EXHIBIT 4(f)
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of December 26, 1996,
among Zions Bancorporation, a Utah corporation (the "Corporation"), Zions First
National Bank (the "Bank"), Zions Institutional Capital Trust A, a Delaware
statutory business trust (the "Trust"), and Xxxxxxx, Xxxxx & Co., Citicorp
Securities, Inc. and Xxxx Xxxxxx Xxxxxxxx Inc., as the initial purchasers (the
"Initial Purchasers") of the 8.536% Capital Securities, Series A of the Trust,
which are guaranteed by the Bank and the Corporation.
1.CERTAIN DEFINITIONS.
For purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective meanings:
(a) "ADMINISTRATIVE TRUSTEES" shall mean the Administrative Trustees
named under the Trust Agreement.
(b) "BANK" shall have the meaning assigned thereto in the first
paragraph of this Exchange and Registration Rights Agreement.
(c) "CAPITAL SECURITIES" shall mean the 8.536% Capital Securities,
Liquidation Amount $1,000 per Capital Security, to be issued under the
Trust Agreement and sold to the Initial Purchasers, and securities issued
in exchange therefor, other than Debentures, or in lieu thereof pursuant to
the Trust Agreement.
(d) "CLOSING DATE" shall mean the date on which the Capital
Securities are initially issued.
(e) "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.
(f) "CORPORATION" shall have the meaning assigned thereto in the
first paragraph of this Exchange and Registration Rights Agreement.
(g) "DEBENTURES" shall mean the 8.536% Junior Subordinated Deferrable
Interest Debentures, Series A of the Bank in the aggregate principal amount
of $206,186,000 to be issued under the Indenture, and securities issued in
exchange therefor or in lieu thereof pursuant to the Indenture.
(h) "DEBENTURE TRUSTEE" shall mean the trustee under the Indenture.
(i) "EFFECTIVE TIME", in the case of (i) an Exchange Offer, shall
mean the time and date as of which the Commission declares the Exchange
Offer Registration Statement effective or as of which the Exchange Offer
Registration Statement otherwise becomes effective and (ii) a Shelf
Registration, shall mean the time and date as of which the
Commission declares the Shelf Registration effective or as of which the Shelf
Registration otherwise becomes effective.
(j) "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.
(k) "EXCHANGE OFFER" shall have the meaning assigned thereto in
Section 2(a) hereof.
(l) "EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning
assigned thereto in Section 2(a) hereof.
(m) "EXCHANGE REGISTRATION" shall have the meaning assigned thereto
in Section 3(f) hereof.
(n) "EXCHANGE SECURITIES" shall have the meaning assigned thereto in
Section 2(a) hereof.
(o) "GUARANTEE" shall mean the guarantee of the Capital Securities by
the Bank under the Guarantee Agreement, dated as of December 26, 1996,
among the Corporation, the Bank and Chemical Trust Company of California,
as Guarantee Trustee.
(p) "GUARANTEE TRUSTEE" shall mean the person so designated pursuant
to the Guarantee.
(q) The term "HOLDER" shall mean each of the Initial Purchasers for
so long as they own any Registrable Securities, and such of their
respective successors and assigns who acquire Registrable Securities,
directly or indirectly, from such persons or from any successor or assign
of such persons, in each case for so long as such persons own any
Registrable Securities.
(r) "INDENTURE" shall mean the Junior Subordinated Indenture, dated
as of December 26, 1996, among the Corporation, the Bank and Chemical Trust
Company of California, as Trustee, as the same shall be amended from time
to time.
(s) "INITIAL PURCHASERS" shall have the meaning assigned thereto in
the first paragraph of this Exchange and Registration Rights Agreement.
(t) "LIQUIDATION AMOUNT" shall mean the stated amount of $1,000 per
Trust Security.
(u) "PARENT GUARANTEE" shall mean the guarantee by the Corporation of
the obligations of the Bank under the Debentures, the Indenture and the
Guarantee.
(v) The term "PERSON" shall mean a corporation, association,
partnership, organization, business, individual, government or political
subdivision thereof or governmental agency.
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(w) "PROPERTY TRUSTEE" shall mean the person so designated pursuant
to the Trust Agreement.
(x) "REGISTRABLE SECURITIES" shall mean the Capital Securities and
the Parent Guarantee; PROVIDED, HOWEVER, that such Securities shall cease
to be Registrable Securities when (i) in the circumstances contemplated by
Section 2(a) hereof, such Securities have been exchanged for Exchange
Securities in an Exchange Offer as contemplated in Section 2(a) (PROVIDED
that any Exchange Securities received by a broker-dealer in an Exchange
Offer in exchange for Registrable Securities that were not acquired by the
broker-dealer directly from the Corporation or the Trust will also be
Registerable Securities through and including the earlier of the 180th day
after the Exchange Offer is completed or such time as such broker-dealer no
longer owns such Exchange Securities); (ii) in the circumstances
contemplated by Section 2(b) hereof, 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 under circumstances in
which any legend borne by such Securities relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is removed
or such Securities are eligible to be sold pursuant to paragraph (k) of
Rule 144; or (iv) such Securities shall cease to be outstanding.
(y) "REGISTRATION DEFAULT" shall have the meaning assigned thereto in
Section 2(c) hereof.
(z) "REGISTRATION DEFAULT INTEREST" shall have the meaning assigned
thereto in Section 2(c) hereof.
(aa) "REGISTRATION DEFAULT DISTRIBUTIONS" shall have the meaning
assigned thereto in Section 2(c).
(ab) "REGISTRATION EXPENSES" shall have the meaning assigned thereto
in Section 4 hereof.
(ac) "RESALE PERIOD" shall have the meaning assigned thereto in
Section 2(a) hereof.
(ad) "RESTRICTED HOLDER" shall mean (i) a holder that is an affiliate
of the Corporation, the Bank or the Trust within the meaning of Rule 405,
(ii) a holder who 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.
(ae) "RULE 144," "RULE 405" AND "RULE 415" shall mean, in each case,
such rule promulgated under the Securities Act.
(af) "SECURITIES" shall mean, collectively, the Capital Securities,
the Guarantee, the Debentures and the Parent Guarantee.
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(ag) "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.
(ah) "SHELF REGISTRATION" shall have the meaning assigned thereto in
Section 2(b) hereof.
(ai) "TRUST" shall have the meaning assigned thereto in the first
paragraph of this Exchange and Registration Rights Agreement.
(aj) "TRUST AGREEMENT" shall mean the Amended and Restated Trust
Agreement, dated as of December 26, 1996, among the Bank, as Depositor,
Chemical Trust Company of California, as Property Trustee, Chase Manhattan
Bank Delaware, as Delaware Trustee, the Administrative Trustees named
therein and the holders from time to time of beneficial interests in the
Trust.
(ak) "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.
(al) "TRUST SECURITIES" shall mean collectively the Capital
Securities, and the Common Securities to be issued under the Trust
Agreement to the Bank.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision. Unless the context otherwise requires, any reference to a
statute, rule or regulation refers to the same (including any successor statute,
rule or regulation thereto) as it may be amended from time to time.
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) Except as set forth in Section 2(b) below, the Corporation and the
Trust agree to use their reasonable best efforts to file under the Securities
Act within 150 days after the Closing Date, a registration statement (the
"Exchange Offer Registration Statement") relating to an offer to exchange (the
"Exchange Offer") (i) any and all of the Capital Securities for a like aggregate
amount of capital securities issued by the Trust and guaranteed by the Bank and
further guaranteed by the Corporation, which capital securities and guarantee
are identical to the Capital Securities and the Guarantee, respectively except
that the Capital Securities have been registered pursuant to an effective
registration statement under the Securities Act, do not contain restrictions on
transfers and do not contain provisions for the additional interest and
additional distributions contemplated in Section 2(c) below and (ii) the Parent
Guarantee for a like guarantee by the Corporation of the obligations of the Bank
under the Debentures and the Guarantee, which guarantee is identical to the
Parent Guarantee (and is entitled to the benefits of trust indentures which have
been qualified under the Trust Indenture Act), except that it has been
registered pursuant to an effective registration statement under the Securities
Act and does not contain restrictions on transfers (such new Capital Securities
and Parent Guarantee the hereinafter called
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"Exchange Securities"). The Corporation and the Trust agree to use their
reasonable best efforts to cause the Exchange Offer Registration Statement to
become effective under the Securities Act within 180 days after the Closing
Date. The Exchange Offer will be registered under the Securities Act on the
appropriate form and will comply with all applicable tender offer rules and
regulations under the Exchange Act. The Corporation and the Trust further agree
to use their reasonable best efforts to commence and complete the Exchange Offer
promptly after the Exchange Offer Registration Statement has become effective,
hold the Exchange Offer open for not less than 30 days (or longer if required by
applicable law) after the date notice of the Exchange Offer has been mailed to
holders of the Capital Securities and the Debentures and Exchange Securities for
all Securities that have been properly tendered and not withdrawn on or prior to
the expiration of the Exchange Offer. In connection with any Parent Guarantee
properly tendered and not withdrawn pursuant to an Exchange Offer, the Bank
agrees, pursuant to the provisions of Section 3.5(c) of the Indenture to
exchange the certificate representing the related Debentures for a certificate
not bearing legends related to restrictions on transfers. 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 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 and the Trust having
exchanged the Exchange Securities for all outstanding Capital Securities and
Parent Guarantees relating to all outstanding Debentures pursuant to the
Exchange Offer and (ii) the Corporation and the Trust having exchanged, pursuant
to the Exchange Offer, Exchange Securities for all Capital Securities and Parent
Guarantees that have been properly tendered and not withdrawn before the
expiration of the Exchange Offer, which shall be on a date that is not less than
30 days following the commencement of the Exchange Offer. The Corporation and
the Trust, agree (x) to include in the registration statement a prospectus for
use in connection with any resales of Exchange Securities by a holder that is a
broker-dealer, other than resales of Exchange Securities received by a broker-
dealer pursuant to the Exchange Offer in exchange for Registrable Securities
acquired by such broker-dealer directly from the Trust, and (y) to keep the
Exchange Offer Registration Statement effective for a period (the "Resale
Period") beginning when Exchange Securities are first issued in the Exchange
Offer and ending upon the earlier of (i) either (a) the expiration of the 180th
day after the Exchange Offer has been completed or (b) in the event the
Corporation and the Trust have at any time notified any broker-dealers pursuant
to Section 3(f)(iii) hereof, the day beyond the 180th day after the Exchange
Offer has been completed that reflects an additional period of days equal to the
number of days during all of the periods from and including the dates the
Corporation and the Trust give notice pursuant to Section 3(f)(iii)(F) hereof to
and including the date when broker-dealers receive an amended or supplemented
prospectus necessary to permit resales of Exchange Securities or to and
including the date on which the Corporation and the Trust give notice that the
resale of Exchange Securities under the Exchange Offer Registration Statement
may resume or (ii) such time as such broker-dealers no longer own any
Registrable Securities. With respect to such registration statement, each
broker-dealer that holds Exchange Securities received in an Exchange Offer in
exchange for Registerable Securities not acquired by it directly from the Trust
shall have the benefit of the rights of indemnification and contribution set
forth in Section 6 hereof.
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(b) If (i) prior to the consummation of the Exchange Offer existing
applicable law or Commission interpretations are changed such that the capital
securities, related guarantee of the Bank and related parent guarantee of the
Corporation to be received by holders other than Restricted Holders in the
Exchange Offer for Registrable Securities are not or would not be, upon receipt,
transferable by each such holder without restriction under the Securities Act,
(ii) the Exchange Offer Registration Statement is not declared effective within
180 days of the Closing Date, (iii) the Corporation or the Bank has received an
opinion of counsel, rendered by a law firm having a recognized national tax
practice, to the effect that, as a result of the consummation of the Exchange
Offer, there is more than an insubstantial risk that (a) the Trust is, or will
be, subject to United States federal income tax with respect to income received
or accrued on the Debentures, (b) interest payable by the Bank on the Debentures
is not, or will not be, deductible by the Corporation, in whole or in part, for
United States federal income tax purposes, or (c) the Trust is, or will be,
subject to more than a DE MINIMIS amount of other taxes, duties or other
governmental charges, then in addition to or in lieu of conducting the Exchange
Offer contemplated by Section 2(a), the Corporation and the Trust shall file
under the Securities Act as promptly as practicable 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 or any similar rule that may be adopted by the Commission (the "Shelf
Registration"). The Administrative Trustees will promptly deliver to the holders
of the Capital Securities, the Property Trustee and the Delaware Trustee, or the
Bank will promptly deliver to the holders of the Debentures, if not the Trust,
written notice that the Corporation and the Trust will be complying with the
provisions of this Section 2(b). The Corporation and the Trust agree to use
their reasonable best efforts to cause the Shelf Registration to become or be
declared effective and to keep such Shelf Registration continuously effective
for a period ending on the earlier of (i) either (x) the third anniversary of
the Closing Date or (y) in the event the Corporation and the Trust have at any
time suspended the use of the prospectus contained in the Shelf Registration
pursuant to Section 3(c) hereof, the date beyond the third anniversary of the
Closing Date that reflects an additional period of days equal to the number of
days during all of the periods from and including the dates the Corporation and
the Trust give notice of such suspension pursuant to Section 3(c) to and
including the date when holders of Registrable Securities receive an amended or
supplemented prospectus necessary to permit resales as Registrable Securities
under the Registration Shelf or to and including the date on which the
Corporation and the Trust give notice that the resale to Registrable Securities
may resume or (ii) such time as there are no longer any Registrable Securities
outstanding. The Corporation and the 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 Trust for such Shelf Registration or by the Securities Act
or rules and regulations thereunder for shelf registration, and the Corporation
and the Trust agree to furnish to the holders of the Registrable Securities
copies of any such supplement or amendment prior to its being used or promptly
following its filing with the Commission.
(c) If the Corporation, the Bank or the Trust fail to comply with this
Exchange and Registration Rights Agreement or if the Exchange Offer Registration
Statement or the Shelf Registration fails to become effective (any such event a
"Registration Default"), then, as liquidated damages, registration default
interest (the "Registration Default Interest") shall become payable in respect
of the Debentures, and corresponding registration default Distributions (the
"Registration Default Distributions"), shall become payable on the Trust
Securities as follows:
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(i) if (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is filed with the Commission on or prior to
the 150th day after the Closing Date or (B) notwithstanding that the
Corporation and the Trust have consummated or will consummate an Exchange
Offer, the Corporation and the Trust are required to file a Shelf
Registration and such Shelf Registration is not filed on or prior to the
date required by this Exchange and Registration Rights Agreement, then
commencing on the day after either such required filing date, Registration
Default Interest shall accrue on the principal amount of the Debentures,
and Registration Default Distributions shall accumulate on the Liquidation
Amount of the Trust Securities, each at a rate of 0.25% per annum; or
(ii) if (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration is declared effective by the Commission on or prior to
the 30th day after the applicable required filing date or (B)
notwithstanding that the Corporation and the Trust have consummated or will
consummate an Exchange Offer, the Corporation and the Issuer are required
to file a Shelf Registration and such Shelf Registration is not declared
effective by the Commission on or prior to the 30th day after the date such
Shelf Registration was required to be filed, then commencing on the 31st
day after the applicable required filing date, Registration Default
Interest shall accrue on the principal amount of the Debentures, and
Registration Default Distributions shall accumulate on the Liquidation
Amount of the Trust Securities, each at a rate of 0.25% per annum; or
(iii) if (A) the Trust and the Corporation have not exchanged Exchange
Securities for all Capital Securities and Parent Guarantees validly
tendered, in accordance with the terms of the Exchange Offer on, or prior
to the 30th day after the date on which the Exchange Offer Registration
Statement was declared effective or (B) if applicable, the Shelf
Registration has been declared effective and such Shelf Registration ceases
to be effective at any time prior to the third anniversary of the Closing
Date (other than after such time as there are no longer any Registrable
Securities), then Registration Default Interest shall accrue on the
principal amount of Debentures, and Registration Default Distributions
shall accumulate on the Liquidation Amount of the Trust Securities, each at
a rate of 0.25% per annum commencing on (x) the 31st day after such
effective date, in the case of (A) above, or (y) the day such Shelf
Registration ceases to be effective in the case of (B) above;
PROVIDED, HOWEVER, that neither the Registration Default Interest rate on the
Debentures, nor the Registration Default Distributions rate on the Liquidation
Amount of the Trust Securities, shall exceed in the aggregate 0.25% per annum;
PROVIDED, FURTHER, HOWEVER, that (1) upon the filing of the Exchange Offer
Registration Statement or a Shelf Registration (in the case of clause (i)
above), (2) upon the effectiveness of the Exchange Offer Registration Statement
or a Shelf Registration (in the case of clause (ii) above), (3) upon the
exchange of Exchange Securities for all Capital Securities and Parent Guarantees
tendered (in the case of clause (iii) (A) above), or upon the effectiveness of
the Shelf Registration which had ceased to remain effective (in the case of
clause (iii) (B) above) or (4) upon the expiration of three years after the
Closing Date, Registration Default Interest on the Debentures, and Registration
Default Distributions on the Liquidation Amount of the Trust Securities as a
result of such clause (or the relevant subclause thereof), as the case may be,
shall cease to accrue.
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(d) Any reference herein to a registration statement shall be deemed to
include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein to any post-effective amendment to a
registration statement shall be deemed to include any document incorporated
therein by reference as of a time after such Effective Time.
3. REGISTRATION PROCEDURES.
The following provisions shall apply to registration statements filed
pursuant to Section 2:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Corporation, the Bank and the Trust shall
qualify the Indenture, the Trust Agreement and the Guarantee under the Trust
Indenture Act of 1939.
(b) In connection with the Corporation's and the Trust's obligations with
respect to the Shelf Registration, if applicable, the Corporation and the Trust
shall, as soon as reasonably practicable (or as otherwise specified herein):
(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
Trust and the Corporation and which shall permit the disposition of the
Registrable Securities in accordance with the intended method or methods
thereof, as specified in writing by the holders of the Registrable
Securities, and use their reasonable best efforts to cause such
registration statement to become effective as soon as practicable
thereafter;
(ii) 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, and furnish to the holders of the Registrable Securities copies
of any such supplement or amendment simultaneously with or prior to its
being used or filed with the Commission;
(iii) comply, as to all matters within the Corporation's and the
Trust's control, with the provisions of the Securities Act with respect to
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 provided for in such registration
statement;
(iv) provide to any of (A) the holders of the Registrable Securities
to be included in such registration statement, (B) the underwriters (which
term, for purposes of this Exchange and Registration Rights 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, (D) counsel for such underwriters or
agent and (E) not more than one counsel for all the holders of such
Registrable Securities who so request of the Corporation in writing the
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;
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(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(b)(iv) who shall certify to the Corporation and
the 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 judgment of the respective counsel referred to in such
Section, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; PROVIDED, HOWEVER, that each such party
shall be required to maintain in confidence and not to disclose to any
other person any information or records reasonably designated by the
Corporation in writing 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), or (B) such person
shall be required so to disclose such information pursuant to a subpoena or
order of any court or other governmental agency or body having jurisdiction
over the matter (subject to 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 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
statement 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 registration 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 or the Trust contemplated by Section 3(b)(xv) or Section 5
cease to be true and correct in all material respects, (E) of the receipt
by the Corporation or the Trust 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
does not conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an 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;
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(vii) use their reasonable best 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 requested by any managing underwriter or underwriters, any
placement or sales agent or any holder 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 specifies should be included therein relating to the terms of
the sale of such Registrable Securities, including information with respect
to the liquidation or other amount of Registrable Securities being sold by
such 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;
(ix) furnish to each holder of Registrable Securities, each placement
or sales agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(b)(iv) an executed copy (or, in
the case of a holder of Registrable Securities, a conformed copy) of such
registration statement, each such amendment and supplement thereto (in each
case including all exhibits thereto (in the case of a holder of Registrable
Securities, upon request) 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), in
conformity in all material respects with the applicable requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder, 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 the Corporation
and the Trust hereby consent 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 person by the Corporation or the
Trust, 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 their reasonable best 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 United States 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
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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 and (C)
take any and all other actions as may be reasonably requested to enable
each such holder, agent, if any, and underwriter, if any, to consummate the
disposition in such jurisdictions of such Registrable Securities; PROVIDED,
HOWEVER, that neither the Corporation nor the Trust shall be required for
any such purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify but for
the requirements of this Section 3(b)(x), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to its certificate
of incorporation or by-laws or any agreement between it and its
stockholders;
(xi) use their reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal, state
or local, which may be required to be obtained by the Corporation or the
Trust 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 shall be printed, lithographed or engraved, or produced
by any combination of such methods, and which shall not bear any
restrictive legends, except as may be required by applicable law; 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 at least two business days prior to any sale of
the Registrable Securities;
(xiii) provide a CUSIP number for all applicable Registrable
Securities, not later than the Effective Time;
(xiv) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or
similar agreements, as appropriate, including customary provisions relating
to indemnification and contribution, and take such other actions in
connection therewith as any holders of Registrable Securities aggregating
at least 25% in aggregate principal amount of the Registrable Securities at
the time outstanding shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities; PROVIDED, that
the Corporation and the Trust 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)(b)(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 in form, substance and scope as are
customarily made in connection with an
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offering of debt securities pursuant to any appropriate agreement or to a
registration statement filed on the form applicable to the Shelf
Registration; (B) obtain an opinion of counsel to the Corporation and an
opinion of counsel to the Trust in each case in customary form and covering
such matters, of the type customarily covered by such an opinion, as the
managing underwriters, if any, or as any holders of at least 25% in
aggregate principal amount of the Registrable Securities at the time
outstanding may reasonably request, 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) (it being agreed
that the matters to be covered by such opinion shall include the due
incorporation or creation, as applicable, and good standing of the
Corporation and its subsidiaries or the Trust, as the case may be; the
qualification of the Corporation and its subsidiaries to transact business
as foreign corporations; the due authorization, execution and delivery of
the relevant agreement of the type referred to in Section 3(b)(xiv) hereof,
the due authorization, execution, authentication and issuance, and the
validity and enforceability, of the Capital Securities, the Guarantee and
the Debentures, as applicable; the absence of material legal or
governmental proceedings involving the Corporation or the Trust, as
applicable; the absence of a breach by the Corporation or any of its
subsidiaries of, or a default under, material agreements binding upon the
Corporation or any subsidiary of the Corporation; the absence of
governmental approvals required to be obtained in connection with the Shelf
Registration, the offering and sale of the Registrable Securities, this
Exchange and Registration Rights Agreement or any agreement of the type
referred to in Section 3(b)(xiv) hereof, except such approvals as may be
required under state securities or blue sky laws; the compliance as to form
of such registration statement and any documents incorporated by reference
therein and of the Indenture with the requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the Commission
thereunder, respectively; and, as of the date of the opinion and of the
registration statement or most recent post-effective amendment thereto, as
the case may be, the absence from such registration statement and the
prospectus included therein, as then amended or supplemented, and from the
documents incorporated by reference therein (in each case other than the
financial statements and other financial information contained therein) of
an untrue statement of a material fact or the omission to state therein a
material fact necessary to make the statements therein not misleading (in
the case of such documents, in the light of the circumstances existing at
the time that such documents were filed with the Commission under the
Exchange Act)); (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 or 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 to such registration
statement which includes audited financial statements 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
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underwriting agreement relating thereto), such letter or letters to be in
customary form and covering such matters of the type customarily covered by
letters of such type; (D) deliver such documents and certificates,
including officers' or trustees' certificates, as applicable, as may be
reasonably requested by any holders of at least 25% in aggregate principal
amount of the Registrable Securities at the time outstanding 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 agreement
entered into by the Corporation or the Trust, as applicable; 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 Trust to amend or waive any
provision of this Exchange and Registration Rights Agreement pursuant to
Section 9(h) 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;
(xvii) in the event that 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 Conduct 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 by (A) if such Rules shall so require, permitting a
"qualified independent underwriter" (as defined in such Schedule (or any
successor thereto)) to participate in the preparation of the registration
statement relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of 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 Conduct of
the NASD; and
(xviii) make generally available to its security holders as soon as
practicable but in any event not later than eighteen months after the
effective date of such registration statement, an earning statement of the
Corporation and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Corporation, Rule 158
thereunder).
(c) In the event that the Corporation and the Trust would be required,
pursuant to Section 3(b)(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 Trust shall
promptly prepare and furnish to each such holder, to each placement or sales
agent, if any, and to each such underwriter, if any, a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to purchasers of Registrable Securities,
-13-
such prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and 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 Trust,
pursuant to Section 3(b)(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 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 Trust that the disposition of Registrable
Securities pursuant to the Shelf Registration may continue.
(d) The Corporation and the Trust may require each holder of Registrable
Securities as to which any registration pursuant to Section 2(b) is being
effected to furnish 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 Trust may from time to time reasonably request in
writing, but only to the extent that such information is required in order to
comply with the Securities Act. Each such holder agrees to notify the
Corporation and the Trust as promptly as practicable of any inaccuracy or change
in information previously furnished by such holder to the Corporation and the
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 disposition of such Registrable Securities or omits to state any
material fact regarding such holder or such holder's intended method of
disposition 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
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 disposition 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.
(e) The Corporation, the Bank and the Trust will not, and will not permit
any of their "affiliates" (as defined in Rule 144) to, resell any of the Capital
Securities or Debentures that have been reacquired by any of them except
pursuant to an effective registration statement under the Securities Act.
(f) In connection with the Corporation's and the Trust's obligations with
respect to the registration of Exchange Securities as contemplated by Section
2(a) (the "Exchange Registration"), if applicable, the Corporation and the Trust
shall, as soon as reasonably practicable (or as otherwise specified):
(i) prepare and file with the Commission such amendments and
supplements to the Exchange Offer Registration Statement and the prospectus
included therein as may be
-14-
necessary to effect and maintain the effectiveness thereof for the periods
and purposes contemplated in Section 2(a) hereof and as may be required by
the applicable rules and regulations of the Commission and the instructions
applicable to the form of the Exchange Offer Registration Statement, and
promptly provide each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the requirements
of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, as such broker-dealer reasonably
may request prior to the expiration of the Resale Period, for use in
connection with resales of Exchange Securities;
(ii) promptly notify each broker-dealer that has requested or received
copies of the prospectus included in the Exchange Offer Registration
Statement, and confirm such advice in writing, (A) when the Exchange Offer
Registration Statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been filed, and,
with respect to the Exchange Offer 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 the Exchange Offer Registration
Statement or prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Exchange Offer 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 and/or the Trust contemplated by Section
5 cease to be true and correct in all material respects, (E) of the receipt
by the Corporation or the Trust of any notification with respect to the
suspension of the qualification of the Exchange Securities for sale in any
United States jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) at any time during the Resale Period
when a prospectus is required to be delivered under the Securities Act,
that the Exchange Offer Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits 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;
(iii) in the event that the Corporation and the Trust would be
required, pursuant to Section 3(f)(ii)(F) above, to notify any broker-
dealers holding Exchange Securities, promptly prepare and furnish to each
such holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder and 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.
(iv) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of the Exchange Offer Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
-15-
(v) use its reasonable best efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of such
jurisdictions as are contemplated by Section 2(a) no later than the
commencement of the Exchange Offer, (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
until the expiration of the Resale Period and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each broker-
dealer holding Exchange Securities to consummate the disposition thereof in
such jurisdictions; PROVIDED, HOWEVER, that neither the Corporation nor the
Trust shall be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required
to qualify but for the requirements of this Section 3(f)(v), (2) consent to
general service of process in any such jurisdiction or (3) make any changes
to its certificate of incorporation or by-laws or any agreement between it
and its stockholders;
(vi) use its reasonable best efforts to obtain the consent or
approval of each United States governmental agency or authority, whether
federal, state or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of Exchange
Securities by broker-dealers during the Resale Period;
(vii) provide a CUSIP number for all applicable Exchange Securities,
not later than the applicable Effective Time;
(viii) comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders as soon as
practicable but no later than eighteen months after the effective date of
such registration statement, an earning statement of the Corporation and
its subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Corporation, Rule 158 thereunder).
4. REGISTRATION EXPENSES.
The Corporation agrees to bear and to pay or cause to be paid promptly
upon request being made therefor all expenses incident to the Corporation's and
the Trust's performance of or compliance with this Exchange and Registration
Rights 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 the Securities or Exchange Securities for offering and sale
under the State securities and blue sky laws referred to in Section 3(b)(x) and
Section 3(f)(v) hereof, including reasonable fees and disbursements of counsel
for the placement or sales agent or underwriters 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, the certificates
representing the Securities and all other documents relating hereto, (d)
messenger and delivery expenses, (e) fees and expenses of the Trustee under the
Indenture, the Property Trustee and Debenture Trustee under the Trust Agreement
and the Guarantee Trustee under the Guarantee and of any escrow agent or
custodian, (f) internal expenses (including all salaries and expenses of the
Corporation's officers and employees performing legal or accounting duties), (g)
fees, disbursements and expenses of counsel and independent certified public
accountants of the Corporation (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance and
-16-
compliance), (h) fees, disbursements and expenses of any "qualified independent
underwriter" engaged pursuant to Section 3(b)(xvii) hereof, and (i) 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 principal amount of the Registrable
Securities being registered, and fees, expenses and disbursements of any other
persons, including special experts, retained by the Corporation in connection
with such registration (collectively, the "Registration Expenses"). To the
extent that any Registration Expenses are incurred, assumed or paid by any
holder of Registrable Securities or any placement or sales agent therefor or
underwriter thereof, the Corporation shall reimburse such person for the full
amount of the Registration Expenses so incurred, assumed or paid promptly after
receipt of a request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable 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.
5. REPRESENTATIONS AND WARRANTIES.
Each of the Corporation and the Trust represents and warrants to, and
agrees with, each 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) or Section 3(f) 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
applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder 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; and at all times subsequent to the Effective Time
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(b)(vi)(F) or
Section 3(f)(ii)(F) hereof until (ii) such time as the Corporation
furnishes an amended or supplemented prospectus pursuant to Section 3(c) or
Section 3(f)(iii) hereof, each such registration statement, and each
prospectus (including any summary prospectus) contained therein or
furnished pursuant to Section 3(b) or Section 3(f) hereof, as then amended
or supplemented, will conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder 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 then existing; 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 and the Trust by a
holder of Registrable Securities expressly for use therein.
-17-
(b) Any documents 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, will conform or
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and none of such documents will
contain or contained an untrue statement of a material fact or will omit or
omitted 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 and the Trust by a holder of Registrable
Securities expressly for use therein.
(c) The compliance by the Corporation and the Trust with all of the
provisions of this Exchange and Registration Rights Agreement and the
consummation of the transactions herein contemplated will not conflict with
or result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Corporation or any subsidiary of
the Corporation or the Trust, as applicable, is a party or by which the
Corporation or any subsidiary of the Corporation or the Trust, as
applicable, is bound, or to which any of the property or assets of the
Corporation or any subsidiary of the Corporation, or the Trust, as
applicable, is subject, nor will such action result in any violation of the
provisions of the certificate of incorporation, as amended, or the by-laws
of the Corporation, or the Trust Agreement of the Trust, or any statute or
any order, rule or regulation of any United States court or governmental
agency or body having jurisdiction over the Corporation or any subsidiary
of the Corporation, or the Trust, as applicable, or any of their respective
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the consummation by the Corporation or the Trust, of the
transactions contemplated by this Exchange and Registration Rights
Agreement, except the registration under the Securities Act contemplated
hereby, qualification of the Indenture under the Trust Indenture Act and
such consents, approvals, authorizations, registrations or qualifications
as may be required under State securities or blue sky laws.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Corporation or the Trust, as
applicable.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE CORPORATION AND THE TRUST. Upon the registration
of the Registrable Securities pursuant to Section 2(a) or 2(b) hereof, and in
consideration of the agreements of the Initial Purchasers contained herein, and
as an inducement to the Initial Purchasers to purchase the Capital Securities,
each of the Corporation and the Trust shall, and it hereby agrees 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 participates
as a placement or sales agent or as an underwriter in any offering or sale of
such Registrable Securities and each person who controls any such person against
any losses, claims, damages or liabilities, joint or several, to which such
holder, agent or underwriter may become subject under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of
-18-
or are based upon an 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
Trust to any such holder, agent or underwriter, or any amendment or supplement
thereto, or arise out of or are based upon 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 each of the Corporation and the Trust
shall, and it hereby agrees jointly and severally to, reimburse each such
holder, such agent and such underwriter for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Corporation and the Trust shall not be liable to any such person in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, or preliminary, final or
summary prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Corporation and the Trust
by holders of Registrable Securities expressly for use therein. This indemnity
agreement will be in addition to any liability which the Corporation or the
Trust may otherwise have.
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENTS AND UNDERWRITERS. The
Corporation and the Trust may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section
2(b) hereof and to entering into any underwriting agreement with respect
thereto, that the Corporation and the Trust shall have received an undertaking
reasonably satisfactory to it from the holder of such Registrable Securities and
from each underwriter named in any such underwriting agreement, severally and
not jointly, to indemnify and hold harmless the Corporation and the Trust, each
of the Corporation's directors, and each person who controls the Corporation or
the Trust within the meaning of either the Securities Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Corporation and the
Trust, but only with reference to written information furnished to the
Corporation and the Trust by or on behalf of such person specifically for use in
any registration statement, or any preliminary or final or summary prospectus
contained therein or any amendment or supplement thereto. This indemnity
agreement will be in addition to any liability which any such person may
otherwise have.
(c) Promptly after receipt by an indemnified party under Section 6(a)
or (b) of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party under
such subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability which it may have to any indemnified
party otherwise than under Section 6(a) or (b). In case any such action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party
-19-
or parties shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under Section 8(a) or (b) for any
legal or other expenses subsequently incurred by such indemnified party (other
than reasonable costs of investigation) in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate national counsel representing the indemnified parties who are parties
to such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) CONTRIBUTION. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified party shall be determined by reference
to, among other things, 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 such indemnifying party or by such
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if the holders or any agents or underwriters or all of them
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in this Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or liabilities
(or actions in respect thereof) referred to above shall be deemed to include
any legal or other fees or 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 which 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 shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages
which such underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
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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' obligations in this
Section 6(d) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered or underwritten, as the case may
be, by them and not joint.
(e) The obligations of the Corporation and the Trust under this Section 6
shall be in addition to any liability which the Corporation and the 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 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 and Administrative Trustee under the Trust
Agreement and to each person, if any, who controls the Corporation and the 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 principal amount of the Registrable
Securities to be included in such offering, provided that such designated
managing underwriter or underwriters is or are reasonably 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.
8. RULE 144.
The Corporation covenants to the holders of Registrable Securities that the
Corporation shall timely file the reports required to be filed by it under the
Exchange Act or the Securities Act (including 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 request, all to the
extent required from time to time to enable such holder to sell 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 request of
any holder of Registrable
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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.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. Each of the Corporation and the Trust
represents, warrants, covenants and agrees that it has not granted, and shall
not grant, registration rights with respect to Registrable Securities which
would be inconsistent with the terms contained in this Exchange and Registration
Rights Agreement.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure, and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Exchange
and Registration Rights Agreement in accordance with the terms and conditions of
this Exchange and Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.
(c) 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 Zions Bancorporation, 0000 Xxxxxxx Xxxxx Xxxx, Xxxx Xxxx Xxxx, Xxxx 00000,
Attention: Xxxx Xxxxxxx; if to the Trust, to it at Zions Institutional Capital
Trust A, 0000 Xxxxxxx Xxxxx Xxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attention:
Administrative Trustee; and if to a holder, to the address of such holder set
forth in the security register or other records of the Trust or the Corporation,
as the case may be, or to such other address as the Corporation, the Trust or
any such holder may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be effective only upon
receipt.
(d) PARTIES IN INTEREST. All the terms and provisions of this Exchange and
Registration Rights 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. In the event that any transferee of any holder of Registrable
Securities shall acquire 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 Exchange and Registration Rights 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 applicable terms and provisions of this Exchange and
Registration Rights Agreement.
(e) SURVIVAL. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights 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,
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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,
dated December 18, 1996, among the Corporation, the Bank, the Trust and Xxxxxxx,
Sachs & Co., Citicorp Securities, Inc. and Xxxx Xxxxxx Xxxxxxxx Inc., and the
transfer and registration of Registrable Securities by such holder and the
consummation of an Exchange Offer.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(g) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(h) ENTIRE AGREEMENT; AMENDMENTS. This Exchange and Registration Rights
Agreement and the other writings referred to herein (including the Trust
Agreement, the Guarantee, the Indenture and the Parent Guarantee) or delivered
pursuant hereto which form a part hereof contain the entire understanding of the
parties with respect to its subject matter. This Exchange and Registration
Rights Agreement supersedes all prior agreements and understandings between the
parties with respect to its subject matter. This Exchange and Registration
Rights Agreement may be amended and the observance of any term of this Exchange
and Registration Rights 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, the Trust and the holders of at
least a majority in aggregate principal 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(h), whether or not any notice, writing or marking
indicating such amendment or waiver appears on such Registrable Securities or is
delivered to such holder.
(i) INSPECTION. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Registration Rights 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 for proper purposes only (which shall include
any purpose related to the rights of the holders of Registrable Securities under
the Securities, the Indenture and this Exchange and Registration Rights
Agreement) at the offices of the Corporation at the address thereof set forth in
Section 9(c) above, at the office of the Property Trustee or at the office of
the Trustee under the Indenture.
(j) 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.
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Agreed to and accepted as of the date referred to above.
ZIONS INSTITUTIONAL CAPITAL TRUST A
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Administrative Trustee
ZIONS FIRST NATIONAL BANK
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
ZIONS BANCORPORATION
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
XXXXXXX, XXXXX & CO.
CITICORP SECURITIES, INC.
XXXX XXXXXX XXXXXXXX, INC.
By: Xxxxxxx, Xxxxx & Co.
By: /s/ Xxxxxxx, Sachs & Co.
------------------------------------
(Xxxxxxx, Xxxxx & Co.)
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