Registration Rights Agreement Dated as of November 21, 2006 among Santander Finance Preferred, S.A. Unipersonal, as Issuer Banco Santander Central Hispano, S.A., as Guarantor and Lehman Brothers Inc.
Exhibit
1
_____________________
Dated
as of November 21, 2006
among
Santander
Finance Preferred, S.A. Unipersonal, as Issuer
Banco
Santander Central Hispano, S.A., as Guarantor
and
▇▇▇▇▇▇
Brothers Inc.
_____________________
This
Registration Rights Agreement (this “Agreement”) is made and entered into this
21st day of November 2006, among Santander Finance Preferred, S.A. Unipersonal,
a sociedad anónima incorporated under the laws of the Kingdom of Spain,
(the “Company”), as issuer, Banco Santander Central Hispano, S.A., a
sociedad anónima incorporated under the laws of the Kingdom of Spain,
as guarantor (the “Guarantor”), and ▇▇▇▇▇▇ Brothers Inc., as initial purchaser
(the “Initial Purchaser”) under the terms of the Purchase Agreement (as defined
below).
This
Agreement is made pursuant to a purchase agreement, dated as of November 8,
2006, among the Company, the Guarantor and the Initial Purchaser (the “Purchase
Agreement”), which provides for the sale by the Company to the Initial Purchaser
of an aggregate of 20,000,000 Non-cumulative Guaranteed Preferred Securities
(“participaciones preferentes”), Series 4, par value
$25 per share (the “Preferred Securities”). Payment of distributions
(“remuneración”) on the Preferred Securities, as well as payment of the
redemption price for the Preferred Securities upon any redemption thereof and
the liquidation distribution of the Preferred Securities upon the winding-up
or
liquidation of the Company will be unconditionally guaranteed by the Guarantor
to the extent provided in a payment and guarantee agreement of the Guarantor
for
the benefit of the holders from time to time of the Preferred
Securities. In order to induce the Initial Purchaser to enter into
the Purchase Agreement, the Guarantor and the Company have agreed with the
Initial Purchaser to provide to the Holders (as defined below) the registration
rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement. The
obligations of the Company and the Guarantor set forth herein are joint and
several.
In
consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As
used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
“1933 Act”
shall mean the Securities Act of 1933, as amended from time to
time.
“1934 Act”
shall mean the Securities Exchange Act of l934, as amended from time to
time.
“Affiliate”
shall have the meaning set forth in Section 4(a) hereof.
“Business
Day” shall mean a day that is not a Saturday, a Sunday, or a day on which
banking institutions in any of New York, New York, United States, Madrid, Spain
or, to the extent the Preferred Securities are listed on the London Stock
Exchange, and the rules of the London Stock Exchange so require, London are
authorized or required to close.
“Closing Date”
shall mean the Closing Date as defined in the Purchase Agreement.
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“Company”
shall have the meaning set forth in the preamble and shall also include the
Company’s successors.
“CUSIP
number” means the alphanumeric designation assigned to a security by
Standard and Poor’s CUSIP Service Bureau.
“Depositary”
shall mean The Depository Trust Company, or any other depositary appointed
by
the Company or the Guarantor; provided, however, that such
depositary must have an address in the Borough of Manhattan, in The City of
New
York.
“Exchange Offer”
shall mean the exchange offer by the Company and the Guarantor of Exchange
Securities for Registrable Securities pursuant to Section 2.1
hereof.
“Exchange Offer Registration”
shall mean a registration under the 1933 Act effected pursuant to Section 2.1
hereof.
“Exchange Offer Registration Statement”
shall mean an exchange offer registration statement on Form F-4 (or, if
applicable, on another appropriate form), and all amendments and supplements
to
such registration statement, including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference
therein.
“Exchange
Period” shall have the meaning set forth in Section 2.1 hereof.
“Exchange
Securities” shall mean preferred securities issued by the Company containing
terms identical to the Preferred Securities in all material respects and
guarantees, issued by the Guarantor, containing terms identical to the Guarantee
(except in each case for references to certain liquidated damages provisions,
restrictions on transfers and restrictive legends), to be offered to Holders
of
Preferred Securities in exchange for Registrable Securities pursuant to the
Exchange Offer.
“Guarantee”
shall mean the guaranteed payment of distributions (“remuneración”) on
the Preferred Securities, as well as payment of the redemption price for the
Preferred Securities upon any redemption thereof and the liquidation
distribution of the Preferred Securities upon the winding-up or liquidation
of
the Company to the extent provided in a payment and guarantee agreement of
the
Guarantor for the benefit of the holders from time to time of the Preferred
Securities.
“Guarantor”
shall have the meaning set forth in the preamble and shall also include the
Guarantor’s successors.
“Holder”
shall mean the Initial Purchaser, for so long as it owns any Registrable
Securities, and each of its successors, assigns and direct and indirect
transferees, any registered owners of Registrable Securities, and each
Participating Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Exchange
Securities.
“Initial Purchaser”
shall have the meaning set forth in the preamble.
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“Liquidated
Damages” shall have the meaning set forth in Section 2.5
hereof.
“Majority Holders”
shall mean the Holders of a majority of the outstanding Registrable Securities;
provided, however, that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or the Guarantor or any
“affiliate” (as such term is defined in Rule 405 under the ▇▇▇▇ ▇▇▇) of the
Company or the Guarantor shall be disregarded in determining whether such
consent or approval was given by the Holders of such required
percentage.
“NASD”
shall mean the National Association of Securities Dealers, Inc.
“Participating Broker-Dealer”
shall mean ▇▇▇▇▇▇ Brothers Inc. and any other broker-dealer which makes a market
in the Preferred Securities and exchanges Registrable Securities in the Exchange
Offer for Exchange Securities.
“Person”
shall mean an individual, partnership (general or limited), corporation, limited
liability company, joint venture, association, joint stock company, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
“Private
Exchange” shall have the meaning set forth in Section 2.1
hereof.
“Private
Exchange Securities” shall have the meaning set forth in Section 2.1
hereof.
“Prospectus”
shall mean the prospectus included in a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented
by
any prospectus supplement, including any such prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by a Shelf Registration Statement, and by all other amendments and
supplements to a prospectus, including post-effective amendments, and in each
case including all material incorporated by reference therein.
“Purchase Agreement”
shall have the meaning set forth in the preamble.
“Registrable
Securities” shall mean the Preferred Securities, the Guarantee and, if
issued, the Private Exchange Securities; provided, however, that
Preferred Securities, the Guarantee and, if issued, the Private Exchange
Securities, shall cease to be Registrable Securities when
(i) a Registration Statement with respect to such Preferred Securities and
the
Guarantee shall have been declared effective under the 1933 Act and such
Preferred Securities and the Guarantee shall have been disposed of pursuant
to
such Registration Statement, (ii) such Preferred Securities and the Guarantee
are eligible to be sold to the public pursuant to Rule l44 (or any similar
provision then in force, but not Rule 144A) under the 1933 Act, (iii) such
Preferred Securities and the Guarantee shall have ceased to be outstanding
or
(iv) the Exchange Offer is completed (except in the case of Preferred Securities
and Guarantee purchased from the Company and the Guarantor continuing to be
held
by the Initial Purchaser and having the status of an unsold allotment in the
initial distribution).
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“Registrar
and Transfer Agency Agreement” shall mean the Registrar and Transfer Agency
Agreement, dated November 21, 2006, among the Company, the Guarantor and the
Bank of New York.
“Registrar
and Transfer Agent” shall mean the Bank of New York, as registrar and
transfer agent under the Registrar and Transfer Agency Agreement, or its
successor.
“Registration
Default” shall have the meaning set forth in Section 2.5
hereof.
“Registration Expenses”
shall mean any and all expenses incident to performance of or compliance by
the
Company and the Guarantor with this Agreement, including without
limitation: (i) all SEC, stock exchange or the NASD registration and
filing fees, including, if applicable, the reasonable fees and expenses of
any
“qualified independent underwriter” (and its counsel) that is required to be
retained by any holder of Registrable Securities in accordance with the rules
and regulations of the NASD, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws and compliance
with the rules of the NASD (including reasonable fees and disbursements of
counsel for any underwriters or Holders that are Initial Purchaser in connection
with blue sky qualification of any of the Exchange Securities or Registrable
Securities and any filings with the NASD), (iii) the cost of preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements thereto,
any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, including,
but not limited to, any expenses of counsel to the Company and the Guarantor,
(iv) all fees and expenses incurred in connection with the listing of any of
the
Registrable Securities on the New York Stock Exchange and such other securities
exchanges as the Company and the Guarantor may determine, (v) any rating agency
fees, (vi) the fees and disbursements of counsel for the Company and the
Guarantor and of the independent public accountants of the Company and the
Guarantor, including the expenses of any special audits or “cold comfort”
letters required by Holders or underwriters of Registrable Securities who may
be
entitled to request such audits or letters pursuant to this Agreement,
(vii) the fees and expenses of the Registrar and Transfer Agent, and any
escrow agent or custodian, (viii) the reasonable out-of-pocket expenses of
the Initial Purchaser in connection with the Exchange Offer, including the
reasonable fees and expenses of one firm of counsel to the Initial Purchaser
in
connection therewith, (ix) the reasonable fees and disbursements of Sidley
Austin, counsel
representing the Holders of Shelf Registrable Securities or Special Counsel
and
(x) the reasonable out-of-pocket expenses of any underwriters customarily
required to be paid by an issuer or seller of preferred securities in an
underwritten offering or an offering pursuant to a securities sales agency
agreement, but excluding underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable Securities
by
a Holder.
“Registration Statement”
shall mean any registration statement of the Company and the Guarantor which
covers any of the Exchange Securities or Registrable Securities pursuant to
the
provisions of this Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
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“SAS
72” shall mean Statement on Auditing Standards No. 72, as amended or
supplemented from time to time.
“SEC”
shall mean the United States Securities and Exchange Commission or any successor
agency or government body performing the functions currently performed by the
United States Securities and Exchange Commission.
“Shelf
Registrable Securities” shall have the meaning set forth in Section
2.5.
“Shelf Registration”
shall mean a registration effected pursuant to Section 2.2
hereof.
“Shelf Registration Statement”
shall mean a “shelf” registration statement of the Company and the Guarantor
pursuant to the provisions of Section 2.2 of this Agreement which covers all
of
the Registrable Securities or all of the Private Exchange Securities on an
appropriate form under Rule 415 under the 1933 Act, or any similar rule that
may
be adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, and upon request, all exhibits thereto and all
material incorporated by reference therein.
“Special
Counsel” shall have the meaning set forth in Section 3(g)(i)
hereof.
“Suspension
Period” shall have the meaning set forth in Section 2.4(c)
hereof.
“Underwriter”
shall have the meaning set forth in Section 4(a) hereof.
2. Registration Under the 1933 Act.
2.1 Exchange Offer. Each
of the Company and the Guarantor shall, for the benefit of the Holders, at
the
Company’s and the Guarantor's cost, (A) use its reasonable best efforts to
prepare and, as soon as practicable within 180 days following the Closing Date
file with the SEC an Exchange Offer Registration Statement on an appropriate
form under the 1933 Act with respect to a proposed Exchange Offer and the
issuance and delivery to the Holders, in exchange for the Registrable Securities
(other than Private Exchange Securities), of a like amount of Exchange
Securities, (B) use its reasonable best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the 1933 Act within 270
days of the Closing Date, (C) use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective until the closing of the
Exchange Offer, (D) use its reasonable best efforts to cause the Exchange
Offer to be completed not later than 300 days following the Closing Date, (E)
provided that the Preferred Securities meet the minimum listing requirements
of
the New York Stock Exchange at the time an Exchange Offer Registration Statement
is declared effective, use their reasonable best efforts to list the Preferred
Securities on the New York Stock Exchange within 30 days following the Exchange
Offer Registration Statement being declared effective, and (F) for a period
of
90 days following the consummation of the exchange offer, to make available
a
prospectus meeting the requirements of the 1933 Act to any such participating
broker-dealer for use in connection with any resale of any exchange notes
acquired in the exchange offer. If the Company has not completed the
Exchange Offer within 365 days of the Closing Date, then the Company will file
as promptly as practicable a Shelf Registration Statement (as described in
Section 2.2 hereof). The Exchange Securities will be issued under the
Registrar and Transfer Agency Agreement. Upon the
effectiveness
5
of
the
Exchange Offer Registration Statement, the Company and the Guarantor shall
promptly commence the Exchange Offer, it being the objective of such Exchange
Offer to enable each Holder eligible and electing to exchange Registrable
Securities for Exchange Securities (assuming that such Holder (a) is not an
“affiliate” (as such term is defined in Rule 405 under the ▇▇▇▇ ▇▇▇) of the
Company or the Guarantor (b) is not a broker-dealer tendering Registrable
Securities acquired directly from the Company or the Guarantor for its own
account, (c) acquired the Exchange Securities in the ordinary course of
such Holder’s business and (d) has no arrangements or understandings with
any Person to participate in the Exchange Offer for the purpose of distributing
the Exchange Securities) to transfer such Exchange Securities from and after
their receipt without any limitations or restrictions under the 1933 Act or
under state securities or blue sky laws. Exchange Securities will be
issued under the Exchange Offer as evidence of the same continuing rights and
preferences under the Preferred Securities and the Guarantee. Under no
circumstances will the surrender of the Preferred Securities and the issue
of
Exchange Securities constitute new securities or obligate the Company and the
Guarantor to redeem the Preferred Securities.
In
connection with the Exchange Offer, the Company and the Guarantor
shall:
(a) mail
as promptly as practicable to each Holder a copy of the Prospectus forming
part
of the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(b) keep
the Exchange Offer open for acceptance for a period of not less than 20 Business
Days after the date notice thereof is mailed to the Holders (or longer if
required by applicable law) (such period referred to herein as the “Exchange
Period”);
(c) utilize
the services of the Depositary for the Exchange Offer;
(d) permit
Holders to withdraw tendered Registrable Securities at any time prior to 5:00
PM, New York City time, on the last Business Day of the Exchange Period, by
sending to the institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the amount of
Registrable Securities delivered for exchange, and a statement that such Holder
is withdrawing such Holder’s election to have such Preferred Securities
exchanged;
(e) notify
each Holder that any Registrable Securities not tendered will remain
outstanding, but will not retain any rights under this Agreement (except in
the
case of the Initial Purchaser and Participating Broker-Dealers as provided
herein); and
(f) otherwise
comply in all respects with all applicable laws relating to the Exchange
Offer.
If,
prior
to consummation of the Exchange Offer, the Initial Purchaser holds any Preferred
Securities acquired by it and having the status of an unsold allotment in the
initial distribution, the Company and the Guarantor upon the request of the
Initial Purchaser shall, simultaneously with the delivery of the Exchange
Securities in the Exchange Offer, issue and deliver to the Initial Purchaser
in
exchange (the “Private Exchange”) for the Preferred Securities held by the
Initial Purchaser, a like number of Preferred Securities of the
6
Company,
unconditionally guaranteed by the Guarantor as to payment of distributions
(“remuneración”), on the Preferred Securities, as well as payment of
the redemption price for the Preferred Securities upon any redemption thereof
and the liquidation distribution of the Preferred Securities upon the winding-up
or liquidation of the Company, that are identical (except that such Preferred
Securities and Guarantee shall bear appropriate transfer restrictions) to the
Exchange Securities (the “Private Exchange Securities”).
The
Exchange Securities and the Private Exchange Securities shall be issued under
(i) the Registrar and Transfer Agency Agreement or (ii) a registrar
and transfer agency agreement identical in all material respects to
the Registrar and Transfer Agency Agreement, and shall provide that the Exchange
Securities shall not be subject to the transfer restrictions set forth in the
Registrar and Transfer Agency Agreement but that the Private Exchange Securities
shall be subject to such transfer restrictions. The Registrar and
Transfer Agency Agreement or such registrar and transfer agency agreement shall
provide that the Exchange Securities, the Private Exchange Securities and the
Preferred Securities shall vote and consent together on all matters as one
class
and that none of the Exchange Securities, the Private Exchange Securities or
the
Preferred Securities will have the right to vote or consent as a separate class
on any matter. The Private Exchange Securities shall be of the same
series as, and the Company shall use its reasonable best efforts to ensure
that
the Private Exchange Securities bear the same CUSIP number as, the Exchange
Securities.
As
soon as
practicable after the close of the Exchange Offer and/or the Private Exchange,
as the case may be, the Company and the Guarantor shall:
(i) accept
for exchange all Registrable Securities duly tendered and not validly withdrawn
pursuant to the Exchange Offer in accordance with the terms of the Exchange
Offer Registration Statement and the letter of transmittal which shall be an
exhibit thereto;
(ii) accept
for exchange all Registrable Securities properly tendered and not validly
withdrawn pursuant to the Private Exchange;
(iii) deliver,
or cause to be delivered, to the Registrar and Transfer Agent for cancellation
all Registrable Securities so accepted for exchange; and
(iv) cause
the Registrar and Transfer Agent promptly to authenticate and deliver Exchange
Securities or Private Exchange Securities, as the case may be, to each Holder
of
Registrable Securities so accepted for exchange in number equal to the number
of
the Registrable Securities of such Holder so accepted for exchange.
Distributions
on each Exchange Security and Private Exchange Security will accrue from the
last date on which distributions were paid on the Registrable Securities
surrendered in exchange therefor or, if no distributions have been paid on
the
Registrable Securities, from the date of original issuance. The
Exchange Offer and the Private Exchange shall not be subject to any conditions,
other than (i) that the Exchange Offer or the Private Exchange, or the making
of
any exchange by a Holder, as the case may be, does not violate applicable law
or
any applicable interpretation of the staff of the SEC, (ii) the valid tendering
of Registrable Securities in accordance with the Exchange Offer and the Private
Exchange, (iii) that each
7
Holder
of
Registrable Securities exchanged in the Exchange Offer shall have represented
that all Exchange Securities to be received by it shall be acquired in the
ordinary course of its business and that at the time of the consummation of
the
Exchange Offer it shall have no arrangement or understanding with any person
to
participate in the distribution (within the meaning of the ▇▇▇▇ ▇▇▇) of the
Exchange Securities and shall have made such other representations as may be
reasonably necessary under applicable SEC rules, regulations or interpretations
to render the use of Form F-4 or other appropriate form under the 1933 Act
available and (iv) that no action or proceeding shall have been instituted
or threatened in any court or by or before any governmental agency with respect
to the Exchange Offer or the Private Exchange which, in the judgment of the
Company and the Guarantor, would reasonably be expected to impair the ability
of
the Company or the Guarantor to proceed with the Exchange Offer or the Private
Exchange. The Company and the Guarantor shall, to the extent such
information is available to the Company or the Guarantor, inform the Initial
Purchaser of the names and addresses of the Holders to whom the Exchange Offer
is made, subject to the right of any Holder to object to the disclosure of
such
information with respect to such Holder, and the Initial Purchaser shall have
the right, subject to applicable law, to contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange
Offer.
Upon
consummation of the Exchange Offer in accordance with this Agreement, the
Company and the Guarantor shall have no further obligation to register the
Registrable Securities pursuant to Section 2.2 of this Agreement.
2.2 Shelf Registration. (i)
If, because of any change in law, SEC rules or regulations or applicable
interpretations thereof by the staff of the SEC, the Company and the Guarantor
determine after consultation with its outside counsel that the Company or the
Guarantor is not permitted to effect the Exchange Offer as contemplated by
Section 2.1 hereof, (ii) if for any other reason (A) the Exchange Offer
Registration Statement is not declared effective within 300 days following
the
Closing Date or (B) the Exchange Offer is not completed within 365 days after
the Closing Date, (iii) if the Initial Purchaser is holding Private Exchange
Securities issued with respect to Registrable Securities that were not eligible
to be exchanged for Exchange Securities in the Exchange Offer or if the Initial
Purchaser does not receive freely tradable Exchange Securities in the Exchange
Offer, upon the request of the Initial Purchaser, (iv) upon notice of any Holder
(other than the Initial Purchaser) given to the Company or the Guarantor in
writing within 35 days after the commencement of the Exchange Offer to the
effect that (A) due to a change in law or SEC policy it is not entitled to
participate in the Exchange Offer, (B) due to a change in law or SEC policy
it
may not resell the Exchange Securities acquired by it in the Exchange Offer
to
the public without delivering a prospectus and the prospectus contained in
the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such Holder or (C) it is a broker-dealer and owns Registrable
Securities acquired directly from the Company or the Guarantor or an “affiliate”
of the Company or the Guarantor (as such term is defined in Rule 405 under
the
▇▇▇▇ ▇▇▇) or (v) the holders of a majority of the Exchange Securities may not
resell the Exchange Notes acquired by them in the Exchange Offer to the public
without restriction under the 1933 Act and without restriction under applicable
blue sky or state securities laws, then in case of each of clauses (i) through
(v) the Company and the Guarantor shall, at their cost:
8
(a) As
promptly as practicable, file with the SEC, and thereafter shall use their
reasonable best efforts to cause to be declared effective as promptly as
practicable but no later than 365 days after the Closing Date, a Shelf
Registration Statement relating to the offer and sale of the Registrable
Securities by the Holders from time to time in accordance with the methods
of
distribution elected by the Majority Holders participating in the Shelf
Registration and set forth in such Shelf Registration Statement.
(b) Use
their reasonable best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus forming part thereof
to
be usable by Holders until the earlier of (A) two years from the date the Shelf
Registration Statement is declared effective by the SEC, (B) the date on which
the Registrable Securities become eligible for resale pursuant to Rule 144(k)
or
any successor provision or (C) the date on which all Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to the
Shelf
Registration Statement or cease to be outstanding or otherwise to be Registrable
Securities (the “Effectiveness Period”); provided,
however, that the Effectiveness Period in respect of the Shelf
Registration Statement shall be extended if and to the extent necessary to
permit dealers to comply with the applicable prospectus delivery requirements
of
Rule 174 under the 1933 Act and as otherwise provided herein.
(c) Notwithstanding
any other provisions hereof, use their reasonable best efforts to ensure that
(i) any Shelf Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any supplement thereto complies in all
material respects with the 1933 Act and the rules and regulations thereunder,
(ii) any Shelf Registration Statement and any amendment thereto does not, when
it becomes effective, contain an untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any Prospectus forming part of
any
Shelf Registration Statement, and any supplement to such Prospectus (as amended
or supplemented from time to time), does not include an untrue statement of
a
material fact or omit 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.
The
Company and the Guarantor further agree, if necessary, to supplement or amend
the Shelf Registration Statement, as required by Section 3(b) below, and to
furnish to the Holders of Registrable Securities copies of any such supplement
or amendment as promptly as reasonably practicable after its being used or
filed
with the SEC.
2.3 Expenses. The
Company and the Guarantor shall pay all Registration Expenses in connection
with
the registration pursuant to Section 2.1 or 2.2. Each Holder shall
pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder’s Registrable Securities
pursuant to the Shelf Registration Statement.
2.4 Effectiveness. (a) The
Company and the Guarantor will be deemed not to have used reasonable best
efforts to cause the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to become, or to remain, effective
during the
9
requisite
period if either of the Company or the Guarantor, as the case may be,
voluntarily takes any action that would, or omits to take any action which
omission would, result in any such Registration Statement not being declared
effective or in the Holders of Registrable Securities covered thereby not being
able to exchange or offer and sell such Registrable Securities during that
period as and to the extent contemplated hereby, unless (i) such action is
required by applicable law, or (ii) such action is taken by the Company or
the Guarantor in good faith and for valid business reasons (which shall not
include avoidance of the Company’s or the Guarantor’s obligations hereunder),
including the acquisition or divestiture of assets or a material corporate
transaction or event, so long as the Company and the Guarantor promptly
thereafter comply with the requirements of Section 3(k) hereof, if
applicable.
(b) An
Exchange Offer Registration Statement pursuant to Section 2.1 hereof or a Shelf
Registration Statement pursuant to Section 2.2 hereof will not be deemed to
have
become effective unless it has been declared effective by the SEC;
provided, however, that if, after it has been declared effective,
the offering of Registrable Securities pursuant to an Exchange Offer
Registration Statement or a Shelf Registration Statement is interfered with
by
any stop order, injunction or other order or requirement of the SEC or any
other
governmental agency or court, such Registration Statement will be deemed not
to
have become effective during the period of such interference, until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume.
(c)
During
any period of 365 consecutive days, the Company and the Guarantor may suspend
the availability of a Shelf Registration Statement and the use of a related
Prospectus for periods up to 45 consecutive days (each such period, a
“Suspension Period”) (except for such 45-day period immediately prior to any
date fixed for redemption of the Preferred Securities), but no more than an
aggregate of 60 days during any period of 365 consecutive days, if (A) any
event
shall occur as set forth in Section 2.4(a)(i) or (ii) or as a result of which
it
shall be necessary, in the good faith determination of the board of directors
of
the Guarantor, to amend the Shelf Registration Statement or amend or supplement
any prospectus or prospectus supplement thereunder in order that each such
document not include any untrue statements of material fact or omit to state
a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or (B) the Guarantor
has not filed with the SEC the financial statements required by the applicable
rules and regulations for the Shelf Registration Statement to remain active;
provided, however, that the Company and the Guarantor shall use
commercially reasonable efforts to prepare and file any such amendment or
supplement as promptly as practicable. The two-year period referred to in
Section 2.2(b) shall be extended by an amount of time equal to all such
Suspension Periods.
2.5 Liquidated
Damages. In the event that (a) the Exchange Offer Registration
Statement has not been declared effective on or prior to the 270th calendar
day
following the Closing Date, (b) the Exchange Offer is not completed on or prior
to the 365th
calendar date after the Closing Date and a Shelf Registration Statement is
not
declared effective on or prior to the 365th calendar
day
following the Closing Date or (c) provided that the Preferred Securities meet
the minimum listing requirements of the New York Stock Exchange at the time
a
Registration Statement is declared effective, the Preferred Securities are
not
listed on the New York Stock Exchange on or prior to the 30th calendar
day after
a Registration
10
Statement
has been declared effective (each such event referred to in clauses (a) through
(c) above, a “Registration Default”), liquidated damages shall be payable
(“Liquidated Damages”) in respect of outstanding Registrable Securities at the
rate of (x) one-quarter of one percent (0.25%) per annum upon the occurrence
of
any Registration Default on or after the 270th calendar day following the
Closing Date and (y) one-half of one percent (0.50%) per annum upon the
occurrence of any Registration Default on or after the 365th calendar day
following the Closing Date; provided, however, that the maximum
aggregate amount of such Liquidated Damages will in no event exceed one-half
of
one percent (0.50%) per annum in respect of all Registration Defaults occurring
at any one time. To the extent that Liquidated Damages have become
payable due to the occurrence of one of the Registration Defaults, then
immediately following (1) the consummation of the Exchange Offer, (2) the
effectiveness of a Shelf Registration or (3) the listing of the Preferred
Securities, as the case may be (such event referred to in clauses (1) through
(3) above, a "Registration Remedy"), then the accrual of Liquidated Damages
with
respect to that particular Registration Default will cease. Upon the
earlier of the implementation of all necessary Registration Remedies or the
date
on which the Exchange Securities are eligible for sale pursuant to Rule 144(k)
under the 1933 Act or any successor provision, the accrual of Liquidated Damages
will cease.
If
the
Shelf Registration Statement is declared effective but becomes unusable by
the
Holders of Registrable Securities covered by such Shelf Registration Statement
(“Shelf Registrable Securities”) for any reason, and the number of days in any
consecutive 365 day period for which the Shelf Registration Statement shall
not
be usable exceeds 60 days in the aggregate, then Liquidated Damages shall be
payable in respect of outstanding Registrable Securities at the rate of one-half
of one percent (0.50%) per annum beginning on the 61st such day
that such
Shelf Registration Statement remains unusable; provided, however,
that the maximum aggregate amount of such Liquidated Damages payable (inclusive
of any Liquidated Damages that are payable on such Shelf Registrable Securities
pursuant to the first paragraph of this Section 2.5) will in no event
exceed one-half of one percent (0.50%) per annum. Upon the Shelf
Registration Statement once again becoming available for use, Liquidated Damages
will cease to be payable. Liquidated Damages shall be computed based
on the actual number of days elapsed in each period for which Liquidated Damages
are payable.
The
Company and the Guarantor shall notify the Registrar and Paying Agent within
five Business Days after each and every date on which an event occurs in respect
of which Liquidated Damages are required to be paid (each, an “Event
Date”). Liquidated Damages shall be paid in the same manner as
distributions pursuant to the Registrar and Transfer Agency
Agreement. Liquidated Damages due shall be payable on each
distribution payment date to the record Holder of Preferred Securities entitled
to receive the distribution payment, if any, to be paid on such date as set
forth in the registry. Each obligation to pay Liquidated Damages
shall be deemed to accrue from and including the day following the applicable
Event Date and shall be a joint and several obligation of the Company and the
Guarantor. The joint and several obligations of the Company and the
Guarantor to pay Liquidated Damages are not subordinated obligations; Liquidated
damages will be payable regardless of whether the Guarantor (a) has
distributable profits or (b) fails to meet its required capital
ratios.
11
2.6 London
Stock Exchange. The Company and the Guarantor shall, for the benefit of the
Holders, use its reasonable best efforts to (A) file an application to list
the
Exchange Securities
and the Shelf Registrable Securities, if any, on the London Stock Exchange;
(B)
inform the London Stock Exchange and cause notice to be published in a leading
English language daily newspaper with circulation in the United Kingdom (which
is expected to be the Financial Times) prior to commencing the Exchange
Offer and/or upon the filing of Shelf Registration; (C) to the extent required
by applicable regulation, provide to the London Stock Exchange documents
relating to the Exchange Offer or Shelf Registration and consummate the exchange
at the office of the Bank of New York (or any successor thereto if applicable)
the listing, paying and transfer agent in London and (D) notify the London
Stock
Exchange of the results of the Exchange Offer or the Shelf Registration,
including any increase in the rate of distributions, and to cause such notice
to
be published in a leading English language daily newspaper with circulation
in
the United Kingdom (which is expected to be the Financial
Times).
3. Registration Procedures.
In
connection with the obligations of the Company and the Guarantor with respect
to
Registration Statements and pursuant to Sections 2.1 and 2.2 hereof, the Company
and the Guarantor shall:
(a) prepare
and file with the SEC a Registration Statement, within the relevant time period
specified in Section 2, on the appropriate form under the 1933 Act, which form
(i) shall be selected by the Company and the Guarantor; (ii) shall, in the
case
of a Shelf Registration, be available for the sale of the Shelf Registrable
Securities by the selling Holders thereof; and (iii) shall comply as to form
in
all material respects with the requirements of the applicable form and include
or incorporate by reference all financial statements required by the SEC to
be
filed therewith or incorporated by reference therein, and use their reasonable
best efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof;
(b) subject
to Section 2.4 hereof, prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary
under applicable law to keep such Registration Statement effective for the
applicable period as provided for in Section 2 hereof; and cause each Prospectus
to be supplemented by any required prospectus supplement, and as so supplemented
to file such Prospectus pursuant to Rule 424 (or any similar provision then
in
force) under the 1933 Act and comply with the provisions of the 1933 Act, the
1934 Act and the rules and regulations thereunder applicable to them with
respect to the disposition of all Preferred Securities covered by each
Registration Statement during the applicable period in accordance, in the case
of a Shelf Registration, with the intended method or methods of distribution
by
the selling Holders thereof (including sales by any Participating
Broker-Dealer);
(c) in
the case of a Shelf Registration, (i) notify each Holder of Registrable
Securities, at least five business days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Securities is being
filed
and advising such Holders that the distribution of Registrable Securities will
be made in accordance with the method selected by the Initial Purchaser or,
if
the Initial Purchaser is not participating in the Shelf Registration,
12
by
the
Majority Holders participating in the Shelf Registration; (ii) furnish to each
Holder of Registrable Securities and to each underwriter of an underwritten
offering of Registrable Securities, if any, without charge, as many copies
of
each Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as the Initial Purchaser, Majority
Holders or underwriter, selected by the Initial Purchaser or Majority Holders,
as the case may be, may reasonably request considering the method of
distribution selected by the Initial Purchaser or, if the Initial Purchaser
is
not participating in the Shelf Registration, by the Majority Holders, as the
case may be, including financial statements and schedules and, if any Holder
so
requests, all exhibits (but not more than one set of such exhibits for each
Holder) in order to facilitate the public sale or other disposition of the
Registrable Securities; and (iii) hereby consent to the use of the Prospectus
together with any amendment or supplement thereto by each of the selling Holders
of Registrable Securities, subject to and in accordance with applicable law,
in
connection with the offering and sale of the Registrable Securities covered
by
the Prospectus or any amendment or supplement thereto;
(d) use
its reasonable best efforts to register or qualify the Registrable Securities
under all applicable state securities or “blue sky” laws of such jurisdictions
as the Initial Purchaser or, if the Initial Purchaser is not participating
in
the Shelf Registration, by the Majority Holders participating in the Shelf
Registration and each underwriter of an underwritten offering of Registrable
Securities shall reasonably request by the time the applicable Registration
Statement is declared effective by the SEC, and do any and all other acts and
things which may be reasonably necessary or advisable to enable the Initial
Purchaser or Majority Holders and underwriter, selected by the Initial Purchaser
or Majority Holders, to consummate the disposition in each such jurisdiction
of
such Registrable Securities owned by the Holders; provided,
however, that neither the Company nor the Guarantor shall be required
to
(i) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (ii) take any action which would subject it to general service
of
process or taxation in any such jurisdiction where it is not then so subject,
or
(iii) conform its capitalization or the composition of its assets at the time
to
the securities or blue sky laws of such jurisdiction, or (iv) make any changes
to it articles of association or any agreement with its
shareholders;
(e) notify
promptly each Holder of Registrable Securities under a Shelf Registration or
any
Participating Broker-Dealer who has notified the Company that it is utilizing
the Exchange Offer Registration Statement as provided in paragraph (f) below
(which notice pursuant to clauses (ii), (iv), (v) and (vi) hereof shall be
accompanied by an instruction to suspend use of the Prospectus until the
requisite changes have been made) and, if requested by such Holder or
Participating Broker-Dealer, confirm such advice in writing (if such notice
was
not originally given in writing) promptly (i) when a Registration Statement
has
become effective and when any post-effective amendments and supplements thereto
become effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments and supplements to a Registration
Statement and Prospectus or for additional information after the Registration
Statement has become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose,
(iv) in the case of a Shelf Registration, if, between the effective date of
a
Registration Statement and the closing of any sale of Registrable Securities
covered thereby, the
13
representations
and warranties of the Company or the Guarantor contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to the offering cease to be true and correct in all material respects,
(v) of the occurrence of any event or the discovery of any facts during the
period a Shelf Registration Statement is effective which makes (A) any statement
made in such Registration Statement untrue in any material respect or which
requires the making of any changes in such Registration Statement in order
to
include a material fact required to be stated therein or in order to make the
statements therein not misleading or (B) any statement made in the related
Prospectus untrue in any material respect or which requires the making of any
changes in such Prospectus in order to make the statements therein, in light
of
the circumstances under which they were made, not misleading, (vi) of the
receipt by the Company or the Guarantor of any notification with respect to
the
suspension of the qualification of the Registrable Securities or the Exchange
Securities, as the case may be, for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose and (vii) of any determination
by the Company or the Guarantor that a post-effective amendment to such
Registration Statement would be appropriate;
(f) (i) in
the case of the Exchange Offer Registration Statement (A) include in the
Exchange Offer Registration Statement a section entitled “Plan of Distribution”
which section shall be reasonably acceptable to the Initial Purchaser, on behalf
of the Participating Broker-Dealers, if any, and which shall contain a summary
statement of the positions taken or policies made by the staff of the SEC with
respect to the potential “underwriter” status of any broker-dealer that holds
Registrable Securities acquired for its own account as a result of market-making
activities or other trading activities and that will be the beneficial owner
(as
defined in Rule 13d-3 under the Exchange Act) of Exchange Securities to be
received by such broker-dealer in the Exchange Offer, including a statement
that
any such broker-dealer who receives Exchange Securities for Registrable
Securities pursuant to the Exchange Offer may be deemed a statutory underwriter
and must deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of such Exchange Securities, (B) furnish to each
Participating Broker-Dealer who has delivered to the Company or the Guarantor
the notice referred to in Section 3(e), without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement, including
any
preliminary prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request, (C) hereby consent to
the use of the Prospectus forming part of the Exchange Offer Registration
Statement together with any amendment or supplement thereto, by any Person
subject to the prospectus delivery requirements of the SEC, including all
Participating Broker-Dealers, in connection with the sale or transfer of the
Exchange Securities covered by the Prospectus or any amendment or supplement
thereto, and (D) include in the transmittal letter or similar documentation
to
be executed by an exchange offeree in order to participate in the Exchange
Offer
the following provision:
“If
the
undersigned is not a broker-dealer, the undersigned represents that it is not
engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Registrable Securities, it
represents that the Registrable Securities to be exchanged for Exchange
Securities were acquired by it as a result of market-making activities or other
trading activities and acknowledges that it will deliver a prospectus meeting
the requirements of the 1933 Act in connection with any
14
resale
of
such Exchange Securities pursuant to the Exchange Offer; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an “underwriter” within the meaning of the 1933
Act;”
and
(ii)
in the case of any Exchange Offer Registration Statement, the Company and the
Guarantor agree to deliver to the Initial Purchaser, on behalf of the
Participating Broker-Dealers upon the effectiveness of the Exchange Offer
Registration Statement officers’ certificates substantially in the form
customarily delivered in a public offering of preferred securities;
(g) (i) in
the case of an Exchange Offer, furnish one firm of counsel for the Initial
Purchaser and (ii) in the case of a Shelf Registration, furnish Sidley Austin,
as special counsel for the Holders of Shelf Registrable Securities (or, if
Sidley Austin is unable or unwilling to serve, such other special counsel (but
not more than one) as may be selected by Holders of a majority of such Shelf
Registrable Securities (“Special Counsel”)), copies of any comment letters
received from the SEC or any other request by the SEC or any state securities
authority for amendments or supplements to a Registration Statement and
Prospectus or for additional information;
(h) make
every reasonable effort to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement at the earliest practicable
moment;
(i) in
the case of a Shelf Registration, furnish to each Holder of Registrable
Securities, and each underwriter, if any, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment thereto,
including financial statements and schedules (without documents incorporated
therein by reference or exhibits thereto, unless requested in
writing);
(j) in
the case of a Shelf Registration, (unless any Registrable Securities shall
be in
book-entry form only) cooperate with the Initial Purchaser or, if the Initial
Purchaser is not participating in the Shelf Registration, the Majority Holders
of Shelf Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Shelf Registrable Securities to be sold
and not bearing any restrictive legends; and enable such Shelf Registrable
Securities to be registered in such names as the Initial Purchaser or, if the
Initial Purchaser is not participating in the Shelf Registration, the Majority
Holders or the underwriters, selected by the Initial Purchaser or Majority
Holders, if any, may reasonably request at least three business days prior
to
the closing of any sale of Shelf Registrable Securities;
(k) in
the case of a Shelf Registration, upon the occurrence of any event or the
discovery of any facts, each as contemplated by Sections 3(e)(v) and 3(e)(vi)
hereof, as promptly as practicable after the occurrence of such an event,
subject to section 2.4(c), use its reasonable best efforts to prepare a
supplement or post-effective amendment to the Registration Statement or the
related Prospectus or any document incorporated therein by reference or file
any
other required document so that, as thereafter delivered to the purchasers
of
the Shelf Registrable Securities or Participating Broker-Dealers, such
Prospectus will not contain at the time of such delivery any untrue statement
of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under
15
which
they
were made, not misleading. At such time as such public disclosure is
otherwise made or the Company and the Guarantor determine that such disclosure
is not necessary, in each case to correct any misstatement of a material fact
or
to include any omitted material fact, the Guarantor agrees promptly to notify
each Holder of such determination and to furnish each Holder such number of
copies of the Prospectus as amended or supplemented, as such Holder may
reasonably request and the Initial Purchaser, on its own behalf and on behalf
of
subsequent holders, hereby agrees to suspend use of the Prospectus until the
Company has amended or supplemented to correct such misstatement or
omission;
(l) in
the case of a Shelf Registration, a reasonable time prior to the filing of
any
Shelf Registration Statement, any Prospectus, any amendment to a Shelf
Registration Statement or amendment or supplement to a Prospectus (other than
any document which is to be incorporated by reference into a Shelf Registration
Statement or a Prospectus after initial filing of a Shelf Registration
Statement) provide copies of such Registration Statement, Prospectus, amendment
or supplement to the Initial Purchaser or, if the Initial Purchaser is not
participating in the Shelf Registration, the Majority Holders on behalf of
such
Holders; and make representatives of the Company and the Guarantor as shall
be
reasonably requested by the Majority Holders of Shelf Registrable Securities,
or
the Initial Purchaser on behalf of such Holders, available for discussion of
such document;
(m)
obtain a CUSIP number for all Exchange Securities, Private Exchange Securities
or Registrable Securities, as the case may be, not later than the effective
date
of a Registration Statement, and provide the Registrar and Transfer Agent with
printed certificates for the Exchange Securities, Private Exchange Securities
or
the Registrable Securities, as the case may be, in a form eligible for deposit
with the Depositary;
(n) in
the case of a Shelf Registration, and considering the method of distribution
selected by the Majority Holders, enter into customary agreements (including
underwriting agreements and, if requested by the Initial Purchaser or, if the
Initial Purchaser is not participating in the Shelf Registration, the Majority
Holders, as the case may be, securities sales agreements providing for, among
other things, the appointment of an agent for the selling Holders for the
purpose of soliciting purchases of Shelf Registrable Securities, which agreement
shall be in form, substance and scope customary for similar offerings) and
take
all other customary and appropriate actions in order to expedite or facilitate
the disposition of such Shelf Registrable Securities, including in the case
of
an underwritten offering:
(i) make
such representations and warranties to the underwriters selected by the Initial
Purchaser or, if the Initial Purchaser is not participating in the Shelf
Registration, the Majority Holders, as the case may be, and to the Holders
selling through such underwriters, comparable in form, substance and scope
to
the representations and warranties made by the Company and the Guarantor
pursuant to the Purchase Agreement;
(ii) if
so requested by the Initial Purchaser or, if the Initial Purchaser is not
participating in the Shelf Registration, the Majority Holders or the
underwriters selected by the Initial Purchaser or Majority Holders, as the
case
may be, obtain opinions of United States and Spanish counsel to the Company
and
the Guarantor
16
(which
counsel shall be reasonably satisfactory to the underwriters, if any, selected
by the Initial Purchaser or, if the Initial Purchaser is not participating
in
the Shelf Registration, the Majority Holders) and updates thereof addressed
to
such underwriters and to the Holders selling through such underwriters, covering
matters comparable in form, substance and scope to those covered in the opinions
delivered by the various counsels to the Company and the Guarantor pursuant
to
the Purchase Agreement and subject to exceptions and qualifications comparable
in form, substance and scope to those contained in such delivered
opinions;
(iii) if
so requested by the Initial Purchaser or, if the Initial Purchaser is not
participating in the Shelf Registration, the Majority Holders or the
underwriters selected by the Initial Purchaser or Majority Holders, as the
case
may be, obtain “cold comfort” letters and updates thereof from the Guarantor’s
independent certified public accountants (and, if necessary, any other
independent certified public accountants of any subsidiary of the Guarantor,
including the Company or of any business acquired by the Guarantor for which
financial statements are, or are required to be, included in the Registration
Statement) addressed to the underwriters selected by the Initial Purchaser
or
the Majority Holders, as the case may be, and to the Holders selling through
such underwriters, such letters to be in customary form and in accordance with
applicable accounting standards and covering matters of the type customarily
covered in “cold comfort” letters to underwriters in connection with similar
underwritten offerings;
(iv) cause
the same to set forth indemnification provisions and procedures comparable
in
scope to the indemnification provisions and procedures set forth in Section
4
hereof with respect to the underwriters and all other parties to be indemnified
pursuant to said Section or, at the request of any underwriters, such other
indemnification provisions customarily provided to underwriters under the
circumstances applicable to the offering; provided, however, that
such underwriting agreement shall contain indemnification provisions and
procedures regarding the indemnification of the Company and the Guarantor with
respect to information provided by the underwriter or by any other party to
be
indemnified under Section 4 hereof, comparable in scope to the indemnification
provisions and procedures set forth in Section 4 hereof or, at the request
of
the Company or the Guarantor, such other indemnification provisions customarily
provided under the circumstances applicable to the offering; and
(v) deliver
such documents and certificates as may be reasonably requested and as are
customarily delivered in similar offerings to the Initial Purchaser or, if
the
Initial Purchaser is not participating in the Shelf Registration, the Majority
Holders and the underwriters, if any.
The
above
shall be done at each closing under any underwriting or similar agreement as
and
to the extent required thereunder;
(o) in
the case of a Shelf Registration or if a Prospectus is required to be delivered
by any Participating Broker-Dealer in the case of an Exchange Offer, make
available for inspection by representatives of the Initial Purchaser or, if
the
Initial Purchaser
17
is
not
participating in the Shelf Registration, the Majority Holders and any
underwriters selected by the Initial Purchaser or Majority Holders, as the
case
may be, participating in any disposition pursuant to a Shelf Registration
Statement, any Participating Broker-Dealer (provided that a Participating
Broker-Dealer shall not be deemed to be an underwriter solely as a result of
it
being required to deliver a prospectus in connection with any resale of Exchange
Securities), any Special Counsel or any accountant retained by any of the
foregoing, all such financial and other records, pertinent corporate documents
and properties of the Company and the Guarantor reasonably requested by any
such
persons, and cause the respective officers, directors, employees, and any other
agents of the Company and the Guarantor to respond to such queries, as shall
be
reasonably necessary to conduct a reasonable investigation within the meaning
of
Section 11 of the 1933 Act; provided, however, that such records,
documents or information which the Company or the Guarantor identifies as being
confidential shall not be disclosed by the representative, Holder, attorney
or
accountant unless (i) the disclosure of such records, documents or information
is necessary to avoid or correct a misstatement or omission in a Registration
Statement, (ii) the release of such records, documents or information is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction
or
as part of the evidentiary procedures of a court of competent jurisdiction,
subject to the requirements of such subpoena or order, and only after such
person shall have given the Company and the Guarantor reasonable prior notice of
such requirements; or (iii) such records, documents or information have
previously been generally made available to the public, and
providedfurther, that the Company and/or the Guarantor may require
recipients of such records, documents or information to enter into a
confidentiality agreement;
(p) (i) in
the case of an Exchange Offer Registration Statement, a reasonable time prior
to
the filing of any Exchange Offer Registration Statement, any Prospectus forming
a part thereof, any amendment to an Exchange Offer Registration Statement or
amendment or supplement to such Prospectus, provide copies of such document
to
the Initial Purchaser and to Sidley Austin, as counsel to the Holders of
Registrable Securities, and make such changes in any such document prior to
the
filing thereof as the Initial Purchaser or such counsel to the Holders of
Registrable Securities may reasonably request and, except as otherwise required
by applicable law, not file any such document in a form to which the Initial
Purchaser on behalf of the Holders of Registrable Securities and such counsel
to
the Holders of Registrable Securities shall not have previously been advised
and
furnished with a copy or to which the Initial Purchaser on behalf of the Holders
of Registrable Securities or such counsel to the Holders of Registrable
Securities shall reasonably object, and make the representatives of the Company
and the Guarantor available for discussion of such documents as shall be
reasonably requested by the Initial Purchaser; and
(ii) in
the case of a Shelf Registration, a reasonable time prior to filing any Shelf
Registration Statement, any Prospectus forming a part thereof, any amendment
to
such Shelf Registration Statement or amendment or supplement to such Prospectus,
provide copies of such document to the Initial Purchaser or, if the Initial
Purchaser is not participating in the Shelf Registration, the Majority Holders,
or Special Counsel and to the underwriter or underwriters of an underwritten
offering of Shelf Registrable Securities, if any, as appointed by the Initial
Purchaser or the Majority Holders, as the case may be, make such changes in
any
such document prior to the filing thereof as the Initial Purchaser, Special
Counsel or the underwriter or underwriters reasonably request and not file
any
such document in a form to
18
which
the
Majority Holders of Shelf Registrable Securities, the Initial Purchaser on
behalf of the Holders of Registrable Securities, Special Counsel or any
underwriter shall not have previously been advised and furnished with a copy
or
to which such Majority Holders, the Initial Purchaser on behalf of the Holders
of Registrable Securities, Special Counsel or any underwriter shall reasonably
object, and make the representatives of the Company and the Guarantor available
for discussion of such document as shall be reasonably requested by the Majority
Holders, the Initial Purchaser on behalf of such Holders, Special Counsel or
any
underwriter;
(q) provided
that the Preferred Securities meet the minimum listing requirements of the
New
York Stock Exchange at the time a Registration Statement is declared effective,
each of the Company and the Guarantor will use its best efforts to ensure that
the Preferred Securities will be listed on the New York Stock Exchange within
30
days of a Registration Statement being declared effective;
(r) in
the case of a Shelf Registration, use its reasonable best efforts to cause
the
Shelf Registrable Securities to be rated by two nationally recognized
statistical rating agencies, if so requested by the Initial Purchaser or, if
the
Initial Purchaser is not participating in the Shelf Registration, the Majority
Holders, or if requested by the underwriter or underwriters, as appointed by
the
Initial Purchaser or, if the Initial Purchaser is not participating in the
Shelf
Registration, the Majority Holders, of an underwritten offering of Registrable
Securities, if any;
(s) otherwise
comply with all applicable rules and regulations of the SEC and make available
to its security holders, as soon as reasonably practicable, an earnings
statement of the Guarantor covering at least 12 months which shall satisfy
the
provisions of Section 11(a) of the 1933 Act, including, at the option of the
Guarantor, Rule 158 thereunder;
(t) cooperate
and assist in any filings required to be made with the NASD and, in the case
of
a Shelf Registration, in the performance of any due diligence investigation
by
any underwriter as appointed by the Initial Purchaser or, if the Initial
Purchaser is not participating in the Shelf Registration, the Majority Holders
and such underwriter’s counsel (including any “qualified independent
underwriter” that is required to be retained in accordance with the rules and
regulations of the NASD); and
(u) upon
consummation of an Exchange Offer or a Private Exchange, obtain a customary
opinion of counsel to the Company and the Guarantor addressed to the Registrar
and Transfer Agent for the benefit of all Holders of Registrable Securities
participating in the Exchange Offer or Private Exchange, and which includes
an
opinion that (i) the Company and the Guarantor have duly authorized,
executed and delivered the Exchange Securities and/or Private Exchange
Securities, as applicable, (ii) in the case of the Preferred Securities,
the Preferred Securities have been validly issued in accordance with Spanish
law
and will be fully paid and non-assessable, and no holder thereof will be subject
to personal liability by reason only of being such a holder, and the Preferred
Securities will not be subject to the pre-emptive rights of any shareholder
of
the Company, and (iii) in the case of the Guarantee, the Guarantee has been
duly
authorized, executed and delivered by each of the Company and the Guarantor
and
will constitute a valid and legally binding agreement of the Guarantor and
the
Company, enforceable in accordance with its terms (with customary
exceptions).
19
In
the
case of a Shelf Registration Statement, the Company and the Guarantor may (as
a
condition to such Holder’s participation in the Shelf Registration) require each
Holder of Shelf Registrable Securities to furnish to the Company and the
Guarantor such information regarding the Holder and the proposed distribution
by
such Holder of such Shelf Registrable Securities as the Company and the
Guarantor may from time to time reasonably request in writing for use in
connection with any Shelf Registration Statement or Prospectus included therein,
including without limitation, information specified in Item 507 of Regulation
S-K under the 1933 Act.
In
the
case of a Shelf Registration Statement, each Holder agrees that, upon receipt
of
any notice from the Company or the Guarantor of the occurrence of any event
or
the discovery of any facts, each of the kind described in Section 3(e)(v)
hereof, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to a Registration Statement until such Holder’s receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
3(k) hereof, and, if so directed by the Company or the Guarantor, such Holder
will deliver to the Company or the Guarantor (at the expense of the Company
and
the Guarantor) all copies in such Holder’s possession, other than permanent file
copies then in such Holder’s possession, of the Prospectus covering such Shelf
Registrable Securities current at the time of receipt of such
notice.
If
any of
the Registrable Securities covered by any Shelf Registration Statement are
to be
sold in an underwritten offering, the underwriter or underwriters and manager
or
managers that will manage such offering will be selected by the Majority Holders
of such Registrable Securities included in such offering, provided,
however, that such selection is acceptable to the Company. No
Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder’s
Registrable Securities on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and
(b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements.
4. Indemnification; Contribution.
(a) Each
of the Company and the Guarantor, jointly and severally, agrees to indemnify
and
hold harmless the Initial Purchaser, its selling agents, each Holder, including
Participating Broker-Dealers, each Person who participates as an underwriter
(any such Person being an “Underwriter”), their respective affiliates (as such
term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”)), and
each Person, if any, who “controls” any of such indemnified parties within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement (or any amendment or supplement
thereto) pursuant to which Exchange Securities or Registrable Securities were
registered under the 1933 Act, including all documents incorporated therein
by
reference, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein
20
not
misleading, or arising out of any untrue statement or alleged untrue statement
of a material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation,
or
any investigation or proceeding by any governmental agency or body, commenced
or
threatened, or of any claim whatsoever based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission; provided,
however, that (subject to Section 4(d) below) any such settlement is
effected with the written consent of the Company or the Guarantor;
and
(iii) against
any and all expense whatsoever, as incurred (including, in the case where the
indemnified parties are entitled to appoint counsel in accordance with paragraph
(c) of this Section), the reasonable fees and disbursements of counsel chosen
by
the indemnified parties) reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided,
however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company or
the
Guarantor by the Holder or Underwriter expressly for use in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto).
(b) In
the case of a Shelf Registration, each Holder severally, but not jointly, agrees
to indemnify and hold harmless the Company, the Guarantor, the Initial
Purchaser, each Underwriter and the other selling Holders, and each of their
respective directors and officers, and each Person, if any, who controls the
Company, the Guarantor, the Initial Purchaser, any Underwriter or any other
selling Holder within the meaning of Section 15 of the 1933 Act or Section
20 of
the 1934 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 4(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
with respect to such Holder furnished to the Company or the Guarantor by such
Holder expressly for use in the Shelf Registration Statement (or any amendment
thereto) or such Prospectus (or any amendment or supplement thereto);
provided, however, that no such Holder shall be liable for any
claims hereunder in excess of the amount of net proceeds received by such Holder
from the sale of Registrable Securities pursuant to such Shelf Registration
Statement; and providedfurther, that no such underwriter shall be
liable for any claims hereunder in excess of the amount of any underwriting
fees
or discounts
21
received
by such underwriter with respect to the sale of Registrable Securities pursuant
to such Shelf Registration Statement.
(c) Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder
to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. The indemnifying party shall be
entitled to appoint counsel of the indemnifying party’s choice at the
indemnifying party’s expense to represent the indemnified party and any other
indemnified parties as the indemnifying party may designate in any action for
which indemnification is sought (in which case the indemnifying party shall
not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party’s election
to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees,
costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action;
or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party; provided, however,
that (i), (ii) and (iii) above notwithstanding, an indemnified party may
participate at its own expense in the defense of any such action. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all indemnified
parties. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any
claim whatsoever in respect of which indemnification or contribution could
be
sought under this Section 4 (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim
and
(ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified
party.
(d) If
at any time an indemnified party shall have requested an indemnifying party
to
reimburse the indemnified party for reasonable fees and expenses of counsel,
such indemnifying party agrees that it shall be liable for any settlement of
the
nature contemplated by Section 4(a)(ii) effected without its written consent
if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such
22
indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement; provided,however,
that an indemnifying party shall not be liable for any such settlement effected
without its consent if such indemnifying party, prior to the date of such
settlement, (x) reimburses such indemnified party in accordance with such
request for the amount of such fees and expenses of counsel as the indemnifying
party believes in good faith to be reasonable, and (y) provides written notice
to the indemnified party that the indemnifying party disputes in good faith
the
reasonableness of the unpaid balance of such fees and expenses.
(e) If
the indemnification provided for in this Section 4 is for any reason unavailable
or insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party,
as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company or the Guarantor on the one hand, the Initial
Purchaser on another hand, and the Holders on another hand, from the offering
of
the Exchange Securities or Registrable Securities included in such offering
or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Guarantor on the one hand, the Initial Purchaser on another
hand, and the Holders on another hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The
relative fault of the Company and the Guarantor on the one hand, and the Initial
Purchaser on another hand, and the Holders on another hand, shall be determined
by reference to, among other things, whether any such 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 Company, the Guarantor, the Initial
Purchaser or the Holders and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The
Company, the Guarantor, the Holders and the Initial Purchaser agree that it
would not be just and equitable if contribution pursuant to this Section 4
were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this
Section 4. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
4 shall be deemed to include any legal or other expenses reasonably incurred
by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding
the provisions of this Section 4, the Initial Purchaser shall not be required
to
contribute any amount in excess of the amount by which the total price at which
the Preferred Securities purchased and sold by it were offered exceeds the
amount of any
23
damages
which the Initial Purchaser has otherwise been required to pay by reason of
such
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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any Person who was
not
guilty of such fraudulent misrepresentation.
For
purposes of this Section 4, each Person, if any, who controls the Initial
Purchaser or a Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act and the Initial Purchaser’s or Holder’s Affiliates
and selling agents shall have the same rights to contribution as the Initial
Purchaser or such Holder, and each Person, if any, who controls the Company
or
the Guarantor within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as
the Company and the Guarantor.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For
so long as the Guarantor is subject to the reporting requirements of Section
13
or 15 of the 1934 Act, the Guarantor covenants that it will file the reports
required to be filed by it under Section 13(a) or 15(d) of the 1934 Act and
the
rules and regulations adopted by the SEC thereunder. If the Guarantor
ceases to be so required to file such reports, the Guarantor covenants that
it
will upon the request of any Holder of Registrable Securities (a) make publicly
available such information as is necessary to permit sales pursuant to Rule
144
under the 1933 Act, (b) deliver such information to a prospective purchaser
as
is necessary under applicable rules and regulations to permit sales pursuant
to
Rule 144A under the 1933 Act and it will take such further action as any Holder
of Registrable Securities may reasonably request, and (c) take such further
action that is reasonable in the circumstances, in each case, to the extent
required from time to time to enable such Holder to sell its Registrable
Securities without registration under the 1933 Act within the limitation of
the
exemptions provided by (i) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (ii) Rule 144A under the 1933 Act, as such Rule
may
be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Guarantor will deliver to such Holder a written
statement as to whether it has complied with such requirements. The
Guarantor’s obligations under this Section 5.1 shall terminate upon the later of
the consummation of the Exchange Offer and the Effectiveness
Period.
5.2 No Inconsistent Agreements. Neither
the Company nor the Guarantor has entered into, and neither the Company nor
the
Guarantor will after the date of this Agreement enter into, any agreement that
could interfere with the Company’s or the Guarantor’s performance of their
obligations hereunder or that could prevent or limit the Holders of Registrable
Securities from enjoying the rights granted to them hereunder. The
rights granted to the Holders hereunder do not, and will not for the term of
this Agreement, in any way conflict with any material rights granted to the
holders of the Company’s, the Guarantor’s or any of the Guarantor’s
subsidiaries’ other issued and outstanding preferred securities under any such
agreements.
24
5.3 Amendments and Waivers. The
provisions of this Agreement, including the provisions of this sentence, may
not
be amended, modified or supplemented, and waivers or consents to departures
from
the provisions hereof may not be given unless the Company and the Guarantor
have
obtained the written consent of Holders of at least a majority of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure.
5.4 Notices. All
notices and other communications provided for or permitted hereunder shall
be
made in writing by hand delivery, registered first-class mail, telecopier,
or
any courier guaranteeing overnight delivery (a) if to a Holder, at the most
current address given by such Holder to the Company by means of a notice given
in accordance with the provisions of this Section 5.4, which address initially
is the address set forth in the Purchase Agreement with respect to the Initial
Purchaser; and (b) if to the Company or the Guarantor, initially at the
address of the Guarantor set forth in the Purchase Agreement, and thereafter
at
such other address of which notice is given in accordance with the provisions
of
this Section 5.4.
All
such
notices and communications shall be deemed to have been duly given: at the
time
delivered by hand, if personally delivered; two business days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged,
if telecopied; and on the next business day if timely delivered to an air
courier guaranteeing overnight delivery.
Copies
of
all such notices, demands, or other communications shall be concurrently
delivered by the person giving the same to the Registrar and Transfer Agent
at
the address specified in the Registrar and Transfer Agency
Agreement.
5.5 Successor and Assigns. This
Agreement shall inure to the benefit of and be binding upon the successors,
assigns and transferees of each of the parties, including, without limitation
and without the need for an express assignment, subsequent Holders;
provided, however, that nothing herein shall be deemed to permit
any assignment, transfer or other disposition of Registrable Securities in
violation of the terms of the Purchase Agreement or the Registrar and Transfer
Agency Agreement. If any transferee of any Holder shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such person
shall be conclusively deemed to have agreed to be bound by and to perform all
of
the terms and provisions of this Agreement, including the restrictions on resale
set forth in this Agreement and, if applicable, the Purchase Agreement and
the
Registrar and Transfer Agency Agreement, and such person shall be entitled
to
receive the benefits hereof.
5.6 Third Party Beneficiaries. The
Initial Purchaser (even if the Initial Purchaser is not a Holder of Registrable
Securities) shall be a third party beneficiary to the agreements made hereunder
between the Company and the Guarantor, on the one hand, and the Holders, on
the
other hand, and shall have the right to enforce such agreements directly to
the
extent it deems such enforcement necessary or advisable to protect its rights
or
the rights of Holders hereunder. Each Holder of Registrable
Securities shall be a third party beneficiary to the agreements made hereunder
between the Company and the Guarantor, on the one hand, and the Initial
Purchaser, on the other hand, and shall have the right to enforce such
agreements
25
directly
to the extent it deems such enforcement necessary or advisable to protect its
rights hereunder.
5.7 Specific
Enforcement. Without limiting the remedies available to the
Initial Purchaser and the Holders, the Company and the Guarantor acknowledge
that any failure by the Company or the Guarantor to comply with their joint
and
several obligations under Sections 2.1 through 2.4 hereof may result in material
irreparable injury to the Initial Purchaser or the Holders for which there
is no
adequate remedy at law, that it would not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Company’s or the Guarantor’s joint and several
obligations under Sections 2.1 through 2.4 hereof.
5.8 Restriction
on Resales. Until the expiration of two years after the original issuance of
the Preferred Securities, neither the Company nor the Guarantor will, and will
cause their “affiliates” (as such term is defined in Rule 144(a)(1) under the
▇▇▇▇ ▇▇▇) not to, resell any Preferred Securities which are “restricted
securities” (as such term is defined under Rule 144(a)(3) under the ▇▇▇▇ ▇▇▇)
that have been reacquired by any of them.
5.9 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.
5.10
Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
5.11 GOVERNING LAW;
CONSENT TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF PROCESS; FOREIGN
TAXES; JUDGMENT CURRENCY.
(a) THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS
THEREOF.
(b) Each
of the Initial Purchaser, the Company and the Guarantor irrevocably consents
and
agrees that any legal action, suit or proceeding against it with respect to
its
obligations, liabilities or any other matter arising out of or based on this
Agreement may be brought in any United States federal or state court in the
State of New York, County of New York.
(c) To
the extent that either the Company, the Guarantor or any of their respective
properties, assets or revenues may have or may hereafter become entitled to,
or
have attributed to them, any right of immunity, on the grounds of sovereignty,
from any legal action, suit or proceeding, from set-off or counterclaim, from
the jurisdiction of any court, from service of process, from attachment upon
or
prior to judgment, or from attachment in aid of execution of judgment, or from
execution of judgment, or other legal process or proceeding for the giving
of
any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to their
26
obligations,
liabilities or any other matter under or arising out of or in connection with
this Agreement or any additional agreement, the Company and the Guarantor hereby
irrevocably and unconditionally, to the extent permitted by applicable law,
waive and agree not to plead or claim any such immunity and consent to such
relief and enforcement.
(d) Each
of the Company and the Guarantor hereby irrevocably designates, appoints and
empowers the Guarantor’s New York Branch, currently at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇, ▇▇▇, as their designee, appointee and agent to receive, accept and
acknowledge for and on their behalf, and their properties, assets and revenues,
service of any and all legal process, summons, notices and documents that may
be
served in any action, suit or proceeding brought against them in any such United
States or state court located in the County of New York with respect to their
obligations, liabilities or any other matter arising out of or in connection
with this Agreement and that may be made on such designee, appointee and agent
in accordance with legal procedures prescribed for such courts. If
for any reason such designee, appointee and agent hereunder shall cease to
be
available to act as such, the Company and the Guarantor agree to designate
a new
designee, appointee and agent in the County of New York on the terms and for
the
purposes of this Section 5.11(d) satisfactory to the Initial Purchaser or the
Majority Holders, as the case may be. The Company and the Guarantor
further hereby irrevocably consent and agree to the service of any and all
legal
process, summons, notices and documents in any such action, suit or proceeding
against them by serving a copy thereof upon the relevant agent for service
of
process referred to in this Section 5.11(d) (whether or not the appointment
of
such agent shall for any reason prove to be ineffective or such agent shall
accept or acknowledge such service) or by mailing copies thereof by registered
or certified air mail, postage prepaid, to the Company or the Guarantor, as
the
case may be, at the Guarantor’s address specified in the Purchase
Agreement. The Company and the Guarantor agree that the failure of
any such designee, appointee and agent to give any notice of such service to
it
shall not impair or affect in any way the validity of such service or any
judgment rendered in any action or proceeding based thereon. Nothing
herein shall in any way be deemed to limit the ability of the Initial Purchaser
or the Majority Holders, as the case may be, to serve any such legal process,
summons, notices and documents in any other manner permitted by applicable
law
or to obtain jurisdiction over the Company and the Guarantor or bring actions,
suits or proceedings against it in such other jurisdictions, and in such manner,
as may be permitted by applicable law. The Company and the Guarantor hereby
irrevocably and unconditionally waive, to the fullest extent permitted by law,
any objection that they may now or hereafter have to the laying of venue of
any
of the aforesaid actions, suits or proceedings arising out of or in connection
with this Agreement brought in the U.S. federal courts located in the County
of
New York or the courts of the State of New York located in the County of New
York and hereby further irrevocably and unconditionally waive and agree not
to
plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. The
provisions of this Section 5.11(d) shall survive termination of this Agreement,
in whole or in part.
(e) All
payments by the Company or the Guarantor to the Initial Purchaser hereunder
shall be made free and clear of, and without deduction or withholding for or
on
account of, any and all present and future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereinafter
imposed, levied, collected, withheld or assessed by the Kingdom of Spain or
any
other jurisdiction in which
27
the
Guarantor or the Company has an office from which payment is made or deemed to
be made, excluding (i) any such tax imposed by reason of the Initial Purchaser
having some connection with any such jurisdiction other than its participation
as Initial Purchaser hereunder, and (ii) any income or franchise tax on the
overall net income of the Initial Purchaser imposed by the United States or
by
the State of New York or any political subdivision of the United States or
of
the State of New York (all such non-excluded taxes, “Foreign Taxes”),
provided, however, that no additional amounts shall be due from
the Company or the Guarantor, as the case may be, to the Initial Purchaser,
if
the Company or the Guarantor, as applicable, are not obligated to pay any such
additional amounts under the terms of the Preferred Securities. If
the Company or the Guarantor is prevented by operation of law or otherwise
from
paying, causing to be paid or remitting that portion of amounts payable
hereunder represented by Foreign Taxes withheld or deducted, then amounts
payable under this Agreement shall, to the extent permitted by law, be increased
to such amount as is necessary to yield and remit to the Initial Purchaser
an
amount which, after deduction of all Foreign Taxes (including all Foreign Taxes
payable on such increased payments) equals the amount that would have been
payable if no Foreign Taxes applied.
(f) The
Company and the Guarantor jointly and severally agree to indemnify the Initial
Purchaser against any loss incurred by the Initial Purchaser as a result of
any
judgment or order being given or made for any amount due hereunder and such
judgment or order being expressed and paid in a currency (the “Judgment
Currency”) other than U.S. dollars and as a result of any variation as between
(i) the rate of exchange at which the U.S. dollar amount is converted into
the
Judgment Currency for the purpose of such judgment or order, and (ii) the rate
of exchange at which the Initial Purchaser is able to purchase U.S. dollars
with
the amount of the Judgment Currency actually received by the Initial
Purchaser. The foregoing indemnity shall constitute a separate and
independent obligation of the Company and the Guarantor and shall continue
in
full force and effect notwithstanding any such judgment or order as
aforesaid. The term “rate of exchange” shall include any premiums and
costs of exchange payable in connection with the purchase of, or conversion
into, the relevant currency.
5.12 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.
28
IN
WITNESS
WHEREOF, the parties have executed this Agreement as of the date first written
above.
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SANTANDER
FINANCE PREFERRED, S.A.
UNIPERSONAL,
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as
Issuer
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By:/s/
▇▇▇▇▇▇ ▇▇▇▇▇ San
▇▇▇▇▇ .
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Name: ▇▇▇▇▇▇
▇▇▇▇▇ San Pablo
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Title: Director
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BANCO
SANTANDER CENTRAL HISPANO, S.A., as
Guarantor
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By:/s/
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Name: ▇▇▇▇▇▇▇
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Title: Authorized
Signatory
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CONFIRMED
AND ACCEPTED
as
of the
date first above written:
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BROTHERS INC.
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By: /s/
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▇▇▇▇▇▇▇▇ .
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▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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Senior
Vice President
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30