Exhibit 4(d)
EXECUTION COPY
Bank Stock Registration Rights Agreement
Dated as of March 25, 1998
between
B X. Xxxx Real Estate Investment Trust
and
Norwest Bank Minnesota, National Association, as Trustee
BANK STOCK REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 25th day of March, 1998, between X.X. Xxxx Real Estate
Investment Trust, an unincorporated Maryland business trust (the "Trust"), and
Norwest Bank Minnesota, National Association, as trustee (the "Trustee").
The Trust has entered into an Indenture dated as of March 25, 1998 (as
amended from time to time, the "Indenture") with the Trustee in connection with
the Trust's issuance of $200,000,000 aggregate principal amount of its 9 3/4%
Senior Secured Notes due 2008 (the "Notes"). Pursuant to Article Twelve of the
Indenture, the Trust has, among other things, pledged to the Trustee certain
shares of Bank Stock (such term and other capitalized terms used herein and not
otherwise defined having the respective meanings specified in the Indenture).
This Agreement is intended to permit the Trustee to exercise its remedies under
Article Twelve in respect of the Pledged Bank Stock through a public offering
thereof. The execution and delivery of this Agreement by the Trust is a
condition to the issuance of the Notes under the Indenture.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Registration Rights. If the Trustee shall have determined to
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exercise its right to sell all or any of the Pledged Bank Stock pursuant to
Article Twelve of the Indenture, the Trust agrees that, upon request of the
Trustee and at the Trust's expense, the Trust will use its best efforts to cause
Chevy Chase Bank, F.S.B. (the "Bank") to, and, if possible under applicable law,
will:
(a) execute and deliver, and cause the directors and officers of the
Bank or the Trust to execute and deliver, all such instruments and
documents, and do or cause to be done all such other acts and things, as
may be necessary or, in the opinion of the Trustee, advisable to register
the Pledged Bank Stock pursuant to the rules and regulations of the Office
of Thrift Supervision (the "OTS") or the rules and regulations of any
successor to the OTS or the appropriate federal regulator having
jurisdiction over the Bank if such is not the OTS (all of the rules and
regulations of the OTS set forth in Chapter V of Title 12 of the Code of
Federal Regulations, including, without limitation, 12 C.F.R. (S) 563g, and
the rules and regulations of the Securities and Exchange Commission (the
"Commission") made applicable to offering circulars by the rules and
regulations of the OTS, and all amendments to such regulations and
successor regulations and other applicable law (including regulations and
other law applicable as a result of any successor to the OTS or other
regulatory authority regulating the public offering of the Pledged Bank
Stock), are hereinafter collectively referred to as the "Rules and
Regulations"), to cause the offering circular on Form OC (or similar
offering circular required by any successor to the OTS or other regulatory
authority
regulating the public offering of the Pledged Stock) relating thereto (the
"Offering Circular") to become effective under the Rules and Regulations
(such Form OC (or similar offering circular required by any successor to
the OTS or other regulatory authority), as amended at the time the Offering
Circular becomes effective under the Rules and Regulations, the "Form OC")
and to remain effective for such period as offering circulars are required
by law to be furnished and to make all amendments and supplements thereto
and to the related offering circular that, in the opinion of the Trustee,
are necessary or advisable, all in conformity with the Rules and
Regulations;
(b) use its best efforts to qualify the Pledged Bank Stock under all
applicable state securities or "Blue Sky" laws, and to obtain all necessary
governmental approvals for the sale of the Pledged Bank Stock, as requested
by the Trustee;
(c) if required by applicable law, make available to the security
holders of the Bank, as soon as practicable, an earnings statement that
will satisfy the provisions of Section 11(a) of the Securities Act of 1933,
as amended (the "1933 Act") and Rule 158 thereunder;
(d) provide the Trustee with such other information as may be
necessary or, in the opinion of the Trustee, advisable to enable the
Trustee to effect the sale of the Pledged Bank Stock; and
(e) do or cause to be done all such other acts and things as may be
necessary to make such sale of the Pledged Bank Stock or any part thereof
valid and binding and in compliance with applicable law, including the
Rules and Regulations.
The Trustee is authorized, in connection with any sale of the Pledged
Bank Stock pursuant to Article Twelve of the Indenture, to the extent permitted
by applicable law, to deliver or otherwise disclose to any prospective purchaser
of the Pledged Bank Stock (i) any Form OC or offering circular, and all
supplements and amendments thereto, prepared pursuant to clause (a) above, (ii)
any information provided to it pursuant to clause (d) above and (iii) any other
information in its possession relating to the Pledged Bank Stock.
Without limiting the remedies available to the Trustee and the
Holders, the Trust acknowledges that any failure by the Trust to comply with its
obligations under this Section 1 may result in material irreparable injury to
the Trustee or the Holders for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Trustee or any Holder may obtain such relief
as may be required to specifically enforce the Trust's obligations under this
Section 1.
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2. Indemnification and Contribution. (a) The Trust agrees, and
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agrees to use its best efforts to cause the Bank to agree, to indemnify and hold
harmless the Trustee, each participating Holder, each other person who
participates in the offering of the Pledged Bank Stock, including underwriters
(as defined in the 1933 Act and referred to herein as "Underwriters"), and each
person, if any, who controls the Trustee or any participating Holder or other
participating person within the meaning of Section 15 of the 1933 Act or Section
20 of the Securities Exchange Act of 1934, as amended (the "1934 Act") (each of
the foregoing being an "Indemnitee"), 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 preliminary Form OC or
the Form OC (or any amendment or supplement thereto) 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, in the light of the circumstances
under which they were made, not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary offering circular or Offering Circular (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary 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 that (subject to Section
2(e) below) any such settlement is effected with the written consent of the
Trust and the Bank; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by any Indemnitee), 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)
of this Section 2(a);
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
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furnished to the Trust or the Bank by any Indemnitee expressly for use in any
preliminary Form OC or the Form OC (or any amendment or supplement thereto) or
any preliminary offering circular or Offering Circular (or any amendment or
supplement thereto). The foregoing indemnity with respect to any untrue
statement contained in or any omission from a preliminary Form OC or the Form OC
shall not inure to the benefit of any Underwriter or any Holder, including
Participating Broker-Dealers (or any person who controls such party within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act), from whom
the person asserting any such loss, liability, claim, damage or expense
purchased any of the Notes that are the subject thereof and was not sent or
given a copy of such preliminary Form OC or such Form OC (as amended or
supplemented) by such Underwriter or such selling Holder (in its capacity as
Holder) to the extent such Underwriter or such selling Holder (in its capacity
as Holder) was required by law to deliver such preliminary Form OC or such Form
OC, as amended or supplemented, at or prior to the written confirmation of the
sale of such Notes and the untrue statement contained in or the omission from
such preliminary Form OC or such Form OC was corrected in such amended or
supplemented preliminary Form OC or such Form OC, unless such failure resulted
from noncompliance by the Trust with its obligations hereunder to furnish such
Underwriter or such Holder (in its capacity as Holder), as the case may be, with
copies of such Form OC or such Form OC, as amended or supplemented.
(b) In connection with any underwritten offering, the Trust also
will, and will use its best efforts to cause the Bank to agree to, indemnify
each person who participates as an Underwriter, if any, and each Person who
controls such Persons within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act to the same extent as provided above with respect to
the indemnification of the Holders, if requested in connection with any
Registration Statement.
(c) Each Indemnitee shall be required to severally agree to indemnify
and hold harmless the Trust, the Bank and each of their respective trustees or
directors and each officer of the Bank who signed the Form OC and each person,
if any, who controls the Trust, the Bank or any other Indemnitee 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 2(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in any
preliminary Form OC or the Form OC (or any amendment or supplement thereto) or
any preliminary offering circular or Offering Circular included therein (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Trust and the Bank expressly for use in any
preliminary Form OC or the Form OC (or any amendment or supplement thereto) or
any such preliminary offering circular or Offering Circular (or any amendment or
supplement thereto); provided, however, that no such Indemnitee shall be liable
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for any amount hereunder in excess of the amount of net proceeds received by
such Indemnitee from the sale of Pledged Bank Stock.
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(d) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to paragraph (a), (b) or (c)
above, such person (the "indemnified party") shall give notice as promptly as
reasonably practicable to each person against whom such indemnity may be sought
(the "indemnifying party") of such action, 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. An indemnifying party may
participate at its own expense in the defense of such action; provided, however,
that counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying party or parties be liable for the fees and expenses of more
than one counsel (in addition to any local counsel) for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 2 for any subsequent legal
or other expenses incurred pursuant to such action, other than reasonable costs
of investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, selected by any indemnified party in
the case of Section 2(a), representing the indemnified parties under such
paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by
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such indemnified party without the consent of the indemnifying party. 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 2 (whether or not the indemnified parties are actual or potential
parties thereof), 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.
(e) Except with respect to fees and expenses not required to be
reimbursed pursuant to the assumption of the defense of an action in accordance
with Section 2(d) above, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 2(a)(ii) hereof 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 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.
(f) If the indemnification provided for in any of the indemnity
provisions set forth in this Section 2 is for any reason unavailable to 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, and the Trust shall use its best efforts to cause the
Bank to agree to, contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, in such proportion as is appropriate to reflect the relative fault of
the Trust and the Bank on the one hand, and such indemnified party or parties on
the other 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 Trust and the Bank
on the one hand, and such indemnified party or parties on the other 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 such indemnifying party
or parties and such indemnified party or parties and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree, and the Trust shall use
its best efforts to cause the Bank to agree, that it would not be just and
equitable if contribution pursuant to this Section 2 were determined by pro rata
allocation or by another method of allocation which does not take account of the
equitable considerations referred to above in Section 2. The aggregate amount
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of losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 2 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 an 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. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 2, each person, if any, who
controls an Indemnitee 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 such
Indemnitee, and each trustee of the Trust, each director of the Bank, each
officer of the Bank who signed the Form OC, and each person, if any, who
controls the Trust or the Bank 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
Trust and the Bank.
3. Successors and Assigns. This Agreement shall inure to the benefit of
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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, Indemnitees and the Bank.
4. Third Party Beneficiaries. The Holders, Indemnitees and the Bank shall
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be third party beneficiaries to the agreements made hereunder and shall have the
right to enforce such agreements directly to the extent they deem such
enforcement necessary or advisable to protect their rights hereunder.
5. Counterparts. This Agreement may be executed in any number of
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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 when taken
together shall constitute one and the same agreement.
6. Headings. The headings in this Agreement are for convenience of
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reference only and shall not limit or otherwise affect the meaning hereof.
7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
8. Severability. In the event that any one or more of the provisions
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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.
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9. Execution of Agreement by Trust. The name "X.X. Xxxx Real Estate
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Investment Trust" is the designation of the trustees of the trust under a
Declaration of Trust. All Persons dealing with the Trust must look solely to the
property and assets of the Trust for the enforcement of any claims against the
Trust; neither the trustees, shareholders, officers, employees and agents of the
Trust in their individual capacities assume any personal liability for the
obligations of the Trust; and the respective properties of the trustees,
shareholders, officers, employees and agents of the Trust in their individual
capacities shall not be subject to the claims of any such Persons with respect
to any such obligations.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
X.X. XXXX REAL ESTATE
INVESTMENT TRUST
By: /s/Xxxxxxx Xxxxxx
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Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President and
Chief Financial Officer
Confirmed and accepted as
of the date first above
written:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, as trustee
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Corporate Trust Officer
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