EXHIBIT 4.8
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 4, 1997
Among
COUNTRYWIDE CAPITAL III,
COUNTRYWIDE CREDIT INDUSTRIES, INC.,
COUNTRYWIDE HOME LOANS, INC.
and
XXXXXX BROTHERS INC.,
COUNTRYWIDE SECURITIES CORPORATION,
XXXXXXX, SACHS & CO.,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
SALOMON BROTHERS INC,
as Initial Purchasers
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This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of June 4, 1997 by and among COUNTRYWIDE CAPITAL III, a Delaware
statutory business trust (the "Trust"), COUNTRYWIDE CREDIT INDUSTRIES, INC., a
Delaware corporation ("the Company"), COUNTRYWIDE HOME LOANS, INC., a New York
corporation ("CHL"), and XXXXXX BROTHERS INC., COUNTRYWIDE SECURITIES
CORPORATION, XXXXXXX, SACHS & CO., XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED and SALOMON BROTHERS INC (collectively, the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of May 30, 1997, among the Company, CHL, the Trust and the
Initial Purchasers (the "Purchase Agreement"), which provides for the sale by
the Trust to the Initial Purchasers of an aggregate of $200,000,000 liquidation
amount of the Trust's 8.05% Subordinated Capital Income Securities, Series A,
liquidation amount $1,000 per security (the "Preferred Securities"). The Company
will be the owner of all of the beneficial ownership interest represented by the
common securities (the "Common Securities") of the Trust. The Preferred
Securities and the Common Securities will be guaranteed by a guarantee (the
"Trust Guarantee") by the Company, to the extent provided for in a Guarantee
Agreement, dated as of June 4, 1997. Concurrently with the issuance of the
Preferred Securities, the Trust Guarantee and the Common Securities, the Trust
will invest the proceeds of each thereof in CHL's 8.05% Junior Subordinated
Debentures due June 15, 2027, Series A (the "Debentures"). The Debentures will
be guaranteed by a guarantee (the "Debt Guarantee" and, together with the
Preferred Securities, the Trust Guarantee and the Debentures, the "Securities")
by the Company. In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Trust, CHL and the Company have agreed to provide the
registration rights set forth in this Agreement for the benefit of the Initial
Purchasers, and its and their direct and indirect transferees and assigns. The
execution and delivery of this Agreement is a condition to the Initial
Purchasers' obligation to purchase the Preferred Securities under the Purchase
Agreement.
The parties hereby agree as follows:
1. Interpretation and Definitions. In this Agreement, unless the
context otherwise requires:
(a) capitalized terms used in this Agreement but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.;
(b) a term defined anywhere in this Agreement has the same
meaning throughout;
(c) all references to "the Agreement" or "this Agreement" are
to this Agreement as modified, supplemented or amended from time to time;
(d) all references in this Agreement to Sections are to
Sections of this Agreement, unless otherwise specified;
(e) capitalized terms not defined herein shall have the
meaning given to such terms in the Declaration or, if the Debentures have been
distributed to the Holders of Preferred Securities in liquidation of the Trust,
the Indenture;
(f) a reference to the singular includes the plural and vice
versa and a reference to the masculine form of a term includes the feminine form
of a term, as applicable; and
(g) the following terms have the following meanings:
Additional Distributions: As defined in Section 5(a).
Additional Interest: As defined in Section 5(a).
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Closing Date: The date on which the Securities were sold.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of (i)
the filing and effectiveness under the Securities Act of the Exchange
Offer Registration Statement relating to the New Securities to be issued
in the Exchange Offer, (ii) the maintenance of such Registration Statement
continuously effective and the keeping of the Exchange Offer open for a
period not less than the minimum period required pursuant to Section 3(b)
hereof, and (iii) the delivery by the Registrants of the New Securities in
the same aggregate amount as the aggregate amount of Transfer Restricted
Securities that were validly tendered by Holders thereof pursuant to the
Exchange Offer.
Declaration: The Amended and Restated Declaration of Trust,
dated as of June 4, 1997, among the Company, The Bank of New York as
Property Trustee, The Bank of New York (Delaware), as Delaware Trustee and
the other trustees named therein, pursuant to which the Preferred
Securities are being issued, as amended or supplemented from time to time
in accordance with the terms thereof.
Distribution: As defined in the Declaration.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
Exchange Offer: The registration by the Registrants under the
Securities Act of the New Securities pursuant to a Registration Statement
pursuant to which the Registrants will offer the Holders of all
outstanding Transfer Restricted Securities the opportunity to exchange all
such outstanding Transfer Restricted Securities held by such Holders for
New Securities in an aggregate amount equal to the aggregate amount of the
Transfer Restricted Securities tendered in such exchange offer by such
Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the Prospectus
which forms a part thereof.
Exempt Resales: The transactions in which the Initial
Purchasers propose to sell the Securities to certain "qualified
institutional buyers," as such term is defined in Rule 144A under the
Securities Act, and to certain non-U.S. persons.
Guarantee Agreement: The Guarantee Agreement, dated as of June
4, 1997, between the Company and The Bank of New York, as Guarantee
Trustee, pursuant to which the Trust Guarantee is being issued, as amended
or supplemented from time to time in accordance with the terms thereof.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of June 4, 1997, among CHL,
the Company and The Bank of New York, as trustee (the "Trustee"), pursuant
to which the Debentures, the Debt Guarantee, the New Junior Subordinated
Debentures and the New Debt Guarantee are to be issued, as such Indenture
is amended or supplemented from time to time in accordance with the terms
thereof.
Initial Purchasers: As defined in the preamble hereto.
NASD: National Association of Securities Dealers, Inc.
New Debt Guarantee: The Company's guarantee of the New
Junior Subordinated Debentures pursuant to the Indenture.
New Junior Subordinated Debentures: CHL's Junior
Subordinated Debentures to be issued pursuant to the Indenture in the
Exchange Offer.
New Securities: The securities to be issued pursuant to
the Indenture, the Declaration and the Trust Guarantee Agreement in the
Exchange Offer.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and by
all other amendments thereto, including post-effective amendments, and all
material incorporated by reference into such Prospectus.
Registrants: The Trust, the Company and CHL or, if the
Debentures have been distributed to the Holders of the Preferred
Securities in liquidation of the Trust, the Company and CHL only.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Registrants relating to (a) an offering of New Securities pursuant to an
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, which is filed
pursuant to the provisions of this Agreement, in each case, including the
Prospectus included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material
incorporated by reference therein.
Securities Act: The Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4
hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb), as amended.
Transfer Restricted Securities: Each Security, (for the
purposes of this definition, if the Debentures have been distributed to
the Holders of Preferred Securities in liquidation of the Trust, each
Debenture and the Debt Guarantee) until the earliest to occur of (a) the
date on which such Security has been exchanged by a person other than a
Broker-Dealer for New Securities in the Exchange Offer, (b) following the
exchange by a Broker-Dealer in the Exchange Offer of such Security for one
or more New Securities, the date on which such New Securities are sold to
a purchaser who receives from such Broker-Dealer on or prior to the date
of such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement, (c) the date on which such Security has been
effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (d) the date on which
such Security is sold to the public pursuant to Rule 144 under the
Securities Act.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Registrants are sold to an
underwriter for reoffering to the public.
2. Securities Subject to This Agreement.
(a) Transfer Restricted Securities. The securities entitled to
the benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a "Holder")
whenever such Person owns Transfer Restricted Securities.
3. Registered Exchange Offer.
(a) Unless (i) the Exchange Offer shall not be permissible
under applicable law or Commission policy (after the procedures set forth in
Section 6(a) below have been complied with), or (ii) CHL has received an opinion
of counsel, rendered by a law firm having a recognized national tax practice, to
the effect that, as a result of the consummation of the Exchange Offer, there is
more than an insubstantial risk that (1) the Trust would be subject to United
States federal income tax with respect to income received or accrued on the
Debentures or New Junior Subordinated Debentures, (2) interest payable by CHL on
such Debentures or New Junior Subordinated Debentures would not be deductible by
CHL, in whole or in part, for United States federal income tax purposes, or (3)
the Trust would be subject to more than a de minimis amount of other taxes,
duties or other governmental charges (in each case a "Tax Event Opinion"), (x)
the Registrants shall (A) cause to be filed with the Commission as soon as
practicable after the Closing Date, but in no event later than 150 days after
the Closing Date, a Registration Statement under the Securities Act relating to
the New Securities and the Exchange Offer, (B) use their respective reasonable
best efforts to cause such Registration Statement to become effective at the
earliest possible time, but in no event later than 180 days after the Closing
Date, (C) in connection with the foregoing, file (1) all pre-effective
amendments to such Registration Statement as may be necessary in order to cause
such Registration Statement to become effective, (2) if applicable, a
post-effective amendment to such Registration Statement pursuant to Rule 430A
under the Securities Act and (3) cause all necessary filings in connection with
the registration and qualification of the New Securities to be made under the
Blue Sky laws of such jurisdictions as are necessary to permit Consummation of
the Exchange Offer, and (y) unless the Exchange Offer would not be permitted by
applicable law or Commission policy, the Registrants shall commence the Exchange
Offer and use their reasonable best efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than 30
business days thereafter, unless under applicable law the Exchange Offer is
required to remain open for a longer period. The Exchange Offer shall be on the
appropriate form permitting registration of the New Securities to be offered in
exchange for the Transfer Restricted Securities and to permit resales of New
Securities held by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Registrants shall cause the Exchange Offer
Registration Statement to be effective continuously and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 business
days. The Company and the Trust shall cause the Exchange Offer to comply with
all applicable federal and state securities laws. No securities other than the
New Securities shall be included in the Exchange Offer Registration Statement.
(c) The Registrants shall indicate in a "Plan of Distribution"
section contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Securities that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Registrants) may exchange such
Securities pursuant to the Exchange Offer; however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Securities Act and must,
therefore, deliver a prospectus meeting the requirements of the Securities Act
in connection with any resales of the New Securities received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of New Securities held by any such
Broker-Dealer except to the extent required by the Commission as a result of a
change in policy announced after the date of this Agreement.
The Registrants shall use their respective best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of New Securities acquired
by Broker-Dealers for their own accounts as a result of market-making activities
or other trading activities, and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of 90
days from the date on which the Exchange Offer Registration Statement is
declared effective.
The Registrants shall provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request at any time
during such 90-day period in order to facilitate such resales.
4. Shelf Registration.
(a) Shelf Registration. If (i) the Registrants are not
required to file an Exchange Offer Registration Statement or permitted to
consummate the Exchange Offer because the Exchange Offer is not permitted by
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with), (ii) the Company has received a Tax Event
Opinion (as defined in Section 3(a)) or (iii) if any Holder of Transfer
Restricted Securities provides CHL with an opinion of counsel on or before the
twentieth business day following the Consummation of the Exchange Offer (A) that
such Holder is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, (B) that such Holder may not resell the New
Securities acquired by it in the Exchange Offer to the public without delivering
a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales, or (C)
that such Holder is a Broker-Dealer and owns Securities acquired directly from
the Trust or one of its affiliates, then the Registrants shall use their
respective reasonable best efforts to:
(x) cause to be filed a shelf registration statement
pursuant to Rule 415 under the Securities Act, which may
be an amendment to the Exchange Offer Registration
Statement (in either event, the "Shelf Registration
Statement"), on or prior to the earliest to occur of (1)
the 150th day after the date on which the Registrants
determine that they are not required to file the Exchange
Offer Registration Statement or (2) the 150th day after
the date on which the Registrants receive notice from a
Holder of Transfer Restricted Securities as contemplated
by clause (iii) above (such earliest date being the "Shelf
Filing Deadline"), which Shelf Registration Statement
shall provide for resales of all Transfer Restricted
Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and
(y) cause such Shelf Registration Statement to be
declared effective by the Commission on or prior to the
180th day after the Shelf Filing Deadline.
The Registrants shall use their respective best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for resales of Securities by the
Holders of Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period ending on the second
anniversary of the Closing Date.
(a) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Registrants in writing, within 20 business days after receipt
of a request therefor, such information as the Registrants may reasonably
request for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to Additional Interest and Additional
Distributions pursuant to Section 5 hereof unless and until such Holder shall
have used its best efforts to provide all such reasonably requested information
and a sufficient time has passed after the receipt of such information to
provide Registrants a reasonable opportunity to satisfy their obligations
hereunder. Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Registrants all information required
to be disclosed in order to make the information previously furnished to the
Registrants by such Holder not materially misleading.
5. Additional Interests and Additional Distributions.
(a) If (a) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date specified for
such filing in this Agreement, (b) any of such Registration Statements has not
been declared effective by the Commission on or prior to the date specified for
such effectiveness in this Agreement (the "Effectiveness Target Date"), (c) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (d) subject to the provisions of Section 6(c)(i) below with respect
to any Shelf Registration Statement, any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter cease to be
effective or fail to be usable for its intended purpose without being succeeded
within two business days by a post-effective amendment to such Registration
Statement that cures such failure and that is itself immediately declared
effective (each such event referred to in clauses (a) through (d), a
"Registration Default"), additional interest (the "Additional Interest") shall
become payable in respect of the Debentures (including in respect of amounts
accruing during any Extension Period (as defined in the Indenture)) and
corresponding additional Distributions (the "Additional Distributions") shall
accrue to each Holder of Trust Securities with respect to the first 90-day
period immediately following the occurrence of such Registration Default in an
amount equal to $.05 per week per $1,000 liquidation amount of Preferred
Securities held by such Holder for each week or portion thereof that the
Registration Default continues. The amount of Additional Interest, and the
corresponding amount of Additional Distributions accruing to any Holder of Trust
Securities shall increase by an additional $.05 per week per $1,000 in
liquidation amount of Trust Securities held by such Holder with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of Additional Interest (and corresponding Additional
Distributions) of $.25 per week per $1,000 liquidation amount of Trust
Securities. All accrued Additional Interest (and corresponding Additional
Distributions) shall be paid to Holders by CHL and the Property Trustee in the
same manner as interest and Distributions are made pursuant to the Indenture and
the Declaration. Following the cure of all Registration Defaults relating to any
particular Transfer Restricted Securities, the accrual of Additional Interest
(and corresponding Additional Distributions) with respect to such Transfer
Restricted Securities will cease.
All obligations of the Company set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted Security
at the time such security ceases to be a Transfer Restricted Security shall
survive until such time as all such obligations with respect to such Transfer
Restricted Security shall have been satisfied in full.
(b) CHL shall notify the Property Trustee (or, if the
Debentures shall have been distributed to the Holders of the Preferred
Securities in liquidation of the Trust, the Debenture Trustee) within one
business day after each and every date on which an event occurs in respect of
which Additional Interest (and corresponding Additional Distributions) are
required to be paid (an "Event Date"). Additional Interest (and corresponding
Additional Distributions) shall be paid by depositing with the Property Trustee
(or, if the Debentures shall have been distributed to the Holders of the
Preferred Securities in liquidation of the Trust, the Debenture Trustee), in
trust, for the benefit of the Holders thereof, on or before the applicable
interest payment date (whether or not any payment other than Additional Interest
(and corresponding Additional Distributions) is payable on the Preferred
Securities or the Debentures, as the case may be), immediately available funds
in sums sufficient to pay the Additional Interest (and corresponding Additional
Distributions) then due to Holders of Transfer Restricted Securities. Each
obligation to pay Additional Interest (and corresponding Additional
Distributions) shall be deemed to accrue from the applicable date of the
occurrence of the Registration Default.
6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Registrants shall comply with all of the provisions of
Section 6(c) below, shall use their best efforts to effect such exchange to
permit the sale of Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof, and shall comply with
all of the following provisions:
(i) If, in the reasonable opinion of counsel to the
Registrants, there is a question as to whether the Exchange Offer is
permitted by applicable law, the Registrants hereby agree to seek a
no-action letter or other favorable decision from the Commission
allowing the Registrants to Consummate an Exchange Offer for the
Transfer Restricted Securities. The Registrants hereby agree to
pursue the issuance of such a decision to the Commission staff level
but shall not be required to take commercially unreasonable action
to effect a change of Commission policy. The Registrants hereby
agree, however, to (A) participate in telephonic conferences with
the Commission, (B) deliver to the Commission staff an analysis
prepared by counsel to the Registrants setting forth the legal
bases, if any, upon which such counsel has concluded that such an
Exchange Offer should be permitted and (C) diligently pursue a
resolution (which need not be favorable) by the Commission staff of
such submission.
(ii) As a condition to its participation in the Exchange
Offer pursuant to the terms of this Agreement, each Holder of
Transfer Restricted Securities shall furnish, upon the request of
the Registrants, prior to the Consummation thereof, a written
representation to the Registrants (which may be contained in the
letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an
affiliate of the Registrants, (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with
any person to participate in, a distribution of the New Securities
to be issued in the Exchange Offer and (C) it is acquiring the New
Securities in its ordinary course of business. In addition, all such
Holders of Transfer Restricted Securities shall otherwise cooperate
in the Registrants' preparations for the Exchange Offer. Each Holder
hereby acknowledges and agrees that any Broker-Dealer and any such
Holder using the Exchange Offer to participate in a distribution of
the securities to be acquired in the Exchange Offer (1) could not
under Commission policy as in effect on the date of this Agreement
rely on the position of the Commission enunciated in Xxxxxx Xxxxxxx
and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings
Corporation (available May 13, 1988), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (including any no-action letter obtained
pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Securities
Act in connection with a secondary resale transaction and that such
a secondary resale transaction should be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of New Securities obtained by such
Holder in exchange for Securities acquired by such Holder directly
from the Registrants.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Registrants shall provide a supplemental
letter to the Commission (A) stating that the Registrants are
registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation
(available May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (available
June 5, 1991) and, if applicable, any no-action letter obtained
pursuant to clause (i) above and (B) including a representation that
the Registrants have not entered into any arrangement or
understanding with any Person to distribute the New Securities to be
received in the Exchange Offer and that, to the best of the
Registrants' information and belief, each Holder participating in
the Exchange Offer is acquiring the New Securities in its ordinary
course of business and has no arrangement or understanding with any
Person to participate in the distribution of the New Securities
received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Registrants shall comply with all the provisions of
Section 6(c) below and shall use their best efforts to effect such registration
to permit the sale of the Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Registrants will as expeditiously as possible prepare and
file with the Commission a Registration Statement relating to the registration
on any appropriate form under the Securities Act, which form shall be available
for the sale of the Transfer Restricted Securities in accordance with the
intended method or methods of distribution thereof.
(c) General Provisions. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Securities by Broker-Dealers), the Registrants shall:
(i) use their best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this
Agreement, as applicable; upon the occurrence of any event that
would cause any such Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission
or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement,
the Registrants shall file promptly an appropriate amendment to such
Registration Statement, in the case of clause (A), correcting any
such misstatement or omission, and, in the case of either clause (A)
or (B), use their best efforts to cause such amendment to be
declared effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as
practicable thereafter; notwithstanding the foregoing, the
Registrants may suspend the offering and sales under the Shelf
Registration Statement for up to 30 days in each year during which
such Shelf Registration Statement is required to be effective and
usable hereunder (each such year to be measured from the date of
effectiveness of such Shelf Registration Statement to successive
anniversaries thereof) if (A) either (y)(I) either the Company or
CHL is engaged in a material acquisition or disposition and (II)(aa)
such acquisition or disposition is required to be disclosed in the
Shelf Registration Statement, the related Prospectus or any
amendment or supplement thereto, or the failure by the Registrants
to disclose such transaction in the Shelf Registration Statement or
related Prospectus, or any amendment or supplement thereto, as then
amended or supplemented, would cause such Shelf Registration
Statement, Prospectus or amendment or supplement thereto, to contain
an untrue statement of material fact or omit to state a material
fact necessary in order to make the statement therein, in light of
the circumstances under which they were made, not misleading, (bb)
information regarding the existence of such acquisition or
disposition has not then been publicly disclosed by or on behalf of
the Company or CHL and (cc) a majority of the Board of Directors of
the Company or CHL, as the case may be, determines in the exercise
of its good faith judgment that disclosure of such acquisition or
disposition would not be in the best interest of such Registrant or
would have a material adverse effect on the consummation of such
acquisition or disposition or (z) a majority of the Board of
Directors of the Company determines in the exercise of its good
faith judgment that compliance with the disclosure obligations set
forth in this Section 6(c)(i) would otherwise have a material
adverse effect on the Company and its subsidiaries, taken as a
whole, and (B) the Registrants notify the Holders within two
business days after such Boards of Directors make the relevant
determinations set forth in clause (A); provided, however, that in
each such case (1) the applicable period specified in Section 4
hereof during which the Shelf Registration Statement is required to
be kept effective and usable shall be extended by the number of days
during which such effectiveness was suspended pursuant to the
foregoing, (2) the Registrants shall use all reasonable efforts to
permit resumption of the offering and sales under the Shelf
Registration Statement at the earliest practicable time and (3) the
Additional Interest (and corresponding Additional Distributions)
provided for in Section 5 hereof shall not apply during any period
the Registrants are permitted to suspend offerings and sales under
this sentence;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration Statement
effective for the applicable period set forth in Section 3 or 4
hereof, as applicable, or such shorter period as will terminate when
all Transfer Restricted Securities covered by such Registration
Statement have been sold; cause the Prospectus to be supplemented by
any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act, and to comply
fully with the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by
the sellers thereof set forth in such Registration Statement or
supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, to confirm such
advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to any Registration Statement or any post-effective
amendment thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Securities Act or of the suspension
by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact
made in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or
changes in the Registration Statement or the Prospectus in order to
make the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness
of the Registration Statement, or any state securities commission or
other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the
Registrants shall use their best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) furnish to each of the selling Holders and each of
the underwriter(s), if any, before filing with the Commission,
copies of any Registration Statement or any Prospectus included
therein or any amendments or supplements to any such Registration
Statement or Prospectus (including all documents incorporated by
reference after the initial filing of such Registration Statement),
which documents will be subject to the review of such Holders and
underwriter(s), if any, for a period of at least five business days,
and the Registrants will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated
by reference) to which a selling Holder of Transfer Restricted
Securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object within five business
days after the receipt thereof. A selling Holder or underwriter, if
any, shall be deemed to have reasonably objected to such filing if
such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material
misstatement or omission;
(v) promptly prior to the filing of any document that is
to be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to the selling Holders
and to the underwriter(s), if any, make the Registrants'
representatives available for discussion of such document and other
customary due diligence matters, and include such information in
such document prior to the filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection
by the selling Holders, any underwriter participating in any
disposition pursuant to such Registration Statement, and any
attorney or accountant retained by such selling Holders or any of
the underwriter(s), all financial and other records, pertinent
corporate documents and properties of the Registrants and cause the
Registrants' officers, trustees, directors, managers and employees
to supply all information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with such
Registration Statement subsequent to the filing thereof and prior to
its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included
therein, including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the liquidation or principal amount of
Transfer Restricted Securities being sold to such underwriter(s),
the purchase price being paid therefor and any other terms of the
offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after
the Registrants are notified of the matters to be incorporated in
such Prospectus supplement or post-effective amendment;
(viii)cause the Transfer Restricted Securities covered
by the Registration Statement to be rated with the appropriate
rating agencies, if so requested by the Holders of a majority in
aggregate liquidation or principal amount of Securities covered
thereby or the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of
each amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits incorporated
therein by reference);
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto as such Persons reasonably may request; the
Registrants hereby consent to the use of the Prospectus and any
amendment or supplement thereto by each of the selling Holders and
each of the underwriter(s), if any, in connection with the offering
and the sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto;
(xi) enter into such agreements (including an
underwriting agreement), and make such representations and
warranties, and take all such other actions in connection therewith
in order to expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to any Registration Statement
contemplated by this Agreement, all to such extent as may be
requested by any Initial Purchaser or by any Holder of Transfer
Restricted Securities or underwriter in connection with any sale or
resale pursuant to any Registration Statement contemplated by this
Agreement; and in connection with an Underwritten Registration, the
Registrants shall:
(A) upon request, furnish to each selling Holder
and each underwriter, if any, in such substance and scope as
they may request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date
of the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of the
effectiveness of the Shelf Registration Statement,
signed by (x) the Chairman of the Board, President, Vice
Chairman of the Board, Executive Vice President, Senior
Managing Director or a Managing Director of the Company,
(y) the Chairman of the Board, Chief Executive Officer,
President, Chief Operating Officer or a Managing
Director of CHL and (z) the Chief Financial Officer of
the Company and CHL, confirming, as of the date thereof,
such matters as such parties may reasonably request;
(2) an opinion, dated the date of the
effectiveness of the Shelf Registration Statement, of
counsel for the Registrants, covering such matters as
such parties may reasonably request, and in any event
including a statement to the effect that such counsel
has participated in conferences with officers and other
representatives of the Registrants, representatives of
the independent public accountants for the Company, the
Initial Purchasers' representatives and the Initial
Purchasers' counsel in connection with the preparation
of such Registration Statement and the related
Prospectus and have considered the matters required to
be stated therein and the statements contained therein,
although such counsel has not independently verified the
accuracy, completeness or fairness of such statements;
and that such counsel advises that, on the basis of the
foregoing (relying as to materiality to a large extent
upon facts provided to such counsel by officers and
other representatives of the Company, CHL and the Trust
and without independent check or verification), no facts
came to such counsel's attention that caused such
counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or
any post-effective amendment thereto became effective,
contained an untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such
Registration Statement, as of its date, contained an
untrue statement of a material fact or omitted to state
a material fact necessary in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading. Without limiting
the foregoing, such counsel may state further that such
counsel assumes no responsibility for, and has not
independently verified, the accuracy, completeness or
fairness of the financial statements, notes and
schedules and other financial data included in any
Registration Statement contemplated by this Agreement or
the related Prospectus; and
(3) a customary comfort letter, dated the
date of the effectiveness of the Shelf Registration
Statement, from the Company's independent accountants,
in the customary form and covering matters of the type
customarily covered in comfort letters by underwriters
in connection with primary underwritten offerings.
(B) set forth in full or incorporate by reference
in the underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof with respect to
all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates
as may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Registrants pursuant to this
clause (xi), if any.
If at any time the representations and warranties of the
Company contemplated in clause (A)(1) above cease to be true and
correct, the Company shall so advise the Initial Purchasers and the
underwriter(s), if any, and each selling Holder promptly and, if
requested by such Persons, shall confirm such advice in writing;
(xii) prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders, the
underwriter(s), if any, and their respective counsel in connection
with the registration and qualification of the Transfer Restricted
Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s) may
reasonably request and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that no Registrant shall be required
to register or qualify as a foreign corporation where it is not now
so qualified or to take any action that would subject it to the
service of process in suits or to taxation, other than as to matters
and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xiii)issue, upon the request of any Holder of
Securities covered by the Shelf Registration Statement, New
Securities in the same amount as the Securities surrendered to the
Registrants by such Holder in exchange therefor or being sold by
such Holder; such New Securities to be registered in the name of
such Holder or in the name of the purchaser(s) of such Securities,
as the case may be; in return, the Securities held by such Holder
shall be surrendered to the Registrants for cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities
to be sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if
any, may request at least two business days prior to any sale of
Transfer Restricted Securities made by such underwriter(s);
(xv) use its best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers
thereof or the underwriter(s), if any, to consummate the disposition
of such Transfer Restricted Securities, subject to the proviso
contained in clause (xii) above;
(xvi) subject to the provisions of Section 6(c)(i) above
with respect to any Shelf Registration Statement, if any fact or
event contemplated by clause (c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading;
(xvii)provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide certificates for the Transfer Restricted
Securities;
(xviii)cooperate and assist in any filings required to
be made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified
independent underwriter") that is required to be retained in
accordance with the rules and regulations of the NASD, and use its
best efforts to cause such Registration Statement to become
effective and approved by such governmental agencies or authorities
as may be necessary to enable the Holders selling Transfer
Restricted Securities to consummate the disposition of such Transfer
Restricted Securities;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as practicable,
a consolidated earnings statement meeting the requirements of Rule
158 (which need not be audited) for the twelve-month period (A)
commencing at the end of any fiscal quarter in which Transfer
Restricted Securities are sold to underwriters in a firm or best
efforts Underwritten Offering or (B) if not sold to underwriters in
such an offering, beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the
Registration Statement;
(xx) cause the Indenture and, if the Debentures shall
not have been distributed to the Holders of the Preferred Securities
in liquidation of the Trust, the Declaration and the Trust Guarantee
to be qualified under the TIA not later than the effective date of
the first Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the Holders of
Securities to effect such changes to the Indenture, the Declaration
and the Trust Guarantee as may be required for the Indenture, the
Declaration and the Trust Guarantee to be so qualified in accordance
with the terms of the TIA; and execute and use their best efforts to
cause the Indenture Trustee, Trust Guarantee Trustee and the
Property Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so
qualified in a timely manner; and
(xxi) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from any Registrant of the existence of any
fact of the kind described in Section 6(c)(iii)(D) hereof, such Holder will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 6(c)(xvi)
hereof, or until it is advised in writing (the "Advice") by any Registrant that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by a Registrant, each Holder will deliver to such
Registrant (at the Registrants' expense) all copies, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Transfer Restricted Securities that was current at the time of receipt of such
notice. In the event the Company, CHL or the Trust shall give any such notice,
the time period regarding the effectiveness of such Registration Statement set
forth in Section 3 or 4 hereof, as applicable, shall be extended by the number
of days during the period from and including the date of the giving of such
notice pursuant to Section 6(c)(iii)(D) hereof to and including the date when
each selling Holder covered by such Registration Statement shall have received
the copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xvi) hereof or shall have received the Advice.
7. Registration Expenses.
All expenses incident to the Registrants' performance of or
compliance with this Agreement will be borne by CHL, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made by any Initial
Purchaser or Holder with the NASD (and, if applicable, the fees and expenses of
any "qualified independent underwriter" and its counsel that may be required by
the rules and regulations of the NASD)); (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the New Securities
to be issued in the Exchange Offer and printing of Prospectuses) and messenger
and delivery services; (iv) all fees and disbursements of counsel for the
Registrants; (v) all application and filing fees in connection with listing
Securities on a national securities exchange or automated quotation system
pursuant to the requirements hereof; and (vi) all fees and disbursements of
independent certified public accountants of the Company (including the expenses
of any special audit and comfort letters required by or incident to such
performance).
The Registrants will, in any event, bear their internal expenses
(including, without limitation, all salaries and expenses of their officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts and
legal counsel, retained by the Registrants.
8. Indemnification and Contribution.
(a) In connection with a Shelf Registration Statement or in
connection with any delivery of a Prospectus contained in an Exchange Offer
Registration Statement by any participating Broker-Dealer or Initial Purchaser,
as applicable, who seeks to sell New Securities, the Company and CHL, jointly
and severally, shall indemnify and hold harmless each Holder of Transfer
Restricted Securities included within any such Shelf Registration Statement and
each participating Broker-Dealer or Initial Purchaser selling New Securities,
and each person, if any, who controls any such person within the meaning of the
Securities Act (each, a "Participant"), from and against any loss, claim, damage
or liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Securities) to which such Participant or controlling
person may become subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary Prospectus, such Registration Statement or any
Prospectus or in any amendment or supplement thereto or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse
each Participant promptly upon demand for any legal or other expenses reasonably
incurred by such Participant in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that (i) the Company and CHL
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any such Registration Statement or any prospectus forming part thereof or in any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company, CHL and the Trust by or on behalf of any
Participant specifically for inclusion therein; and provided further that as to
any preliminary Prospectus, the indemnity agreement contained in this Section
8(a) shall not inure to the benefit of any such Participant or any controlling
person of such Participant on account of any loss, claim, damage, liability or
action arising from the sale of the New Securities to any person by that
Participant if (i) that Participant failed to send or give a copy of the
Prospectus, as the same may be amended or supplemented, to that person within
the time required by the Securities Act and (ii) the untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in such preliminary Prospectus was corrected in the Prospectus,
unless, in each case, such failure resulted from non-compliance by the
Registrants with Section 6(c). The foregoing indemnity agreement is in addition
to any liability which the Registrants may otherwise have to any Participant or
to any controlling person of that Participant.
(b) Each Participant, severally and not jointly, shall
indemnify and hold harmless the Registrants, each of their respective trustees,
directors, officers, employees or agents and each person, if any, who controls
the Company, CHL or the Trust within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Registrants or any such director, officer,
employees or agents or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary Prospectus,
Registration Statement or Prospectus or in any amendment or supplement thereto
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Registrants by
or on behalf of that Participant specifically for inclusion herein, and shall
reimburse the Registrants and any such trustee, director, officer, employees or
agents or controlling person for any legal or other expenses reasonably incurred
by the Registrants or any such trustee, director, officer, employees or agents
or controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which any Participant may otherwise have to the Registrants or any
such trustee, director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall have notified the indemnifying party thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the
defense thereof with counsel satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that if
the defendants in any such action include both the indemnified and indemnifying
party or parties the indemnified party or parties shall have the right to employ
separate counsel if, in the reasonable judgment of such indemnified party or
parties, there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party or parties, and in that event the fees and expenses of
such separate counsel shall be paid by the indemnifying party or parties (it
being understood, however, that the indemnifying party or parties shall not be
liable for the expenses of more than one separate counsel in any single
jurisdiction). Each indemnified party, as a condition of the indemnity
agreements contained in Section 8, shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss of
liability by reason of such settlement or judgment.
(d) If the indemnification hereinbefore provided for in this
Section 8 shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 8(a) or 8(b) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as shall be appropriate to reflect the relative
fault of the Registrants on the one hand and the Participants on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Registrants or the Participants, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Registrants and the Participants agree that it would
not be just and equitable if contributions pursuant to this Section 8(d) were to
be determined by pro rata allocation (even if the Participants were treated as
one entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
8(d) shall be deemed to include, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Participant shall be required to contribute
any amount in excess of the amount by which the total proceeds received by such
Participant with respect to the sale of its Securities exceeds the amount of any
damages which such Participant has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Participants' obligations to contribute as provided in this Section 8(d) are
several and not joint.
9. Rule 144A.
The Registrants hereby agree with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available upon
request to any Holder or beneficial owner of Transfer Restricted Securities in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information, if
any, required by Rule 144A(d)(4) under the Securities Act in order to permit
resales of such Transfer Restricted Securities pursuant to Rule 144A.
10. Participation in Underwritten Registrations.
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
11. Selection of Underwriters.
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal or liquidation amount of the Transfer Restricted Securities
included in such offering; provided, that such investment bankers and managers
must be reasonably satisfactory to the Company.
12. Miscellaneous.
(a) Remedies. Each of the Company, CHL and the Trust agrees
that monetary damages (including any Additional Interest or Additional
Distributions contemplated hereby) would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company, CHL and the Trust
shall not on or after the date of this Agreement enter into any agreement with
respect to their securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof. The
Company, CHL and the Trust have not previously entered into any agreement
granting any registration rights pursuant to which the holders of such rights
have any right to demand or request that the Company register the securities
held by them (or any securities they have any right to acquire) as a result of
the filing of any Registration Statement required to be filed hereunder. The
rights granted to the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of the Trust's, CHL's
and the Company's securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Securities. The Company, CHL and
the Trust shall not take any action, or permit any change to occur, with respect
to Securities that would materially and adversely affect the ability of the
Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Company, CHL
and the Trust have obtained the written consent of Holders of a majority of the
outstanding principal or liquidation amount of Transfer Restricted Securities.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer and that does not
affect directly or indirectly the rights of other Holders whose securities are
not being tendered pursuant to such Exchange Offer may be given by the Holders
of a majority of the outstanding principal or liquidation amount of Transfer
Restricted Securities being tendered or registered.
(e) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telex, telecopier, or
air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Trust; and
(ii) if to the Company, CHL and the Trust:
c/o Countrywide Credit Industries, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Esq.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and on
the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Indenture Trustee at
the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign acquired Transfer Restricted Securities from such Holder. The
indemnity agreement of the Company and CHL contained in Section 8(a) of this
Agreement shall also be deemed to be for the benefit of each of the
Participants; and the indemnity agreement of the Participants contained in
Section 8(b) of this Agreement shall also be deemed to be for the benefit of
directors, officers and employees of the Company and CHL and the trustees of the
Trust and any Person controlling the Company, CHL or the Trust within the
meaning of the Securities Act.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the other
transaction documents is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company, CHL and the Trust with respect
to the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
(l) Required Consents. Whenever the consent or approval of
Holders of a specified percentage of Transfer Restricted Securities is required
hereunder, Transfer Restricted Securities held by the Company or its affiliates
(as such term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
COUNTRYWIDE CREDIT INDUSTRIES, INC.
By: /s/Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Managing Director
COUNTRYWIDE HOME LOANS, INC.
BY: /s/Xxxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Senior Managing Director
COUNTRYWIDE CAPITAL III
BY: /s/Xxxxxx X. Xxxxxxx
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REGULAR TRUSTEE
Accepted as of the date thereof
XXXXXX BROTHERS INC.,
for itself and on behalf of the
other Initial Purchasers Identified
in this Agreement
By: /s/Xxxx Xxxxxxx
-----------------------
Name: Xxxx Xxxxxxx
Title:Managing Director