Exhibit 4.8
================================================================================
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
AMONG
BANKERS TRUST NEW YORK CORPORATION,
BT CAPITAL TRUST A,
AND
XXXXXX BROTHERS INC.,
as the Initial Purchaser
-----------------
Dated as of January 16, 1997
-----------------
================================================================================
TABLE OF CONTENTS
=================
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Page
----
1. Interpretation and Definitions.......................................... 1
(a) Interpretation................................................... 1
(b) Definitions...................................................... 1
2. Registration Under the Securities Act................................... 5
3. Registration Procedures................................................. 8
4. Registration Expenses................................................... 16
5. Representations and Warranties.......................................... 17
6. Indemnification......................................................... 18
(a) Indemnification by the Corporation and the Issuer Trust........... 18
(b) Indemnification by the Holders and any Agents and Underwriters.... 19
(c) Notices of Claims, Etc............................................ 20
(d) Contribution...................................................... 20
7. Underwritten Offerings.................................................. 22
(a) Selection of Underwriters......................................... 22
(b) Participation by Holders.......................................... 22
(c) Consolidated Earnings Statements.................................. 22
8. Rule 144................................................................ 22
9. Miscellaneous........................................................... 23
(a) No Inconsistent Agreements........................................ 23
(b) Notices........................................................... 23
(c) Parties in Interest............................................... 23
(d) Survival.......................................................... 23
(e) GOVERNING LAW..................................................... 24
(f) Headings.......................................................... 24
(g) Entire Agreement; Amendments...................................... 24
(h) Inspection........................................................ 24
(i) Counterparts...................................................... 24
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of January 16, 1997,
by and among Bankers Trust New York Corporation, a New York corporation (the
"Corporation"), BT Capital Trust A, a Delaware statutory business trust (the
"Issuer Trust") and Xxxxxx Brothers Inc., as the initial purchaser (the "Initial
Purchaser") of the 7.90% Capital Securities, Series A1 of the Issuer Trust,
which are guaranteed by the Corporation.
1. Interpretation and Definitions.
(a) Interpretation. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(i) The terms defined in this Section have the meanings assigned to
them in this Section, and include the plural as well as the singular;
(ii) The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation";
(iii) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles;
(iv) Unless the context otherwise requires, any reference to a
"Section" or a "subsection" refers to a Section or a subsection, as the
case may be, of this Agreement; and
(v) The words "hereby", "herein", "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Section, subsection or other subdivision.
(b) Definitions. For all purposes of this Agreement, the following terms
shall have the following respective meanings:
"Agreement" shall mean this Exchange and Registration Rights
Agreement, as modified, amended or supplemented from time to time.
"Applicable Guarantee Agreement" shall mean either the Guarantee
Agreement or the Exchange Guarantee Agreement, as the context requires.
"Applicable Indenture" shall mean either the Indenture or the Exchange
Indenture, as the context requires.
"Applicable Trust Agreement" shall mean either the Trust Agreement or
the Exchange Trust Agreement, as the context requires.
"Capital Securities" shall mean the 7.90% Capital Securities, Series
A1 (Liquidation Amount $1,000 per Capital Security), to be issued under the
Trust Agreement and sold to the Initial Purchaser.
"Closing Date" shall mean the date on which the Capital Securities are
initially issued.
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular
purpose.
"Common Securities" shall mean the common securities of the Issuer
Trust issued pursuant to the Trust Agreement.
"Corporation" shall have the meaning assigned to such term in the
preamble.
"Distributions" shall have the meaning specified in the Applicable
Trust Agreement.
"Effective Time", in the case of (i) an Exchange Offer, shall mean the
date on which the Commission declares the Exchange Offer registration
statement effective or on which such registration statement otherwise
becomes effective and (ii) a Shelf Registration, shall mean the date on
which the Commission declares the Shelf Registration effective or on which
the Shelf Registration otherwise becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
"Exchange Capital Securities shall have the meaning assigned to such
term in Section 2(a).
"Exchange Guarantee Agreement shall have the meaning assigned to such
term in Section 2(a).
"Exchange Indenture" shall have the meaning assigned to such term in
Section 2(a).
-2-
"Exchange Issuer Trust" shall have the meaning assigned to such term
in Section 2(a).
"Exchange Junior Subordinated Debentures" shall have the meaning
assigned to such term in Section 2(a).
"Exchange Offer" shall have the meaning assigned to such term in
Section 2(a).
"Exchange Offer Registration Statement" shall have the meaning
assigned to such term in Section 2(a).
"Exchange Securities" shall mean, collectively, the Exchange Capital
Securities, the Exchange Guarantee Agreement and the Exchange Junior
Subordinated Debentures.
"Exchange Trust Agreement" shall have the meaning assigned to such
term in Section 2(a).
"Guarantee Agreement" shall mean the Guarantee Agreement, dated as of
January 16, 1997, between the Corporation and Wilmington Trust Company, as
Guarantee Trustee, relating to the Capital Securities.
"holder" shall mean, with respect to the Trust Securities, the Holder
of such Trust Securities under the Applicable Trust Agreement.
"Indenture" shall mean the Junior Subordinated Indenture, dated as of
January 16, 1997, between the Corporation and Wilmington Trust Company, as
Trustee, as the same shall be amended from time to time.
"Initial Purchaser" shall have the meaning assigned to such term in
the preamble.
"Issuer Trust" shall have the meaning assigned to such term in the
preamble.
"Junior Subordinated Debentures" shall mean the 7.90% Junior
Subordinated Deferrable Interest Debentures of the Corporation to be issued
under the Indenture.
"Participating Broker-Dealer" shall mean a broker-dealer who receives
Exchange Securities in the Exchange Offer.
-3-
"person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
"Property Trustee" shall mean the Property Trustee named under the
Applicable Trust Agreement.
"Purchase Agreement" shall mean the Purchase Agreement, dated January
9, 1997, among the Corporation, the Issuer Trust and the Initial Purchaser.
"Registrable Securities" shall mean the Securities; provided, however,
that such Securities shall cease to be Registrable Securities when (i) the
Exchange Offer is conducted as contemplated in Section 2(a), except if, at
or prior to the consummation of the Exchange Offer, existing Commission
interpretations are changed such that the Exchange Securities received by
holders in the Exchange Offer for Registrable Securities are not or would
not be, upon receipt, transferable by each such holder (other than a
Restricted Holder) without restriction under the Securities Act in the
circumstances contemplated by Section 2(a); provided that any such
Securities that, pursuant to the last two sentences of Section 2(a), are
included in a prospectus for use in connection with resales by broker-
dealers shall be deemed to be Registrable Securities with respect to
Sections 5, 6 and 9 until resale of such Exchange Securities has been
effected within the 90-day period referred to in Section 2(a); (ii) in the
circumstances contemplated by Section 2(b), a registration statement
registering such Securities under the Securities Act has been declared or
becomes effective and such Securities have been sold or otherwise
transferred by the holder thereof pursuant to such effective registration
statement; (iii) such Securities are sold pursuant to Rule 144 (or any
successor provision) promulgated under the Securities Act under
circumstances in which any legend borne by such Securities relating to
restrictions on transferability thereof, under the Securities Act or
otherwise, is removed by the Corporation or pursuant to the Applicable
Indenture or such Securities are eligible to be sold pursuant to paragraph
(k) of Rule 144; or (iv) such Securities shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c).
"Registration Expenses" shall have the meaning assigned thereto in
Section 4.
"Restricted Holder" shall mean (i) a holder that is an affiliate of
the Corporation within the meaning of Rule 405 under the Securities Act,
(ii) a
-4-
holder that acquires Exchange Securities outside the ordinary course of
such holder's business or (iii) a holder who has arrangements or
understandings with any person to participate in the Exchange Offer for the
purpose of distributing Exchange Securities.
"Securities" shall mean, collectively, the Capital Securities, the
Guarantee Agreement and the Junior Subordinated Debentures.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned to such term in
Section 2(b).
"Special Distributions" shall have the meaning assigned to such term
in Section 2(c).
"Special Interest" shall have the meaning assigned to such term in
Section 2(c).
"Trust Agreement" shall mean the Amended and Restated Trust Agreement,
dated as of January 16, 1997, among the Corporation, as Depositor,
Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as
Delaware Trustee, the Administrative Trustees named therein, and the
holders of the Trust Securities from time to time.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
"Trust Securities" shall mean, collectively, the Capital Securities
and the Common Securities.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Corporation agrees to
use its reasonable efforts to file under the Securities Act, no later than 150
days after the Closing Date, a registration statement (the "Exchange Offer
Registration Statement") relating to an offer to exchange (the "Exchange Offer")
any and all of the Capital Securities for a like aggregate liquidation amount of
capital securities (the "Exchange Capital Securities") issued by an issuer trust
substantially identical to the Issuer Trust (the "Exchange Issuer Trust"), which
Exchange Capital Securities shall be (i)
-5-
substantially identical to the Capital Securities, except that such Exchange
Capital Securities shall have been registered pursuant to an effective
registration statement under the Securities Act and shall not contain terms with
respect to Special Distributions (as defined below) or transfer restrictions,
(ii) shall be issued pursuant to a trust agreement (the "Exchange Trust
Agreement") that (except with respect to the foregoing matters) is is
substantially identical to the Trust Agreement and shall be qualified under the
Trust Indenture Act, and (iii) shall be entitled to a guarantee (the "Exchange
Guarantee Agreement") of the Corporation substantially identical to the
Guarantee Agreement which shall be qualified under the Trust Indenture Act. The
Exchange Issuer Trust shall hold junior subordinated debentures of the
Corporation (the "Exchange Junior Subordinated Debentures") that are
substantially identical to the Junior Subordinated Debentures, and shall be
entitled to the benefits of an indenture (the "Exchange Indenture") that is
either the Indenture or is substantially identical to the Indenture and that has
been qualified under the Trust Indenture Act. The Corporation agrees to use its
reasonable efforts to cause the Exchange Offer Registration Statement to become
effective under the Securities Act no later than 180 days after the Closing
Date. The Exchange Offer shall be registered under the Act on the appropriate
form and shall comply with all applicable tender offer rules and regulations
under the Exchange Act. The Corporation further agrees to commence and complete
the Exchange Offer promptly after such registration statement has become
effective, hold the Exchange Offer open for at least 30 days and exchange
Exchange Securities for all Registrable Securities that have been validly
tendered and not withdrawn on or prior to the expiration of the Exchange Offer.
The Exchange Offer will be deemed to have been completed only if the Exchange
Securities received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are, upon receipt, transferable by each such
holder without restriction under the Securities Act and the Exchange Act and
without material restrictions under the Blue Sky or securities laws of a
substantial majority of the States of the United States of America. The Exchange
Offer shall be deemed to have been completed upon the earlier to occur of (i)
the Corporation's having exchanged (or caused the exchange of) the Exchange
Securities for all outstanding Registrable Securities pursuant to the Exchange
Offer and (ii) the Corporation's having exchanged (or caused the exchange of),
pursuant to the Exchange Offer, Exchange Securities for all Registrable
Securities that have been validly tendered and not withdrawn before the
expiration of the Exchange Offer, which shall be on a date that is at least 30
days following the commencement of the Exchange Offer. The Corporation agrees
(i) to include in the Exchange Offer Registration State ment a prospectus for
use in connection with any resales by any holder of Exchange Securities that is
a Participating Broker-Dealer and (ii) to keep the Exchange Offer Registration
Statement effective for a period ending on the earlier of the 90th day after the
Exchange Offer has been completed or such time as such Participating Broker-
Dealers no longer own any Registrable Securities. With respect to such Exchange
Offer Registration Statement, the Corporation and any such holder shall have the
benefit of, and shall each provide to the other, the rights of indemnification
and contribution set forth in Section 6 hereof.
-6-
(b) If, at or prior to the consummation of the Exchange Offer, existing
Commission interpretations are changed such that the Exchange Securities
received by holders in the Exchange Offer for Registrable Securities are not or
would not be, upon receipt, transferable by each such holder (other than a
Restricted Holder) without restriction under the Securities Act in the
circumstances contemplated by Section 2(a), or if the Corporation or the Issuer
Trust has received an opinion of counsel experienced in such matters to the
effect that, as a result of the consummation of the Exchange Offer, there is
more than an insubstantial risk that (a) the Exchange Issuer Trust would be
subject to United States federal income tax with respect to income received or
accrued on the Exchange Junior Subordinated Debentures, (b) interest payable by
the Corporation on the Exchange Junior Subordinated Debentures would not be
deductible by the Corporation, in whole or in part, for United States federal
income tax purposes, or (c) the Exchange Issuer Trust would be subject to more
than a de minimis amount of other taxes, duties or other governmental charges,
then in lieu of the Corporation's conducting the Exchange Offer contemplated by
Section 2(a), the Corporation and the Issuer Trust shall use their reasonable
efforts to file under the Securities Act a "shelf" registration statement
providing for the registration of, and the sale on a continuous or delayed basis
by the holders of, all of the Registrable Securities, pursuant to Rule 415 under
the Securities Act and/or any similar rule that may be adopted by the Commission
(the "Shelf Registration"). The Corporation and the Issuer Trust agree to use
their reasonable efforts to cause the Shelf Registration to become or be
declared effective no later than 150 days after the Closing Date and to keep
such Shelf Registration continuously effective (except as permitted herein) for
a period ending on the earlier of the third anniversary of the Closing Date or
such time as there are no longer any Registrable Securities outstanding. The
Corporation and the Issuer Trust further agree to supplement or make amendments
to the Shelf Registration, as and when required by the rules, regulations or
instructions applicable to the registration form used by the Corporation and the
Issuer Trust for such Shelf Registration or by the Securities Act or rules and
regulations thereunder relating to shelf registration, and the Corporation and
the Issuer Trust agree to furnish to the holders of the Registrable Securities
copies of any such supplement or amendment, other than reports filed pursuant to
Section 13 or 15 of the Exchange Act, prior to its being used and/or filed with
the Commission.
(c) If (i) the Corporation has not filed the registration statement
relating to the Exchange Offer (or, if applicable, if the Corporation and the
Issuer Trust have not filed the Shelf Registration) on or before the 150th day
after the Closing Date, (ii) such registration statement (or, if applicable, the
Shelf Registration) has not become effective or been declared effective by the
Commission on or before the 180th day after the Closing Date, (iii) the Exchange
Offer has not been completed within 35 days after the initial effective date of
the Exchange Offer Registration Statement (if the Exchange Offer is then
required to be made), or (iv) any registration statement required by Section
2(a) or 2(b) is filed and declared effective but shall thereafter cease to be
effective (except as permitted herein) without being succeeded promptly by an
additional registration
-7-
statement filed and declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default"), then additional interest (the
"Special Interest") shall accrue in respect of the Junior Subordinated
Debentures, as provided therein, and additional distributions (the "Special
Distributions") shall accumulate in respect of the Trust Securities, as provided
in the Trust Agreement, at the rate of 0.25% per annum for the period from the
occurrence of the Registration Default until such time as no Registration
Default is in effect (after which time no such Special Interest will accrue and
no Special Distributions will accumulate unless and until another Registration
Default occurs). Such Special Interest and Special Distributions shall be
calculated in the same manner as interest and Distributions otherwise payable in
respect of the Junior Subordinated Debentures and Trust Securities, as the case
may be, and shall be payable semi-annually in arrears on each Interest Payment
Date (as defined in the Indenture) or Distribution Date (as defined in the Trust
Agreement), as the case may be, together with (and in the same manner as) the
interest and Distributions otherwise payable in respect of the Junior
Subordinated Debentures or the Trust Securities, as the case may be. If the
Corporation elects to commence an Extension Period at any time when such Special
Interest and Special Distributions are payable, such Special Interest and
Special Distributions shall be deferred as and to the extent that the interest
and Distributions otherwise payable in respect of the Junior Subordinated
Debentures and Trust Securities are deferred.
3. Registration Procedures.
If the Corporation files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Corporation and the Issuer Trust shall
qualify the Applicable Indenture, the Applicable Trust Agreement and the
Applicable Guarantee under the Trust Indenture Act.
(b) If such qualification would require the appointment of a new trustee
under the Applicable Indenture, the Corporation shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Applicable Indenture.
(c) In connection with the Corporation's and the Issuer Trust's
obligations with respect to the Shelf Registration, if applicable, the
Corporation and the Issuer Trust shall use their reasonable efforts to effect or
cause the Shelf Registration to permit the sale of the Registrable Securities by
the holders thereof in accordance with the intended method or methods of
distribution thereof described in the Shelf Registration. In connection
therewith, each of the Corporation and the Issuer Trust shall:
-8-
(i) prepare and file with the Commission a registration statement with
respect to the Shelf Registration on any form which may be utilized by the
Corporation and the Issuer Trust and which shall permit the disposition of
the Registrable Securities in accordance with the intended method or
methods thereof, as specified in writing to the Corporation by the holders
of the Registrable Securities;
(ii) as soon as reasonably possible, prepare and file with the
Commission such amendments and supplements to such registration statement
and the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such registration statement for the period
specified in Section 2(b) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions applicable to
the form of such registration statement;
(iii) as soon as reasonably possible, comply, as to all matters
within the Corporation's or the Issuer Trust's control, as the case may be,
with the provisions of the Securities Act in connection with the
disposition of all of the Registrable Securities covered by such
registration statement in accordance with the intended methods of
disposition by the holders thereof, set forth in such registration
statement;
(iv) provide (A) the holders of the Registrable Securities to be
included in such registration statement and not more than one counsel for
all the holders of such Registrable Securities, (B) the underwriters (which
term, for purposes of this Agreement, shall include a person deemed to be
an underwriter within the meaning of Section 2(11) of the Securities Act),
if any, thereof, (C) the sales or placement agent, if any, therefor, and
(D) one counsel for such underwriters or agents, if any, reasonable
opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission,
and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such registration
statement, and throughout the period specified in Section 2(b), make
available at reasonable times at the Corporation's principal place of
business or such other reasonable place for inspection by the persons
referred to in Section 3(c)(iv), who shall certify to the Corporation and
the Issuer Trust that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration, such financial and other
information and books and records of the Corporation, and cause the
officers, employees, counsel and independent certified public accountants
of the Corporation to respond to such inquiries, as shall be reasonably
necessary, in the reasonable judgment of the respective counsel referred to
in such Section, to conduct a reasonable investigation within the meaning
of Section
-9-
11 of the Securities Act; provided, however, that each such party shall
agree in writing to maintain in confidence and not to disclose to any other
person any information or records designated by the Corporation as being
confidential, until such time as (A) such information becomes a matter of
public record (whether by virtue of its inclusion in such registration
statement or otherwise, except by disclosure by such party in breach of
this Agreement), or (B) such person shall be required so to disclose such
information pursuant to the subpoena or order of any court or other
governmental agency or body having jurisdiction over the matter (subject
to, and only to the extent required by, the requirements of such order, and
only after such person shall have given the Corporation prompt prior
written notice of such requirement), or (C) such information, in the
opinion of counsel experienced in such matters addressed to the
Corporation, is required to be set forth in such registration statement or
the prospectus included therein or in an amendment to such registration
statement or an amendment or supplement to such prospectus in order that
such registration statement, prospectus, amendment or supplement, as the
case may be, does not contain an untrue state ment of a material fact or
omit to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(vi) promptly notify the selling holders of Registrable Securities,
the sales or placement agent, if any, therefor and the managing underwriter
or underwriters, if any, thereof and confirm such advice in writing, (A)
when such registration statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such registration statement or any post-
effective amendment, when the same has become effective, (B) of any
comments by the Commission and by the Blue Sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such regis tration statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any proceedings
for that purpose, (D) if at any time the representations and warranties of
the Corporation contemplated by Section 3(c)(xv) or Section 5 cease to be
true and correct in all material respects, (E) of the receipt by the
Corporation or the Issuer Trust, as the case may be, of any notification
with respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose, or (F) at any time when a prospectus is
required to be delivered under the Securities Act, that such registration
statement, prospectus, prospectus amendment or supplement or post-effective
amendment, or any document incorporated by reference in any of the
foregoing, does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act or contains
an
-10-
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(vii) use its reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any post-
effective amendment thereto at the earliest practicable date;
(viii) if reasonably requested in writing by any managing underwriter
or underwriters, any placement or sales agent or counsel for the holders of
Registrable Securities, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the applicable
rules and regulations of the Commission and as such managing underwriter or
underwriters, such agent or such holder reasonably specifies should be
included therein relating to the terms of the sale of such Registrable
Securities, including, without limitation, information with respect to the
liquidation amount of Registrable Securities being sold by any holder or
agent or to any underwriters, the name and description of such holder,
agent or underwriter, the offering price of such Registrable Securities and
any discount, commission or other compensation payable in respect thereof,
the purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable Securities to
be sold by such holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective amendment
promptly after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment in accordance herewith;
(ix) furnish to each holder of Registrable Securities, each placement
or sales agent, if any, therefor, each underwriter, if any, thereof and the
counsel referred to in Section 3(c)(iv) an executed copy of such
registration statement, each such amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by reference
therein) and such number of copies of such registration statement
(excluding exhibits thereto and documents incorporated by reference therein
unless specifically so requested by such holder, agent or underwriter, as
the case may be) and of the prospectus included in such registration
statement (including each preliminary prospectus and any summary
prospectus), conforming in all material respects to the requirements of the
Securities Act and the Trust Indenture Act, and such other documents, as
such holder, agent, if any, and underwriter, if any, may reasonably request
in order to facilitate the offering and disposition of the Registrable
Securities owned by such holder, offered or sold by such agent or
underwritten by such underwriter and to permit such holder, agent and
underwriter to satisfy the prospectus delivery requirements of the
Securities Act; and, except during such time, if any, as a notice has been
given pursuant to clause (F) of paragraph (vi) hereof, the
-11-
Corporation hereby consents to the use of such prospectus (including such
preliminary and summary prospectus) and any amendment or supplement thereto
by each such holder and by any such agent and underwriter, in each case in
the form most recently provided to such party by the Corporation, in
connection with the offering and sale of the Registrable Securities covered
by the prospectus (including such preliminary and summary prospectus) or
any supplement or amendment thereto;
(x) use its reasonable efforts to (A) register or qualify the
Registrable Securities to be included in such registration statement under
such securities laws or Blue Sky laws of such jurisdictions as any holder
of such Registrable Securities and each placement or sales agent, if any,
therefor and underwriter, if any, thereof shall reasonably request, (B)
keep such registrations or qualifications in effect and comply with such
laws so as to permit the continuance of offers, sales and dealings therein
in such jurisdictions during the period the Shelf Registration is required
to remain effective under Section 2(b) above and for so long as may be
necessary to enable any such holder, agent or underwriter to complete its
distribution of Securities pursuant to such registration statement (but in
any event not later than the date through which the Corporation and the
Issuer Trust are required to keep the Shelf Registration Effective pursuant
to Section 2(b)) and (C) take any and all other actions as may be
reasonably necessary or advisable to enable each such holder, agent, if
any, or underwriter, if any, to consummate the disposition in such
jurisdictions of Registrable Securities; provided, however, that neither
the Corporation, the Issuer Trust, nor the Exchange Issuer Trust shall be
required for any such purpose to (1) qualify as a foreign corporation or
foreign trust, as the case may be, in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
3(c)(x), (2) consent to general service of process in any such
jurisdiction, (3) subject itself to taxation in any jurisdiction where the
Corporation, Issuer Trust or the Exchange Issuer Trust, as the case may be,
is not already subject to taxation or (4) make any changes to the
Corporation's certificate of incorporation or by-laws or to any agreement
presently existing between the Corporation and its stockholders or to the
Applicable Trust Agreement;
(xi) use its reasonable efforts to obtain the consent or approval of
each governmental agency or authority, whether federal, state or local,
which may be required to effect the Shelf Registration or the offering or
sale in connection therewith or to enable the selling holder or holders to
offer, or to consummate the disposition of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold,
which certificates
-12-
shall be printed, lithographed or engraved, or produced by any combination
of such methods, and which shall not bear any restrictive legends; and, in
the case of an underwritten offering, enable such Registrable Securities to
be in such denominations and registered in such names as the managing
underwriters may request (consistent with the Applicable Trust Agreement)
at least two business days prior to any sale of the Registrable Securities;
(xiii) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the Shelf Registration;
(xiv) enter into one or more underwriting agreements, engagement
letters, agency agreements or similar agreements, as appropriate, including
(without limitation) provisions relating to indemnification and
contribution substantially the same as those set forth in Section 6 hereof,
and take such other actions in connection therewith as any holders of
Registrable Securities aggregating at least 66 2/3% in aggregate
liquidation amount of the Registrable Securities included in such Shelf
Registration shall reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities; provided that the
Corporation shall not be required to enter into any such agreement more
than once with respect to all of the Registrable Securities and may delay
entering into such agreement until the consummation of any underwritten
public offering which the Corporation shall have then undertaken;
(xv) whether or not an agreement of the type referred to in Section
(3)(c)(xiv) hereof is entered into and whether or not any portion of the
offering contemplated by such registration statement is an underwritten
offering or is made through a placement or sales agent or any other entity,
(A) make such representations and warranties to the holders of such
Registrable Securities and the placement or sales agent, if any, therefor
and the underwriters, if any, thereof substantially the same as those set
forth in Section 1 of the Purchase Agreement; (B) obtain an opinion or
opinions of counsel to the Corporation or the Issuer Trust, as applicable,
substantially the same as the opinions provided for in Sections 4A(b-e) and
4A(g) of the Purchase Agreement, addressed to such holder or holders and
the placement or sales agent, if any, therefor and the underwriters, if
any, thereof and dated the effective date of such registration statement
(and if such registration statement contemplates an underwritten offering
of a part or all of the Registrable Securities, dated the date of the
closing under the underwriting agreement relating thereto); (C) obtain a
"cold comfort" letter or letters from the independent certified public
accountants of the Corporation addressed to the selling holders of
Registrable Securities, the placement or sales agent, if any, therefor and
the underwriters, if any, thereof, dated (i) the effective date of such
registration statement and (ii) the effective date of any prospectus
supplement to the prospectus included in such registration statement or
post-effective amendment
-13-
to such registration statement which includes unaudited or audited
financial state ments as of a date or for a period subsequent to that of
the latest such statements included in such prospectus (and, if such
registration statement contemplates an underwritten offering pursuant to
any prospectus supplement to the prospectus included in such registration
statement or post-effective amendment to such registration statement which
includes unaudited or audited financial statements as of a date or for a
period subsequent to that of the latest such statements included in such
prospectus, dated the date of the closing under the underwriting agree ment
relating thereto), such letter or letters to be in customary form and
covering such matters of the type customarily covered by letters obtained
by the Corporation in public offerings; (D) deliver such other documents
and certificates, including officers' certificates, as may be reasonably
requested by any holders of at least 66 2/3% in aggregate liquidation
amount of the Registrable Securities included in such Shelf Registration or
the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above or those
contained in Section 5(a) hereof and the compliance with or satisfaction of
any agreements or conditions contained in the underwriting agreement or
other agree ment entered into by the Corporation; and (E) undertake such
obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities of any
proposal by the Corporation and/or the Issuer Trust to amend or waive any
provision of this Agreement pursuant to Section 9(g) hereof and of any
amendment or waiver effected pursuant thereto, each of which notices shall
contain the text of the amendment or waiver proposed or effected, as the
case may be; and
(xvii) if any broker-dealer registered under the Exchange Act shall
underwrite any Registrable Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution"
(within the meaning of the Rules of Fair Practice and the By-Laws of the
National Association of Securities Dealers, Inc. ("NASD") or any successor
thereto, as amended from time to time) thereof, whether as a holder of such
Registrable Securities or as an underwriter, a placement or sales agent or
a broker or dealer in respect thereof, or otherwise, assist such broker-
dealer in complying with the requirements of such Rules and By-Laws,
including, without limitation, by (A) if such Rules or By-Laws, including
Schedule E thereto (or any successor thereto), shall so require, engaging a
"qualified independent underwriter" (as defined in such Schedule (or any
successor thereto)) to participate in the prepara tion of the registration
statement relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of
-14-
the offering contemplated by such registration statement is an underwritten
offering or is made through a placement or sales agent, to recommend the
yield of such Registrable Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof, and (C) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules of Fair Practice
of the NASD.
If any of the foregoing obligations is dependent upon information provided
or to be provided by a party other than the Corporation or the Issuer Trust,
such obligation shall be subject to the provision of such information.
(d) If the Corporation and the Issuer Trust would be required, pursuant to
Section 3(c)(vi)(F) above, to notify the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, the Corporation and the Issuer Trust shall as
promptly as is reasonably practicable prepare and furnish to each such holder,
to each placement or sales agent, if any, and to each underwriter, if any, a
reasonable number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of Registrable Securities, such prospectus
shall not 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 in light of the circumstances then existing. Each holder
of Registrable Securities agrees that upon receipt of any notice from the
Corporation or the Issuer Trust pursuant to Section 3(c)(vi)(F) hereof, such
holder shall forthwith discontinue the disposition of Registrable Securities,
pursuant to the registration statement applicable to such Registrable Securities
until such holder (i) shall have received copies of such amended or supplemented
prospectus, and if so directed by the Corporation or the Issuer Trust, such
holder shall deliver to the Corporation (at the Corporation's expense) all
copies, other than permanent file copies, then in such holder's possession of
the prospectus covering such Registrable Securities at the time of receipt of
such notice or (ii) shall have received notice from the Corporation or the
Issuer Trust that the disposition of Registrable Securities pursuant to the
Shelf Registration may continue.
(e) The Corporation and the Issuer Trust may require each holder of
Registrable Securities as to which any registration is being effected to furnish
in writing to the Corporation such information regarding such holder and such
holder's intended method of distribution of such Registrable Securities as the
Corporation and the Issuer Trust may from time to time reasonably request in
writing, but only to the extent that, in the opinion of the Corporation, such
information is required in order to comply with the Securities Act, and may
exclude from any such registration the Registrable Securities of any such holder
who fails to furnish such reasonably requested information within 30 days after
such request. Each such holder agrees to notify the Corporation and the Issuer
Trust as promptly as practicable of any inaccuracy or change in information
previously
-15-
furnished by such holder to the Corporation and the Issuer Trust or of the
occurrence of any event in either case as a result of which any prospectus
relating to such registration contains or would contain an untrue statement of a
material fact regarding such holder or such holder's intended method of
distribution of such Registrable Securities or omits to state any material fact
regarding such holder or such holder's intended method of distribution of such
Registrable Securities required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and promptly to furnish to the Corporation and the Issuer Trust any additional
information required to correct and update any previously furnished information
or required so that such prospectus shall not contain, with respect to such
holder or the distribution of such Registrable Securities, 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 in light of
the circumstances then existing. Each such holder shall comply with the
provisions of the Securities Act applicable to such holder with respect to the
disposition by such holder of Registrable Securities covered by such
registration statement in accordance with the intended methods of disposition by
such holder set forth in such registration statement.
(f) Until three years after the Closing Date, the Corporation will not,
and will not permit any of its "affiliates" (as defined in Rule 144 under the
Act) to, resell any of the Capital Securities or Junior Subordinated Debentures
which constitute "restricted securities" under Rule 144 that have been
reacquired by any of them except pursuant to an effective registration statement
under the Act or any exemption therefrom.
4. Registration Expenses.
If the Corporation files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
The Corporation agrees to bear and to pay or cause to be paid all expenses
incident to the Corporation's and the Issuer Trust's performance of or
compliance with this Agreement, including (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of Registrable Securities for offering and
sale under the State securities and Blue Sky laws referred to in Section 3(c)(x)
hereof, including reasonable fees and disbursements of counsel for the placement
or sales agent, if any, or underwriters, if any, in connection with such
qualifications, (c) all expenses relating to the preparation, printing,
distribution and reproduction of each registration statement required to be
filed hereunder, each prospectus included therein or prepared for distribution
pursuant hereto, each amendment or supplement to the foregoing, and the
certificates representing the Securities, (d) fees and expenses of the Trustee
(as defined in the Applicable Indenture) under the Applicable Indenture, the
Property Trustee and Delaware Trustee and Administrative Trustees (as defined in
the Applicable Trust Agreement) under the Applicable Trust Agreement and
-16-
the Guarantee Trustee (as defined in the Applicable Guarantee) under the
Applicable Guarantee and of any escrow agent or custodian, (e) fees,
disbursements and expenses of counsel and independent certified public
accountants of the Corporation (including the expenses of any opinions or
"comfort" letters required by or incident to such performance and compliance),
(f) reasonable fees, disbursements and expenses of any "qualified independent
underwriter" engaged pursuant to Section 3(c)(xvii) hereof, (g) reasonable fees,
disbursements and expenses of one counsel for the holders of Registrable
Securities retained in connection with a Shelf Registration, as selected by the
holders of at least a majority in aggregate liquidation amount of the
Registrable Securities being registered, and (h) fees, expenses and
disbursements of any other persons retained by the Corporation in connection
with such registration (collectively, the "Registration Expenses"). To the
extent that any reasonable Registration Expenses are properly incurred, assumed
or paid by any holder of Registrable Securities or any placement or sales agent
therefor or underwriter thereof with the consent of the Corporation (which
consent shall not be unreasonably withheld), the Corporation shall reimburse
such person for the full amount of the Registration Expenses so incurred,
assumed or paid promptly after receipt of a written request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities being
registered shall pay all agency or brokerage fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registered Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above, transfer taxes on resale
of any of the Securities by such holders and any advertising expenses incurred
by or on behalf of such holders in connection with any offers they may make.
5. Representations and Warranties.
Each of the Corporation and the Issuer Trust represents and warrants to,
and agrees with, the Initial Purchaser and each of the holders from time to time
of Registrable Securities that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(c)(ix) hereof and any further
amendments or supplements to any such registration statement or prospectus,
when it becomes effective or is filed with the Commission, as the case may
be, and, in the case of an underwritten offering of Registrable Securities,
at the time of the closing under the underwriting agreement relating
thereto, will conform in all material respects to the requirements of the
Securities Act and the Trust Indenture Act and any such registration
statement and any amendment thereto will not 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 any
such prospectus or any amendment or supplement thereto will not contain an
untrue
-17-
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 in light of the circumstances in which they were made; and at
all times subsequent to the Effective Time of any such registration
statement when a prospectus would be required to be delivered under the
Securities Act, other than from (i) such time as a notice has been given to
holders of Registrable Securities pursuant to Section 3(c)(vi)(F) until
(ii) such time as the Corporation furnishes an amended or supplemented
prospectus pursuant to Section 3(d) hereof, each such registration
statement, and each prospectus (including any summary prospectus) contained
therein or furnished pursuant to Section 3(c)(ix) hereof, as then amended
or supplemented, will conform in all material respects to the requirements
of the Securities Act and the Trust Indenture Act and will not 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 in the light of the circumstances in which they were made;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Corporation by a holder of
Registrable Securities or any placement or sales agent therefor or
underwriter thereof expressly for use therein.
(b) Each document, if any, filed or to be filed by the Corporation
pursuant to the Exchange Act and incorporated by reference in any
prospectus referred to in Section 5(a) hereof, when they become or became
effective or are or were filed with the Commission, as the case may be,
conformed or will conform in all material respects to the requirements of
the Exchange Act, and none of such documents contained or will contain an
untrue statement of a material fact or omitted or will omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Corporation by a holder of Registrable Securities expressly
for use therein.
(c) This Agreement has been duly authorized, executed and delivered by
each of the Corporation and the Issuer Trust.
6. Indemnification.
(a) Indemnification by the Corporation and the Issuer Trust. Upon the
registration of the Registrable Securities pursuant to Section 2 hereof, and in
consideration of the agreements of the Initial Purchaser contained herein, and
as an inducement to the Initial Purchaser to purchase the Securities, each of
the Corporation and the Issuer Trust shall, and they hereby agree, jointly and
severally, to, indemnify and hold harmless each of the holders of Registrable
Securities to be included in such registration, and each person who
-18-
participates as a placement or sales agent or as an underwriter in any offering
or sale of such Registrable Securities, and each Person, if any, who controls
any such agent or underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages or liabilities to which such holder, agent or
underwriter may become subject under the Securities Act or otherwise, but only
to the extent that such losses, claims, damages or liabilities are caused by any
untrue statement or alleged untrue statement of a material fact contained in any
registration statement under which such Registrable Securities were registered
under the Securities Act, or any preliminary, final or summary prospectus
contained therein or furnished by the Corporation or the Issuer Trust to any
such holder, agent or underwriter, or any amendment or supplement thereto, or
are caused by any omission or alleged omission to state therein a material fact
required to be stated therein or neces sary to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission made
in any such registration statement, or preliminary, final or summary prospectus,
or amendment or supplement thereto based upon information furnished in writing
to the Corporation or the Issuer Trust by any such holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof
expressly for use therein; provided, however, that the foregoing indemnity
agreement shall not inure to the benefit of any such person if (i) the loss,
claim, damage or liability asserted was caused by a defect in the registration
statement, or preliminary, final or summary prospectus, or amendment or
supplement thereto, delivered to the person asserting any such losses, claims,
damages or liabilities after the period referred to in clause (ii) of the
penultimate sentence of Section 2(a) or the second sentence of Section 2(b), as
the case may be, and such defect would not have existed before the expiry of
such period, or (ii) a copy of the registration statement, or preliminary, final
or summary prospectus, or amendment or supplement thereto, as then in effect,
was not sent or given by or on behalf of such person at or prior to the written
confirmation of the sale of the relevant Registrable Securities to such person,
and if delivery of the registration statement, or preliminary, final or summary
prospectus, or amendment or supplement thereto, as so amended or supplemented,
would have cured the defect giving rise to such loss, claim, damage or
liability.
(b) Indemnification by the Holders and any Agents and Underwriters. The
Corporation and the Issuer Trust may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section 2
hereof and to entering into any placement or underwriting agreement with respect
thereto, that the Corporation and the Issuer Trust shall have received an
undertaking reasonably satisfactory to each of them from the holder of such
Registrable Securities and from each placement agent or underwriter named in any
such placement agreement or underwriting agreement, severally and not jointly,
to (i) indemnify and hold harmless the Corporation and the Issuer Trust, any
authorized representative of the Corporation or the Trust, each of the
-19-
Corporation's directors, and each person who controls the Corporation or the
Issuer Trust within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and all other holders of Registrable Securities,
against any and all losses, claims, damages or liabilities to which the
Corporation or such other holders of Registrable Securities may become subject,
under the Securities Act or otherwise, but only to the extent that such losses,
claims, damages or liabilities (or actions in respect thereof) are caused by an
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, or any preliminary, final or summary prospectus
contained therein or furnished by the Corporation to any such holder, agent or
under writer, or any amendment or supplement thereto, or are caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading, based upon written
information furnished to the Corporation and the Issuer Trust by such holder,
agent or underwriter expressly for use therein.
(c) Notices of Claims, Etc. If any proceeding (including any governmental
investigation) shall be threatened or instituted involving any person in respect
of which indemnity may be sought pursuant to either subsection (a) or (b) of
this Section, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party, shall
retain counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm for all such indemnified parties.
In the case of parties indemnified pursuant to the subsection (a) of this
Section, such separate firm shall be designated in writing by such parties. In
the case of parties indemnified pursuant to the subsection (b) of this Section,
such separate firm shall be designated in writing by the Corporation. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgement for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement of judgment.
-20-
(d) Contribution. If the indemnification provided for in this Section is
unavailable to an indemnified party under subsection (a) or (b) hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party on the one hand
and of the indemnified party on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statements or omissions. The parties agree that it
would not be just and equitable if contribution pursuant to this Section were
determined by pro rata allocation or by any other method of allocation that does
not take account of the considerations referred to in this subsection. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to herein shall be deemed to include,
subject to the limitations set forth above, any reasonable 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 6(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the
amount of any damages that such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter or agent shall be required to contribute any amount
in excess of the amount by which the total price at which the Registrable
Securities placed or underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such underwriter
or agent has otherwise been required to pay by reason of such 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 holders' and any underwriters'
or agent's obligations in this Section 6(d) to contribute shall be several in
proportion to the principal amount of Registrable Securities registered,
underwritten or placed, as the case may be, by them and not joint.
(e) The obligations of the Corporation and the Issuer Trust under this
Section 6 shall be in addition to any liability which the Corporation and the
Issuer Trust may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director and partner of each holder, agent and
underwriter and each person, if any, who
-21-
controls any holder, agent or underwriter within the meaning of the Securities
Act; and the obligations of the holders and any agents or underwriters
contemplated by this Section 6 shall be in addition to any liability which the
respective holder, agent or underwriter may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the
Corporation (including any person who, with his consent, is named in any
registration statement as about to become a director of the Corporation), to
each Trustee under the Applicable Trust Agreement and to each person, if any,
who controls the Corporation and the Issuer Trust within the meaning of the
Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities covered
by the Shelf Registration are to be sold pursuant to an underwritten offering,
the managing underwriter or underwriters thereof shall be designated by the
holders of at least a majority in aggregate liquidation amount of the
Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are acceptable to the
Corporation.
(b) Participation by Holders. Each holder of Registrable Securities hereby
agrees with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(c) Consolidated Earnings Statements. In the event of an underwritten
offering, the Corporation agrees to make generally available to its
securityholders as soon as practicable, but in any event not later than eighteen
months after the effective date of the applicable registration statement (as
defined in Rule 158(c) under the Act), a consolidated earnings statement of the
Corporation complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Corporation, Rule 158 under the Act).
8. Rule 144.
The Corporation covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Corporation
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including, but not limited to, the reports under Section
13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144
adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any holder of Registrable Securities may reasonably
-22-
request, all to the extent required from time to time to make Rule 144 available
to such holder for the sale of Registrable Securities without registration under
the Securities Act within the limitations of the exemption provided by Rule 144
under the Securities Act, as such Rule may be amended from time to time, or any
similar or successor rule or regulation hereafter adopted by the Commission.
Upon the reasonable request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Corporation shall
deliver to such holder a written statement as to whether it has complied with
such requirements. Notwithstanding the foregoing, nothing in this Section 8
shall be deemed to require the Corporation to register any of its securities
under the Exchange Act.
9. Miscellaneous.
(a) No Inconsistent Agreements. Each of the Corporation and the Issuer
Trust represents, warrants, covenants and agrees that it has not granted, and
shall not grant, registration rights with respect to Registrable Securities or
any other securities that would be inconsistent with the terms contained in this
Agreement.
(b) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Corporation, to
it at Bankers Trust New York Corporation, One Bankers Trust Plaza, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Office of the Secretary, if to the
Issuer Trust, to it at Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Administration and if to a holder, to the address of such holder set forth in
the security register or other records of the Corporation or the Issuer Trust,
as the case may be, or to such other address as any party may have furnished to
the others in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
(c) Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by
the respective successors and assigns of the parties hereto. If any transferee
of any holder of Registrable Securities shall become a holder of Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be deemed a party hereto for all purposes and such Registrable
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities such transferee shall be entitled
to receive the benefits of and be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement. If the
Corporation shall so request,
-23-
any such successor, assign or transferee shall agree in writing to acquire and
hold the Registrable Securities subject to all of the terms hereof.
(d) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the Purchase Agreement and
the transfer and registration of Registrable Securities by such holder and the
consummation of an Exchange Offer.
(e) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(f) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
(g) Entire Agreement; Amendments. This Agreement and the other writings
referred to herein (including the Applicable Indenture, Applicable Trust
Agreement and Applicable Guarantee and the form of Securities) or delivered
pursuant hereto which form a part hereof contain the entire understanding of the
parties with respect to its subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. This Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a written instrument duly executed by
the Corporation and the holders of at least 66-2/3 percent in aggregate
liquidation amount of the Registrable Securities at the time outstanding. Each
holder of any Registrable Securities at the time or thereafter outstanding shall
be bound by any amendment or waiver effected pursuant to this Section 9(g),
whether or not any notice, writing or marking indicating such amendment or
waiver appears on such Registrable Securities or is delivered to such holder.
(h) Inspection. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities at the offices of the
Corporation at the address thereof set forth in Section 9(b) above or at the
office of the Trustee under the Applicable Indenture.
-24-
(i) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
-25-
Agreed to and accepted as of the date referred to above.
BANKERS TRUST NEW YORK CORPORATION
By:_____________________________
Name:
Title:
BT CAPITAL TRUST A
By: Bankers Trust New York Corporation
on behalf of BT Capital Trust A
By:_____________________________
Name:
Title: Administrative Trustee
XXXXXX BROTHERS INC.
By:_____________________________
Name:
Title:
-26-
