REGISTRATION RIGHTS AGREEMENT
DATED AS OF MARCH 24, 1997
AMONG
BANKUNITED FINANCIAL CORPORATION
AND
BANKUNITED CAPITAL
AND
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into this 24th day of March, 1997, among BankUnited Capital, a Delaware business
trust (the "Trust"), BankUnited Financial Corporation, a Florida corporation
(the "Company"), and Friedman, Billings, Xxxxxx & Co., Inc. (the "Initial
Purchaser").
This Agreement is made pursuant to the New Purchase Agreement, dated as of
March 18, 1997, among the Trust and the Initial Purchaser (the "New Purchase
Agreement"), which provides for the sale by the Trust to the Initial Purchaser
of $20,000,000 aggregate principal amount of 10 1/4% Trust Preferred Securities,
Series A (the "Preferred Securities"). In order to induce the Initial Purchaser
to enter into the New Purchase Agreement, the Trust has agreed to provide to the
Initial Purchaser 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 New 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 New Purchase Agreement
or the Offering Memorandum dated March 18, 1997, 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 New
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, as amended.
"GUARANTEE AGREEMENT" shall mean the Guarantee Agreement, as amended,
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 Purchaser, 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 and
as subsequently supplemented on March 24, 1997 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" 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.
"NEW PURCHASE AGREEMENT" shall have the meaning set forth in the
preamble.
"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
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by all other amendments and supplements to a prospectus, including
post-effective amendments, and in each case including all material
incorporated by reference therein.
"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 not later than
March 1, 1997, and 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 on or
before Xxxxx 00, 0000, (xxx) 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 on a
date not later than June 28, 1997. 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
Company, within the meaning of Rule 405 under the Securities Act,
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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
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(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 Purchaser of the names and addresses of the Holders to whom the Exchange
Offer is made, and the Initial Purchaser 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 on or before June 28, 1997,
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 and sale
of the Registrable Preferred Securities by the Holders from
time to
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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
Purchaser 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 Purchaser 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 by
Section 3(b) hereof, to use their best efforts to cause any such
amendment
8
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 Purchaser 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 Purchaser, 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
Purchaser shall not exceed an amount to be agreed upon by the Company and
the Initial Purchaser 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) after March 1, 1997 the Exchange
Offer Registration Statement, or the Shelf Registration Statement in the
event that (A) the Exchange Offer, or the making of any exchange 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
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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 April 29, 1997 such Exchange Offer Registration Statement is not
declared effective, or (iii) on or prior to June 28, 1997 such 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 Purchaser 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 Purchaser 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 Purchaser 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 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;
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(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
Purchaser, 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 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
Purchaser promptly
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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 (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:
12
"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 Purchaser, 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 until June 28, 1997; and
(iv) the Trust shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer
Registration Statement after June 28, 1997, 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
(v) (A) in the case of an Exchange Offer, furnish
counsel for the Initial Purchaser 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
13
(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;
(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 Purchaser, 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 Purchaser 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
14
Prospectus or any document which is to be incorporated by reference
into a Registration Statement or a Prospectus, of which the Initial
Purchaser, on behalf of such Holders, and its counsel shall not have
previously been advised and furnished a copy or to which the Initial
Purchaser, 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 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
15
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 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
Purchaser and make such changes in any such document prior to the filing
thereof as any of the Initial Purchaser may reasonably request; and (ii) in
the case of a Shelf Registration
16
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 Purchaser, 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 Purchaser 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).
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
17
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 Purchaser, 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 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,
18
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
Purchaser, 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 Purchaser, 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.
(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
19
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 Purchaser 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 Purchaser; 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 Purchaser, 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
Purchaser 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 Purchaser 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 Purchaser 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 Purchaser 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 Purchaser 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 Initial Purchaser pursuant to the New 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
20
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 address initially is, with respect to each Initial Purchaser, the address
set forth in the New 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 New 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
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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
New 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 New 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 Purchaser, 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.
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.
By Friedman, Billings, Xxxxxx & Co., Inc.
By: ____________________
Name:
Title:
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