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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
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Exhibit 4.2
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REGISTRATION RIGHTS AGREEMENT
Dated as of December 23, 1996
Among
FIRST SECURITY CAPITAL I,
FIRST SECURITY CORPORATION
and
▇▇▇▇▇▇ BROTHERS INC.
and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
as Initial Purchasers
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TABLE OF CONTENTS
Page
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1. Definitions............................................................................................ 1
2. Securities Subject to This Agreement................................................................... 3
3. Registered Exchange Offer.............................................................................. 3
4. Shelf Registration..................................................................................... 5
5. Liquidated Damages..................................................................................... 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
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This Registration Rights Agreement (this "Agreement") is made
and entered into as of December 23, 1996 by and among First Security Capital I,
a Delaware statutory business trust (the "Trust"), First Security Corporation, a
Delaware corporation ("the Company") and ▇▇▇▇▇▇ Brothers Inc. and ▇.▇. ▇▇▇▇▇▇
Securities Inc. (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"), which provides for the sale by
the Trust to the Initial Purchasers of $150,000,000 aggregate principal amount
of the Trust's 8.41% 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 8.41% Junior Subordinated
Debentures (the "Junior Subordinated Debentures" and, together with the Capital
Securities and the Guarantee, the "Securities"). In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Trust and the Company have
agreed to provide the registration rights set forth in this Agreement for the
benefit of the Initial Purchasers and their direct and indirect transferees and
assigns. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligations to purchase the Capital Securities under the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
Broker-Dealer: Any broker or dealer registered under
the Exchange Act.
Closing Date: The date on which the Securities were
sold.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be
deemed "Consummated" for purposes of this Agreement upon the occurrence
of (i) the filing and effectiveness under the Securities Act of the
Exchange Offer Registration Statement relating to the New Securities to
be issued in the Exchange Offer, (ii) the maintenance of such
Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) the delivery by the
Company and the Trust of the New Securities in the same aggregate
principal amount as the aggregate principal amount of Transfer
Restricted Securities that were tendered by Holders thereof pursuant to
the Exchange Offer.
Damages Payment Date: With respect to the Securities,
each Distribution Date until the earlier of (i) the date on which
Liquidated Damages no longer are payable or (ii) maturity of the
Securities.
Declaration: The Amended and Restated Declaration of
Trust, dated as of December 23, 1996, among The Bank of New York, as
Property Trustee, The Bank of New York (Delaware), as Delaware Trustee
and the other trustees named therein, pursuant to which the Capital
Securities are being issued, as amended or supplemented from time to
time in accordance with the terms thereof.
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Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Exchange Offer: The registration by the Company and
the Trust under the Securities Act of the New Securities pursuant to a
Registration Statement pursuant to which the Company and the Trust
offer the Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted
Securities held by such Holders for New Securities in an aggregate
amount equal to the aggregate amount of the Transfer Restricted
Securities tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The
Registration Statement relating to the Exchange Offer, including the
Prospectus which forms a part thereof.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Securities to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Securities Act, to certain institutional "accredited investors," as
such term is defined in Rule 501(a)(1), (2), (3) and (7) of Regulation
D under the Securities Act ("Accredited Institutions") and to certain
non-U.S. persons.
Guarantee Agreement: The Guarantee Agreement, dated
as of December 23, 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.
Indemnified Holder: As defined in Section 8(a)
hereof.
Indenture: The Indenture, dated as of December 23,
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.
Distribution: As defined in the Declaration.
NASD: National Association of Securities Dealers,
Inc.
New Junior Subordinated Debentures: The Company's
Junior Subordinated Debentures to be issued pursuant to the Indenture
in the Exchange Offer.
New Securities: The Securities to be issued pursuant
to the Indenture, the Declaration and the Guarantee Agreement in the
Exchange Offer.
Person: An individual, partnership, corporation,
limited liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
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Prospectus: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and
by all other amendments thereto, including post-effective amendments,
and all material incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of
the Company and the Trust relating to (a) an offering of New Securities
pursuant to an Exchange Offer or (b) the registration for resale of
Transfer Restricted Securities pursuant to the Shelf Registration
Statement, which is filed pursuant to the provisions of this Agreement,
in either case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference
therein.
Securities Act: The Securities Act of 1933, as
amended.
Shelf Filing Deadline: As defined in Section 4
hereof.
Shelf Registration Statement: As defined in Section 4
hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa-77bbbb), as amended.
Transfer Restricted Securities: Each Security, until
the earliest to occur of (a) the date on which such Security has been
exchanged by a person other than a Broker-Dealer for New Securities in
the Exchange Offer, (b) following the exchange by a Broker-Dealer in
the Exchange Offer of such Securities for one or more New Securities,
the date on which such New Securities are sold to a purchaser who
receives from such Broker-Dealer on or prior to the date of such sale a
copy of the prospectus contained in the Exchange Offer Registration
Statement, (c) the date on which such Securities has been effectively
registered under the Securities Act and disposed of in accordance with
the Shelf Registration Statement or (d) the date on which such
Securities 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 owns Transfer Restricted
Securities.
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
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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 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
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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 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
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(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 Liquidated Damages
pursuant to Section 5 hereof unless and until such Holder shall have
used its best efforts to provide all such reasonably requested
information. Each Holder as to which any Shelf Registration Statement
is being effected agrees to furnish promptly to the Trust and the
Company all information required to be disclosed in order to make the
information previously furnished to the Trust and the Company by such
Holder not materially misleading.
5. Liquidated Damages.
(a) If (a) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date specified for
such filing in this Agreement, (b) any of such Registration Statements has not
been declared effective by the Commission on or prior to the date specified for
such effectiveness in this Agreement (the "Effectiveness Target Date"), (c) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (d) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within two business days
by a post-effective amendment to such Registration Statement that cures such
failure and that is itself immediately declared effective (each such event
referred to in clauses (a) through (d), a "Registration Default"), the Trust and
the Company will pay liquidated damages ("Liquidated Damages") 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
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 the Liquidated
Damages 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 Liquidated
Damages of $.50 per week per $1,000 principal amount of Capital Securities. All
accrued Liquidated Damages 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.
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Following the cure of all Registration Defaults relating to any particular
Transfer Restricted Securities, the accrual of Liquidated Damages 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 Liquidated Damages are required to be paid (an "Event
Date"). Liquidated Damages shall be paid by depositing 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
Liquidated Damages is payable on the Capital Securities), immediately available
funds in sums sufficient to pay the Liquidated Damages then due to Holders of
Transfer Restricted Securities with respect to which the Property Trustee
serves. Each obligation to pay Liquidated Damages shall be deemed to accrue from
the applicable date of the occurrence of the Registration Default.
6. Registration Procedures.
(a) Exchange Offer Registration Statement. In
connection with the Exchange Offer, the Trust and the Company shall
comply with all of the provisions of Section 6(c) below, shall use
their best efforts to effect such exchange to permit the sale of
Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and shall comply
with all of the following provisions:
(i) If in the reasonable opinion of counsel
to the Trust and the Company there is a question as to whether
the Exchange Offer is permitted by applicable law, the Trust
and the Company hereby agrees to seek a no-action letter or
other favorable decision from the Commission allowing the
Trust and the Company to Consummate an Exchange Offer for such
Securities. The Trust and the Company hereby agree to pursue
the issuance of such a decision to the Commission staff level
but shall not be required to take commercially unreasonable
action to effect a change of Commission policy. The Trust and
the Company hereby agree, however, to (A) participate in
telephonic conferences with the Commission, (B) deliver to the
Commission staff an analysis prepared by counsel to the Trust
and the Company setting forth the legal bases, if any, upon
which such counsel has concluded that such an Exchange Offer
should be permitted and (C) diligently pursue a resolution
(which need not be favorable) by the Commission staff of such
submission.
(ii) As a condition to its participation in
the Exchange Offer pursuant to the terms of this Agreement,
each Holder of Transfer Restricted Securities shall furnish,
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
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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, each
Holder participating in the Exchange Offer is acquiring the
New Securities in its ordinary course of business and has no
arrangement or understanding with any Person to participate in
the distribution of the New Securities received in the
Exchange Offer.
(b) Shelf Registration Statement. In connection with
the Shelf Registration Statement, the Company and the Trust shall
comply with all the provisions of Section 6(c) below and shall use
their best efforts to effect such registration to permit the sale of
the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and pursuant
thereto the Company and the Trust will as expeditiously as possible
prepare and file with the Commission a Registration Statement relating
to the registration on any appropriate form under the Securities Act,
which form shall be available for the sale of the Transfer Restricted
Securities in accordance with the intended method or methods of
distribution thereof.
(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
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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, (D) of the existence of any fact or
the happening of any event that makes any statement of a
material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under
state securities or Blue Sky laws, the Trust and the Company
shall use their best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) furnish to each of the selling or
exchanging Holders and each of the underwriter(s), if any,
before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments
or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference
after the initial filing of such Registration Statement),
which documents will be
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subject to the review of such Holders and underwriter(s), if
any, for a period of at least five business days, and the
Trust and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any
such Registration Statement or Prospectus (including all such
documents incorporated by reference) to which 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 prior to the filing of any
document that is to be incorporated by reference into a
Registration Statement or Prospectus, provide copies of such
document to the selling Holders and to the underwriter(s), if
any, make the Trust's and the Company's representatives
available for discussion of such document and other customary
due diligence matters, and include such information in such
document prior to the filing thereof as such selling Holders
or underwriter(s), if any, reasonably may request;
(vi) 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 or
the underwriter(s), if any, promptly incorporate in any
Registration Statement or Prospectus, pursuant to a supplement
or post-effective amendment if necessary, such information as
such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including,
without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer
Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Securities to be sold in
such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after 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);
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(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 requested by any Purchaser or by any
Holder of Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement; and in
connection with an Underwritten Registration, the Trust and
the Company shall:
(A) upon request, furnish to each
selling Holder and each underwriter, if any, in such
substance and scope as they may request and as are
customarily made by issuers to underwriters in
primary underwritten offerings, upon the date of the
effectiveness of the Shelf Registration Statement:
(1) a certificate, dated
the date of the effectiveness of the Shelf
Registration Statement, signed by (y) the
Chairman of the Board its President or a
Vice President and (z) the Chief Financial
Officer of the Company, confirming, as of
the date thereof, such matters as such
parties may reasonably request;
(2) an opinion, dated the
date of the effectiveness of the Shelf
Registration Statement, of counsel for the
Company and the Trust, covering such matters
as such parties may reasonably request, and
in any event including a statement to the
effect that such counsel has participated in
conferences with officers and other
representatives of the Company and the
Trust, representatives of the independent
public accountants for the Company, the
Initial Purchasers' representatives and the
Initial Purchasers' counsel in connection
with the preparation of such Registration
Statement and the related Prospectus and
have considered the matters required to be
stated therein and the statements contained
therein, although such counsel has not
independently verified the accuracy,
completeness or fairness of such statements;
and that such counsel advises that, on the
basis of the foregoing (relying as to
materiality to a large extent upon facts
provided to such counsel by officers and
other representatives of the Company and the
Trust and without independent check or
verification), no facts came to such
counsel's attention that caused such counsel
to believe that the applicable Registration
Statement, at the time such Registration
Statement or any post-effective amendment
thereto became effective, contained an
untrue statement of a material fact or
omitted to state a material fact required to
be stated therein or necessary to make the
statements therein not misleading, or that
the
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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 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
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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);
(xv) use its best efforts to cause the
Transfer Restricted Securities covered by the Registration
Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the underwriter(s), if
any, to consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause (xii)
above;
(xvi) if any fact or event contemplated by
clause (c)(iii)(D) above shall exist or have occurred, prepare
a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not
misleading;
(xvii) provide CUSIP numbers for all
Transfer Restricted Securities not later than the effective
date of the Registration Statement and provide certificates
for the Transfer Restricted Securities;
(xviii) cooperate and assist in any filings
required to be made with the NASD and in the performance of
any due diligence investigation by any underwriter (including
any "qualified independent underwriter") that is required to
be retained in accordance with the rules and regulations of
the NASD, and use its best efforts to cause such Registration
Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted
Securities;
(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
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for such Indenture and the Declaration to be so qualified in
accordance with the terms of the TIA; and execute and use
their best efforts to cause the Indenture Trustee, Guarantee
Trustee and the Property Trustee to execute, all documents
that may be required to effect such changes and all other
forms and documents required to be filed with the Commission
to enable such Indenture to be so qualified in a timely
manner; and
(xxi) provide promptly to each Holder upon
request each document filed with the Commission pursuant to
the requirements of Section 13 and Section 15 of the Exchange
Act.
Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of any notice from the Company
or the Trust of the existence of any fact of the kind described in
Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xvi) hereof, or until it is advised in writing (the
"Advice") by the Company or the Trust that the use of the Prospectus
may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company or the Trust, each Holder
will deliver to the Company or the Trust (at the Company's and the
Trust's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such
notice. In the event the Company or the Trust shall give any such
notice, the time period regarding the effectiveness of such
Registration Statement set forth in Section 3 or 4 hereof, as
applicable, shall be extended by the number of days during the period
from and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) hereof to and including the date when each selling
Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by
Section 6(c)(xvi) hereof or shall have received the Advice.
7. Registration Expenses.
All expenses incident to the Company's and the
Trust's performance of or compliance with this Agreement will be borne
by the Company and the Trust, regardless of whether a Registration
Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made by
any Purchaser or Holder with the NASD (and, if applicable, the fees and
expenses of any "qualified independent underwriter" and its counsel
that may be required by the rules and regulations of the NASD)); (ii)
all fees and expenses of compliance with federal securities and state
Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates for the New Securities to be issued in the
Exchange Offer and printing of Prospectuses), and associated messenger
and delivery services and telephone; (iv) all fees and disbursements of
counsel for the Company and the Trust; (v) all application and filing
fees in connection with listing Securities on a national securities
exchange or automated quotation system 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
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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 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
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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, 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
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respect thereof, in such proportion as shall be appropriate to reflect the
relative fault of the Trust and the Company on the one hand and the Participants
on the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative fault shall be determined
by reference to whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Trust and the Company or the Participants, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Trust and the Participants agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined by pro rata
allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 8(d) shall be
deemed to include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Participant shall be required to contribute
any amount in excess of the amount by which proceeds received by such
Participant from an offering of the Notes exceeds the amount of any damages
which such Participant has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Participants'
obligations to contribute as provided in this Section 8(d) are several and not
joint.
9. Rule 144A.
The Company and the Trust hereby agrees with each Holder, for
so long as any Transfer Restricted Securities remain outstanding, to make
available to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A.
10. Participation in Underwritten Registrations.
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lockup letters and other documents
required under the terms of such underwriting arrangements.
11. Selection of Underwriters.
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company.
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12. Miscellaneous.
(a) Remedies. The Company and the Trust agree that
monetary damages (including the Liquidated Damages 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.
(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 Security Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Ray, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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 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
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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.
24
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
FIRST SECURITY CORPORATION
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief
Operating Officer
FIRST SECURITY CAPITAL I
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Regular Trustee
Accepted as of the date thereof
▇▇▇▇▇▇ Brothers Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Acting severally on behalf of
themselves and the several
Purchasers named herein
By ▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ???
-------------------------------
Name:
Title: