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Exhibit 4(h)
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 4, 1996 (this
"Agreement"), among KeyCorp, an Ohio corporation (the "Company"), KeyCorp
Institutional Capital A, a Delaware statutory business trust (the "Issuer
Trust"), and Xxxxxxx, Xxxxx & Co., CS First Boston Corporation, XxXxxxxx &
Company Securities, Inc., X.X. Xxxxxx Securities Inc. and Salomon Brothers Inc,
as the initial purchasers (the "Initial Purchasers") of the 7.826% Capital
Securities of the Issuer Trust, which are guaranteed by the Company.
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following terms
shall have the following respective meanings:
(a) "Administrators" means the Administrators for the Issuer Trust
under the Trust Agreement.
(b) "Capital Securities" means the 7.826% Capital Securities,
Liquidation Amount $1,000 per Capital Security, to be issued under the
Trust Agreement and sold by the Issuer Trust to the Initial Purchasers, and
securities issued in exchange therefor, other than Debentures, or in lieu
thereof pursuant to the Trust Agreement.
(c) "Closing Date" means the date on which the Capital Securities are
initially issued.
(d) "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.
(e) "Debentures" means the 7.826% Junior Subordinated Deferrable
Interest Debentures due December 1, 2026 of the Company to be issued under
the Indenture, and securities issued in exchange therefor or in lieu
thereof pursuant to the Indenture.
(f) "Effective Time", in the case of (i) an Exchange Offer, means 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, means the time and date as of which the Commission declares
the Shelf Registration effective or as of which the Shelf Registration
otherwise becomes effective.
(g) "Exchange Act" means the Securities Exchange Act of 1934, or any
successor thereto, as the same shall be amended from time to time.
(h) "Exchange Offer" has the meaning assigned thereto in Section 2(a).
(i) "Exchange Offer Registration Statement" has the meaning assigned
thereto in Section 2(a) hereof.
(j) "Exchange Registration" has the meaning assigned thereto in Section
3(f).
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(k) "Exchange Securities" has the meaning assigned thereto in Section
2(a).
(l) "Guarantee" means the guarantee of the Capital Securities by the
Company under the Guarantee Agreement, dated as of December 4, 1996,
between the Company and Bankers Trust Company, as Guarantee Trustee.
(m) The term "holder" means each of the Initial Purchasers for so long
as it owns any Registrable Securities, and such of its respective
successors and assigns who acquire Registrable Securities, directly or
indirectly, from such person or from any successor or assign of such
person, in each case for so long as such person owns any Registrable
Securities.
(n) "Indenture" means the Indenture, dated as of December 4, 1996,
between the Company and Bankers Trust Company, as Trustee, as the same
shall be amended from time to time.
(o) "Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
(p) The term "person" means a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
(q) "Registrable Securities" means the Securities; 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 Company 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), 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.
(r) "Registration Default" has the meaning assigned thereto in Section
2(c).
(s) "Registration Default Interest" has the meaning assigned thereto in
Section 2(c).
(t) "Registration Default Distributions" has the meaning assigned
thereto in Section 2(c).
(u) "Registration Expenses" has the meaning assigned thereto in Section
4.
(v) "Resale Period" has the meaning assigned thereto in Section 2(a).
(w) "Restricted Holder" means (i) a holder that is an affiliate of the
Company within the meaning of Rule 405, (ii) a holder who acquires Exchange
Securities outside the ordinary course of such holder's business (iii) a
holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
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Securities or (iv) a broker-dealer who receives Securities for its own
account but did not acquire the Securities as a result of market-making
activities or other trading activities.
(x) "Rule 144," "Rule 405" and "Rule 415" means, in each case, such
rule promulgated under the Securities Act.
(y) "Securities" means, collectively, the Capital Securities, the
Guarantee and the Debentures.
(z) "Securities Act" means the Securities Act of 1933.
(aa) "Shelf Registration" has the meaning assigned thereto in Section
2(b) hereof.
(ab) "Trust Agreement" means the Amended and Restated Trust Agreement,
dated as of December 4, 1996, among the Company, as Depositor, Bankers
Trust Company, as Property Trustee, and Bankers Trust (Delaware), as
Delaware Trustee.
(ac) "Trust Indenture Act" means 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.
(ad) "Trust Securities" means, collectively, the Common Securities to
be issued under the Trust Agreement to the Company and the Capital
Securities.
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
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this 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), the Company and the Issuer 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") any and all of the Securities for a like aggregate amount of capital
securities issued by the Issuer Trust and guaranteed by the Company and
underlying junior subordinated interest debentures of the Company, which capital
securities, guarantee and debentures have the same terms as the Capital
Securities, the Guarantee and the Debentures, respectively (and are entitled to
the benefits of trust indentures which have been qualified under the Trust
Indenture Act), except that they 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 (such new securities
hereinafter called "Exchange Securities"). The Company and the Issuer Trust
agree to use their reasonable best efforts to cause the Exchange Offer
Registration
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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 Company and the Issuer 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 at least 30 days (or longer if
required by applicable law) and exchange Exchange Securities for all Securities
that have been properly tendered and not withdrawn on or prior to the expiration
of the Exchange Offer. The Exchange Offer will be deemed completed only if the
Exchange Securities received by holders other than Restricted Holders in the
Exchange Offer for Securities are, upon receipt, transferable by each such
holder without restriction imposed thereon by the Securities Act or the Exchange
Act and without material restrictions imposed thereon by 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 Company and the Issuer Trust having exchanged the
Exchange Securities for all outstanding Securities pursuant to the Exchange
Offer and (ii) the Company having exchanged, pursuant to the Exchange Offer,
Exchange Securities for all Securities that have been properly 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
Company and the Issuer 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 Issuer
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 Company and the Issuer Trust have at any time notified any
broker-dealers pursuant to Section 3(f)(iii), 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 Company and the Issuer Trust give notice pursuant to Section
3(f)(iii)(F) 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 Company and the Issuer 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
Company shall have the benefit of the rights of indemnification and contribution
set forth in Section 6.
(b) If (i) because of any change in law or in applicable interpretations of
the Staff of the Securities and Exchange Commission, the Company and the Issuer
Trust are not permitted to effect the Exchange Offer, (ii) the Exchange Offer
Registration Statement is not declared effective within 180 days of the Closing
Date, (iii) the Initial Purchasers so request (but only with respect to the
Capital Securities) within 60 days after the consummation of the Exchange Offer
with respect to any Capital Securities held by them which are not freely
transferable following consummation of the Exchange Offer, or (iv) in the case
of any holder that participates in the Exchange Offer, such holder does not
receive Exchange Securities on the date of the exchange
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that may be sold without restriction under state and federal securities laws
(other than due solely to the status of such holder as an affiliate of any of
the Company or the Issuer Trust within the meaning of the Securities Act), then
in addition to or in lieu of conducting the Exchange Offer contemplated by
Section 2(a), the Company and the Issuer 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 Administrators will promptly deliver to the holders of the Capital
Securities, the Property Trustee and the Delaware Trustee, or the Company will
promptly deliver to the holders of the Debentures, if not the Issuer Trust,
written notice that the Company and the Issuer Trust will be complying with the
provisions of this Section 2(b). The Company and the Issuer 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 Company and the Issuer Trust have at
any time suspended the use of the prospectus contained in the Shelf Registration
pursuant to Section 3(c), 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 Company and the
Issuer 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 Company
and Issuer 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 Company 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 for such
Shelf Registration or by the Securities Act or rules and regulations thereunder
for shelf registration, and the Company and the Issuer 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 either the Company or the Issuer Trust fails to comply with this
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:
(i) if (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration is filed with the Commission on or prior to the 150th
day after the Closing Date or (B) notwithstanding that the Company and the
Issuer Trust have consummated or will consummate an Exchange Offer, the
Company and the Issuer Trust are required to file a Shelf Registration and
such Shelf Registration is not filed on or prior to the date required by
this 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
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(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 Company and the Issuer Trust have consummated or
will consummate an Exchange Offer, the Company 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 Issuer Trust and the Company have not exchanged
Exchange Securities for all Securities validly tendered and not withdrawn,
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) or (3) upon the
exchange of Exchange Securities for all securities validly tendered and not
withdrawn (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), 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 or accumulate.
(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.
(e) Notwithstanding any other provision of this Agreement, in the event
that Debentures are distributed to holders of Capital Securities in liquidation
of the Issuer Trust pursuant to the Trust Agreement (a) all references in this
Section 2 and Section 3 to Securities, Registrable Securities and Exchange
Securities shall not include the Capital Securities and Guarantee or Capital
Securities and Guarantee issued or to be issued in exchange therefor in the
Exchange Offer, (ii) all requirements for action to be taken by the Issuer Trust
in this Section 2 and Section 3 shall cease to apply and all requirements for
action to be taken by the Company in this Section 2 and
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Section 3 shall apply to Debentures and Debentures issued or to be issued in
exchange therefor in the Exchange Offer.
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 Company and the Issuer Trust shall qualify
the Indenture, the Trust Agreement and the Guarantee under the Trust Indenture
Act of 1939.
(b) In connection with the Company's and the Issuer Trust's obligations
with respect to the Shelf Registration, if applicable, the Company and the
Issuer 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
Issuer Trust and the Company 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 its 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) 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 Company's and the Issuer
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 Company 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;
(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
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Company'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 Company 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 Company, and cause the officers, employees, counsel and independent
certified public accountants of the Company 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 Company 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 Company 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;
(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 notice 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 threat of any proceedings for
that purpose, (D) if at any time the representations and warranties of the
Company or the Issuer 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 Company or the Issuer 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 threat 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;
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(vii) use its 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 principal 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 or supplement thereto (in each
case including all exhibits thereto and (in the case of a holder of
Registrable Securities, upon request) 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, or 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
or underwriter to satisfy the prospectus delivery requirements of the
Securities Act; and the Company and the Issuer Trust hereby consent to the
use of such prospectus (including any such preliminary or 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 Company or the Issuer Trust, in connection
with the offering and sale of the Registrable Securities covered by the
prospectus (including any such preliminary or summary prospectus) or any
supplement or amendment thereto;
(x) use its 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 as to permit
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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) 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 Company 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 requested to enable each such
holder, agent, if any, or underwriter, if any, to consummate the
disposition in such jurisdictions of such Registrable Securities; provided,
however, that neither the Company nor the Issuer 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 its 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 Company or the Issuer 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 agreed
to by the Company relating to indemnification and contribution, and take
such other actions in connection therewith as any holders of Registrable
Securities aggregating at least 331/3% 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 Company and the Issuer 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 Company shall have then undertaken;
(xv) whether or not an agreement of the type referred to in Section
(3)(b)(xiv) 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
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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 by the Company in connection with an 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 Company and an opinion of counsel to
the Issuer Trust in each case in customary form and covering such matters,
of the type customarily covered by such an opinion, and in the case of the
Company as customarily given in public offerings of the Company's debt
securities 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);
(C) obtain a "cold comfort" letter or letters from the independent auditors
of the Company 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 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 in public offerings of
debt securities of the Company; (D) deliver such documents and
certificates, including officers' or trustees' or Administrators'
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 Company or the Issuer
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 Company and/or the Issuer Trust to amend or waive any
provision of this Registration Rights Agreement pursuant to Section 9(h)
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
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12
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 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, 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
Company and its subsidiaries complying with Section 11(a) of the Securities
Act (including, at the option of the Company, Rule 158 thereunder).
In case any of the foregoing obligations is dependent upon information provided
or to be provided by a party other than the Company or the Issuer Trust, such
obligation shall be subject to the provision of such information.
(c) In the event that the Company and the Issuer Trust would be required,
pursuant to Section 3(b)(vi)(F), to notify the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor or the managing
underwriters, if any, thereof, the Company and the Issuer 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, 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. Each holder of Registrable Securities agrees that upon
receipt of any notice from the Company or the Issuer Trust, pursuant to Section
3(b)(vi)(F), 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 Company or the
Issuer Trust, such holder shall deliver to the Company (at the Company'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 Company or
the Issuer Trust that the disposition of Registrable Securities pursuant to the
Shelf Registration may continue.
(d) The Company and the Issuer 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 Company
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such information regarding such holder and such holder's intended method of
distribution of such Registrable Securities as the Company and the Issuer 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 Company and the Issuer Trust as promptly as
practicable of any inaccuracy or change in information previously furnished by
such holder to the Company 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 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, and promptly to furnish to the Company 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 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.
(e) Until the expiration of three years after the Closing Date, the Company
will not, and will not permit any of its "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
Act.
(f) In connection with the Company's and the Issuer Trust's obligations
with respect to the registration of Exchange Securities as contemplated by
Section 2(a) (the "Exchange Registration"), if applicable, the Company and the
Issuer 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 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
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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 Company and/or the
Issuer Trust contemplated by Section 5 cease to be true and correct in all
material respects, (E) of the receipt by the Company or the Issuer 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 Company and the Issuer Trust would be
required, pursuant to Section 3(f)(ii)(F), 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 or notify such broker-dealers that the date of Exchange
Securities pursuant to the Exchange Offer Registration Statement may
continue;
(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;
(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 Company
nor the Issuer 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;
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(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 be obtained by the Company or the
Issuer Trust 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) 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 Company and its
subsidiaries complying with Section 11(a) of the Securities Act (including,
at the option of the Company, Rule 158 thereunder).
In case any of the foregoing obligations is dependent upon information provided
or to be provided by a party other than the Company or the Issuer Trust, such
obligation shall be subject to the provision of such information.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's and the
Issuer Trust's performance of or compliance with this 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 one
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
Company's officers and employees performing legal or accounting duties), (g)
fees, disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance and compliance) and
(h) 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
Company 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 Company 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
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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 Company and the Issuer 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 Company 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 Company and the Issuer Trust by a holder of Registrable
Securities expressly for use therein.
(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 Company and the Issuer Trust by a holder of Registrable
Securities expressly for use therein.
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(c) The compliance by the Company and the Issuer Trust with all of the
provisions of this Registration Rights Agreement and the consummation of
the transactions herein contemplated will not constitute a breach of or
default under, the corporate charter or by-laws of the Company, or the
Trust Agreement of the Issuer Trust, or any material agreement, indenture
or instrument relating to indebtedness for money borrowed to which the
Company or to the best knowledge of the Company, the Issuer Trust is a
party or, to the best knowledge of the Company, the Issuer Trust, as
applicable, any law, order, rule, regulation or decree of any court or
governmental agency or authority located in the United States having
jurisdiction over the Company or any property of the Company or the Issuer
Trust or any property of the Issuer Trust, as applicable; and, to the best
knowledge of the Company and the Issuer Trust, no consent, authorization or
order of, or filing or registration with, any court or governmental agency
or authority is required for the consummation by the Company or the Issuer
Trust, as applicable, of the transactions contemplated by this Agreement,
except the registration under the Securities Act contemplated hereby,
qualification of the Indenture, the Guarantee and the Trust Agreement 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 Agreement has been duly authorized, executed and delivered by
the Company or the Issuer Trust, as applicable.
6. Indemnification.
(a) Indemnification by the Company and the Issuer Trust. Upon the
registration of the Registrable Securities pursuant to Section 2(a) or 2(b), 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 Company and the Issuer 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 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 Company or the Issuer 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 Company and the Issuer 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 Company and the Issuer
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,
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final or summary prospectus, or amendment or supplement thereto, in reliance
upon and in conformity with written information furnished to the Company and the
Issuer Trust by holders of Registrable Securities expressly for use therein.
This indemnity agreement will be in addition to any liability which the Company
or the Issuer Trust may otherwise have.
(b) Indemnification by the Holders and any Agents and Underwriters. The
Company and the Issuer Trust may require, as a condition to including any
Registrable Securities in any registration statement filed pursuant to Section
2(b) and to entering into any underwriting agreement with respect thereto, that
the Company and the Issuer 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 Company and the Issuer Trust, each of the
Company's directors, and each person who controls the Company or the Issuer
Trust within the meaning of either the Securities Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company and the Issuer
Trust, but only with reference to written information furnished to the Company
and the Issuer 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 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, approved by the indemnifying party,
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
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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 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 Company and the Issuer Trust under this Section
6 shall be in addition to any liability which the Company 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 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
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respective holder, agent or underwriter may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
(including any person who, with his consent, is named in any registration
statement as about to become a director of the Company), to each Trustee and
Administrator under the Trust Agreement and to each person, if any, who controls
the Company 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 principal 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 Company.
(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 Company covenants to the holders of Registrable Securities that the
Company shall use its reasonable best efforts to 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 Securities in connection with that
holder's sale pursuant to Rule 144, the Company 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 Company 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 which
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
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(registered or certified mail, postage prepaid, return receipt requested) as
follows: If to the Company, to it at KeyCorp, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx
00000, Attention: General Counsel; if to the Issuer Trust, to it at Bankers
Trust Company, Four Albany Street, Mail Stop 5041, New York, New York 10006,
Attention: Xxxxx Xxxxx; and if to a holder, to the address of such holder set
forth in the security register or other records of the Issuer Trust or the
Company, as the case may be, or to such other address as the Company, the Issuer
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.
(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. 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 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 Registration Rights Agreement.
(d) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this 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, 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) LAW GOVERNING. THIS REGISTRATION RIGHTS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW 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 Trust Agreement, the Guarantee and the
Indenture) 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 Registration Rights Agreement may be
amended and the observance of any term of this 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 Company, the
Issuer 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
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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.
(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 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 Agreement)
at the offices of the Company 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.
(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.
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Agreed to and accepted as of the date referred to above.
KEYCORP INSTITUTIONAL CAPITAL A
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Administrator
KEYCORP
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Officer
XXXXXXX, SACHS & CO.
CS FIRST BOSTON CORPORATION
XxXXXXXX & COMPANY SECURITIES, INC.
X.X. XXXXXX SECURITIES INC.
SALOMON BROTHERS INC
By: /s/ Xxxxxxx, Xxxxx & Co.
--------------------------------------
(Xxxxxxx, Sachs & Co.)
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