EXHIBIT 4.9
LIQUIDATED DAMAGES AGREEMENT
THIS LIQUIDATED DAMAGES AGREEMENT (the "Agreement") is made
and entered into as of June 9, 1997 among TELEBANC FINANCIAL CORPORATION, a
Delaware corporation (the "Company"), TELEBANC CAPITAL TRUST I, a business trust
formed under the laws of the state of Delaware (the "Trust"), and SANDLER
X'XXXXX & PARTNERS, L.P. ("Sandler X'Xxxxx" or the "Initial Purchaser").
WHEREAS, as an inducement to the Initial Purchaser to enter
into the Purchase Agreement, dated June 9, 1997 (the "Purchase Agreement"),
among the Company, the Trust and the Initial Purchaser (providing for, among
other things, the sale by the Trust to the Initial Purchaser of 10,000 of the
Trust's 11.00% Capital Securities, Series A, liquidation amount of $1,000 per
Capital Security (the "Capital Securities"), the proceeds of which will be used
by the Trust to purchase 11.00% Junior Subordinated Deferrable Interest
Debentures due June 1, 2027, Series A, of the Company (the "Subordinated
Debentures")), and as a condition to the several obligations of the Initial
Purchaser thereunder, the Company and the Trust have agreed to provide to the
Initial Purchaser and its direct and indirect transferees certain registration
and related rights pursuant to and in accordance with the terms of the
Registration Rights Agreement, dated the date hereof (the "Registration Rights
Agreement"), among the Company, the Trust and the Initial Purchaser; and
WHEREAS, notwithstanding the fact that the Company and the
Trust have consummated or will consummate an Exchange Offer, pursuant to Section
2(b) of the Registration Rights Agreement, the Initial Purchaser may, under
certain circumstances, require the Company and the Trust to file a Shelf
Registration Statement for the resale of certain Registrable Securities held by
it;
WHEREAS, the Registration Rights Agreement contains certain
provisions concerning the time within which the Company and the Trust must file
the Shelf Registration Statement and the period for which such Shelf
Registration Statement must remain effective and usable for resales; and
WHEREAS, the Company, the Trust and the Initial Purchaser
desire to provide for the payment of liquidated damages by the Company directly
to the Initial Purchase in the event that the Company and the Trust fail to
comply with such contractual provisions, as more fully set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used (including in the
foregoing recitals) but not defined herein shall have the meanings given to such
terms in the Registration Rights Agreement, except that (a) the term "Shelf
Registration Statement" shall refer only to a Shelf Registration Statement filed
by the Company and the Trust pursuant to Section 2(b) of the Registration Rights
Agreement, and (b) the term "Registrable Securities" shall refer only to those
Registrable Securities held at such time by the Initial Purchaser.
2. Payment of Liquidated Damages. (a) In the event that (i)
the Shelf Registration Statement is not filed with the SEC on or prior to the
45th day after a request for such filing is made by the Initial Purchaser
(provided that in no event shall such date be required to be earlier than 75
days after the Issue Date), or (ii) the Shelf Registration Statement is not
declared effective by the SEC on or prior to the later of the 40th day after the
date such Shelf Registration Statement was required to be filed pursuant to the
terms of the Registration Rights Agreement and the 180th date after the Issue
date, or (iii) the Shelf Registration Statement has been declared effective and
such Shelf Registration Statement ceases to be continuously effective or usable
for resales (whether as a result of an event contemplated by Section 3(e) of the
Registration Rights Agreement or otherwise) at any time during the 180-day
period (and any extensions of such period pursuant to the last paragraph of
Section 3 of the Registration Rights Agreement) immediately following the date
on which the Shelf Registration Statement is first declared effective (other
than after such time as all Registrable Securities have been disposed of
thereunder or otherwise cease to be Registrable Securities pursuant to the terms
of the Registration Rights Agreement), then in each case the Company shall pay
liquidated damages to the Initial Purchaser, at a rate of 0.25% per annum in
respect of the aggregate liquidation amount of Capital Securities held by the
Initial Purchaser or, in the event that the Trust is liquidated and Subordinated
Debentures are distributed to holders of Capital Securities, the aggregate
principal amount of Subordinated Debentures held by the Initial Purchaser, as
the case may be, in respect of the period (x) commencing on the 46th day after
such request for the filing of a Shelf Registration Statement is made by the
Initial Purchaser (provided that in no event shall such date be required to be
earlier than 76 days after the Issue Date) and terminating upon the filing of
the Shelf Registration Statement (in the case of clause (i) above), (y)
commencing on the later of the 41st day after the date the Shelf Registration
Statement was required to be filed and the 181st day after the Issue Date and
terminating upon the effectiveness of the Shelf Registration Statement (in the
case of clause (ii) above), or (z) commencing on the day the Shelf Registration
Statement ceases to be effective or usable for resales and terminating at such
time as the Shelf Registration Statement again becomes effective and usable for
resales (in the case of clause (iii) above).
(c) Any amounts of liquidated damages payable by the Company
pursuant to this Section 2 shall be paid in cash directly to the Initial
Purchaser on the next succeeding June 1 or December 1, as the case may be,
following the period
in respect of which such Liquidated Damages have become due and payable
hereunder.
3. General.
(a) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(b) Amendments. This Agreement may be amended by the parties
hereto by a written instrument duly executed on behalf of each of the parties
hereto.
(c) Entire Agreement. This Agreement and the Registration
Rights Agreement constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
(d) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to any applicable conflicts of law.
(e) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered to the parties at the
addresses set forth in, and in a manner contemplated by, the Registration Rights
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
TELEBANC FINANCIAL CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice Chairman & President
TELEBANC CAPITAL TRUST I
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Administrative Trustee
SANDLER X'XXXXX & PARTNERS, L.P.
By: SANDLER X'XXXXX
& PARTNERS, CORP.
the sole general partner
By: /s/ Xxxxxxxxx X. Last
