REGISTRATION RIGHTS AGREEMENT
Dated March 24, 1997
among
SOVEREIGN BANCORP, INC.
SOVEREIGN CAPITAL TRUST I
and
XXXXXX BROTHERS INC.
XXXXXXXXXX SECURITIES
XXXXX XXXXXX INC.
XXXX, XXXX & CO.
__________
as Initial Purchasers
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is
made and entered into as of March 24, 1997 among SOVEREIGN
BANCORP, INC., a Pennsylvania corporation (the "Company"),
SOVEREIGN CAPITAL TRUST I, a business trust formed under the laws
of the state of Delaware (the "Trust"), and XXXXXX BROTHERS INC.
("Xxxxxx Brothers") and XXXXXXXXXX SECURITIES, XXXXX XXXXXX INC.
and XXXX, XXXX & CO. (together with Xxxxxx Brothers, the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agree-
ment dated March 19, 1997 (the "Purchase Agreement"), among the
Company, as issuer of the Series A 9.00% Junior Subordinated
Deferrable Interest Debentures due April 1, 2027 (the "Subor-
dinated Debentures"), the Trust and the Initial Purchasers, which
provides for among other things, the sale by the Trust to the
Initial Purchasers of 100,000 of the Trust's Series A 9.00% Capi-
tal Securities, liquidation amount $1,000 per Capital Security
(the "Capital Securities") the proceeds of which will be used by
the Trust to purchase Subordinated Debentures. The Capital
Securities, together with the Subordinated Debentures and the
Company's guarantee of the Capital Securities (the "Capital
Securities Guarantee") are collectively referred to as the
"Securities". In order to induce the Initial Purchasers to enter
into the Purchase Agreement, the Company and the Trust have
agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto
agree as follows:
1. Definitions. As used in this Agreement, the
following capitalized defined terms shall have the following
meanings:
"Advice" shall have the meaning set forth in the last
paragraph of Section 3 hereof.
"Applicable Period" shall have the meaning set forth in
Section 3(t) hereof.
"Business Day" means any day other than a Saturday, a
Sunday, or a day on which banking institutions in the City of New
York are authorized or required by law or executive order to
close.
"Common Securities" shall mean the common securities of the
Trust (liquidation amount $1,000 per common security), represent-
ing undivided beneficial interests in the assets of the Trust.
"Company" shall have the meaning set forth in the preamble
to this Agreement and also includes the Company's successors and
permitted assigns.
"Declaration" or "Declaration of Trust" shall mean the
Amended and Restated Declaration of Trust, dated as of March 24,
1997, by the trustees named therein and the Company as sponsor.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Trust; provided, however, that
such depositary must have an address in the Borough of Manhattan,
in The City of New York.
"Effectiveness Period" shall have the meaning set forth in
Section 2(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
"Exchange Offer" shall mean the offer by the Company and the
Trust to the Holders to exchange all of the Registrable Securi-
ties (other than Private Exchange Securities) for a like princi-
pal amount of Exchange Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration
under the Securities Act effected pursuant to Section 2(a)
hereof.
"Exchange Offer Registration Statement" shall mean an
exchange offer registration statement on Form S-4 (or, if appli-
cable, on another appropriate form), and all amendments and
supplements to such registration statement, in each case includ-
ing the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in
Section 2(a) hereof.
"Exchange Securities" shall mean (i) with respect to the
Subordinated Debentures, the Series B 9.00% Junior Subordinated
Deferrable Interest Debentures due April 1, 2027 (the "Exchange
Debentures") containing terms identical to the Subordinated
Debentures (except that they will not contain terms with respect
to the transfer restrictions under the Securities Act (other than
to require minimum transfers thereof to be in blocks of $100,000
liquidation amount or principal amount) and will not provide for
any increase in the interest rate thereon), (ii) with respect to
the Capital Securities, the Trust's Series B 9.00% Capital Secu-
rities, liquidation amount $1,000 per Capital Security (the "Ex-
change Capital Securities") which will have terms identical to
the Capital Securities (except they will not contain terms with
respect to transfer restrictions under the Securities Act (other
than to require minimum transfers thereof to be in blocks of
$100,000 liquidation amount or principal amount) and will not
provide for any increase in the distribution rate thereon) and
(iii) with respect to the Capital Securities Guarantee, the
Company's guarantee (the "Exchange Capital Securities Guarantee")
of the Exchange Capital Securities which will have terms identi-
cal to the Capital Securities Guarantee.
"Holder" shall mean the Initial Purchasers, for so long as
they own any Registrable Securities, and each of its respective
successors, assigns and direct and indirect transferees who
become registered owners of Registrable Securities under the
Indenture or Declaration of Trust.
"Indenture" shall mean the Indenture relating to the Subor-
dinated Debentures and the Exchange Debentures dated as of March
1, 1997 between the Company, as issuer, and The Bank of New York,
as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble to this Agreement.
"Inspectors" shall have the meaning set forth in Sec-
tion 3(n) hereof.
"Issue Date" shall mean the date of original issuance of the
Securities.
"Liquidated Damages" shall have the meaning set forth in
Section 2(e) hereof.
"Majority Holders" shall mean the Holders of a majority of
the aggregate liquidation amount of outstanding Capital Securiti-
es.
"Participating Broker-Dealer" shall have the meaning set
forth in Section 3(t) hereof.
"Person" shall mean an individual, partnership, corporation,
trust or unincorporated organization, limited liability company,
or a government or agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in
Section 2(a) hereof.
"Private Exchange Securities" shall have the meaning set
forth in Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a Regis-
tration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securi-
ties covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-
effective amendments, and in each case including all material
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble to this Agreement.
"Records" shall have the meaning set forth in Section 3(n)
hereof.
"Registrable Securities" shall mean the Securities and, if
issued, the Private Exchange Securities; provided, however, that
Securities or Private Exchange Securities, as the case may be,
shall cease to be Registrable Securities when (i) a Registration
Statement with respect to such Securities or Private Exchange
Securities for the exchange or resale thereof, as the case may
be, shall have been declared effective under the Securities Act
and such Securities or Private Exchange Securities, as the case
may be, shall have been disposed of pursuant to such Registration
Statement, (ii) such Securities or Private Exchange Securities,
as the case may be, shall have been sold to the public pursuant
to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act, (iii) such Securities or
Private Exchange Securities, as the case may be, shall have
ceased to be outstanding or (iv) with respect to the Securities,
such Securities have been exchanged for Exchange Securities upon
consummation of the Exchange Offer and are thereafter freely
tradeable by the holder thereof (other than an affiliate of the
Company).
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company with this
Agreement, including without limitation: (i) all SEC or National
Association of Securities Dealers, Inc. (the "NASD") registration
and filing fees, including, if applicable, the fees and expenses
of any "qualified independent underwriter" (and its counsel) that
is required to be retained by any Holder of Registrable Securi-
ties in accordance with the rules and regulations of the NASD,
(ii) all fees and expenses incurred in connection with compliance
with state securities or blue sky laws (including reasonable fees
and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualification of any of the Exchange
Securities or Registrable Securities) and compliance with the
rules of the NASD, (iii) all expenses of any Persons in preparing
or assisting in preparing, word processing, printing and distrib-
uting any Registration Statement, any Prospectus and any amend-
ments or supplements thereto, and in preparing or assisting in
preparing, printing and distributing any underwriting agreements,
securities sales agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) all
rating agency fees, (v) the fees and disbursements of counsel for
the Company and of the independent certified public accountants
of the Company, including the expenses of any "cold comfort"
letters required by or incident to such performance and compli-
ance, (vi) the fees and expenses of the Trustee, and any exchange
agent or custodian, (vii) all fees and expenses incurred in
connection with the listing, if any, of any of the Exchange
Securities or the Registrable Securities on any securities ex-
change or exchanges, and (viii) the reasonable fees and expenses
of any special experts retained by the Company in connection with
any Registration Statement.
"Registration Statement" shall mean any registration state-
ment of the Company and the Trust which covers any of the Ex-
change Securities or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements
to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by
reference therein.
"Rule 144(k) Period" shall mean the period of three years
(or such shorter period as may hereafter be referred to in Rule
144(k) under the Securities Act (or similar successor rule))
commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the xxxxx-
ble to this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth
in Section 2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set
forth in Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" regis-
tration statement of the Company and the Trust pursuant to the
provisions of Section 2(b) hereof which covers all of the Regis-
trable Securities or all of the Private Exchange Securities, as
the case may be, on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(l)
hereof.
"Trustees" shall mean any and all trustees with respect to
(i) the Capital Securities under the Declaration, (ii) the
Subordinated Debentures under the Indenture and (iii) the Capital
Securities Guarantee.
"Trust Securities" shall mean the Capital Securities and the
Common Securities.
2. Registration Under the Securities Act.
(a) Exchange Offer. To the extent not prohibited by
any applicable law or applicable interpretation of the staff of
the SEC, the Company and the Trust shall, for the benefit of the
Holders, at the Company's expense, use its best efforts to
(i) file with the SEC within 150 days after the Issue Date an Ex-
change Offer Registration Statement relating to the Exchange
Offer, (ii) cause such Exchange Offer Registration Statement to
be declared effective under the Securities Act within 180 days
after the Issue Date, and (iii) keep such Exchange Offer Regis-
tration Statement effective for not less than 30 days (or longer
if required by applicable law) after the date notice of the
Exchange Offer has been mailed to the Holders. Upon the effec-
tiveness of the Exchange Offer Registration Statement, the
Company and the Trust shall promptly commence the Exchange Offer,
it being the objective of such Exchange Offer to enable each
Holder eligible and electing to exchange Registrable Securities
for a like principal amount of Exchange Debentures or a like
liquidation amount of Exchange Capital Securities, together with
the Exchange Guarantee, as applicable (assuming that such Holder
(i) is not an affiliate of the Company or the Trust within the
meaning of Rule 405 under the Securities Act and is not a broker-
dealer tendering Registrable Securities acquired directly from
the Company for its own account and (ii) acquires the Exchange
Securities in the ordinary course of such Holder's business and
has no arrangements or understandings with any Person to partici-
xxxx in the Exchange Offer for the purpose of distributing the
Exchange Securities) to transfer such Exchange Securities from
and after their receipt without any limitations or restrictions
under the Securities Act and under state securities or blue sky
laws (other than requiring minimum transfers in blocks having an
aggregate principal or liquidation amount, as the case may be, of
$100,000).
In connection with the Exchange Offer, the Company and
the Trust shall:
(i) mail or cause to be mailed to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration State-
ment, together with an appropriate letter of transmittal and
related documents;
(ii) keep the Exchange Offer open for acceptance for a
period of not less than 30 days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law)
(such period referred to herein as the "Exchange Period");
(iii) utilize the services of the Depositary for the Ex-
change Offer;
(iv) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last
Business Day of the Exchange Period, by sending to the institu-
tion specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Securities delivered for exchange, and a
statement that such Holder is withdrawing his election to have
such Securities exchanged;
(v) notify each Holder that any Security not tendered by
such Holder in the Exchange Offer will remain outstanding and
continue to accrue interest or accumulate distributions, as the
case may be, but will not retain any rights under this Agreement
(except in the case of the Initial Purchasers and Participating
Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable
laws relating to the Exchange Offer.
If any Initial Purchaser determines upon advice of its
outside counsel that it is not eligible to participate in the
Exchange Offer with respect to the exchange of Securities consti-
tuting any portion of an unsold allotment in the initial distri-
bution, as soon as practicable upon receipt by the Company and
the Trust of a written request from such Initial Purchaser, the
Company and the Trust, as applicable, shall issue and deliver to
such Initial Purchaser in exchange (the "Private Exchange") for
the Securities held by such Initial Purchaser, a like liquidation
amount of Capital Securities of the Trust, together with the
Exchange Guarantee, or a like principal amount of the Subordinat-
ed Debentures of the Company, as applicable, that are identical
(except that such securities may bear a customary legend with
respect to restrictions on transfer pursuant to the Securities
Act) to the Exchange Securities (the "Private Exchange Securi-
ties") and which are issued pursuant to the Indenture, the
Declaration or the Guarantee (which provides that the Exchange
Securities will not be subject to the transfer restrictions set
forth in the Indenture or the Declaration, as applicable, (other
than to require minimum transfers thereof to be in blocks of
$100,000 liquidation amount or principal amount) and that the
Exchange Securities, the Private Exchange Securities and the
Securities will vote and consent together on all matters as one
class and that neither the Exchange Securities, the Private
Exchange Securities nor the Securities will have the right to
vote or consent as a separate class on any matter). The Private
Exchange Securities shall be of the same series as the Exchange
Securities, and the Company and the Trust will seek to cause the
CUSIP Service Bureau to issue the same CUSIP Numbers for the
Private Exchange Securities as for the Exchange Securities issued
pursuant to the Exchange Offer.
As soon as practicable after the close of the Exchange
Offer and, if applicable, the Private Exchange, the Company and
the Trust, as the case requires, shall:
(i) accept for exchange all Securities or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer
or the Private Exchange;
(ii) deliver, or cause to be delivered, to the applicable
Trustee for cancellation all Securities or portions thereof so
accepted for exchange by the Company; and
(iii) issue, and cause the applicable Trustee under the
Indenture, the Declaration or the Guarantee, as applicable, to
promptly authenticate and deliver to each Holder, new Exchange
Securities or Private Exchange Securities, as applicable, equal
in principal amount to the principal amount of the Subordinated
Debentures or equal in liquidation amount to the liquidation
amount of the Capital Securities (together with the guarantee
thereof) as are surrendered by such Holder.
Distributions on each Exchange Capital Security and
interest on each Exchange Debenture and Private Exchange Security
issued pursuant to the Exchange Offer and in the Private Exchange
will accrue from the last date on which a distribution or inter-
est was paid on the Capital Security or the Subordinated Deben-
ture surrendered in exchange therefor or, if no distribution or
interest has been paid on such Capital Security or Subordinated
Debenture, from the Issue Date. To the extent not prohibited by
any law or applicable interpretation of the staff of the SEC, the
Company and the Trust shall use their best efforts to complete
the Exchange Offer as provided above, and shall comply with the
applicable requirements of the Securities Act, the Exchange Act
and other applicable laws in connection with the Exchange Offer.
The Exchange Offer shall not be subject to any conditions, other
than that the Exchange Offer does not violate applicable law or
any applicable interpretation of the staff of the SEC. Each
Holder of Registrable Securities who wishes to exchange such
Registrable Securities for Exchange Securities in the Exchange
Offer will be required to make certain customary representations
in connection therewith, including, in the case of any Holder of
Capital Securities, representations that (i) it is not an affili-
ate of the Trust or the Company, (ii) the Exchange Securities to
be received by it were acquired in the ordinary course of its
business and (iii) at the time of the Exchange Offer, it has no
arrangement with any person to participate in the distribution
(within the meaning of the Securities Act) of the Exchange
Capital Securities. The Company and the Trust shall inform the
Initial Purchasers, after consultation with the applicable
Trustees, of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the
right to contact such Holders and otherwise facilitate the tender
of Registrable Securities in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance
with this Section 2(a), the provisions of this Agreement shall
continue to apply, mutatis mutandis, solely with respect to
Registrable Securities that are Private Exchange Securities and
Exchange Securities held by Participating Broker-Dealers, and the
Company and the Trust shall have no further obligation to regis-
ter the Registrable Securities (other than Private Exchange
Securities) pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that (i) the
Company, the Trust or the Majority Holders reasonably determine,
after conferring with counsel (which may be in-house counsel),
that the Exchange Offer Registration provided in Section 2(a)
above is not available because of any change in law or in cur-
rently prevailing interpretations of the staff of the SEC, (ii)
the Company shall determine in good faith that there is a reason-
able likelihood that, or a material uncertainty exists as to
whether, consummation of the Exchange Offer would result in (x)
the Trust becoming subject to federal income tax with respect to
income received or accrued on the Subordinated Debentures or the
Exchange Debentures (collectively, the "Debentures"), (y) inter-
est payable by the Company on the Debentures not being deductible
by the Company for United States federal income tax purposes or
(z) the Trust becoming subject to more than a de minimus amount
of other taxes, duties or governmental charges, (iii) the Ex-
change Offer Registration Statement is not declared effective
within 180 days of the Issue Date or (iv) upon the request of any
Initial Purchaser with respect to any Registrable Securities held
by it, if such Initial Purchaser is not permitted, in the reason-
able opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, pursu-
ant to applicable law or applicable interpretations of the staff
of the SEC, to participate in the Exchange Offer and thereby
receive securities that are freely tradeable without restriction
under the Securities Act and applicable blue sky or state securi-
ties laws (any of the events specified in (i)-(iv) being a "Shelf
Registration Event" and the date of occurrence thereof, the
"Shelf Registration Event Date"), the Company and the Trust shall
use their best efforts to cause to be filed as promptly as
practicable after such Shelf Registration Event Date, as the case
may be, and, in any event, within 45 days after such Shelf
Registration Event Date (which shall be no earlier than 75 days
after the Issue Date), a Shelf Registration Statement providing
for the sale by the Holders of all of the Registrable Securities,
and shall use its best efforts to have such Shelf Registration
Statement declared effective by the SEC as soon as practicable.
No Holder of Registrable Securities shall be entitled to include
any of its Registrable Securities in any Shelf Registration
pursuant to this Agreement unless and until such Holder agrees in
writing to be bound by all of the provisions of this Agreement
applicable to such Holder and furnishes to the Company and the
Trust in writing, within 15 days after receipt of a request
therefor, such information as the Company and the Trust may,
after conferring with counsel with regard to information relating
to Holders that would be required by the SEC to be included in
such Shelf Registration Statement or Prospectus included therein,
reasonably request for inclusion in any Shelf Registration
Statement or Prospectus included therein. Each Holder as to
which any Shelf Registration is being effected agrees to furnish
to the Company and the Trust all information with respect to such
Holder necessary to make the information previously furnished to
the Company by such Holder not materially misleading.
The Company and the Trust agree to use their best
efforts to keep the Shelf Registration Statement continuously
effective for the Rule 144(k) Period (subject to extension
pursuant to the last paragraph of Section 3 hereof) or for such
shorter period which will terminate when all of the Registrable
Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or cease to be
outstanding (the "Effectiveness Period"). The Company and the
Trust shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration. The Company
and the Trust will, in the event a Shelf Registration Statement
is declared effective, provide to each Holder a reasonable number
of copies of the Prospectus which is a part of the Shelf Regis-
tration Statement, notify each such Holder when the Shelf Regis-
tration has become effective and use its best efforts to take
certain other actions as are required to permit certain unre-
stricted resales of the Registrable Securities. The Company and
the Trust further agree, if necessary, to supplement or amend the
Shelf Registration Statement, if required by the rules, regula-
tions or instructions applicable to the registration form used by
the Company for such Shelf Registration Statement or by the
Securities Act or by any other rules and regulations thereunder
for shelf registrations, and the Company and the Trust agree to
furnish to the Holders of Registrable Securities copies of any
such supplement or amendment promptly after its being used or
filed with the SEC.
(c) Expenses. The Company shall pay all Registration
Expenses in connection with the registration pursuant to Section
2(a) and/or 2(b) hereof and will reimburse the Initial Purchasers
for the reasonable fees and disbursements of Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP, counsel for the Initial Purchasers,
incurred in connection with the Exchange Offer and, if applica-
ble, the Private Exchange, and any one other counsel designated
in writing by the Majority Holders to act as counsel for the
Holders of the Registrable Securities in connection with a Shelf
Registration Statement, which other counsel shall be reasonably
satisfactory to the Company. Except as provided herein, each
Holder shall pay all expenses of its counsel, underwriting
discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange
Offer Registration Statement pursuant to Section 2(a) hereof or a
Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been de-
clared effective by the SEC; provided, however, that if, after it
has been declared effective, the offering of Registrable Securi-
ties pursuant to such Exchange Offer Registration Statement or
Shelf Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or any
other governmental agency or court, such Registration Statement
will be deemed not to have been effective during the period of
such interference, until the offering of Registrable Securities
pursuant to such Registration Statement may legally resume. The
Company and the Trust will be deemed not to have used their best
efforts to cause the Exchange Offer Registration Statement or the
Shelf Registration Statement, as the case may be, to become, or
to remain, effective during the requisite period if either of
them voluntarily takes any action that would result in any such
Registration Statement not being declared effective or in the
Holders of Registrable Securities covered thereby not being able
to exchange or offer and sell such Registrable Securities during
that period unless such action is required by applicable law.
(e) Liquidated Damages and Additional Distributions.
In the event that (i) (A) neither the Exchange Offer Registration
Statement nor a Shelf Registration Statement is filed with the
SEC on or prior to the 150th day after the Issue Date or (B)
notwithstanding that the Company and the Trust have consummated
or will consummate an Exchange Offer, the Company and the Trust
are required to file a Shelf Registration Statement and such
Shelf Registration Statement is not filed on or prior to the date
required by Section 2(b) hereof, then commencing on the day after
the applicable required filing date, (x) an additional amount
(being liquidated damages) shall accrue on the principal amount
of the Subordinated Debentures, and (y) additional distributions
shall accumulate on the liquidation amount of the Trust Securi-
ties, each at a rate of 0.25% per annum; or
(ii) (A) neither the Exchange Offer Registration Statement
nor a Shelf Registration Statement is declared effective by the
SEC on or prior to the 180th day after the Issue Date or (B)
notwithstanding that the Company and the Trust have consummated
an Exchange Offer, the Company and the Trust are required to file
a Shelf Registration Statement and such Shelf Registration State-
ment is not declared effective by the SEC on or prior to the
later of the 30th day after the date such Shelf Registration
Statement was required to be filed or the 180th day after the
Issue Date, then, commencing on the 181st day after the Issue
Date (with respect to subclause (A)) or the later of the 31st day
after the applicable required filing date or the 181st day after
the Issue Date (with respect to subclause (B)), (x) an additional
amount (being liquidated damages) shall accrue on the principal
amount of the Subordinated Debentures, and (y) additional distri-
butions shall accumulate on the liquidation amount of the Trust
Securities, each at a rate of 0.25% per annum; or
(iii) (A) the Trust has not exchanged Exchange Capital
Securities for all Capital Securities or the Company has not
exchanged Exchange Guarantees or Exchange Debentures for all
Guarantees or Subordinated Debentures validly tendered, in
accordance with the terms of the Exchange Offer on or prior to
the 45th day after the date on which the Exchange Offer Registra-
tion Statement was declared effective or (B) if applicable, the
Shelf Registration Statement has been declared effective and such
Shelf Registration Statement ceases to be effective at any time
prior to the expiration of the Rule 144(k) Period (other than
after such time as all Capital Securities have been disposed of
thereunder or otherwise cease to be Registrable Securities), then
liquidated damages shall accrue on the principal amount of
Subordinated Debentures, and additional distributions shall
accumulate on the liquidation amount of the Trust Securities,
each at a rate of 0.25% per annum commencing on (x) the 46th day
after such effective date, in the case of (A) above, or (y) the
day such Shelf Registration Statement ceases to be effective in
the case of (B) above;
provided, however, that neither the additional amounts (being
liquidated damages) on the Subordinated Debentures, nor the
additional distribution rate on the liquidation amount of the
Trust Securities, may 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
Statement (in the case of clause (i) above), (2) upon the effec-
tiveness of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (ii) above), or (3)
upon the exchange of Exchange Capital Securities, Exchange
Guarantees and Exchange Debentures for all Capital Securities,
Guarantees and Subordinated Debentures tendered (in the case of
clause (iii)(A) above), or upon the effectiveness of the Shelf
Registration Statement which had ceased to remain effective (in
the case of clause (iii)(B) above), additional amounts on the
Subordinated Debentures, and additional 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, as the case may be.
Any additional amounts and additional distributions due
pursuant to Section 2(e)(i), (ii) or (iii) above (together
"Liquidated Damages") will be payable in cash on the next suc-
ceeding April 1 or October 1, as the case may be, to holders on
the relevant record dates for the payment of interest and distri-
butions pursuant to the Indenture and the Declaration, respec-
tively.
(f) Specific Enforcement. Without limiting the
remedies available to the Holders, the Company and the Trust
acknowledge that any failure by the Company or the Trust to
comply with its obligations under Section 2(a) and Section 2(b)
hereof may result in material irreparable injury to the Holders
for which there is no adequate remedy at law, that it would not
be possible to measure damages for such injuries precisely and
that, in the event of any such failure, any Holder may obtain
such relief as may be required to specifically enforce the
Company's and the Trust's obligations under Section 2(a) and
Section 2(b) hereof.
3. Registration Procedures. In connection with the
obligations of the Company and the Trust with respect to the
Registration Statements pursuant to Sections 2(a) and 2(b)
hereof, the Company and the Trust shall use their best efforts
to:
(a) prepare and file with the SEC a Registration
Statement or Registration Statements as prescribed by Sec-
tions 2(a) and 2(b) hereof within the relevant time period
specified in Section 2 hereof on the appropriate form under
the Securities Act, which form (i) shall be selected by the
Company and the Trust, (ii) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable
Securities by the selling Holders thereof and (iii) shall
comply as to form in all material respects with the require-
ments of the applicable form and include all financial
statements required by the SEC to be filed therewith; and
use its best efforts to cause such Registration Statement to
become effective and remain effective in accordance with
Section 2 hereof; provided, however, that if (1) such filing
is pursuant to Section 2(b), or (2) a Prospectus contained
in an Exchange Offer Registration Statement filed pursuant
to Section 2(a) is required to be delivered under the Secu-
rities Act by any Participating Broker-Dealer who seeks to
sell Exchange Securities, before filing any Registration
Statement or Prospectus or any amendments or supplements
thereto, the Company and the Trust shall furnish to and
afford the Holders of the Registrable Securities and each
such Participating Broker-Dealer, as the case may be, cov-
ered by such Registration Statement, their counsel and the
managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed. The Company and the
Trust shall not file any Registration Statement or Prospec-
tus or any amendments or supplements thereto in respect of
which the Holders must be afforded an opportunity to review
prior to the filing of such document if the Majority Holders
or such Participating Broker-Dealer, as the case may be,
their counsel or the managing underwriters, if any, shall
reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as
may be necessary to keep such Registration Statement effec-
tive for the Effectiveness Period or the Applicable Period,
as the case may be; and cause each Prospectus to be supple-
mented, if so determined by the Company or the Trust or re-
quested by the SEC, by any required prospectus supplement
and as so supplemented to be filed pursuant to Rule 424 (or
any similar provision then in force) under the Securities
Act, and comply with the provisions of the Securities Act,
the Exchange Act and the rules and regulations promulgated
thereunder applicable to it with respect to the disposition
of all securities covered by each Registration Statement
during the Effectiveness Period or the Applicable Period, as
the case may be, in accordance with the intended method or
methods of distribution by the selling Holders thereof
described in this Agreement (including sales by any Partici-
pating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify
each Holder of Registrable Securities included in the Shelf
Registration Statement, at least three Business Days prior
to filing, that a Shelf Registration Statement with respect
to the Registrable Securities is being filed and advising
such Holder that the distribution of Registrable Securities
will be made in accordance with the method selected by the
Majority Holders; and (ii) furnish to each Holder of Regis-
trable Securities included in the Shelf Registration State-
ment and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many
copies of each Prospectus, including each preliminary Pro-
spectus, and any amendment or supplement thereto and such
other documents as such Holder or underwriter may reasonably
request, in order to facilitate the public sale or other
disposition of the Registrable Securities; and (iii) consent
to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Registrable Secu-
rities included in the Shelf Registration Statement in
connection with the offering and sale of the Registrable
Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) in the case of a Shelf Registration, use its best
efforts to register or qualify the Registrable Securities
under all applicable state securities or "blue sky" laws of
such jurisdictions by the time the applicable Registration
Statement is declared effective by the SEC as any Holder of
Registrable Securities covered by a Registration Statement
and each underwriter of an underwritten offering of Regis-
trable Securities shall reasonably request in writing in
advance of such date of effectiveness, and do any and all
other acts and things which may be reasonably necessary or
advisable to enable such Holder and underwriter to consum-
mate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided,
however, that the Company and the Trust shall not be re-
quired to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d),
(ii) file any general consent to service of process in any
jurisdiction where it would not otherwise be subject to such
service of process or (iii) subject itself to taxation in
any such jurisdiction if it is not then so subject;
(e) in the case of (1) a Shelf Registration or (2) Pa-
rticipating Broker-Dealers from whom the Company or the
Trust has received prior written notice that they will be
utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(t) hereof,
are seeking to sell Exchange Securities and are required to
deliver Prospectuses, notify each Holder of Registrable
Securities, or such Participating Broker-Dealers, as the
case may be, their counsel and the managing underwriters, if
any, promptly and promptly confirm such notice in writing
(i) when a Registration Statement has become effective and
when any post-effective amendments and supplements thereto
become effective, (ii) of any request by the SEC or any
state securities authority for amendments and supplements to
a Registration Statement or Prospectus or for additional
information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effec-
tiveness of a Registration Statement or the qualification of
the Registrable Securities or the Exchange Securities to be
offered or sold by any Participating Broker-Dealer in any
jurisdiction described in paragraph 3(d) hereof or the
initiation of any proceedings for that purpose, (iv) in the
case of a Shelf Registration, if, between the effective date
of a Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations
and warranties of the Company and the Trust contained in any
purchase agreement, securities sales agreement or other
similar agreement, if any cease to be true and correct in
all material respects, and (v) of the happening of any event
or the failure of any event to occur or the discovery of any
facts or otherwise, during the Effectiveness Period which
makes any statement made in such Registration Statement or
the related Prospectus untrue in any material respect or
which causes such Registration Statement or Prospectus to
omit to state a material fact necessary to make the state-
ments therein, in the light of the circumstances under which
they were made, not misleading, and (vi) the Company and the
Trust's reasonable determination that a post-effective
amendment to the Registration Statement would be appropri-
ate;
(f) make every reasonable effort to obtain the with-
drawal of any order suspending the effectiveness of a Regis-
tration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to
each Holder of Registrable Securities included within the
coverage of such Shelf Registration Statement, without
charge, at least one conformed copy of each Registration
Statement relating to such Shelf Registration and any post--
effective amendment thereto (without documents incorporated
therein by reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate
with the selling Holders of Registrable Securities to facil-
itate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not
bearing any restrictive legends (other than with respect to
restrictions requiring minimum transfers in blocks having an
aggregate principal or liquidation amount, as the case may
be, of $100,000) and in such denominations (consistent with
the provisions of the Indenture and the Declaration) and
registered in such names as the selling Holders or the
underwriters may reasonably request at least two Business
Days prior to the closing of any sale of Registrable Securi-
ties pursuant to such Shelf Registration Statement;
(i) in the case of a Shelf Registration or an Exchange
Offer Registration, upon the occurrence of any circumstance
contemplated by Section 3(e)(ii), 3(e)(iii), 3(e)(v) or
3(e)(vi) hereof, use its best efforts to prepare a supple-
ment or post-effective amendment to such Registration State-
ment or the related Prospectus or any document incorporated
therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any
untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in
the light of the circumstances under which they were made,
not misleading; and to notify each Holder to suspend use of
the Prospectus as promptly as practicable after the occur-
rence of such an event, and each Holder hereby agrees to
suspend the sale of Securities pursuant to such Prospectus
until the Company has amended or supplemented such Prospec-
tus to correct such misstatement or omission and has fur-
nished copies of the amended or supplemented prospectus to
such holder (or Participating Broker-Dealer, as the case may
be) or the Company has given notice that the sale of the
Securities may be resumed, as the case may be;
(j) [Reserved];
(k) obtain a CUSIP number for all Exchange Capital
Securities and the Capital Securities (and if the Trust has
made a distribution of the Subordinated Debentures to the
Holders of the Capital Securities, the Subordinated Deben-
tures or the Exchange Debentures) as the case may be, not
later than the effective date of a Registration Statement,
and provide the Trustee with printed certificates for the
Exchange Securities or the Registrable Securities, as the
case may be, in a form eligible for deposit with the Deposi-
tary;
(l) cause the Indenture, the Declaration, the Guaran-
tee and the Exchange Guarantee to be qualified under the
Trust Indenture Act of 1939 (the "TIA") in connection with
the registration of the Exchange Securities or Registrable
Securities, as the case may be, and effect such changes to
such documents as may be required for them to be so quali-
fied in accordance with the terms of the TIA and execute,
and use its best efforts to cause the relevant trustee to
execute, all documents as may be required to effect such
changes, and all other forms and documents required to be
filed with the SEC to enable such documents to be so quali-
fied in a timely manner;
(m) in the case of a Shelf Registration, enter into
such agreements (including underwriting agreements) as are
customary in underwritten offerings and take all such other
appropriate actions as are reasonably requested in order to
expedite or facilitate the registration or the disposition
of such Registrable Securities, and in such connection,
whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registra-
tion, if requested by (x) any Initial Purchaser, in the case
where an Initial Purchaser holds Securities acquired by it
as part of its initial distribution and (y) other Holders of
Securities covered thereby: (i) make such representations
and warranties to Holders of such Registrable Securities and
the underwriters (if any), with respect to the business of
the Trust, the Company and its subsidiaries as then con-
ducted and the Registration Statement, Prospectus and docu-
ments, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings, and
confirm the same if and when requested; (ii) obtain opinions
of counsel to the Company and the Trust and updates thereof
(which may be in the form of a reliance letter) in form and
substance reasonably satisfactory to the managing underwrit-
ers (if any) and the Holders of a majority in principal
amount of the Registrable Securities being sold, addressed
to each selling Holder and the underwriters (if any) cover-
ing the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be
reasonably requested by such underwriters (it being agreed
that the matters to be covered by such opinion may be sub-
ject to customary qualifications and exceptions); (iii) obt-
ain "cold comfort" letters and updates thereof in form and
substance reasonably satisfactory to the managing underwrit-
ers from the independent certified public accountants of the
Company and the Trust (and, if necessary, any other indepen-
dent certified public accountants of any subsidiary of the
Company and the Trust or of any business acquired by the
Company and the Trust for which financial statements and
financial data are, or are required to be, included in the
Registration Statement), addressed to each of the underwrit-
ers, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings and such
other matters as reasonably requested by such underwriters
in accordance with Statement on Auditing Standards No. 72;
and (iv) if an underwriting agreement is entered into, the
same shall contain indemnification provisions and procedures
no less favorable than those set forth in Section 4 hereof
(or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount or
liquidation amount, as the case may be, of Registrable Secu-
rities covered by such Registration Statement and the manag-
ing underwriters or agents) with respect to all parties to
be indemnified pursuant to said Section (including, without
limitation, such underwriters and selling Holders). The
above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section 2(a)
is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period, make reasonably
available for inspection by any selling Holder of such
Registrable Securities being sold, or each such Participat-
ing Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Securi-
ties, if any, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participat-
ing Broker-Dealer, as the case may be, or underwriter (col-
lectively, the "Inspectors"), at the offices where normally
kept, during reasonable business hours, all financial and
other records, pertinent corporate documents and properties
of the Trust, the Company and its subsidiaries (collective-
ly, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence respon-
sibilities, and cause the officers, directors and employees
of the Trust, the Company and its subsidiaries to supply all
relevant information in each case reasonably requested by
any such Inspector in connection with such Registration
Statement. Records which the Company and the Trust deter-
mine, in good faith, to be confidential and any records
which it notifies the Inspectors are confidential shall not
be disclosed by the Inspectors unless (i) the disclosure of
such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement,
(ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdic-
tion or is necessary in connection with any action, suit or
proceeding or (iii) the information in such Records has been
made generally available to the public. Each selling Holder
of such Registrable Securities and each such Participating
Broker-Dealer will be required to agree in writing that
information obtained by it as a result of such inspections
shall be deemed confidential and shall not be used by it as
the basis for any market transactions in the securities of
the Trust or the Company unless and until such is made
generally available to the public. Each selling Holder of
such Registrable Securities and each such Participating
Broker-Dealer will be required to further agree in writing
that it will, upon learning that disclosure of such Records
is sought in a court of competent jurisdiction, give notice
to the Company and allow the Company at its expense to
undertake appropriate action to prevent disclosure of the
Records deemed confidential;
(o) comply with all applicable rules and regulations
of the SEC so long as any provision of this Agreement shall
be applicable and make generally available to its security-
holders earning statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such
period is a fiscal year) (i) commencing at the end of any
fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts underwrit-
ten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal
quarter of the Company after the effective date of a Regis-
tration Statement, which statements shall cover said 12-
month periods;
(p) upon consummation of an Exchange Offer or a Pri-
vate Exchange, if requested by a Trustee, obtain an opinion
of counsel to the Company addressed to the Trustee for the
benefit of all Holders of Registrable Securities partic-
ipating in the Exchange Offer or the Private Exchange, as
the case may be, to the effect that (i) the Company and the
Trust, as the case requires, has duly authorized, executed
and delivered the Exchange Securities and Private Exchange
Securities, and (ii) each of the Exchange Securities or the
Private Exchange Securities, as the case may be, constitutes
a legal, valid and binding obligation of the Company or the
Trust, as the case requires, enforceable against the Company
or the Trust, as the case requires, in accordance with its
respective terms (in each case, with customary exceptions);
(q) if an Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Registrable Securities
by Holders to the Company or the Trust, as applicable (or to
such other Person as directed by the Company or the Trust,
respectively), in exchange for the Exchange Securities or
the Private Exchange Securities, as the case may be, the
Company or the Trust, as applicable, shall xxxx, or cause to
be marked, on such Registrable Securities delivered by such
Holders that such Registrable Securities are being cancelled
in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be; in no event shall
such Registrable Securities be marked as paid or otherwise
satisfied;
(r) cooperate with each seller of Registrable Securi-
ties covered by any Registration Statement and each under-
writer, if any, participating in the disposition of such
Registrable Securities and their respective counsel in
connection with any filings required to be made with the
NASD;
:\A use its best efforts to take all other steps
necessary to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated
hereby;
(t) (A) in the case of the Exchange Offer Registra-
tion Statement (i) include in the Exchange Offer Registra-
tion Statement a section entitled "Plan of Distribution,"
which section shall be reasonably acceptable to the Initial
Purchasers or another representative of the Participating
Broker-Dealers, and which shall contain a summary statement
of the positions taken or policies made by the staff of the
SEC with respect to the potential "underwriter" status of
any broker-dealer (a "Participating Broker-Dealer") that
holds Registrable Securities acquired for its own account as
a result of market-making activities or other trading activ-
ities and that will be the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of Exchange Securities to
be received by such broker-dealer in the Exchange Offer,
whether such positions or policies have been publicly dis-
seminated by the staff of the SEC or such positions or
policies, in the reasonable judgment of the Initial Purchas-
ers or such other representative, represent the prevailing
views of the staff of the SEC, including a statement that
any such broker-dealer who receives Exchange Securities for
Registrable Securities pursuant to the Exchange Offer may be
deemed a statutory underwriter and must deliver a prospectus
meeting the requirements of the Securities Act in connection
with any resale of such Exchange Securities, (ii) furnish to
each Participating Broker-Dealer who has delivered to the
Company the notice referred to in Section 3(e), without
charge, as many copies of each Prospectus included in the
Exchange Offer Registration Statement, including any prelim-
inary prospectus, and any amendment or supplement thereto,
as such Participating Broker-Dealer may reasonably request
(each of the Company and the Trust hereby consents to the
use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement there-
to by any Person subject to the prospectus delivery require-
ments of the Securities Act, including all Participating
Broker-Dealers, in connection with the sale or transfer of
the Exchange Securities covered by the Prospectus or any
amendment or supplement thereto), (iii) use its best efforts
to keep the Exchange Offer Registration Statement effective
and to amend and supplement the Prospectus contained therein
in order to permit such Prospectus to be lawfully delivered
by all Persons subject to the prospectus delivery require-
ments of the Securities Act for such period of time as such
Persons must comply with such requirements under the Securi-
ties Act and applicable rules and regulations in order to
resell the Exchange Securities; provided, however, that such
period shall not be required to exceed 90 days (or such
longer period if extended pursuant to the last sentence of
Section 3 hereof) (the "Applicable Period"), and (iv) in-
clude in the transmittal letter or similar documentation to
be executed by an exchange offeree in order to participate
in the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer
holding Registrable Securities acquired for
its own account as a result of market-making
activities or other trading activities, it
will deliver a prospectus meeting the re-
quirements of the Securities Act in connec-
tion with any resale of Exchange Securities
received in respect of such Registrable Secu-
rities pursuant to the Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making
the acknowledgment described in clause (x) and by delivering a
Prospectus in connection with the exchange of Registrable Securi-
ties, the broker-dealer will not be deemed to admit that it is an
underwriter within the meaning of the Securities Act; and
(B) in the case of any Exchange Offer Registration
Statement, the Company and the Trust agree to deliver to the
Initial Purchasers or to another representative of the Par-
ticipating Broker-Dealers, if requested by any Initial
Purchaser or such other representative of the Participating
Broker-Dealers, on behalf of the Participating Broker-Deal-
ers upon consummation of the Exchange Offer (i) an opinion
of counsel in form and substance reasonably satisfactory to
the Initial Purchasers or such other representative of the
Participating Broker-Dealers, covering the matters custom-
arily covered in opinions requested in connection with
Exchange Offer Registration Statements and such other mat-
ters as may be reasonably requested (it being agreed that
the matters to be covered by such opinion may be subject to
customary qualifications and exceptions), (ii) an officers'
certificate containing certifications substantially similar
to those set forth in Section 5(f) of the Purchase Agreement
and such additional certifications as are customarily deliv-
ered in a public offering of debt securities and (iii) as
well as upon the effectiveness of the Exchange Offer Regis-
tration Statement, a comfort letter, in each case, in cus-
tomary form if permitted by Statement on Auditing Standards
No. 72.
The Company or the Trust may require each seller of
Registrable Securities as to which any registration is being
effected to furnish to the Company or the Trust, as applicable,
such information regarding such seller as may be required by the
staff of the SEC to be included in a Registration Statement. The
Company or the Trust may exclude from such registration the
Registrable Securities of any seller who unreasonably fails to
furnish such information within a reasonable time after receiving
such request. The Company shall have no obligation to register
under the Securities Act the Registrable Securities of a seller
who so fails to furnish such information.
In the case of (1) a Shelf Registration Statement or
(2) Participating Broker-Dealers who have notified the Company
and the Trust that they will be utilizing the Prospectus con-
tained in the Exchange Offer Registration Statement as provided
in Section 3(t) hereof, are seeking to sell Exchange Securities
and are required to deliver Prospectuses, each Holder agrees
that, upon receipt of any notice from the Company or the Trust of
the happening of any event of the kind described in Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities
pursuant to a Registration Statement until such Holder's receipt
of the copies of the supplemented or amended Prospectus
contemplated by Section 3(i) hereof or until it is advised in
writing (the "Advice") by the Company and the Trust that the use
of the applicable Prospectus may be resumed, and, if so directed
by the Company and the Trust, such Holder will deliver to the
Company or the Trust (at the Company's or the Trust's expense, as
the case requires) all copies in such Holder's possession, other
than permanent file copies then in such Holder's possession, of
the Prospectus covering such Registrable Securities or Exchange
Securities, as the case may be, current at the time of receipt of
such notice. If the Company or the Trust shall give any such
notice to suspend the disposition of Registrable Securities or
Exchange Securities, as the case may be, pursuant to a Regis-
tration Statement, the Company and the Trust shall use their best
efforts to file and have declared effective (if an amendment) as
soon as practicable an amendment or supplement to the
Registration Statement and shall extend the period during which
such Registration Statement shall be maintained effective pursu-
ant to this Agreement by the number of days in the period from
and including the date of the giving of such notice to and
including the date when the Company and the Trust shall have made
available to the Holders (x) copies of the supplemented or
amended Prospectus necessary to resume such dispositions or (y)
the Advice.
4. Indemnification and Contribution. (a) In connec-
tion with any Registration Statement, the Company and the Trust
shall, jointly and severally, indemnify and hold harmless each
Initial Purchaser, each Holder, each underwriter who participates
in an offering of the Registrable Securities, each Participating
Broker-Dealer, each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act and each of their respective
directors, officers, employees and agents, as follows:
(i) from and against any and all loss, liability,
claim, damage and expense whatsoever, joint or several, as
incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Regis-
tration Statement (or any amendment thereto), covering
Registrable Securities or Exchange Securities, including all
documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements there-
in not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(ii) from and against any and all loss, liability,
claim, damage and expense whatsoever, joint or several, as
incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or pro-
ceeding by any court or governmental agency or body, com-
menced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is effected
with the prior written consent of the Company; and
(iii) from and against any and all expenses whatsoev-
er, as incurred (including reasonable fees and disbursements
of counsel chosen by such Holder, such Participating
Broker-Dealer, or any underwriter (except to the extent
otherwise expressly provided in Section 4(c) hereof)), rea-
sonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding
by any court or governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) of this Section
4(a);
provided, however, that (i) this indemnity does not apply to any
loss, liability, claim, damage or expense to the extent arising
out of an untrue statement or omission or alleged untrue state-
ment or omission made in reliance upon and in conformity with
written information furnished in writing to the Company or the
Trust by or on behalf of such Holder, such Participating
Broker-Dealer or any underwriter with respect to such Holder,
Participating Broker-Dealer or any underwriter, as the case may
be, expressly for use in a Registration Statement (or any amend-
ment thereto) or any Prospectus (or any amendment or supplement
thereto) and (ii) the Company and the Trust shall not be liable
to any such Holder, Participating Broker-Dealer, any underwriter
or controlling person, with respect to any untrue statement or
alleged untrue statement or omission or alleged omission in any
preliminary Prospectus to the extent that any such loss, liabili-
ty, claim, damage or expense of any Holder, Participating Broker-
Dealer, any underwriter or controlling person results from the
fact that such Holder, any underwriter or Participating Broker-
Dealer sold Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a
copy of the final Prospectus as then amended or supplemented if
the Company had previously furnished copies thereof to such
Holder, underwriter or Participating Broker-Dealer and the loss,
liability, claim, damage or expense of such Holder, underwriter,
Participating Broker-Dealer or controlling person results from an
untrue statement or omission of a material fact contained in the
preliminary Prospectus which was corrected in the final Prospec-
tus. Any amounts advanced by the Company or the Trust to an
indemnified party pursuant to this Section 4 as a result of such
losses shall be promptly returned to the Company or the Trust if
it shall be finally determined by such a court in a judgment not
subject to appeal or final review that such indemnified party was
not entitled to indemnification by the Company or the Trust.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Trust, any under-
writer and the other selling Holders and each of their respective
directors, officers (including each officer of the Company and
the Trust who signed the Registration Statement), employees and
agents and each Person, if any, who controls the Company, the
Trust, any underwriter or any other selling Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all loss, liability,
claim, damage and expense whatsoever described in the indemnity
contained in Section 4(a) hereof, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supple-
ment thereto) in reliance upon and in conformity with written
information furnished to the Company or the Trust by or on behalf
of such selling Holder with respect to such Holder expressly for
use in such Registration Statement (or any amendment thereto), or
any such Prospectus (or any amendment or supplement thereto);
provided, however, that, in the case of Shelf Registration
Statement, no such Holder shall be liable for any claims hereun-
der in excess of the amount of net proceeds received by such
Holder from the sale of Registrable Securities pursuant to such
Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, enclosing a
copy of all papers properly served on such indemnified party, but
failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have under
this Section 4, except to the extent that it is materially
prejudiced by such failure. An indemnifying party may partici-
xxxx at its own expense in the defense of such action. If an
indemnifying party so elects within a reasonable time after
receipt of such notice, an indemnifying party, severally or
jointly with any other indemnifying parties receiving such
notice, may assume the defense of such action with counsel chosen
by it and reasonably acceptable to the indemnified parties defen-
xxxx in such action, provided, however, that if (i) repre-
sentation of such indemnified party by the same counsel would
present a conflict of interest or (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and any such indem-
nified party reasonably determines that there may be legal
defenses available to such indemnified party which are different
from or in addition to those available to such indemnifying
party, then in the case of clauses (i) and (ii) of this Section
4(c) such indemnifying party and counsel for each indemnifying
party or parties shall not be entitled to assume such defense.
If an indemnifying party is not entitled to assume the defense of
such action as a result of the proviso to the preceding sentence,
counsel for such indemnifying party and counsel for each indemni-
fied party or parties shall be entitled to conduct the defense of
such indemnified party or parties. If an indemnifying party
assumes the defense of such action, in accordance with and as
permitted by the provisions of this paragraph, such indemnifying
parties shall not be liable for any fees and expenses of counsel
for the indemnified parties incurred thereafter in connection
with such action. In no event shall the indemnifying parties be
liable for the fees and expenses of more than one counsel (in
addition to local counsel), separate from its own counsel, for
all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No
indemnifying party shall (i) without the prior written consent of
the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (x) includes an unconditional written release in form and
substance satisfactory to the indemnified parties of each indem-
nified party from all liability arising out of such litigation,
investigation, proceeding or claim and (y) does not include a
statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party 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 the consent of the indemnifying
party 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 lia-
bility by reason of such settlement or judgment.
(d) In order to provide for just and equitable contri-
bution in circumstances under which any of the indemnity provi-
sions set forth in this Section 4 is for any reason held to be
unavailable to the indemnified parties although applicable in
accordance with its terms, the Company, the Trust, and the
Holders shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such
indemnity agreement incurred by the Company, the Trust and the
Holders, as incurred; provided that no Person guilty of fraudu-
lent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any Person
that was not guilty of such fraudulent misrepresentation. As
between the Company, the Trust and the Holders, such parties
shall contribute to such aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity
agreement in such proportion as shall be appropriate to reflect
the relative fault of the Company and Trust, on the one hand, and
the Holders, on the other hand, with respect to the statements or
omissions which resulted in such loss, liability, claim, damage
or expense, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault of the
Company and the Trust, on the one hand, and of the Holders, on
the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or
the Trust, on the one hand, or by or on behalf of the Holders, on
the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission. The Company, the Trust and the Holders of the
Registrable Securities agree that it would not be just and
equitable if contribution pursuant to this Section 4 were to be
determined by pro rata allocation or by any other method of
allocation that does not take into account the relevant equitable
considerations. For purposes of this Section 4, each affiliate
of a Holder, and each director, officer, employee, agent and
Person, if any, who controls a Holder or such affiliate within
the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as
such Holder, and each director and officer (including each
officer of each of the Company or the Trust who signed the
Registration Statement) of each of the Company or the Trust, and
each Person, if any, who controls each of the Company and the
Trust within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to
contribution as each of the Company or the Trust.
5. Participation in Underwritten Registrations. No
Holder may participate in any underwritten registration hereunder
unless such Holder (a) 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 (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably
required under the terms of such underwriting arrangements.
6. Selection of Underwriters. The Holders of Regis-
trable Securities covered by the Shelf Registration Statement who
desire to do so may sell the securities covered by such Shelf
Registration in an underwritten offering. In any such underwrit-
ten offering, the underwriter or underwriters and manager or
managers that will administer the offering will be selected by
the Holders of a majority in aggregate principal amount or
liquidation amount, as applicable, of the Registrable Securities
included in such offering; provided, however, that such under-
writers and managers must be reasonably satisfactory to the
Company and the Trust.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the
Company or the Trust is subject to the reporting requirements of
Section 13 or 15 of the Exchange Act and any Registrable Securi-
ties remain outstanding, each of the Company and the Trust, as
the case may be, will use its best efforts to file the reports
required to be filed by it under the Securities Act and Section
13(a) or 15(d) of the Exchange Act and the rules and regulations
adopted by the SEC thereunder, or, if it ceases to be so required
to file such reports, it will, upon the request of any Holder of
Registrable Securities (a) make publicly available such informa-
tion as is necessary to permit sales of its securities pursuant
to Rule 144 under the Securities Act, (b) deliver such informa-
tion to a prospective purchaser as is necessary to permit sales
of its securities pursuant to Rule 144A under the Securities Act
and it will take such further action as any Holder of Registrable
Securities may reasonably request, and (c) take such further
action that is reasonable in the circumstances, in each case, to
the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided
by (i) Rule 144 under the Securities Act, as such rule may be
amended from time to time, (ii) Rule 144A under the Securities
Act, as such rule may be amended from time to time, or (iii) any
similar rules or regulations hereafter adopted by the SEC. Upon
the request of any Holder of Registrable Securities, the Company
and the Trust will deliver to such Holder a written statement as
to whether they have complied with such requirements.
(b) No Inconsistent Agreements. The Company or the
Trust has not entered into nor will the Company or the Trust on
or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsis-
tent with the rights granted to the holders of the Company's or
the Trust's other issued and outstanding securities under any
such agreements.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the
Company and the Trust has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the out-
standing Registrable Securities affected by such amendment, modi-
fication, supplement, waiver or departure; provided no amendment,
modification or supplement or waiver or consent to the departure
with respect to the provisions of Section 4 hereof shall be
effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder of Registrable Securities.
Notwithstanding the foregoing sentence, (i) this Agreement may be
amended, without the consent of any Holder of Registrable Securi-
ties, by written agreement signed by the Company, the Trust and
Xxxxxx Brothers, to cure any ambiguity, correct or supplement any
provision of this Agreement that may be inconsistent with any
other provision of this Agreement or to make any other provisions
with respect to matters or questions arising under this Agreement
which shall not be inconsistent with other provisions of this
Agreement, (ii) this Agreement may be amended, modified or
supplemented, and waivers and consents to departures from the
provisions hereof may be given, by written agreement signed by
the Company, the Trust and Xxxxxx Brothers to the extent that any
such amendment, modification, supplement, waiver or consent is,
in their reasonable judgment, necessary or appropriate to comply
with applicable law (including any interpretation of the Staff of
the SEC) or any change therein and (iii) to the extent any
provision of this Agreement relates to the Initial Purchasers,
such provision may be amended, modified or supplemented, and
waivers or consents to departures from such provisions may be
given, by written agreement signed by Xxxxxx Brothers, the
Company and the Trust.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, telecopier, or
any courier guaranteeing overnight delivery (i) if to a Holder,
at the most current address given by such Holder to the Company
or the Trust by means of a notice given in accordance with the
provisions of this Section 7(d), which address initially is, with
respect to the Initial Purchasers, the address set forth in the
Purchase Agreement; and (ii) if to the Company or the Trust, ini-
tially at the Company's address set forth in the Purchase Agree-
ment and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 7(d).
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if personal-
ly delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when answered back, if telexed;
when receipt is 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 communi-
cations shall be concurrently delivered by the Person giving the
same to the Trustee, at the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors,
assigns and transferees of the Initial Purchasers, including,
without limitation and without the need for an express assign-
ment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms
of the Purchase Agreement or the Indenture. If any transferee of
any Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities,
such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this
Agreement and such Person shall be entitled to receive the
benefits hereof.
(f) Third Party Beneficiary. Each of the Initial
Purchasers shall be a third party beneficiary of the agreements
made hereunder between the Company and the Trust, on the one
hand, and the Holders, on the other hand, and shall have the
right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or
the rights of Holders hereunder.
(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.
(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 DEEMED TO
HAVE BEEN MADE IN THE STATE OF NEW YORK. THE VALIDITY AND
INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS
SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN ACCOR-
DANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF
THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(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) Securities Held by the Company, the Trust or its
Affiliates. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company, the Trust
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.
SOVEREIGN BANCORP, INC.
By:
Name:
Title:
SOVEREIGN CAPITAL TRUST I
By:
Name:
Title: Administrative Trustee
By:
Name:
Title: Administrative Trustee
Confirmed and accepted as of
the date first above
written:
XXXXXX BROTHERS INC.
XXXXXXXXXX SECURITIES
XXXXX XXXXXX INC.
XXXX, XXXX & CO.
By: XXXXXX BROTHERS INC.,
on behalf of the
several Initial Purchasers
By:
Name:
Title:
