1
EXHIBIT 4.6
================================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of December 30, 1996
Among
FIRST MARYLAND CAPITAL I,
FIRST MARYLAND BANCORP
and
▇▇▇▇▇▇ BROTHERS INC.
and
ABN AMRO Securities (USA) Inc.,
Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
HSBC Securities, Inc.,
PaineWebber Incorporated,
and
Sanwa International plc
as Initial Purchasers
================================================================================
2
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 Under Certain Circumstances . . . . . . . . . . . . . . . 6
6. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7. Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8. Indemnification and Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
9. Rule 144A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10. Participation in Underwritten Registrations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
11. Selection of Underwriters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
12. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3
This Registration Rights Agreement (this "Agreement") is made
and entered into as of December 30, 1996 by and among First Maryland Capital I,
a Delaware statutory business trust (the "Trust"), First Maryland Bancorp, a
Maryland corporation ("the Company") and ▇▇▇▇▇▇ Brothers Inc., ABN AMRO
Securities (USA) Inc., Bear, ▇▇▇▇▇▇▇ & Co. Inc., HSBC Securities, Inc.,
PaineWebber Incorporated and Sanwa International plc (together, the "Initial
Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of December 23, 1996, among the Company, the Trust and the
Initial Purchasers (the "Purchase Agreement"), and any additional purchase
agreement between such parties, in each case which provides for the sale by the
Trust to the Initial Purchasers of the Trust's Floating Rate 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 Floating Rate Junior Subordinated Debentures due 2027
(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:
Additional Interest: as defined in Section 5(a)
hereof.
Additional Distributions: as defined in Section 5(a)
hereof.
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 tendered by Holders thereof pursuant
to the Exchange Offer.
Declaration: The Amended and Restated Declaration of
Trust, dated as of December 30, 1996, among The Bank of New York, as
Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee, and the Regular Trustees named therein, pursuant to which the
4
2
Capital Securities are being issued, as amended or supplemented from
time to time in accordance with the terms thereof.
Distribution: As defined in the Declaration.
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" in "offshore
transactions," as such terms are defined in Regulation S under the
Securities Act.
Guarantee Agreement: The Guarantee Agreement, dated
as of December 30, 1996, 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.
Indenture: The Indenture, dated as of December 30,
1996, 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.
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.
5
3
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, 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 Securities 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 Security 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 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 beneficially owns Transfer
Restricted Securities.
6
4
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),
the Company and the Trust shall (i) cause to be filed with the
Commission as soon as practicable 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 at the earliest
possible time, but in no event 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.
(b) The Company and the Trust shall 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 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 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
7
5
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 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 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
8
6
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 third 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
Additional Distributions 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
Under Certain Circumstances.
(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 (other than for any
reason set forth in Section 6(c)(iii)(D) hereof) 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 (the "Additional Interest") shall become payable 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 Distributions (the "Additional Distributions") shall become payable
to each Holder of Capital Securities (in its capacity as such and not in its
capacity as an indirect holder of a pro rata share of the Junior Subordinated
Debentures) with respect to the first 90-day period immediately following the
occurrence of such
9
7
Registration Default in an amount equal to $.25 per week per $1,000 liquidation
amount of Capital Securities held by such Holder for each week or portion
thereof that the Registration Default continues. The amount of Additional
Interest, and the corresponding amount of Additional Distributions payable to
any Holder of Capital Securities shall increase by an additional $.05 per week
per $1,000 in principal amount of Capital Securities held by such Holder with
respect to each subsequent 90-day period until all Registration Defaults have
been cured, up to a maximum amount of Additional Interest (and corresponding
Additional Distributions) of $.50 per week per $1,000 liquidation amount of
Capital Securities. All accrued Additional Interest (and corresponding
Additional Distributions) shall be paid to Holders by the Trust and the Company
by wire transfer of immediately available funds or by federal funds check on
the last day of each such 90-day period. 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 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 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
thereof, on or before the applicable Interest Payment Date (whether or not any
payment other than Additional Distributions is payable on the Capital
Securities), immediately available funds in sums sufficient to pay the
Additional Distributions then due to Holders of Transfer Restricted Securities
with respect to which the Property Trustee serves. 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 agree to seek a no-action letter
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.
10
8
(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,
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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 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), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5,
1991) 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, based only on written representations
received under clause (ii) above, that 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
11
9
Transfer Restricted Securities in accordance with the intended method
or methods of distribution thereof.
(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) 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, and (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
12
10
the statements therein not misleading; provided that the
Company shall not be required to disclose the nature or
substance of any such fact or event as long as it is acting in
good faith. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration
Statement, or any state securities 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 Shelf
Registration Statement or any Prospectus included therein or
any amendments or supplements to any such Shelf Registration
Statement or Prospectus (excluding 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 (excluding all documents incorporated by reference)
to which a selling Holder 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 after 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;
(vi) 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) if requested by any selling Holders
under the Shelf Registration Statement 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
13
11
filings of such Prospectus supplement or post-effective
amendment as soon as practicable after 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) 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) 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) 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 reasonably
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 reasonably 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 accountants for the
Company, the Initial Purchasers'
representatives and
14
12
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;
(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
15
13
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) 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);
(xvi) if any fact or event contemplated by
clause (c)(iii)(D) above shall exist or have occurred, as
promptly as is practicable under the circumstances in the good
faith determination of the Company 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 Registration Statement 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; and any Prospectus will not contain an untrue
statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, 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 agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted
Securities;
16
14
(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(a) and Section 15(d) 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 or event 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 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, other than
the expenses of any Holder, 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 with
the NASD (and, if applicable, the fees and expenses of any "qualified
17
15
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 pursuant to the requirements hereof; 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 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
18
16
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 Initial Purchasers shall have the
right to employ counsel to represent jointly the Initial Purchasers and those
other Participants and their 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 Company and the
Trust under this Section 8 if, in the reasonable judgment of the Initial
Purchasers it is advisable for the Initial Purchasers 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
counsel shall be paid by the Trust and the Company. 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,
19
17
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 of 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, upon
request, the information required by Rule 144A(d)(4) under the Securities Act
in order to permit resales of such Transfer Restricted Securities pursuant to
Rule 144A.
20
18
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, lock-up 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 the Additional Interest and
Additional Distributions contemplated hereby) 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.
(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 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.
21
19
(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:
First Maryland Bancorp
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
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.
(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
22
20
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.
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
FIRST MARYLAND BANCORP
By:
----------------------------------
Name:
Title:
FIRST MARYLAND CAPITAL I
By:
----------------------------------
Name:
Title:
Accepted as of the date thereof
▇▇▇▇▇▇ Brothers Inc.
ABN AMRO Securities (USA) Inc.
Bear, ▇▇▇▇▇▇▇ & Co., Inc.
HSBC Securities, Inc.
PaineWebber Incorporated
Sanwa International plc
Acting severally on behalf of
themselves and the several
Purchasers named herein
By ▇▇▇▇▇▇ BROTHERS INC.
By:
--------------------------
Name:
Title: