Preferred Securities or the Debentures, as the
case may be, in a form eligible for deposit with the
Depositary;
(l) (i) cause the Indenture and the Guarantee Agreement to
be qualified under the Trust Indenture Act of 1939 (the "TIA")
in connection with the registration of the Debentures and the
Guarantee, (ii) cooperate with the Trustee and the Holders to
effect such changes to the Indenture and the Guarantee
Agreement as may be required for the Indenture and the
Guarantee Agreement to be so qualified in accordance with the
terms of the TIA and (iii) execute, and use its best efforts
to cause the Trustee to execute, all documents as may be
required to effect such changes, and all other forms and
documents required to be filed with the Commission to enable
the Indenture and the Guarantee Agreement to be so qualified
in a timely manner;
(m) in the case of a Shelf Registration, enter into
agreements (including underwriting agreements) and take all
other customary and appropriate actions (including those
reasonably requested by the Majority Holders) in order to
expedite or facilitate the disposition of such Registrable
Preferred Securities and in such connection, whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration:
(i) make such representations and
warranties to the Holders of such Registrable
Preferred Securities and the underwriters, if
any, in form, substance and scope as are
customarily made by issuers to underwriters
in similar underwritten offerings as may be
reasonably requested by such underwriters;
(ii) obtain opinions of counsel to the
Trust and updates thereof (which counsel and
opinions (in form, scope and substance) shall
be
15
reasonably satisfactory to the managing
underwriters, if any, and the holders of a
majority in aggregate principal amount of the
Registrable Preferred Securities being sold),
addressed to each selling Holder and the
underwriters, if any, covering the matters
customarily covered in opinions requested in
sales of securities or underwritten offerings
and such other matters as may be reasonably
requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and
updates thereof from the Trust's independent
certified public accountants addressed to the
underwriters, if any, and use its best
efforts to have such letters addressed to the
selling Holders of the Registrable Preferred
Securities, such letters to be in customary
form and covering matters of the type
customarily covered in "cold comfort" letters
to underwriters in connection with similar
underwritten offerings;
(iv) enter into a securities sales
agreement with the Holders and an agent of
the Holders providing for, among other
things, the appointment of such agent for the
selling Holders for the purpose of soliciting
purchases of the Registrable Preferred
Securities, which agreement shall be in form,
substance and scope customary for similar
offerings;
(v) if an underwriting agreement is
entered into, cause the same to set forth
indemnification provisions and procedures
substantially equivalent to the
indemnification provisions and procedures set
forth in Section 5 hereof with respect to the
underwriters and all other parties to be
indemnified pursuant to said Section; and
(vi) deliver such documents and
certificates as are customarily delivered in
similar offerings and as may be reasonably
requested by the Holders of a majority in
aggregate principal amount of the Registrable
Preferred Securities being sold and the
managing underwriters, if any.
The above shall be done at (i) the effectiveness of such Shelf
Registration Statement (and each post-effective amendment thereto) and (ii) each
closing under any underwriting or similar agreement as and to the extent
required thereunder. In the case of any underwritten offering, the Trust shall
provide written notice to the Holders of all of the Registrable Preferred
Securities of such underwritten offering at least 30 days prior to the filing of
a Prospectus supplement for such underwritten offering. Such notice shall (x)
offer each such Holder the right to participate in such underwritten offering,
(y) specify a date, which shall be no earlier than 10 days following the date of
such notice, by which the Holder must inform the Trust of its intent to
participate in such underwritten offering and (z) include the instructions such
Holder must follow in order to participate in such underwritten offering;
(n) in the case of a Shelf Registration Statement, upon the
execution of a confidentiality agreement reasonably requested by the
Trust, in accordance with such procedural conditions as the Trust shall
reasonably impose, make available for inspection by representatives of
the Holders of the Registrable Preferred Securities and any
underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any one firm or counsel or accountant
retained by such Holders or underwriters, all financial and other
16
records, pertinent corporate documents and properties of the Trust and
the Company reasonably requested by any such persons, and cause the
respective officers, directors, employees and any other agents of the
Trust and the Company to supply all information reasonably requested by
any such representative, underwriter, special counsel or accountant in
connection with a Registration Statement;
(o) (i) a reasonable time prior to the filing of any Exchange
Offer Registration Statement, any Prospectus forming a part thereof,
any amendment to an Exchange Offer Registration Statement or amendment
or supplement to a Prospectus, provide copies of such document to the
Initial Purchasers and make such changes in any such document prior to
the filing thereof as any of the Initial Purchasers may reasonably
request; and (ii) in the case of a Shelf Registration Statement, a
reasonable time prior to filing any Shelf Registration Statement, any
Prospectus forming a part thereof, any amendment to such Shelf
Registration Statement or amendment or supplement to such Prospectus,
provide copies of such documents to the Holders of the Registrable
Preferred Securities, to the Initial Purchasers, to one firm or counsel
on behalf of the Holders and to the underwriter or underwriters of an
underwritten offering of the Registrable Preferred Securities, if any,
make such changes in any such document prior to the filing thereof as
counsel for the Trust and counsel for the Majority Holders and the
underwriter or underwriters may reasonably agree and cause the
representatives of the Trust and the Company available for discussion
of such document as shall be reasonably requested by the Holders of the
Registrable Preferred Securities, the Initial Purchasers on behalf of
such Holders or any underwriter; PROVIDED that any party receiving any
document pursuant to this clause (ii) who does not raise any objections
to the filing of such document within five calendar days after receipt
of such document shall be deemed to have no objection to the filing of
such document;
(p) in the case of a Shelf Registration Statement, use its
best efforts to cause all of the Registrable Preferred Securities to be
listed on any securities exchange on which similar securities issued by
the Trust are then listed if so requested by the Majority Holders or by
the underwriter or underwriters of an underwritten offering of
Registrable Preferred Securities, if any;
(q) in the case of a Shelf Registration Statement, use its
best efforts to cause the Registrable Preferred Securities to be rated
with the appropriate rating agencies if so requested by the Majority
Holders or by the underwriter or underwriters of an underwritten
offering of Securities, if any;
(r) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder; and
(s) cooperate and assist in any filings required to be made
with the NASD and, in the case of a Shelf Registration Statement, in
the performance of any due diligence investigation by any underwriter
and its counsel (including any "qualified independent underwriter" that
is required to be retained in accordance with the rules and regulations
of the NASD).
17
In the case of a Shelf Registration Statement, the Trust may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of the Registrable Preferred Securities to furnish to the Trust such
information regarding the Holder and the proposed distribution by such Holder of
such Registrable Preferred Securities as the Trust may from time to time
reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Trust of the happening of any event or the
discovery of any facts, each of the kind described in Section 3(e)(ii)-(vii)
hereof, such Holder will forthwith discontinue disposition of Registrable
Preferred Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(i) hereof, and, if so directed by the Trust, such Holder will deliver
to the Trust (at its expense) all copies in its possession, other than permanent
file copies then in such Holder's possession, of the Prospectus covering such
Registrable Preferred Securities that was current at the time of receipt of such
notice. If the Trust shall give any such notice to suspend the disposition of
the Registrable Preferred Securities pursuant to a Shelf Registration Statement
as a result of the happening of any event or the discovery of any facts, each of
the kind described in Section 3(e)(ii)-(vii) hereof, the Trust shall be deemed
to have used its best efforts to keep the Shelf Registration Statement effective
during such period of suspension provided that the Trust shall use its best
efforts to file and have declared effective (if an amendment) as soon as
practicable an amendment or supplement to the Shelf Registration Statement.
4. UNDERWRITTEN REGISTRATIONS.
If any of the Registrable Preferred Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Majority Holders and shall be reasonably
acceptable to the Trust.
No Holder of Registrable Preferred Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Preferred 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 questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) The Trust and the Company agree to indemnify and hold
harmless the Initial Purchasers, each participating Holder, each
Participating Broker-Dealer, each other person who participates in an
offering of the Registrable Preferred Securities, including
underwriters (as defined in the Securities Act and referred to herein
as "Underwriters"), and each person, if any, who controls any
participating Holder, Initial Purchaser or any other participating
person within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (each of the foregoing being an
"Indemnitee"), 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
18
statement of a material fact contained in any Registration
Statement (or any amendment thereto) pursuant to which
Exchange Preferred Securities or Registrable Preferred
Securities were registered under the Securities Act, including
all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements
therein, 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 investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission if such
settlement is effected with the written consent of the Trust
or the Company; and
(iii) against any and all expense
whatsoever, as incurred (including fees and disbursements of
one firm or counsel chosen by the Indemnitees), reasonably
incurred in investigating, preparing or defending against any
litigation or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph
(i) or (ii) above;
PROVIDED, HOWEVER, that 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 Trust by the Initial
Purchasers, any Holder or any Underwriter expressly for use in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto).
(b) In the case of a Shelf Registration Statement, each Holder
agrees, severally and not jointly, to indemnify and hold harmless the
Trust, the Company, the Initial Purchasers, each Underwriter and the
other selling Holders, and each of their respective "controlling
persons" (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) and the trustees of the Trust and each
of the Trust's officers who signed the Shelf Registration Statement
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 Shelf Registration
Statement (or any amendment thereto) or any Prospectus included therein
(or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Trust expressly
for use in the Shelf Registration Statement (or any amendment thereto)
or such Prospectus (or any amendment or supplement thereto); PROVIDED,
HOWEVER, that no such Holder shall be liable for any claims hereunder
in excess of the amount of net proceeds received by such Holder from
the sale of such Holder's Registrable Preferred Securities pursuant to
such Shelf Registration Statement.
19
(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 so to notify an indemnifying party shall not
relieve such indemnifying party from any liability which it may have on
account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of such action. If it so
elects within a reasonable time after receipt of such notice, an
indemnifying party, jointly with any other indemnifying parties
receiving such notice, may assume the defense of such action with
counsel chosen by it and approved by the indemnified parties defendant
in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses
available to them which are different from or in addition to those
available to such indemnifying party. If an indemnifying party assumes
the defense of such action, the indemnifying parties shall not be
liable for any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. In no event shall
the indemnifying party or parties be liable for the fees and expenses
of more than one counsel separate from their own counsel for all
indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the
same general allegations or circumstances.
(d) In order to provide for just and equitable contribution in
circumstances under which the indemnity provided for in this Section 5
is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Trust and the
Company, the Holders and the Initial Purchasers shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the
nature contemplated by such indemnity incurred by the Trust and the
Company, the Holders and the Initial Purchasers; PROVIDED, HOWEVER,
that 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. As between the Trust and the Company, the Holders
and the Initial Purchasers, such parties shall contribute to the
aggregate losses, liabilities, claims, damages and expense of the
nature contemplated by such indemnity agreement in such proportions as
shall be appropriate to reflect (i) the relative benefits received by
the Trust and the Company on the one hand, the Holders on another hand
and the Initial Purchasers on another hand, from the offering of the
Exchange Preferred Securities or Registrable Preferred Securities
included in such offering, and (ii) the relative fault of the Trust and
the Company on the one hand, the Holders on another hand and the
Initial Purchasers on another hand, with respect to the statements or
omissions which resulted in such loss, liability, claim, damage or
expense, or action in respect thereof, as well as any other relevant
equitable considerations. The Trust and the Company, the Holders and
the Initial Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section 5 were to be determined by pro
rata allocation or by any other method of allocation which does not
take into account the relevant equitable considerations. For purposes
of this Section 5, each Person, if any, who controls the Initial
Purchasers or a Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Initial Purchasers or such Holder, and
each trustee of the Trust and director of the Company, each officer of
the Trust or the Company who signed the Registration Statement, and
each Person, if any, who controls the Trust or the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Trust
and the Company. The parties hereto agree that any underwriting
discount or commission or reimbursement of fees paid to any
20
Initial Purchaser pursuant to the Purchase Agreement shall not be
deemed to be a benefit received by any Initial Purchaser in connection
with the offering of the Exchange Preferred Securities or Registrable
Preferred Securities included in such offering.
6. MISCELLANEOUS.
6.1 RULE 144 AND RULE 144A. For so long as the Trust or the Company is
subject to the reporting requirements of Section 13 or 15 of the Exchange Act,
the Trust and the Company each covenant that it will file any reports required
to be filed by it under Section 13(a) or 15(d) of the Exchange Act and the rules
and regulations adopted by the Commission thereunder, and that if it ceases to
be so required to file such reports (or, in the case of the Trust, based upon
the view of the staff of the Commission that it will raise no objection if it
does not comply, as a separate registrant, with the reporting requirements of
Section 13 or 15(d) of the Exchange Act), it will upon the request of any Holder
of the Registrable Preferred Securities (a) make publicly available such
information, if any, as is necessary to permit sales pursuant to Rule 144 under
the Securities Act), provided all of the other applicable provisions of Rule 144
can be met by the Holder, (b) deliver such information to a prospective
purchaser as is necessary to permit sales pursuant to Rule 144A under the
Securities Act, if sales can otherwise be made under Rule 144A, and (c) take
such further action that is reasonable in the circumstances, in each case, to
the extent required from time to time to enable such Holder to sell its
Registrable Preferred Securities without registration under the Securities Act
within the limitation of the exemptions provided by, but only to the extent such
exemptions apply, (i) Rule 144 under the Securities Act, as such Rule may be
amended from time to time, (ii) Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the Commission. Upon the request of any Holder of the
Registrable Preferred Securities, the Trust and the Company each will deliver to
such Holder a written statement as to whether it has complied with such
requirements.
6.2 NO INCONSISTENT AGREEMENTS. The Trust and the Company have not
entered into, and the Trust and the Company will not after the date of this
Agreement enter into, any agreement which is inconsistent with the rights
granted to the Holders of Registrable Preferred Securities in this Agreement or
which otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Trust's or the Company's other issued
and outstanding securities under any such agreements.
6.3 AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Preferred Securities affected by
such amendment, modification, supplement, waiver or departure has been obtained
by the Trust or the Company; PROVIDED, HOWEVER, that no amendment, modification,
supplement, waiver or consent to any departure from the provisions of Section 5
hereof shall be effective as against any Holder of Registrable Preferred
Securities unless consented to in writing by such Holder.
6.4 NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Trust by means of a notice given in accordance with the provisions of this
Section 6.4, which
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address initially is, with respect to each Initial Purchaser, the address set
forth in the Purchase Agreement; and (b) if to the Trust or the Company,
initially at the Trust's and the Company's address set forth in the Purchase
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6.4.
All such notices and communications shall be deemed to have been duly
given; at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture, at the address specified in such Indenture.
6.5 SUCCESSOR AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; PROVIDED that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Preferred
Securities in violation of the terms of the Purchase Agreement. If any
transferee of any Holder shall acquire Registrable Preferred Securities, in any
manner, whether by operation of law or otherwise, such Registrable Preferred
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Preferred Securities such person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
person shall be entitled to receive the benefits hereof.
6.6 THIRD PARTY BENEFICIARIES. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Trust and the
Company, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent they deem
such enforcement necessary or advisable to protect their rights.
6.7 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.
6.8 HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
6.9 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA.
6.10 SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
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6.11 EXECUTION OF AGREEMENT BY TRUST. The name "BankUnited Capital" is
the designation of the trustees of the Trust under a Declaration of Trust. All
Persons dealing with the Trust must look solely to the property and assets of
the Trust for the enforcement of any claims against the Trust; neither the
trustees, shareholders, officers, employees or agents of the Trust in their
individual capacities assume any personal liability for the obligations of the
Trust; and the respective properties of the trustees, shareholders, officers,
employees and agents of the Trust in their individual capacities shall not be
subject to the claims of any such Persons with respect to any such obligations.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BANKUNITED CAPITAL
By: _____________________________
Name:
Title:
BANKUNITED FINANCIAL CORPORATION
By: _____________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
As of the date first above
written:
Friedman, Billings, Xxxxxx & Co., Inc.
Xxxxxxx Xxxxx & Associates, Inc.
By Friedman, Billings, Xxxxxx & Co., Inc.
By: ____________________
Name:
Title:
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