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Exhibit 4.7
REGISTRATION RIGHTS AGREEMENT
Dated as of June 8, 1997
Among
STAR CAPITAL I,
STAR BANC CORPORATION
and
CREDIT SUISSE FIRST BOSTON CORPORATION,
XXXXXX XXXXXXX & CO. INCORPORATED
and
SALOMON BROTHERS INC
as Initial Purchasers
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TABLE OF CONTENTS
Page
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1. Definitions............................................................................................ 1
2. Securities Subject to This Agreement................................................................... 3
3. Registered Exchange Offer.............................................................................. 4
4. Shelf Registration..................................................................................... 5
5. Additional Interest and Additional Distributions Under Certain Circumstances........................... 6
6. Registration Procedures................................................................................ 7
7. Registration Expenses.................................................................................. 15
8. Indemnification and Contribution....................................................................... 15
9. Rule 144A.............................................................................................. 18
10. Participation in Underwritten Registrations............................................................ 18
11. Selection of Underwriters.............................................................................. 18
12. Miscellaneous.......................................................................................... 18
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This Registration Rights Agreement (this "Agreement") is made
and entered into as of June 8, 1997 by and among Star Capital I, a Delaware
statutory business trust (the "Trust"), Star Banc Corporation, an Ohio
corporation ("the Company"), and Credit Suisse First Boston Corporation, Xxxxxx
Xxxxxxx & Co. Incorporated and Salomon Brothers Inc (together, the "Initial
Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of June 5, 1997, among the Company, the Trust and the
Initial Purchasers (the "Purchase Agreement"), and any additional purchase
agreement between such parties, in each case which provides for the sale or
sales by the Trust to the Initial Purchasers of the Trust's Floating Rate
Capital Securities, liquidation amount $1,000 per security (the "Capital
Securities"). The Company will be the owner of all of the beneficial ownership
interest represented by the common securities (the "Common Securities") of the
Trust. The Capital Securities and the Common Securities will be guaranteed by a
guarantee (the "Guarantee") by the Company, to the extent of funds held by the
Trust. Concurrently with the issuance of the Capital Securities and the Common
Securities, the Trust will invest the proceeds of each thereof in the Company's
Floating Rate Junior Subordinated Debentures due 2027 (the "Junior Subordinated
Debentures" and, together with the Capital Securities and the Guarantee, the
"Securities"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Trust and the Company have agreed to provide the
registration rights set forth in this Agreement for the benefit of the Initial
Purchasers and their direct and indirect transferees and assigns. The execution
and delivery of this Agreement is a condition to the Initial Purchasers'
obligations to purchase the Capital Securities under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Additional Interest: as defined in Section 5(a)
hereof.
Additional Distributions: as defined in Section 5(a)
hereof.
Broker-Dealer: Any broker or dealer registered under
the Exchange Act.
Closing Date: The date on which the Securities were
sold to the Initial Purchasers.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be
deemed "Consummated" for purposes of this Agreement upon the occurrence
of (i) the filing and effectiveness under the Securities Act of the
Exchange Offer Registration Statement relating to the New Securities to
be issued in the Exchange Offer, (ii) the maintenance of such
Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) the delivery by the
Company and the Trust of the New Securities in the same aggregate
principal amount as the aggregate principal amount of Transfer
Restricted Securities that were tendered by Holders thereof pursuant to
the Exchange Offer.
Declaration: The Amended and Restated Declaration of
Trust, dated as of June 8, 1997, among The First National Bank of
Chicago, as Property Trustee, First Chicago Delaware Inc., as Delaware
Trustee, and the Regular Trustees named therein, pursuant to which the
Capital
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Securities are being issued, as amended or supplemented from time to
time in accordance with the terms thereof.
Distribution: As defined in the Declaration.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Exchange Offer: The registration by the Company and
the Trust under the Securities Act of the New Securities pursuant to a
Registration Statement pursuant to which the Company and the Trust
offer the Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted
Securities held by such Holders for New Securities in an aggregate
amount equal to the aggregate amount of the Transfer Restricted
Securities tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The
Registration Statement relating to the Exchange Offer, including the
Prospectus which forms a part thereof.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Securities to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Securities Act, to certain institutional "accredited investors," as
such term is defined in Rule 501(a)(1), (2), (3) and (7) of Regulation
D under the Securities Act ("Accredited Institutions") and to certain
non-"U.S. persons" in "offshore transactions," as such terms are
defined in Regulation S under the Securities Act.
Guarantee Agreement: The Guarantee Agreement, dated
as of June 8, 1997, between the Company and The First National Bank of
Chicago, as Guarantee Trustee, pursuant to which the Guarantee is being
issued, as amended or supplemented from time to time in accordance with
the terms thereof.
Holders: As defined in Section 2(b) hereof.
Indenture: The Indenture, dated as of June 8, 1997,
between the Company and The First National Bank of Chicago, as trustee
(the "Trustee"), pursuant to which the Junior Subordinated Debentures
are to be issued, as such Indenture is amended or supplemented from
time to time in accordance with the terms thereof.
Initial Purchasers: As defined in the preamble
hereto.
NASD: National Association of Securities Dealers,
Inc.
New Junior Subordinated Debentures: The Company's
Junior Subordinated Debentures to be issued pursuant to the Indenture
in the Exchange Offer.
New Securities: The Securities to be issued pursuant
to the Indenture, the Declaration and the Guarantee Agreement in the
Exchange Offer.
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Person: An individual, partnership, corporation,
limited liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and
by all other amendments thereto, including post-effective amendments,
and all material incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of
the Company and the Trust relating to (a) an offering of New Securities
pursuant to an Exchange Offer or (b) the registration for resale of
Transfer Restricted Securities pursuant to the Shelf Registration
Statement, which is filed pursuant to the provisions of this Agreement,
in either case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference
therein.
Securities Act: The Securities Act of 1933, as
amended.
Shelf Filing Deadline: As defined in Section 4
hereof.
Shelf Registration Statement: As defined in Section 4
hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: Each Security, until
the earliest to occur of (a) the date on which such Security has been
exchanged by a person other than a Broker-Dealer for New Securities in
the Exchange Offer, (b) following the exchange by a Broker-Dealer in
the Exchange Offer of such Security for one or more New Securities, the
date on which such New Securities are sold to a purchaser who receives
from such Broker-Dealer on or prior to the date of such sale a copy of
the prospectus contained in the Exchange Offer Registration Statement,
(c) the date on which such Security has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (d) the date on which such Security is
distributed to the public pursuant to Rule 144 under the Securities
Act;
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company and the Trust are sold
to an underwriter for reoffering to the public.
2. Securities Subject to This Agreement.
(a) Transfer Restricted Securities. The securities
entitled to the benefits of this Agreement are the Transfer Restricted
Securities.
(b) Holders of Transfer Restricted Securities. A
Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Person beneficially owns Transfer
Restricted Securities.
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3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be
permissible under applicable law or Commission policy (after the
procedures set forth in Section 6(a) below have been complied with),
the Company and the Trust shall (i) cause to be filed with the
Commission as soon as practicable after the Closing Date, but in no
event later than 60 days after the Closing Date, a Registration
Statement under the Securities Act relating to the New Securities and
the Exchange Offer, (ii) use their respective best efforts to cause
such Registration Statement to become effective at the earliest
possible time, but in no event later than 120 days after the Closing
Date, (iii) in connection with the foregoing, file (A) all
pre-effective amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to become
effective, (B) if applicable, a post-effective amendment to such
Registration Statement pursuant to Rule 430A under the Securities Act
and (C) all necessary filings in connection with the registration and
qualification of the New Securities under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange
Offer, and (iv) unless the Exchange Offer would not be permitted by
applicable law or Commission policy, the Company will commence the
Exchange Offer and use its best efforts to issue on or prior to 30
business days after the date on which such Registration Statement was
declared effective by the Commission, New Securities in exchange for
all Securities tendered prior thereto in the Exchange Offer. The
Exchange Offer shall be on the appropriate form permitting registration
of the New Securities to be offered in exchange for the Transfer
Restricted Securities and to permit resales of New Securities held by
Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and the Trust shall cause the
Exchange Offer Registration Statement to be effective continuously and
shall keep the Exchange Offer open for a period of not less than the
minimum period required under applicable federal and state securities
laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 business days. The Company and
the Trust shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the New
Securities shall be included in the Exchange Offer Registration
Statement. The Company and the Trust shall use its best efforts to
cause the Exchange Offer to be Consummated on the earliest practicable
date after the Exchange Offer Registration Statement has become
effective, but in no event later than 30 business days thereafter.
(c) The Company and the Trust shall indicate in a
"Plan of Distribution" section contained in the Prospectus contained in
the Exchange Offer Registration Statement that any Broker-Dealer who
holds Securities that are Transfer Restricted Securities and that were
acquired for its own account as a result of market-making activities or
other trading activities (other than Transfer Restricted Securities
acquired directly from the Company and the Trust), may exchange such
Securities pursuant to the Exchange Offer; however, such Broker-Dealer
may be deemed to be an "underwriter" within the meaning of the
Securities Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any resales of
the New Securities received by such Broker-Dealer in the Exchange
Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the Prospectus contained in the
Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such
resales by Broker-Dealers that the Commission may require in order to
permit such resales pursuant thereto, but such "Plan of Distribution"
shall not name any such Broker-Dealer or disclose the amount of New
Securities
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held by any such Broker-Dealer except to the extent required by the
Commission as a result of a change in policy announced after the date
of this Agreement.
The Company and the Trust shall use their respective best
efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section
6(c) below to the extent necessary to ensure that it is available for resales of
New Securities acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period of 180 days from the date on which the Exchange Offer
Registration Statement is declared effective.
The Company and the Trust shall provide sufficient copies of
the latest version of such Prospectus to Broker-Dealers promptly upon request at
any time during such 180-day period in order to facilitate such resales.
4. Shelf Registration.
(a) Shelf Registration. If (i) the Company and the
Trust are not required to file an Exchange Offer Registration Statement
or to consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the procedures
set forth in Section 6(a) below have been complied with), (ii) the
Company has received an opinion of counsel, rendered by a law firm
having a nationally recognized tax practice, to the effect that, as a
result of the Consummation of the Exchange Offer there is more than an
insubstantial risk that (x) the Trust would be subject to United States
federal income tax with respect to income received or accrued on the
Junior Subordinated Debentures or New Junior Subordinated Debentures,
(y) interest payable by the Company on such Junior Subordinated
Debentures or New Junior Subordinated Debentures would not be
deductible by the Company, in whole or in part, for United States
federal income tax purposes, or (z) the Trust would be subject to more
than a de minimis amount of other taxes, duties or other governmental
charges or (iii) if any Holder of Transfer Restricted Securities that
is a "qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) or an "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) shall notify the
Company at least 20 business days prior to the Consummation of the
Exchange Offer (A) that such Holder is prohibited by applicable law or
Commission policy from participating in the Exchange Offer, or (B) that
such Holder may not resell the New Securities acquired by it in the
Exchange Offer to the public without delivering a prospectus and that
the Prospectus contained in the Exchange Offer Registration Statement
is not appropriate or available for such resales by such Holder, or (C)
that such Holder is a Broker-Dealer and holds Securities acquired
directly from the Trust and the Company or one of its affiliates, then
the Trust and the Company shall use their respective best efforts to:
(x) cause to be filed a shelf registration
statement pursuant to Rule 415 under the Securities Act, which
may be an amendment to the Exchange Offer Registration
Statement (in either event, the "Shelf Registration
Statement"), on or prior to the earliest to occur of (1) the
30th day after the date on which the Trust and the Company
determines that they are not required to file the Exchange
Offer Registration Statement or (2) the 30th day after the
date on which the Trust and the Company receive notice from a
Holder of Transfer
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Restricted Securities as contemplated by clause (iii) above
(such earliest date being the "Shelf Filing Deadline"), which
Shelf Registration Statement shall provide for resales of all
Transfer Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(b)
hereof; and
(y) cause such Shelf Registration Statement
to be declared effective by the Commission on or before the
60th day after the Shelf Filing Deadline.
The Trust and the Company shall use their respective best efforts to
keep such Shelf Registration Statement continuously effective,
supplemented and amended as required by the provisions of Sections 6(b)
and (c) hereof to the extent necessary to ensure that it is available
for resales of Securities by the Holders of Transfer Restricted
Securities entitled to the benefit of this Section 4(a), and to ensure
that it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period ending on the
third anniversary of the Closing Date.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this
Agreement unless and until such Holder furnishes to the Trust and the
Company in writing, within 20 business days after receipt of a request
therefor, such information as the Trust and the Company may reasonably
request for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of
Transfer Restricted Securities shall be entitled to Additional
Distributions pursuant to Section 5 hereof or Article 3 of the
Indenture unless and until such Holder shall have used its best efforts
to provide all such reasonably requested information. Each Holder as to
which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Trust and the Company all information required
to be disclosed in order to make the information previously furnished
to the Trust and the Company by such Holder not materially misleading.
5. Additional Interest and Additional Distributions Under
Certain Circumstances.
(a) If (a) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date specified for
such filing in this Agreement, (b) any of such Registration Statements has not
been declared effective by the Commission on or prior to the date specified for
such effectiveness in this Agreement (the "Effectiveness Target Date"), (c) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (d) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose (other than for any reason set forth in Section
6(c)(iii)(D) which shall not exceed 30 consecutive days, or 90 days in any
twelve month period) without being succeeded within two business days by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself immediately declared effective (each such event referred to
in clauses (a) through (d), a "Registration Default"), additional interest (the
"Additional Interest") shall become payable in respect of the Junior
Subordinated Debentures (including in respect of amounts accruing during any
Extension Period (as defined in the Indenture)) and corresponding additional
Distributions (the "Additional Distributions") shall become payable to each
Holder of Capital Securities (in its capacity as such and not in its capacity as
an indirect
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holder of a pro rata share of the Junior Subordinated Debentures) with respect
to the first 90-day period immediately following the occurrence of such
Registration Default in an amount equal to $.25 per week per $1,000 liquidation
amount of Capital Securities held by such Holder for each week or portion
thereof that the Registration Default continues. The amount of Additional
Interest, and the corresponding amount of Additional Distributions payable to
any Holder of Capital Securities, shall increase by an additional $.05 per week
per $1,000 in liquidation amount of Capital Securities held by such Holder with
respect to each subsequent 90-day period until all Registration Defaults have
been cured, up to a maximum amount of Additional Interest (and corresponding
Additional Distributions) of $.50 per week per $1,000 liquidation amount of
Capital Securities. All accrued Additional Interest (and corresponding
Additional Distributions) shall be paid to Holders by the Trust and the Company
by wire transfer of immediately available funds or by federal funds check on the
last day of each such 90-day period. Following the cure of all Registration
Defaults relating to any particular Transfer Restricted Securities, the accrual
of Additional Interest (and corresponding Additional Distributions) with respect
to such Transfer Restricted Securities will cease.
All obligations of the Trust and the Company set forth in the
preceding paragraph that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
Transfer Restricted Security shall have been satisfied in full.
(b) The Trust and the Company shall notify the Property
Trustee within one business day after each and every date on which an event
occurs in respect of which Additional Distributions are required to be paid (an
"Event Date"). Additional Distributions shall be paid by depositing Additional
Interest with the Property Trustee, in trust, for the benefit of the Holders
thereof, on or before the applicable Interest Payment Date (whether or not any
payment other than Additional Distributions is payable on the Capital
Securities), immediately available funds in sums sufficient to pay the
Additional Distributions then due to Holders of Transfer Restricted Securities
with respect to which the Property Trustee serves. Each obligation to pay
Additional Interest and Additional Distributions shall be deemed to accrue from
the applicable date of the occurrence of the Registration Default.
6. Registration Procedures.
(a) Exchange Offer Registration Statement. In
connection with the Exchange Offer, the Trust and the Company shall
comply with all of the provisions of Section 6(c) below, shall use
their best efforts to effect such exchange to permit the sale of
Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and shall comply
with all of the following provisions:
(i) If in the reasonable opinion of counsel
to the Trust and the Company there is a question as to whether
the Exchange Offer is permitted by applicable law, the Trust
and the Company hereby agree to seek a no-action letter from
the Commission allowing the Trust and the Company to
Consummate an Exchange Offer for such Securities. The Trust
and the Company hereby agree to pursue the issuance of such a
decision to the Commission staff level but shall not be
required to take commercially unreasonable action to effect a
change of Commission policy. The Trust and the Company hereby
agree, however, to (A) participate in telephonic conferences
with the Commission, (B) deliver to the Commission staff an
analysis prepared by counsel to the Trust and the Company
setting forth the legal bases, if any, upon which such counsel
has
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concluded that such an Exchange Offer should be permitted and
(C) diligently pursue a resolution (which need not be
favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in
the Exchange Offer pursuant to the terms of this Agreement,
each Holder of Transfer Restricted Securities shall furnish,
upon the request of the Trust or the Company, prior to the
Consummation thereof, a written representation to the Trust or
the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an affiliate of
the Trust or the Company, (B) it is not engaged in, and does
not intend to engage in, and has no arrangement or
understanding with any person to participate in, a
distribution of the New Securities to be issued in the
Exchange Offer and (C) it is acquiring the New Securities in
its ordinary course of business. In addition, all such Holders
of Transfer Restricted Securities shall otherwise cooperate in
the Company's and the Trust's preparations for the Exchange
Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired
in the Exchange Offer (1) could not under Commission policy as
in effect on the date of this Agreement rely on the position
of the Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993,
and similar no-action letters (including any no-action letter
obtained pursuant to clause (i) above), and (2) must comply
with the registration and prospectus delivery requirements of
the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction
should be covered by an effective registration statement
containing the selling security holder information required by
Item 507 or 508, as applicable, of Regulation S-K if the
resales are of New Securities obtained by such Holder in
exchange for Securities acquired by such Holder directly from
the Trust or the Company.
(iii) Prior to effectiveness of the Exchange
Offer Registration Statement, the Company and the Trust shall
provide a supplemental letter to the Commission (A) stating
that the Company and the Trust are registering the Exchange
Offer in reliance on the position of the Commission enunciated
in Exxon Capital Holdings Corporation (available May 13,
1988), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991)
and, if applicable, any no-action letter obtained pursuant to
clause (i) above and (B) including a representation that the
Company and the Trust have not entered into any arrangement or
understanding with any Person to distribute the New Securities
to be received in the Exchange Offer and that, to the best of
the Company's and the Trust's information and belief, based
only on written representations received under clause (ii)
above, that each Holder participating in the Exchange Offer is
acquiring the New Securities in its ordinary course of
business and has no arrangement or understanding with any
Person to participate in the distribution of the New
Securities received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with
any Shelf Registration Statement, the Company and the Trust shall
comply with all the provisions of Section 6(c) below and shall use
their best efforts to effect such registration to permit the sale of
the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and pursuant
thereto the Company and the Trust will as expeditiously as possible
prepare
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and file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Securities Act, which
form shall be available for the sale of the Transfer Restricted
Securities in accordance with the intended method or methods of
distribution thereof.
(c) General Provisions. In connection with any
Registration Statement and any Prospectus required by this Agreement to
permit the sale or resale of Transfer Restricted Securities (including,
without limitation, any Registration Statement and the related
Prospectus required to permit resales of Securities by Broker-Dealers),
the Company and the Trust shall:
(i) use their best efforts to keep such
Registration Statement continuously effective and provide all
requisite financial statements for the period specified in
Section 3 or 4 of this Agreement, as applicable; upon the
occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective
and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company and the
Trust shall file promptly an appropriate amendment to such
Registration Statement, in the case of clause (A), correcting
any such misstatement or omission, and, in the case of either
clause (A) or (B), use their best efforts to cause such
amendment to be declared effective and such Registration
Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission
such amendments and post-effective amendments to the
Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as applicable, or such shorter
period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been
sold; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply
fully with the applicable provisions of Rules 424 and 430A
under the Securities Act in a timely manner; and comply with
the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement
to the Prospectus;
(iii) advise the underwriter(s), if any, and
selling Holders promptly and, if requested by such Persons, to
confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been
filed, and, with respect to any Registration Statement or any
post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments
to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement
under the Securities Act or of the suspension by any state
securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of
the preceding purposes, and (D) of the existence of any fact
or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any
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document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the
statements therein not misleading; provided that the Company
shall not be required to disclose the nature or substance of
any such fact or event as long as it is acting in good faith.
If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or
any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption
from qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Trust and the Company
shall use their best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) furnish to each of the selling or
exchanging Holders and each of the underwriter(s), if any,
before filing with the Commission, copies of any Shelf
Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Shelf Registration
Statement or Prospectus (excluding all documents incorporated
by reference after the initial filing of such Registration
Statement), which documents will be subject to the review of
such Holders and underwriter(s), if any, for a period of at
least five business days, and the Trust and the Company will
not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or
Prospectus to which a selling Holder of Transfer Restricted
Securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object within such
five business days. A selling Holder or underwriter, if any,
shall be deemed to have reasonably objected to such filing if
such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains a
material misstatement or omission;
(v) promptly after the filing of any
document that is to be incorporated by reference into a
Registration Statement or Prospectus, provide copies of such
document to the selling Holders and to the underwriter(s), if
any, and make the Trust's and the Company's representatives
available for discussion of such document and other customary
due diligence matters;
(vi) make available at reasonable times for
inspection by the selling Holders, any underwriter
participating in any disposition pursuant to such Registration
Statement, and any attorney or accountant retained by such
selling Holders or any of the underwriter(s), all financial
and other records, pertinent corporate documents and
properties of the Trust and the Company and cause the Trust's
and the Company's officers, directors, managers and employees
to supply all information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with
such Registration Statement subsequent to the filing thereof
and prior to its effectiveness;
(vii) if requested by any selling Holders
under the Shelf Registration Statement or the underwriter(s),
if any, promptly incorporate in any Shelf Registration
Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as
such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including,
without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer
Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the
offering
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of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable
after the Trust and the Company are notified of the matters to
be incorporated in such Prospectus supplement or
post-effective amendment;
(viii) cause the Transfer Restricted
Securities covered by the Registration Statement (A) to be
rated with the appropriate rating agencies, if so requested by
the Holders of a majority in aggregate principal amount of
Securities covered thereby or the underwriter(s), if any, or
(B) if the Transfer Restricted Securities were previously
rated to reconfirm such ratings;
(ix) furnish to each selling Holder and each
of the underwriter(s), if any, without charge, at least one
copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(x) deliver to each selling Holder and each
of the underwriter(s), if any, without charge, as many copies
of the Prospectus (including each preliminary prospectus) and
any amendment or supplement thereto as such Persons reasonably
may request; the Trust and the Company hereby consent to the
use of the Prospectus and any amendment or supplement thereto
by each of the selling Holders and each of the underwriter(s),
if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or
any amendment or supplement thereto;
(xi) enter into such agreements (including
an underwriting agreement), and make such representations and
warranties, and take all such other actions in connection
therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to
such extent as may be reasonably requested by any Purchaser or
by any Holder of Transfer Restricted Securities or underwriter
in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement; and in
connection with an Underwritten Registration, the Trust and
the Company shall:
(A) upon request, furnish to each
selling Holder and each underwriter, if any, in such
substance and scope as they may reasonably request
and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon
the date of the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated
the date of the effectiveness of the Shelf
Registration Statement, signed by (y) the
Chairman of the Board, its President or a
Vice President and (z) the Chief Financial
Officer of the Company, confirming, as of
the date thereof, such matters as such
parties may reasonably request;
(2) an opinion, dated the
date of the effectiveness of the Shelf
Registration Statement, of counsel for the
Company and the Trust, covering such matters
as such parties may reasonably request, and
in any event including a statement to the
effect that such counsel has participated in
conferences with officers and other
representatives of the
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Company and the Trust, representatives of
the independent public accountants for the
Company, the Initial Purchasers'
representatives and the Initial Purchasers'
counsel in connection with the preparation
of such Registration Statement and the
related Prospectus and have considered the
matters required to be stated therein and
the statements contained therein, although
such counsel has not independently verified
the accuracy, completeness or fairness of
such statements; and that such counsel
advises that, on the basis of the foregoing
(relying as to materiality to a large extent
upon facts provided to such counsel by
officers and other representatives of the
Company and the Trust and without
independent check or verification), no facts
came to such counsel's attention that caused
such counsel to believe that the applicable
Registration Statement, at the time such
Registration Statement or any post-effective
amendment thereto became effective,
contained an untrue statement of a material
fact or omitted to state a material fact
required to be stated therein or necessary
to make the statements therein not
misleading, or that the Prospectus contained
in such Registration Statement as of its
date, contained an untrue statement of a
material fact or omitted to state a material
fact necessary in order to make the
statements therein, in light of the
circumstances under which they were made,
not misleading. Without limiting the
foregoing, such counsel may state further
that such counsel assumes no responsibility
for, and has not independently verified, the
accuracy, completeness or fairness of the
financial statements, notes and schedules
and other financial data included in any
Registration Statement contemplated by this
Agreement or the related Prospectus; and
(3) a customary comfort
letter, dated the date of the effectiveness
of the Shelf Registration Statement, from
the Company's independent accountants, in
the customary form and covering matters of
the type customarily covered in comfort
letters by underwriters in connection with
primary underwritten offerings.
(B) set forth in full or incorporate
by reference in the underwriting agreement, if any,
the indemnification provisions and procedures of
Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and
certificates as may be reasonably requested by such
parties to evidence compliance with clause (A) above
and with any customary conditions contained in the
underwriting agreement or other agreement entered
into by the Company and the Trust pursuant to this
clause (xi), if any.
If at any time the representations and
warranties of the Company contemplated in clause (A)(1) above
cease to be true and correct, the Company shall so advise the
Initial Purchasers and the underwriter(s), if any, and each
selling Holder promptly and, if requested by such Persons,
shall confirm such advice in writing;
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(xii) prior to any public offering of
Transfer Restricted Securities, cooperate with the selling
Holders, the underwriter(s), if any, and their respective
counsel in connection with the registration and qualification
of the Transfer Restricted Securities under the securities or
Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s) may reasonably request and do any and all other
acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement;
provided, however, that neither the Company nor the Trust
shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any
action that would subject it to the service of process in
suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xiii) shall issue, upon the request of any
Holder of Securities covered by the Shelf Registration
Statement, New Securities in the same amount as the Securities
surrendered to the Company and the Trust by such Holder in
exchange therefor or being sold by such Holder; such New
Securities to be registered in the name of such Holder or in
the name of the purchaser(s) of such Securities, as the case
may be; in return, the Securities held by such Holder shall be
surrendered to the Company and the Trust for cancellation;
(xiv) cooperate with the selling Holders and
the underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted
Securities to be in such denominations and registered in such
names as the Holders or the underwriter(s), if any, may
request at least two business days prior to any sale of
Transfer Restricted Securities made by such underwriter(s);
(xv) if any fact or event contemplated by
clause (c)(iii)(D) above shall exist or have occurred, as
promptly as is practicable under the circumstances in the good
faith determination of the Company prepare a supplement or
post-effective amendment to the Registration Statement or
related Prospectus or any document incorporated therein by
reference or file any other required document so that, as
thereafter delivered to the purchasers of Transfer Restricted
Securities, the Registration Statement will not contain an
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not
misleading; and any Prospectus will not contain an untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(xvi) provide CUSIP numbers for all Transfer
Restricted Securities not later than the effective date of the
Registration Statement and provide certificates for the
Transfer Restricted Securities;
(xvii) cooperate and assist in any filings
required to be made with the NASD and in the performance of
any due diligence investigation by any underwriter (including
any "qualified independent underwriter") that is required to
be retained in accordance with the rules and regulations of
the NASD, and use its best efforts to cause such Registration
Statement to become effective and approved by such
governmental
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agencies or authorities as may be necessary to enable the
Holders selling Transfer Restricted Securities to consummate
the disposition of such Transfer Restricted Securities;
(xviii) otherwise use its best efforts to
comply with all applicable rules and regulations of the
Commission, and make generally available to its security
holders, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not
be audited) for the twelve-month period (A) commencing at the
end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best efforts
Underwritten Offering or (B) if not sold to underwriters in
such an offering, beginning with the first month of the
Company's first fiscal quarter commencing after the effective
date of the Registration Statement;
(xix) cause the Indenture, the Guarantee and
the Declaration to be qualified under the TIA not later than
the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith,
cooperate with the applicable trustees and the Holders of
Securities to effect such changes to the Indenture, the
Guarantee and the Declaration as may be required for the
Indenture, the Guarantee and the Declaration to be so
qualified in accordance with the terms of the TIA; and
execute, and use their best efforts to cause the Indenture
Trustee, Guarantee Trustee and the Property Trustee to
execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed
with the Commission to enable such Indenture to be so
qualified in a timely manner; and
(xx) provide promptly to each Holder upon
request each document filed with the Commission pursuant to
the requirements of Section 13(a) and Section 15(d) of the
Exchange Act.
Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from the Company
or the Trust of the existence of any fact or event of the kind
described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xvi) hereof, or until it is advised in writing (the
"Advice") by the Company or the Trust that the use of the Prospectus
may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company or the Trust, each Holder
will deliver to the Company or the Trust (at the Company's and the
Trust's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such
notice. In the event the Company or the Trust shall give any such
notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as
applicable, shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) hereof to and including the date when each selling
Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xvi) hereof or shall have received the Advice.
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7. Registration Expenses.
All expenses incident to the Company's and the
Trust's performance of or compliance with this Agreement, other than
the expenses of any Holder, will be borne by the Company and the Trust,
regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and
expenses (including filings made by any Holder with the NASD (and, if
applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the rules and
regulations of the NASD)); (ii) all fees and expenses of compliance
with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the New
Securities to be issued in the Exchange Offer and printing of
Prospectuses), and associated messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company
and the Trust; (v) all application and filing fees in connection with
listing Securities on a national securities exchange or automated
quotation system pursuant to the requirements hereof; (vi) all fees and
disbursements of independent certified public accountants of the
Company and the Trust (including the expenses of any special audit and
comfort letters required by or incident to such performance); and (vii)
in the event a Shelf Registration Statement shall be filed, shall bear
or reimburse the Holders of the Transfer Restricted Securities covered
thereby for the reasonable fees and disbursements of one firm of
counsel designated by the Holders of a majority in principal amount of
the Transfer Restricted Securities covered thereby to act as counsel
for the Holders of Transfer Restricted Securities in connection
therewith.
The Company and the Trust will, in any event, bear
their internal expenses (including, without limitation, all salaries
and expenses of their officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the
Company or the Trust.
8. Indemnification and Contribution.
(a) In connection with a Shelf Registration Statement or in
connection with any delivery of a Prospectus contained in an Exchange Offer
Registration Statement by any participating Broker-Dealer or Initial Purchaser,
as applicable, who seeks to sell New Securities, the Company and the Trust shall
indemnify and hold harmless each Holder of Transfer Restricted Securities
included within any such Shelf Registration Statement and each participating
Broker-Dealer or Initial Purchaser selling New Securities, and each person, if
any, who controls any such person within the meaning of Section 15 of the
Securities Act (each, a "Participant") from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Securities) to which such Participant or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any such Registration Statement or any prospectus forming part
thereof or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse
each Participant promptly upon demand for any legal or other expenses reasonably
incurred by such Participant in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that (i) the Company and the
Trust shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any such Registration Statement or any prospectus forming part thereof or in any
such
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amendment or supplement in reliance upon and in conformity with written
information furnished to the Company and the Trust by or on behalf of any
Participant specifically for inclusion therein; and provided further that as to
any preliminary Prospectus, the indemnity agreement contained in this Section
8(a) shall not inure to the benefit of any such Participant or any controlling
person of such Participant on account of any loss, claim, damage, liability or
action arising from the sale of the New Securities to any person by that
Participant if (i) that Participant failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person within
the time required by the Securities Act and (ii) the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such preliminary Prospectus was corrected in the Prospectus,
unless, in each case, such failure resulted from non-compliance by the Company
and the Trust with Section 6(c). The foregoing indemnity agreement is in
addition to any liability which the Company and the Trust may otherwise have to
any Participant or to any controlling person of that Participant.
(b) Each Participant, severally and not jointly, shall
indemnify and hold harmless the Company and the Trust, each of its directors,
officers, employees or agents and each person, if any, who controls the Company
and the Trust within the meaning of Section 15 of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company and the Trust or any such director,
officer, employees or agents or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary Prospectus,
Registration Statement or Prospectus or in any amendment or supplement thereto
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company and the
Trust by or on behalf of such Participant specifically for inclusion herein, and
shall reimburse the Company and the Trust and any such director, officer,
employees or agents or controlling person for any legal or other expenses
reasonably incurred by the Company and the Trust or any such director, officer,
employees or agents or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Participant may otherwise have to the
Company and the Trust or any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall have notified the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the
defense thereof with counsel satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Participants shall have the right to employ counsel to represent them and
their respective officers,
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employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the Participants
against the Company and the Trust under this Section 8 if, in the reasonable
judgment of the Participants it is advisable for the Participants and their
officers, employees and controlling persons to be represented by separate
counsel, and in that event the fees and expenses of such separate counsel shall
be paid by the Trust and the Company. Each indemnified party, as a condition of
the indemnity agreements contained in Section 8, shall use its best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss of
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the exchange of the Securities pursuant to
the Registered Exchange Offer, or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the indemnifying party on the one hand
and the indemnified party on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Trust and the Company or
the Participants, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Trust and the Participants agree that it would not be just
and equitable if contributions pursuant to this Section 8(d) were to be
determined by pro rata allocation (even if the Participants were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
8(d) shall be deemed to include, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Participant shall be required to contribute
any amount in excess of the amount by which the net proceeds received by such
Participant from an offering of the Notes exceeds the amount of any damages
which such Participant has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Participants'
obligations to contribute as provided in this Section 8(d) are several and not
joint.
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9. Rule 144A.
The Company and the Trust hereby agrees with each Holder, for
so long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, upon request, the
information required by Rule 144A(d)(4) under the Securities Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A.
10. Participation in Underwritten Registrations.
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lockup letters and other documents
required under the terms of such underwriting arrangements.
11. Selection of Underwriters.
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company.
12. Miscellaneous.
(a) Remedies. The Company and the Trust agree that
monetary damages (including the Additional Interest and Additional
Distributions contemplated hereby) would not be adequate compensation
for any loss incurred by reason of a breach by it of the provisions of
this Agreement and hereby agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company and the
Trust will not on or after the date of this Agreement enter into any
agreement with respect to their securities that is inconsistent with
the rights granted to the Holders in this Agreement or otherwise
conflicts with the provisions hereof. The Company and the Trust have
not previously entered into any agreement granting any registration
rights with respect to their securities to any Person. The rights
granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the
Trust's and the Company's securities under any agreement in effect on
the date hereof.
(c) Adjustments Affecting the Securities. The Company
and the Trust will not take any action, or permit any change to occur,
with respect to the Securities that would materially and adversely
affect the ability of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or
consents to or departures from the
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provisions hereof may not be given, unless the Company and the Trust
have obtained the written consent of Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities.
Notwithstanding the foregoing, a waiver or consent to departure from
the provisions hereof that relates exclusively to the rights of Holders
whose Securities are being tendered pursuant to the Exchange Offer and
that does not affect directly or indirectly the rights of other Holders
whose Securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal
amount of Transfer Restricted Securities being tendered or registered.
(e) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier guaranteeing
overnight delivery:
(i) if to a Holder, at the address set forth
on the records of the Property Trustee maintained pursuant to
the Declaration; and
(ii) if to the Company and the Trust:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust
Administration
All such notices and communications shall be deemed
to have been duly given: at the time delivered by hand, if personally
delivered; five business days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person giving the
same to the Trustee at the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns
of each of the parties, including without limitation and without the
need for an express assignment, subsequent Holders of Transfer
Restricted Securities; provided, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a
Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
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(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICTS OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more
of the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be
affected or impaired thereby.
(k) Entire Agreement. This Agreement together with
the other transaction documents is intended by the parties as a final
expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein with respect to the registration rights
granted by the Company and the Trust with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject
matter.
(l) Required Consents. Whenever the consent or
approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held
by the Company or its affiliates (as such term is defined in Rule 405
under the Securities Act) shall not be counted in determining whether
such consent or approval was given by the Holders of such required
percentage.
23
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
STAR BANC CORPORATION
By: /s/ XXXXXX X. XXXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: SVP, General Counsel and Secretary
STAR CAPITAL I
By: /s/ XXXXX XXXXXX
-------------------------------------
Name: Xxxxx Xxxxxx
Title: Regular Trustee
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first
above written
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ XXXXXX X. XXXXXX
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
Acting severally on behalf of
itself and the several Initial
Purchasers named herein
