This Registration Rights Agreement (this "Agreement")
is made and entered into as of June 3, 1997 by and among
GreenPoint Capital Trust I, a Delaware statutory business trust
(the "Trust"), GreenPoint Financial Corp., a Delaware corporation
("the Company") and Xxxxxx Brothers Inc., X.X. Xxxxxx Securities
Inc. and Xxxxx, Xxxxxxxx & Xxxxx, Inc. (collectively, the
"Initial Purchasers").
This Agreement is entered into in connection with the
Purchase Agreement, dated as of May 29, 1997, among the Company,
the Trust and the Initial Purchasers (the "Purchase Agreement"),
which provides for the sale by the Trust to the Initial
Purchasers of $200,000,000 aggregate principal amount of the
Trust's 9.10% Subordinated Capital Income Securities, liquidation
amount $1,000 per security (the "Capital Securities"). The
Company will be the owner of all of the beneficial ownership
interest represented by the common securities (the "Common
Securities") of the Trust. The Capital Securities and the Common
Securities will be guaranteed by a guarantee (the "Guarantee") by
the Company, to the extent of funds held by the Trust.
Concurrently with the issuance of the Capital Securities, the
Guarantee and the Common Securities, the Trust will invest the
proceeds of each thereof in the Company's 9.10% Junior
Subordinated Debentures (the "Junior Subordinated Debentures"
and, together with the Capital Securities and the Guarantee, the
"Securities"). In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Trust and the Company have
agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchasers and their
direct and indirect transferees and assigns. The execution and
delivery of this Agreement is a condition to the Initial
Purchasers' obligations to purchase the Capital Securities under
the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the
following capitalized terms shall have the following meanings:
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Closing Date: The date on which the Securities were sold.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be
deemed "Consummated" for purposes of this Agreement upon
the occurrence of (i) the filing and effectiveness under
the Securities Act of the Exchange Offer Registration
Statement relating to the New Securities to be issued in
the Exchange Offer, (ii) the maintenance of such
Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less
than the minimum period required pursuant to Section 3(b)
hereof, and (iii) the delivery by the Company and the Trust
of the New Securities in the same aggregate principal
amount as the aggregate principal amount of Transfer
Restricted Securities that were validly tendered by Holders
thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the
Securities, each Distribution Date until the earlier of (i)
the date on which Liquidated Damages no longer are payable
or (ii) maturity of the Securities.
Declaration: The Amended and Restated Declaration
of Trust, dated as of June 3, 1997, among The Bank of New
York, as Property Trustee, The Bank of New York (Delaware),
as Delaware Trustee, the Administrators named therein and
the holders, from time to time, of undivided beneficial
interests in the assets of the Trust, pursuant to which the
Capital
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Securities are being issued, as amended or supplemented
from time to time in accordance with the terms thereof.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company
and the Trust under the Securities Act of the New
Securities pursuant to a Registration Statement pursuant to
which the Company and the Trust offer the Holders of all
outstanding Transfer Restricted Securities the opportunity
to exchange all such outstanding Transfer Restricted
Securities held by such Holders for New Securities in an
aggregate amount equal to the aggregate amount of the
Transfer Restricted Securities tendered in such exchange
offer by such Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the
Prospectus which forms a part thereof.
Exempt Resales: The transactions in which the
Initial Purchasers propose to sell the Securities to
certain "qualified institutional buyers," as such term is
defined in Rule 144A under the Securities Act, to certain
institutional "accredited investors," as such term is
defined in Rule 501(a)(1), (2), (3) and (7) of Regulation D
under the Securities Act ("Accredited Institutions") and to
certain non-U.S. persons.
Guarantee Agreement: The Guarantee Agreement,
dated as of June 3, 1997, between the Company and The Bank
of New York, as Guarantee Trustee, pursuant to which the
Guarantee is being issued, as amended or supplemented from
time to time in accordance with the terms thereof.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of June 3,
1997, between the Company and The Bank of New York, as
trustee (the "Trustee"), pursuant to which the Junior
Subordinated Debentures are to be issued, as such Indenture
is amended or supplemented from time to time in accordance
with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Distribution: As defined in the Declaration.
NASD: National Association of Securities Dealers, Inc.
New Junior Subordinated Debentures: The Company's
Junior Subordinated Debentures to be issued pursuant to the
Indenture in the Exchange Offer.
New Securities: The Securities to be issued pursuant to
the Indenture, the Declaration and the Guarantee Agreement in the
Exchange Offer.
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Person: An individual, partnership, corporation,
limited liability company, trust or unincorporated organization,
or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a
Registration Statement, as amended or supplemented by any
prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration
statement of the Company and the Trust relating to (a) an
offering of New Securities pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this
Agreement, in either case, including the Prospectus
included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and
material incorporated by reference therein.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb), as amended.
Transfer Restricted Securities: Each Security,
until the earliest to occur of (a) the date on which such
Security has been exchanged by a person other than a
Broker-Dealer for New Security in the Exchange Offer, (b)
following the exchange by a Broker-Dealer in the Exchange
Offer of such Security for one or more New Securities, the
date on which such New Securities are sold to a purchaser
who receives from such Broker-Dealer on or prior to the
date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (c) the date on
which such Securities has been effectively registered under
the Securities Act and disposed of in accordance with the
Shelf Registration Statement or (d) the date on which such
Security is eligible to be distributed to the public
pursuant to Rule 144 under the Securities Act;
Underwritten Registration or Underwritten
Offering: A registration in which securities of the Company
and the Trust are sold to an underwriter for reoffering to
the public.
2. Securities Subject to This Agreement.
(a) Transfer Restricted Securities. The
securities entitled to the benefits of this Agreement are
the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A
Person is deemed to be a holder of Transfer Restricted
Securities (each, a "Holder") whenever such Person owns
Transfer Restricted Securities.
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3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be
permissible under applicable law or Commission policy
(after the procedures set forth in Section 6(a) below have
been complied with) or one of the events set forth in
Section 4(a)(ii) has occurred the Company and the Trust
shall (i) cause to be filed with the Commission promptly
after the Closing Date, but in no event later than 150 days
after the Closing Date, a Registration Statement under the
Securities Act relating to the New Securities and the
Exchange Offer, (ii) use their respective best efforts to
cause such Registration Statement to become effective no
later than 180 days after the Closing Date, (iii) in
connection with the foregoing, file (A) all pre-effective
amendments to such Registration Statement as may be
necessary in order to cause such Registration Statement to
become effective, (B) if applicable, a post-effective
amendment to such Registration Statement pursuant to Rule
430A under the Securities Act and (C) cause all necessary
filings in connection with the registration and
qualification of the New Securities to be made under the
Blue Sky laws of such jurisdictions as are necessary to
permit Consummation of the Exchange Offer, and (iv) unless
the Exchange Offer would not be permitted by applicable law
or Commission policy, the Company will commence the
Exchange Offer and use its best efforts to issue on or
prior to 30 business days after the date on which such
Registration Statement was declared effective by the
Commission, New Securities in exchange for all Securities
tendered prior thereto in the Exchange Offer. The Exchange
Offer shall be on the appropriate form permitting
registration of the New Securities to be offered in
exchange for the Transfer Restricted Securities and to
permit resales of New Securities held by Broker-Dealers as
contemplated by Section 3(c) below. The 150, 180 and 30
business day periods referred to in (i), (ii) and (iii) of
the Section 3(a) shall not include any period during which
the Company is pursuing a Commission ruling pursuant to
Section 6(a)(i) below.
(b) the Company and the Trust shall use their
respective best efforts to cause the Exchange Offer
Registration Statement to be effective continuously and
shall keep the Exchange Offer open for a period of not less
than the minimum period required under applicable federal
and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be
less than 20 business days. The Company and the Trust shall
cause the Exchange Offer to comply in all material respects
with all applicable federal and state securities laws. No
securities other than the New Securities shall be included
in the Exchange Offer Registration Statement. The Company
and the Trust shall use its best efforts to cause the
Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration
Statement has become effective, but in no event later than
30 business days thereafter.
(c) the Company and the Trust shall indicate in a
"Plan of Distribution" section contained in the Prospectus
contained in the Exchange Offer Registration Statement that
any Broker-Dealer who holds Securities that are Transfer
Restricted Securities and that were acquired for its own
account as a result of market-making activities or other
trading activities (other than Transfer Restricted
Securities acquired directly from the Company and the
Trust), may exchange such Securities pursuant to the
Exchange Offer; however, such Broker-Dealer may be deemed
to be an "underwriter" within the meaning of the Securities
Act and must, therefore, deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resales of the New Securities received by such
Broker-Dealer in the Exchange Offer, which prospectus
delivery requirement may be satisfied by the delivery by
such Broker-Dealer of the Prospectus contained in the
Exchange Offer Registration Statement. Such "Plan of
Distribution" section shall also contain all other
information with respect to such resales by Broker-Dealers
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that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of New
Securities held by any such Broker-Dealer except to the
extent required by the Commission as a result of a change
in policy announced after the date of this Agreement.
The Company and the Trust shall use their respective
best efforts to keep the Exchange Offer Registration Statement
continuously effective, supplemented and amended as required by
the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of New Securities
acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to
ensure that it conforms with the requirements of this Agreement,
the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of 180
days from the date on which the Exchange Offer Registration
Statement is declared effective.
The Company and the Trust shall provide sufficient
copies of the latest version of such Prospectus to Broker-Dealers
promptly upon request at any time during such 180-day period in
order to facilitate such resales.
4. Shelf Registration.
(a) Shelf Registration. If (i) the Company and
the Trust are not required to file an Exchange Offer
Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable
law or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with), (ii) the
Company has received an opinion of counsel, rendered by a
law firm having a nationally recognized tax practice, to
the effect that, as a result of the consummation of the
Exchange Offer there is more than an insubstantial risk
that (x) the Trust would be subject to United States
federal income tax with respect to income received or
accrued on the Junior Subordinated Debentures or New Junior
Subordinated Debentures, (y) interest payable by the
Company on such Junior Subordinated Debentures or New
Junior Subordinated Debentures would not be deductible by
the Company, in whole or in part, for United States federal
income tax purposes, or (z) the Trust would be subject to
more than a de minimis amount of other taxes, duties or
other governmental charges or (iii) if any Holder of
Transfer Restricted Securities that is a "qualified
institutional buyer" (as defined in Rule 144A under the
Securities Act) or an "accredited investor" (as defined in
Rule 501(A)(1), (2), (3) or (7) under the Securities Act)
shall notify the Company at least 20 business days prior to
the Consummation of the Exchange Offer (A) that such Holder
is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) that such
Holder may not resell the New Securities acquired by it in
the Exchange Offer to the public without delivering a
prospectus and that the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) that such
Holder is a Broker-Dealer and holds Securities acquired
directly from the Trust and the Company or one of its
affiliates, then the Trust and the Company shall in lieu
of, or in the event of (iii) above, in addition to
effecting the registration of the New Capital Securities
pursuant to the Exchange Open Registration Statement use
their respective best efforts to:
(x) cause to be filed a shelf registration
statement pursuant to Rule 415 under the Securities
Act, which may be an amendment to the Exchange Offer
Registration Statement (in either event, the "Shelf
Registration Statement"), on or prior to the earliest
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to occur of (1) the 150th day after the date on which the
Trust and the Company determines that they are not required
to file the Exchange Offer Registration Statement or
(2) the 150th day after the date on which the Trust
and the Company receive notice from a Holder of
Transfer Restricted Securities as contemplated by
clause (iii) above (such earliest date being the
"Shelf Filing Deadline"), which Shelf Registration
Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have
provided the information required pursuant to Section
4(b) hereof; and
(y) cause such Shelf Registration Statement
to be declared effective by the Commission on or
before the 180th day after the Shelf Filing Deadline.
The Trust and the Company shall use their respective best
efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof
to the extent necessary to ensure that it is available for
resales of Securities by the Holders of Transfer Restricted
Securities entitled to the benefit of this Section 4(a),
and to ensure that it conforms with the requirements of
this Agreement, the Securities Act and the policies, rules
and regulations of the Commission as announced from time to
time, for a period ending on the second anniversary of the
Closing Date.
(b) Provision by Holders of Certain Information
in Connection with the Shelf Registration Statement. No
Holder of Transfer Restricted Securities may include any of
its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless
and until such Holder furnishes to the Trust and the
Company in writing, within 20 business days after receipt
of a request therefor, such information as the Trust and
the Company may reasonably request for use in connection
with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of
Transfer Restricted Securities shall be entitled to
Liquidated Damages pursuant to Section 5 hereof unless and
until such Holder shall have used its best efforts to
provide all such reasonably requested information. Each
Holder as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to the Trust and
the Company all information required to be disclosed in
order to make the information previously furnished to the
Trust and the Company by such Holder not materially
misleading.
5. Additional Interest and Additional Distributions
(a) If (a) any of the Registration Statements required
by this Agreement is not filed with the Commission on or prior to
the date specified for such filing in this Agreement, (b) any of
such Registration Statements has not been declared effective by
the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target
Date"), (c) the Exchange Offer has not been Consummated within 30
business days after the Effectiveness Target Date with respect to
the Exchange Offer Registration Statement or (d) any Registration
Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to
be usable for its intended purpose without being succeeded within
two business days by a post-effective amendment to such
Registration Statement that cures such failure and that is itself
immediately declared effective (each such event referred to in
clauses (a) through (d), a "Registration Default"), additional
interest ("Additional Interest") shall accrue in respect of the
Junior Subordinated Debentures (including in respect of amounts
accruing during any Extension Period (as defined in the
Indenture)) and corresponding additional
7
Distributions ("Additional Distributions") shall accrue to each
Holder of Capital Securities and/or Common Securities commencing
upon the occurrence of such Registration Default in the form of
an increase in the annual distribution rate equal to .05%,
increasing by increments of .05% each week but in no event
greater than .25%, until all Registration Defaults have been
cured. All accrued Additional Interest (and corresponding
Additional Distributions) shall be paid to Holders by the Trust
and the Company in the same manner as interest and Distributions
are made pursuant to the Indenture and the Declaration. Following
the cure of all Registration Defaults relating to any particular
Transfer Restricted Securities, the accrual of Additional
Interest (and corresponding Additional Distributions) with
respect to such Transfer Restricted Securities will cease.
All obligations of the Trust and the Company set forth
in the preceding paragraph that have accrued and are outstanding
with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to
such Transfer Restricted Security shall have been satisfied in
full.
(b) The Trust and the Company shall notify the
Property Trustee within one business day after each and every
date on which an event occurs in respect of which Additional
Interest (and corresponding Additional Distributions) are
required to be paid (an "Event Date"). Additional Distributions
shall be paid by depositing Additional Interest with the Property
Trustee, in trust, for the benefit of the Holders of the Capital
Securities and/or the Common Securities, on or before the
applicable Interest Payment Date (whether or not any payment
other than Additional Distributions is payable on such
Securities), in immediately available funds in sums sufficient to
pay the Additional Distributions then due to such Holders. Each
obligation to pay Additional Interest and Additional
Distributions shall be deemed to accrue from the applicable date
of the occurrence of the Registration Default.
6. Registration Procedures.
(a) Exchange Offer Registration Statement. In
connection with the Exchange Offer, the Trust and the
Company shall comply with all of the provisions of Section
6(c) below, shall use their best efforts to effect such
exchange to permit the sale of Transfer Restricted
Securities being sold in accordance with the intended
method or methods of distribution thereof, and shall comply
with all of the following provisions:
(i) If in the reasonable opinion of counsel
to the Trust and the Company there is a question as to
whether the Exchange Offer is permitted by applicable
law, the Trust and the Company hereby agrees to seek a
no-action letter or other favorable decision from the
Commission allowing the Trust and the Company to
Consummate an Exchange Offer for such Securities. The
Trust and the Company hereby agree to pursue the
issuance of such a decision to the Commission staff
level but shall not be required to take commercially
unreasonable action to effect a change of Commission
policy. The Trust and the Company hereby agree,
however, to (A) participate in telephonic conferences
with the Commission, (B) deliver to the Commission
staff an analysis prepared by counsel to the Trust and
the Company setting forth the legal bases, if any,
upon which such counsel has concluded that such an
Exchange Offer should be permitted and (C) diligently
pursue a resolution (which need not be favorable) by
the Commission staff of such submission.
(ii) As a condition to its participation in
the Exchange Offer pursuant to the terms of this
Agreement, each Holder of Transfer Restricted
Securities shall furnish,
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upon the request of the Trust or the Company, prior to
the Consummation thereof, a written representation to
the Trust or the Company (which may be contained in
the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A)
it is not an affiliate of the Trust or the Company,
(B) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding
with any person to participate in, a distribution of
the New Securities to be issued in the Exchange Offer
and (C) it is acquiring the New Securities in its
ordinary course of business. In addition, all such
Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company's and the Trust's
preparations for the Exchange Offer. Each Holder
hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this
Agreement rely on the position of the Commission
enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available
June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July
2, 1993, and similar no-action letters (including
Xxxxx & Xxxx LLP (available February 7, 1997), and any
no-action letter obtained pursuant to clause (i)
above), and (2) must comply with the registration and
prospectus delivery requirements of the Securities Act
in connection with a secondary resale transaction and
that such a secondary resale transaction should be
covered by an effective registration statement
containing the selling security holder information
required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of New Securities
obtained by such Holder in exchange for Securities
acquired by such Holder directly from the Trust or the
Company.
(iii) Prior to effectiveness of the Exchange
Offer Registration Statement, the Company and the
Trust shall provide a supplemental letter to the
Commission (A) stating that the Company and the Trust
are registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988), Xxxxxx
Xxxxxxx and Co., Inc. (available June 5, 1991) Xxxxx &
Wood LLP (available February 7, 1997) and, if
applicable, any no-action letter obtained pursuant to
clause (i) above and (B) including a representation
that the Company and the Trust have not entered into
any arrangement or understanding with any Person to
distribute the New Securities to be received in the
Exchange Offer and that, to the best of the Company's
and the Trust's information and belief, each Holder
participating in the Exchange Offer is acquiring the
New Securities in its ordinary course of business and
has no arrangement or understanding with any Person to
participate in the distribution of the New Securities
received in the Exchange Offer.
(b) Shelf Registration Statement. In connection
with the Shelf Registration Statement, the Company and the
Trust shall comply with all the provisions of Section 6(c)
below and shall use their best efforts to effect such
registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended
method or methods of distribution thereof, and pursuant
thereto the Company and the Trust will as expeditiously as
possible prepare and file with the Commission a
Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall
be available for the sale of the Transfer Restricted
Securities in accordance with the intended method or
methods of distribution thereof.
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(c) General Provisions. In connection with any
Registration Statement and any Prospectus required by this
Agreement to permit the sale or resale of Transfer
Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required
to permit resales of Securities by Broker-Dealers), the
Company and the Trust shall:
(i) use their best efforts to keep such
Registration Statement continuously effective and
provide all requisite financial statements for the
period specified in Section 3 or 4 of this Agreement,
as applicable; upon the occurrence of any event that
would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective
and usable for resale of Transfer Restricted
Securities during the period required by this
Agreement, the Company and the Trust shall file
promptly an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any
such misstatement or omission, and, in the case of
either clause (A) or (B), use their best efforts to
cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to
become usable for their intended purpose(s) as soon as
practicable thereafter;
(ii) prepare and file with the Commission
such amendments and post-effective amendments to the
Registration Statement as may be necessary to keep the
Registration Statement effective for the applicable
period set forth in Section 3 or 4 hereof, as
applicable, or such shorter period as will terminate
when all Transfer Restricted Securities covered by
such Registration Statement have been sold; cause the
Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act,
and to comply fully with the applicable provisions of
Rules 424 and 430A under the Securities Act in a
timely manner; and comply with the provisions of the
Securities Act with respect to the disposition of all
securities covered by such Registration Statement
during the applicable period in accordance with the
intended method or methods of distribution by the
sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) in the case of a Shelf Registration
advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm
such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has
been filed, and, with respect to any Registration
Statement or any post-effective amendment thereto,
when the same has become effective, (B) of any request
by the Commission for amendments to the Registration
Statement or amendments or supplements to the
Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement under the Securities Act or of
the suspension by any state securities commission of
the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact
or the happening of any event that makes any statement
of a material fact made in the Registration Statement,
the Prospectus, any amendment or supplement thereto,
or any document incorporated by reference therein
untrue, or that requires the making of any additions
to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not
misleading. If at any time the Commission shall issue
any stop order suspending the effectiveness of the
Registration Statement, or any state securities
10
commission or other regulatory authority
shall issue an order suspending the qualification or
exemption from qualification of the Transfer
Restricted Securities under state securities or Blue
Sky laws, the Trust and the Company shall use their
best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(iv) furnish to each of the selling or
exchanging Holders and each of the underwriter(s), if
any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included
therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all
documents incorporated by reference after the initial
filing of such Registration Statement), which
documents will be subject to the review of such
Holders and underwriter(s), if any, for a period of at
least five business days, and the Trust and the
Company will not file any such Registration Statement
or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus (including
all such documents incorporated by reference) to which
selling Holders of a majority in Liquidation Amount of
Transfer Restricted Securities covered by such
Registration Statement or the underwriter(s), if any,
shall reasonably object within five business days
after the receipt thereof. A selling Holder or
underwriter, if any, shall be deemed to have
reasonably objected to such filing if such
Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission;
(v) promptly prior to the filing of any
document that is to be incorporated by reference into
a Registration Statement or Prospectus, provide copies
of such document to the selling Holders and to the
underwriter(s), if any, make the Trust's and the
Company's representatives available for discussion of
such document and other customary due diligence
matters, and include such information in such document
prior to the filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(vi) in the case of a Shelf Registration,
make available at reasonable times for inspection by
the selling Holders, any underwriter participating in
any disposition pursuant to such Registration
Statement, and any attorney or accountant retained by
such selling Holders or any of the underwriter(s), all
financial and other records, pertinent corporate
documents and properties of the Trust and the Company
and cause the Trust's and the Company's officers,
directors, managers and employees to supply all
information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with
such Registration Statement subsequent to the filing
thereof and prior to its effectiveness;
(vii) in the case of a Shelf Registration,
if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any
Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary,
such information as such selling Holders and
underwriter(s), if any, may reasonably request to have
included therein, including, without limitation,
information relating to the "Plan of Distribution" of
the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted
Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms
of the offering of the Transfer Restricted Securities
to be sold in such offering; and make all required
filings of such Prospectus supplement or
post-effective amendment as soon as practicable after
11
the Trust and the Company are notified of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment;
(viii) cause the Transfer Restricted
Securities covered by the Registration Statement to be
rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate
principal amount of Securities covered thereby or the
underwriter(s), if any;
(ix) in the case of a Shelf Registration
furnish, to each selling Holder and each of the
underwriter(s), if any, without charge, at least one
copy of the Registration Statement, as first filed
with the Commission, and of each amendment thereto,
including all documents incorporated by reference
therein and all exhibits (including exhibits
incorporated therein by reference);
(x) in the case of a Shelf Registration,
deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies
of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as
such Persons reasonably may request; the Trust and the
Company hereby consent to the use of the Prospectus
and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if
any, in connection with the offering and the sale of
the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto;
(xi) in the case of a Shelf Registration,
enter into such agreements (including an underwriting
agreement), and make such representations and
warranties, and take all such other actions in
connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted
Securities pursuant to any Registration Statement
contemplated by this Agreement, all to such extent as
may be requested by any Purchaser or by any Holder of
Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement;
and in connection with an Underwritten Registration,
the Trust and the Company shall:
(A) upon request, furnish to each
selling Holder and each underwriter, if any, in
such substance and scope as they may request and
as are customarily made by issuers to
underwriters in primary underwritten offerings,
upon the date of the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date
of the effectiveness of the Shelf
Registration Statement, signed by (y) the
Chairman of the Board its President or a
Vice President and (z) the Chief Financial
Officer of the Company, confirming, as of
the date thereof, such matters as such
parties may reasonably request;
(2) an opinion, dated the date of
the effectiveness of the Shelf Registration
Statement, of counsel for the Company and
the Trust, covering such matters as such
parties may reasonably request, and in any
event including a statement to the effect
that such counsel has participated in
conferences with officers and other
representatives of the Company and the
Trust, representatives of the independent
public
12
accountants for the Company, the Initial
Purchasers' representatives and the Initial
Purchasers' counsel in connection with the
preparation of such Registration Statement
and the related Prospectus and have
considered the matters required to be stated
therein and the statements contained
therein, although such counsel has not
independently verified the accuracy,
completeness or fairness of such statements;
and that such counsel advises that, on the
basis of the foregoing (relying as to
materiality to a large extent upon facts
provided to such counsel by officers and
other representatives of the Company and the
Trust and without independent check or
verification), no facts came to such
counsel's attention that caused such counsel
to believe that the applicable Registration
Statement, at the time such Registration
Statement or any post-effective amendment
thereto became effective, contained an
untrue statement of a material fact or
omitted to state a material fact required to
be stated therein or necessary to make the
statements therein not misleading, or that
the Prospectus contained in such
Registration Statement as of its date,
contained an untrue statement of a material
fact or omitted to state a material fact
necessary in order to make the statements
therein, in light of the circumstances under
which they were made, not misleading.
Without limiting the foregoing, such counsel
may state further that such counsel assumes
no responsibility for, and has not
independently verified, the accuracy,
completeness or fairness of the financial
statements, notes and schedules and other
financial data included in any Registration
Statement contemplated by this Agreement or
the related Prospectus; and
(3) a customary comfort letter,
dated the date of the effectiveness of the
Shelf Registration Statement, from the
Company's independent accountants, in the
customary form and covering matters of the
type customarily covered in comfort letters
by underwriters in connection with primary
underwritten offerings.
(B) set forth in full or incorporate by
reference in the underwriting agreement, if any,
the indemnification provisions and procedures of
Section 8 hereof with respect to all parties to
be indemnified pursuant to said Section; and
(C) deliver such other documents and
certificates as may be reasonably requested by
such parties to evidence compliance with clause
(A) above and with any customary conditions
contained in the underwriting agreement or other
agreement entered into by the Company and the
Trust pursuant to this clause (xi), if any.
If at any time the representations and
warranties of the Company contemplated in clause
(A)(1) above cease to be true and correct, the Company
shall so advise the Initial Purchasers and the
underwriter(s), if any, and each selling Holder
promptly and, if requested by such Persons, shall
confirm such advice in writing;
13
(xii) prior to any public offering of
Transfer Restricted Securities, cooperate with the
selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the
registration and qualification of the Transfer
Restricted Securities under the securities
or Blue Sky laws of such jurisdictions as
the selling Holders or underwriter(s) may reasonably
request and do any and all other acts or things
necessary or advisable to enable the disposition in
such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration
Statement; provided, however, that neither the Company
nor the Trust shall not be required to register or
qualify as a foreign corporation where it is not now
so qualified or to take any action that would subject
it to the service of process in suits or to taxation,
other than as to matters and transactions relating to
the Registration Statement, in any jurisdiction where
it is not now so subject;
(xiii) shall issue, upon the request of any
Holder of Securities covered by the Shelf Registration
Statement, New Securities in the same amount as the
Securities surrendered to the Company and the Trust by
such Holder in exchange therefor or being sold by such
Holder; such New Securities to be registered in the
name of such Holder or in the name of the purchaser(s)
of such Securities, as the case may be; in return, the
Securities held by such Holder shall be surrendered to
the Company and the Trust for cancellation;
(xiv) in the case of a Shelf Registration,
cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing
Transfer Restricted Securities to be sold and not
bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such
denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at
least two business days prior to any sale of Transfer
Restricted Securities made by such underwriter(s);
(xv) use its best efforts to cause the
Transfer Restricted Securities covered by the
Registration Statement to be registered with or
approved by such other governmental agencies or
authorities as may be necessary to enable the seller
or sellers thereof or the underwriter(s), if any, to
consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause
(xii) above;
(xvi) if any fact or event contemplated by
clause (c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to
the Registration Statement or related Prospectus or
any document incorporated therein by reference or file
any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any
material fact necessary to make the statements therein
not misleading;
(xvii) provide CUSIP numbers for all
Transfer Restricted Securities not later than the
effective date of the Registration Statement and
provide certificates for the Transfer Restricted
Securities;
(xviii) cooperate and assist in any filings
required to be made with the NASD and in the
performance of any due diligence investigation by any
underwriter (including any "qualified independent
underwriter") that is required to be retained in
accordance with the rules and regulations of the NASD,
and use its best efforts to cause such Registration
Statement to become effective and approved by such
governmental
14
agencies or authorities as may be necessary to enable
the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted
Securities; provided, however, that neither the
Company nor the Trust shall not be required to
register or qualify as a foreign corporation where it
is not now so qualified or to take any action that
would subject it to the service of process in suits or
to taxation, other than as to matters and transactions
relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xix) otherwise use its best efforts to
comply with all applicable rules and regulations of
the Commission, and make generally available to its
security holders, as soon as practicable, a
consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited)
for the twelve-month period (A) commencing at the end
of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best
efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the
first month of the Company's first fiscal quarter
commencing after the effective date of the
Registration Statement;
(xx) cause the Indenture and the Declaration
to be qualified under the TIA not later than the
effective date of the first Registration Statement
required by this Agreement, and, in connection
therewith, cooperate with the Trustee and the Holders
of Securities to effect such changes to the Indenture
and the Declaration as may be required for such
Indenture and the Declaration to be so qualified in
accordance with the terms of the TIA; and execute and
use their best efforts to cause the Indenture Trustee,
Guarantee Trustee and the Property Trustee to execute,
all documents that may be required to effect such
changes and all other forms and documents required to
be filed with the Commission to enable such Indenture
to be so qualified in a timely manner; and
(xxi) provide promptly to each Holder upon
request each document filed with the Commission
pursuant to the requirements of Section 13 and Section
15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from
the Company or the Trust of the existence of any fact of
the kind described in Section 6(c)(iii)(D) hereof, such
Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable
Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xvi) hereof, or until it is
advised in writing (the "Advice") by the Company or the
Trust that the use of the Prospectus may be resumed, and
has received copies of any additional or supplemental
filings that are incorporated by reference in the
Prospectus. If so directed by the Company or the Trust,
each Holder will deliver to the Company or the Trust (at
the Company's and the Trust's expense) all copies, other
than permanent file copies then in such Holder's
possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of
receipt of such notice. In the event the Company or the
Trust shall give any such notice, the time period regarding
the effectiveness of such Registration Statement set forth
in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including
the date of the giving of such notice pursuant to Section
6(c)(iii)(D) hereof to and including the date when each
selling Holder covered by such Registration Statement shall
have received the copies of the supplemented or amended
15
Prospectus contemplated by Section 6(c)(xvi) hereof or
shall have received the Advice.
7. Registration Expenses.
All expenses incident to the Company's and the
Trust's performance of or compliance with this Agreement
will be borne by the Company and the Trust, regardless of
whether a Registration Statement becomes effective,
including without limitation: (i) all registration and
filing fees and expenses (including filings made by any
Purchaser or Holder with the NASD (and, if applicable, the
fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the
rules and regulations of the NASD)); (ii) all fees and
expenses of compliance with federal securities and state
Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the New Securities to
be issued in the Exchange Offer and printing of
Prospectuses), and associated messenger and delivery
services and telephone; (iv) all fees and disbursements of
counsel for the Company and the Trust; (v) all application
and filing fees in connection with listing Securities on a
national securities exchange or automated quotation system;
and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Trust
(including the expenses of any special audit and comfort
letters required by or incident to such performance).
The Company and the Trust will, in any event,
bear their internal expenses (including, without
limitation, all salaries and expenses of their officers and
employees performing legal or accounting duties), the
expenses of any annual audit and the fees and expenses of
any Person, including special experts, retained by the
Company or the Trust.
8. Indemnification and Contribution.
(a) In connection with a Shelf Registration Statement
or in connection with any delivery of a Prospectus contained in
an Exchange Offer Registration Statement by any participating
Broker-Dealer or Initial Purchaser, as applicable, who seeks to
sell New Securities, the Company and the Trust shall indemnify
and hold harmless each Holder of Transfer Restricted Securities
included within any such Shelf Registration Statement and each
participating Broker-Dealer or Initial Purchaser selling New
Securities, and each person, if any, who controls any such person
within the meaning of Section 15 of the Securities Act (each, a
"Participant") from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of
Securities) to which such Participant or controlling person may
become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or
is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any such Registration
Statement or any prospectus forming part thereof or in any
amendment or supplement thereto or (ii) the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and shall reimburse each Participant promptly upon
demand for any legal or other expenses reasonably incurred by
such Participant in connection with investigating or defending or
preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided,
however, that (i) the Company and the Trust shall not be liable
in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged
omission made in any such Registration Statement or any
prospectus forming part thereof or in any such amendment or
supplement in reliance upon and in conformity with written
information furnished to the Company and the Trust by or on
behalf of any Participant specifically for inclusion therein; and
provided further that as to any preliminary Prospectus, the
indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any such Participant or any controlling
person of such Participant on account of any loss, claim, damage,
liability or action arising from the sale of the New Securities
to any person
16
by that Participant if (i) that Participant failed to send or
give a copy of the Prospectus, as the same may be amended or
supplemented, to that person within the time required by the
Securities Act and (ii) the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact in such preliminary Prospectus was
corrected in the Prospectus, unless, in each case, such failure
resulted from non-compliance by the Company and the Trust with
Section 6(c). The foregoing indemnity agreement is in addition to
any liability which the Company and the Trust may otherwise have
to any Participant or to any controlling person of that
Participant.
(b) Each Participant, severally and not jointly, shall
indemnify and hold harmless the Company and the Trust, each of
its directors, officers, employees or agents and each person, if
any, who controls the Company and the Trust within the meaning of
Section 15 of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company and the Trust or any such
director, officer, employees or agents or controlling person may
become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or
is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary
Prospectus, Registration Statement or Prospectus or in any
amendment or supplement thereto or (ii) the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company and the Trust by or on
behalf of that Participant specifically for inclusion herein, and
shall reimburse the Company and the Trust and any such director,
officer, employees or agents or controlling person for any legal
or other expenses reasonably incurred by the Company and the
Trust or any such director, officer, employees or agents or
controlling person in connection with investigating or defending
or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any
Participant may otherwise have to the Company and the Trust or
any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of any claim or the commencement
of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the claim
or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 8 except
to the extent it has been materially prejudiced by such failure
and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against
an indemnified party, and it shall have notified the indemnifying
party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified
party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs
of investigation; provided, however, that the indemnified party
shall have the right to employ counsel to represent jointly the
indemnified party and those other Participants and its respective
officers, employees and controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity
may be sought by the Participants against the indemnifying party
under this Section 8 if, in the reasonable judgment of the
indemnified party it is advisable for the indemnified party and
those Participants, officers, employees and controlling persons
to be jointly represented by separate counsel, and in that event
the fees and expenses of such separate
17
counsel shall be paid by the indemnifying party. In no event
shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to local counsel).
Each indemnified party, as a condition of the indemnity
agreements contained in Section 8, shall use its best efforts to
cooperate with the indemnifying party in the defense of any such
action or claim. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim,
action, suit or proceeding, or (ii) be liable for any settlement
of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with
its written consent or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this
Section 8 shall for any reason be unavailable to or insufficient
to hold harmless an indemnified party under Section 8(a) or 8(b)
in respect of any loss, claim, damage or liability, or any action
in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or
action in respect thereof, in such proportion as shall be
appropriate to reflect the relative fault of the Trust and the
Company on the one hand and the Participants on the other with
respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to
information supplied by the Trust and the Company or the
Participants, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Trust and
the Participants agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined
by pro rata allocation (even if the Participants were treated as
one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8(d)
shall be deemed to include, for purposes of this Section 8(d),
any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
Section 8(d), no Participant shall be required to contribute any
amount in excess of the amount by which proceeds received by such
Participant from an offering of the Notes exceeds the amount of
any damages which such Participant has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Participants' obligations to contribute as provided in this
Section 8(d) are several and not joint.
9. Rule 144A.
The Company and the Trust hereby agrees with each
Holder, for so long as any Transfer Restricted Securities remain
outstanding, to make available to any Holder or beneficial owner
of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4)
18
under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
10. Participation in Underwritten Registrations.
No Holder may participate in any Underwritten
Registration hereunder unless such Holder (a) agrees to sell such
Holder's Transfer Restricted Securities on the basis provided in
any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lockup letters and other
documents required under the terms of such underwriting
arrangements.
11. Selection of Underwriters.
The Holders of Transfer Restricted Securities covered
by the Shelf Registration Statement who desire to do so may sell
such Transfer Restricted Securities in an Underwritten Offering.
In any such Underwritten Offering, the investment banker or
investment bankers and manager or managers that will administer
the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities
included in such offering; provided, that such investment bankers
and managers must be reasonably satisfactory to the Company.
12. Miscellaneous.
(a) Remedies. The Company and the Trust agree
that monetary damages (including Additional Interest and
Additional Distributions) would not be adequate
compensation for any loss incurred by reason of a breach by
it of the provisions of this Agreement and hereby agree to
waive the defense in any action for specific performance
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company and
the Trust will not on or after the date of this Agreement
enter into any agreement with respect to their securities
that is inconsistent with the rights granted to the Holders
in this Agreement or otherwise conflicts with the
provisions hereof. The Company and the Trust have not
previously entered into any agreement granting any
registration rights with respect to their securities to any
Person. The rights granted to the Holders hereunder do not
in any way conflict with and are not inconsistent with the
rights granted to the holders of the Trust's and the
Company's securities under any agreement in effect on the
date hereof.
(c) Adjustments Affecting the Notes. The Company
and the Trust will not take any action, or permit any
change to occur, with respect to Securities that would
materially and adversely affect the ability of the Holders
to Consummate any Exchange Offer unless such action or
change is required by applicable law.
(d) Amendments and Waivers. The provisions of
this Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company
and the Trust have obtained the written consent of Holders
of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the
foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of
Holders whose securities are being tendered pursuant to the
Exchange Offer and that does not affect directly or
indirectly the rights of other Holders
19
whose securities are not being tendered pursuant to such
Exchange Offer may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted
Securities being tendered or registered.
(e) Notices. All notices and other communications
provided for or permitted hereunder shall be made in
writing by hand-delivery, first-class mail (registered or
certified, return receipt requested), telex, telecopier, or
air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Declaration; and
(ii) if to the Company and the Trust:
GreenPoint Capital Trust I
GreenPoint Financial Corp.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile:
With a copy to:
Xxxxxxx X. Xxxxxxx, Xx., Esq.
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: (000) 000-0000
All such notices and communications shall be
deemed to have been duly given: at the time delivered by
hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged,
if telecopied; and on the next business day, if timely
delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other
communications shall be concurrently delivered by the
Person giving the same to the Trustee at the address
specified in the Indenture.
(f) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors
and assigns of each of the parties, including without
limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities;
provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of
a Holder unless and to the extent such successor or assign
acquired Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed
in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
20
(h) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New
York, without regard to the conflict of law rules thereof.
(j) Severability. In the event that any one or
more of the provisions contained herein, or the application
thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the
remaining provisions contained herein shall not be affected
or impaired thereby.
(k) Entire Agreement. This Agreement together
with the other transaction documents is intended by the
parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein with
respect to the registration rights granted by the Company
and the Trust with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such
subject matter.
(l) Required Consents. Whenever the consent or
approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer
Restricted Securities held by the Company or its affiliates
(as such term is defined in Rule 405 under the Securities
Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such
required percentage.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
GREENPOINT FINANCIAL CORP.
By:________________________
Name:
Title:
GREENPOINT CAPITAL TRUST I
By:________________________
Name:
Title: Administrator
Accepted as of the date thereof
Xxxxxx Brothers Inc.
X.X. Xxxxxx Securities Inc.
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
Acting severally on behalf of
themselves and the several
Purchasers named herein
By XXXXXX BROTHERS INC.
By:________________________
Name:
Title:
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 3, 1997
Among
GREENPOINT CAPITAL TRUST I,
GREENPOINT FINANCIAL CORP.
and
XXXXXX BROTHERS INC.
X.X. XXXXXX SECURITIES INC.
and
XXXXX, XXXXXXXX & XXXXX, INC.
as Initial Purchasers
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TABLE OF CONTENTS
Page
1. Definitions............................................... 1
2. Securities Subject to This Agreement...................... 3
3. Registered Exchange Offer................................. 4
4. Shelf Registration........................................ 5
5. Additional Interest and Additional Distributions.......... 6
6. Registration Procedures................................... 7
7. Registration Expenses..................................... 14
8. Indemnification and Contribution.......................... 15
9. Rule 144A................................................. 17
10. Participation in Underwritten Registrations............... 18
11. Selection of Underwriters................................. 18
12. Miscellaneous............................................. 18
