GS ESCROW CORP.
$2,000,000,000
$250,000,000 Floating Rate Notes Due 2003
$350,000,000 6 3/4% Senior Notes Due 2001
$600,000,000 7% Senior Notes Due 2003
$800,000,000 7 1/8% Senior Notes Due 2005
To Be Assumed by Merger into
GOLDEN STATE HOLDINGS INC.
REGISTRATION AGREEMENT
New York, New York
July 30, 1998
To: SALOMON BROTHERS INC
GOLDMAN, SACHS & CO.
BEAR, STEARNS & CO. INC.
LEHMAN BROTHERS INC.
CHASE SECURITIES INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
In care of:
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Ladies and Gentlemen:
GS ESCROW CORP., a Delaware corporation (the "Company"), proposes to
issue and sell to Salomon Brothers Inc, Goldman, Sachs & Co., Bear, Stearns &
Co. Inc., Lehman Brothers Inc., Chase Securities Inc. and NationsBanc
Montgomery Securities LLC (the "Initial Purchasers"), upon the terms set forth
in a purchase agreement dated July 30, 1998, among the Company, Trans Network
Insurance Services Inc. ("TNIS") and the Initial Purchasers (the "Purchase
Agreement"), $250,000,000 aggregate principal amount of its Floating Rate
Notes Due 2003 (the "Floating Rate Notes"), $350,000,000 aggregate principal
amount of its 6 3/4% Senior Notes Due 2001 (the "2001 Notes"), $600,000,000
aggregate principal amount of its 7% Senior Notes Due 2003 (the "2003 Notes")
and $800,000,000 aggregate principal amount of its 7 1/8% Senior Notes Due 2005
(the "2005 Notes" and, together with the Floating Rate Notes, the 2001 Notes
and the 2003 Notes, the "Securities"). As used herein, the "Issuer" shall
refer to the Company prior to the Escrow Corp. Merger and to New First
Nationwide Holdings Inc. (to be renamed Golden State Holdings Inc.
("Holdings") and any successor thereto following the Escrow Corp. Merger.
Capitalized terms used but not specifically defined herein are defined in the
Purchase Agreement. As an inducement to the Initial Purchasers to enter into
the Purchase Agreement and in satisfaction of a condition to your obligations
thereunder, each of the Company and Holdings agrees with you, for the benefit
of the holders of the Securities (including the Initial Purchasers) (the
"Holders"), as follows:
1. Registered Exchange Offer. The Issuer shall prepare and, not later
than 75 days following the consummation of both the Golden State Acquisition
and the Refinancing
2
Transactions (or if the 75th day is not a business day, the first business day
thereafter), shall file with the Securities and Exchange Commission (the
"Commission") a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act of 1933, as
amended (the "1933 Act") with respect to a proposed offer (the "Registered
Exchange Offer") to the Holders to issue and deliver to such Holders, in
exchange for the Securities, a like principal amount of debt securities of the
Issuer (the "Exchange Notes") identical in all material respects to the
Securities (except that the interest rate increase provisions and the transfer
restrictions will be modified or eliminated, as appropriate), shall use its
best efforts to cause the Exchange Offer Registration Statement to become
effective under the 1933 Act within 150 days following the consummation of
both the Golden State Acquisition and the Refinancing Transactions (or if the
150th day is not a business day, the first business day thereafter) and shall
use its best efforts to keep the Exchange Offer Registration Statement
effective under the 1933 Act until the close of business on the 180th day
following the expiration of the Registered Exchange Offer (such period being
called the "Exchange Offer Registration Period") for use by Exchanging Dealers
(as defined below) as contemplated in Section 3(g) below. The Issuer shall be
deemed not to have used its best efforts to keep the Exchange Offer
Registration Statement effective during the Exchange Offer Registration Period
if it voluntarily takes any action that would result in Exchanging Dealers not
being able to use such Registration Statement as contemplated in such Section
3(g), unless (i) such action is required by applicable law, or (ii) such
action is taken by the Issuer in good faith and for valid business reasons
(not including avoidance of the Issuer's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Issuer promptly
thereafter complies with the requirements of Section 3(j) hereof, if
applicable. The Exchange Notes will be issued under the Indenture or an
indenture (the "Exchange Notes Indenture") between the Issuer and the Trustee
or such other bank or trust company reasonably satisfactory to you, as trustee
(the "Exchange Notes Trustee"), such indenture to be identical in all material
respects with the Indenture except for the interest rate increase provisions
and the transfer restrictions relating to the Securities (as described above).
Upon the effectiveness of the Exchange Offer Registration Statement,
the Issuer shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Securities for Exchange Notes (assuming that such Holder is not an
affiliate of the Issuer within the meaning of the 1933 Act, acquires the
Exchange Notes in the ordinary course of such Holder's business and has no
arrangements with any person to participate in the distribution of the
Exchange Notes) to trade such Exchange Notes from and after their receipt
without any limitations or restrictions under the 1933 Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States. Notwithstanding the foregoing, the
Initial Purchasers, the Issuer and the Company acknowledge that, pursuant to
current interpretations by the Commission's staff of Section 5 of the 1933
Act, and in the absence of an applicable exemption therefrom, (i) each Holder
(including any Initial Purchaser) which is a broker-dealer electing to
exchange Securities, acquired for its own account as a result of market making
activities or other trading activities, for Exchange Notes (an "Exchanging
Dealer"), is required to deliver a prospectus containing the information set
forth in Annex A hereto on the cover, in Annex B hereto in "The Exchange
Offer" section, and in Annex C hereto in the "Plan of Distribution" section of
such prospectus in connection with a sale of any such Exchange Notes received
by such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii)
each Initial Purchaser which elects to sell Exchange Notes acquired in
exchange for Securities constituting any portion of an unsold allotment is
required to deliver a prospectus, containing the information required by Items
507 and/or 508 of Regulation S-K under the 1933 Act, as applicable, in
connection with such a sale.
In connection with the Registered Exchange Offer, the Issuer shall:
(a) mail to each Holder a copy of the prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
3
(b) keep the Registered Exchange Offer open for not less
than 30 days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law);
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City
of New York;
(d) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time, on the last
business day on which the Registered Exchange Offer shall remain
open; and
(e) otherwise comply in all respects with all applicable
laws.
As soon as practicable after the close of the Registered
Exchange Offer, the Issuer shall:
(a) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer;
(b) deliver to the Trustee for cancelation all Securities so
accepted for exchange; and
(c) cause the Trustee or the Exchange Notes Trustee, as the
case may be, promptly to authenticate and deliver to each Holder of
Securities Exchange Notes equal in principal amount to the Securities
of such Holder so accepted for exchange.
Interest on each Exchange Note will accrue from the last interest
payment date on which interest was paid on the Securities surrendered in
exchange therefor or, if no interest has been paid on the Securities, from the
date interest began to accrue on the Securities.
Notwithstanding any other provisions hereof, the Issuer will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto
and any prospectus forming part thereof and any supplement thereto complies in
all material respects with the 1933 Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading and (iii) any
prospectus forming part of any Exchange Offer Registration Statement, and any
supplement to such prospectus, does not include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements, in the light of the circumstances under which they were made, not
misleading.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Issuer that at the time of the consummation of
the Registered Exchange Offer (i) any Exchange Notes received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will
have no arrangements or understanding with any person to participate in the
distribution of the Notes or the Exchange Notes within the meaning of the 1933
Act, (iii) such Holder is not an "affiliate," as defined in Rule 405 of the
1933 Act, of the Issuer or if it is an affiliate, such Holder acknowledges
that it must comply with the registration and prospectus delivery requirements
of the 1933 Act to the extent applicable, (iv) if such Holder is not a
broker-dealer, that it is not engaged in, and does not intend to engage in a
distribution of the Exchange Notes and (v) if such Holder is a broker-dealer,
that it will receive Exchange Notes in exchange for Notes that were acquired
as a result of market-making activities or other trading activities and that
it will be required to acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Notes.
In the event that any Initial Purchaser determines upon advice of its
outside counsel that it is not eligible to participate in the Registered
Exchange Offer with respect to the exchange of Securities constituting any
portion of an unsold allotment, as soon as practicable
4
upon receipt by the Issuer of an opinion of outside counsel for such Initial
Purchaser, reasonably satisfactory in form and substance to outside counsel of
the Issuer, to the effect that such exchange does not require compliance with
the registration requirements under the 1933 Act, the Issuer shall issue and
deliver to such Initial Purchaser, in exchange for such Securities, a like
principal amount of Exchange Notes.
2. Shelf Registration. If, because of any change in law or applicable
interpretations thereof by the Commission's staff, the Issuer determines that
it is not permitted to effect the Registered Exchange Offer as contemplated by
Section 1 hereof, or if for any other reason the Registered Exchange Offer is
not consummated within 180 days after the consummation of the Golden State
Acquisition and the Refinancing Transactions (or if such day is not a business
day, the first business day thereafter), or if any Initial Purchaser so
requests with respect to Securities held by it following consummation of the
Registered Exchange Offer, or if any Holder (other than an Initial Purchaser)
is not eligible to participate in the Registered Exchange Offer or, in the
case of any Initial Purchaser that participates in the Registered Exchange
Offer or acquires Exchange Notes pursuant to the last paragraph of Section 1
hereof, such Initial Purchaser does not receive freely tradeable Exchange
Notes in exchange for exchanged Securities constituting any portion of an
unsold allotment (it being understood that the requirement that an Initial
Purchaser deliver a prospectus in connection with sales of Exchange Notes
acquired in the Registered Exchange Offer in exchange for Securities acquired
as a result of market-making activities or other trading activities, shall not
result in such Exchange Notes not being "freely tradeable" for purposes of
this Section 2) or if the Issuer so elects, the following provisions shall
apply:
(a) The Issuer shall as promptly as practicable file with
the Commission and thereafter shall use its best efforts to cause to
be declared effective a registration statement on an appropriate form
under the 1933 Act relating to the offer and sale of the Securities
by the Holders or the Exchange Notes by the Initial Purchasers, as
applicable, from time to time in accordance with the methods of
distribution elected by such Holders or the Initial Purchasers, as
applicable, and set forth in such registration statement (hereafter,
a "Shelf Registration Statement" and, together with any Exchange
Offer Registration Statement, a "Registration Statement").
(b) The Issuer shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be usable by Holders or the
Initial Purchasers, as applicable, for a period of two years from the
date the Shelf Registration Statement is declared effective by the
Commission (or, if the Issuer has consummated the Registered Exchange
Offer, for a period only until August [ ], 2000) or such shorter
period that will terminate when all the Securities or Exchange Notes,
as applicable, covered by the Shelf Registration Statement have been
sold pursuant to the Registration Statement or when, in the opinion
of outside counsel to the Issuer, which is reasonably satisfactory in
form and substance to counsel for the Initial Purchasers, all such
Securities may be sold without registration under the 1933 Act and
unlegended certificates representing the Securities may be given to
the holders thereof (in any such case, such period being called the
"Shelf Registration Period"). The Issuer shall be deemed not to have
used its best efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any
action that would result in Holders of securities covered thereby not
being able to offer and sell such securities during that period,
unless (i) such action is required by applicable law, or (ii) such
action is taken by the Issuer in good faith and for valid business
reasons (not including avoidance of the Issuer's obligations
hereunder), including the acquisition or divestiture of assets, so
long as the Issuer promptly thereafter complies with the requirements
of Section 3(j) hereof, if applicable.
(c) Notwithstanding any other provisions hereof, the Issuer
will ensure that (i) any Shelf Registration Statement and any
amendment thereto and any prospectus forming part thereof and any
supplement thereto complies in all material respects with the
5
1933 Act and the rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) any
prospectus forming part of any Shelf Registration Statement, and any
supplement to such prospectus, does not include an untrue statement
of in a material fact or omit to state a material fact necessary in
order to make the statements, in the light of the circumstances under
which they were made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Issuer shall (i) furnish to the Initial Purchasers,
prior to the filing thereof with the Commission, a copy of the
Registration Statement and each amendment thereof and each
supplement, if any, to the prospectus included therein and shall use
its best efforts to reflect in each such document, when so filed with
the Commission, such comments as the Initial Purchasers reasonably
may propose, (ii) include the information set forth in Annex A hereto
on the cover, in Annex B hereto in "The Exchange Offer" section, and
in Annex C hereto in the "Plan of Distribution" section of the
prospectus forming a part of the Exchange Offer Registration
Statement, and include the information set forth in Annex D hereto in
the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer, and (iii) if requested by the Initial Purchasers,
include the information required by Items 507 and/or 508 of
Regulation S-K under the 1933 Act, as applicable, in the prospectus
forming a part of the Registration Statement; and (iv) in the case of
a Shelf Registration Statement, include the names of the Holders who
propose to sell Securities pursuant to the Shelf Registration
Statement, as selling security holders.
(b) (1) The Issuer shall advise you and, in the case of a
Shelf Registration Statement, the Holders of securities included
therein, and, if requested by you or any such Holder, confirm such
advice in writing:
(i) when the Registration Statement and any
amendment thereto has been filed with the Commission and
when the Registration Statement or any post-effective
amendment thereto has become effective; and
(ii) of any request by the Commission for
amendments or supplements to the Registration Statement or
the prospectus included therein or for additional
information.
(2) The Issuer shall advise you and, in the case of a Shelf
Registration Statement, the Holders of securities included therein,
and, in the case of an Exchange Offer Registration Statement, any
Exchanging Dealer which has provided in writing to the Issuer a
telephone or facsimile number or address for notices, and, if
requested by you or any such Holder or Exchanging Dealer, confirm
such advice in writing:
(i) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) of the receipt by the Issuer of any
notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the happening of any event that requires
the making of any changes in the Registration Statement or
the prospectus so that as of such date,
6
the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
prospectus, in light of the circumstances under which they
were made) not misleading (which advice shall be accompanied
by an instruction to suspend the use of the prospectus until
the requisite changes have been made).
(c) The Issuer will make every reasonable effort to obtain
the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time.
(d) The Issuer will furnish to each Holder of securities
included within the coverage of any Shelf Registration Statement
without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests in
writing, all exhibits (including those incorporated by reference).
(e) The Issuer will, during the Shelf Registration Period,
deliver to each Holder of securities included within the coverage of
any Shelf Registration Statement, without charge, as many copies of
the prospectus (including each preliminary prospectus) included in
such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; and the Issuer
consents to the use of the prospectus or any amendment or supplement
thereto by each of the selling Holders of securities in connection
with the offering and sale of the securities covered by the
prospectus or any amendment or supplement thereto.
(f) The Issuer will furnish to each Exchanging Dealer or
Initial Purchaser, as applicable, which so requests, without charge,
at least one copy of the Exchange Offer Registration Statement and
any post-effective amendment thereto, including financial statements
and schedules, and, if the Exchanging Dealer or Initial Purchaser, as
applicable, so requests in writing, all exhibits (including those
incorporated by reference).
(g) The Issuer will, during the Exchange Offer Registration
Period, promptly deliver to each Exchanging Dealer, without charge,
as many copies of the prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as
such Exchanging Dealer may reasonably request for delivery by such
Exchanging Dealer in connection with a sale of Exchange Notes
received by it pursuant to the Registered Exchange Offer, and the
Issuer consents to the use of the prospectus or any amendment or
supplement thereto by any such Exchanging Dealer, as aforesaid.
(h) Prior to any public offering of securities pursuant to
any Shelf Registration Statement, the Issuer will register or qualify
or cooperate with the Holders of securities included therein and
their respective counsel in connection with the registration or
qualification of such securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such Holder
reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such
jurisdictions of the securities covered by such Shelf Registration
Statement; provided, however, that the Issuer will not be required to
qualify generally to do business in any jurisdiction where it is not
then so qualified or to take any action which would subject it to
general service of process or to taxation in any such jurisdiction
where it is not then so subject.
(i) The Issuer will cooperate with the Holders of securities
to facilitate the timely preparation and delivery of certificates
representing securities to be sold pursuant to any Shelf Registration
Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request prior to sales of
securities pursuant to such Shelf Registration Statement.
7
(j) Upon the occurrence of any event contemplated by
paragraph (b)(2)(iii) above, the Issuer will promptly prepare in a
post-effective amendment to the Registration Statement or in a
supplement to the related prospectus or file any other wired document
so that, as thereafter delivered to purchasers of the securities
included therein, the prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(k) Not later than the effective date of the applicable
Registration Statement, the Issuer will provide a CUSIP number for
the Securities or Exchange Notes, as the case may be, and provide the
applicable trustee with certificates for the Securities or Exchange
Notes, as the case may be, in a form eligible for deposit with The
Depository Trust Company.
(l) The Issuer will comply with all applicable rules and
regulations of the Commission and will make generally available to
its security holders as soon as practicable after the effective date
of the applicable Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the 1933 Act.
(m) The Issuer will cause the Indenture or the Exchange
Notes Indenture, as the case may be, to be qualified under the Trust
Indenture Act of 1939, as amended, in a timely manner.
(n) The Issuer may require each Holder of the securities to
be sold pursuant to any Shelf Registration Statement to furnish to
the Issuer such information regarding the holder and the distribution
of such securities as the Issuer may from time to time reasonably
require for inclusion in such Registration Statement, and the Issuer
may exclude from such Registration Statement the Securities of any
Holder that fails to furnish such information within a reasonable
time after receiving such request.
(o) The Issuer shall enter into such customary agreements
(including if requested an underwriting agreement in customary form)
and take all such other action, if any, as any Holder shall
reasonably request in order to facilitate the disposition of the
securities pursuant to any Shelf Registration Statement.
(p) In the case of any Shelf Registration Statement, the
Issuer shall (i) make reasonably available for inspection by the
Holders, and any underwriter participating in any disposition
pursuant to a Registration Statement, and any attorney, accountant or
other agent retained by the Holders or any such underwriter all
relevant financial and other records, pertinent corporate documents
and properties of the Issuer and (ii) cause the Issuer's officers,
directors and employees to supply all relevant information reasonably
requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with any such Registration
Statement.
(q) In the case of any Exchange Offer Registration Statement
the Issuer shall (i) make reasonably available for inspection by the
Initial Purchasers, but in each case only in such firm's capacity as
an Exchanging Dealer and with the express understanding that each
such firm shall be acting solely for itself and not on behalf of any
other party, including, without limitation, any other Exchanging
Dealer, all relevant financial and other records, pertinent corporate
documents and properties of the Issuer and (ii) cause the Issuer's
officers, directors and employees to supply all information
reasonably requested by any of them.
(r) In the case of any Shelf Registration Statement, the
Issuer, if requested by any Holders, shall cause (x) its counsel to
deliver an opinion relating to the securities included within the
coverage of such Shelf Registration Statement in customary form, (y)
its officers to execute and deliver all customary documents and
certificates requested by
8
any underwriters of the securities and (z) its independent public
accountants to provide to the selling Holders and any underwriter
therefor a comfort letter in customary form.
(s) In the case of any Exchange Offer Registration
Statement, the Issuer, if requested by the Initial Purchasers, but in
each case only in such firm's capacity as an Exchanging Dealer and
with the express understanding that each such firm shall be acting
solely for itself and not on behalf of any other party, including,
without limitation, any other Exchanging Dealer, in connection with
any prospectus delivery as contemplated in paragraph (g) above, shall
use its best efforts to cause, on and as of the effective date of the
Exchange Offer Registration Statement, (x) its counsel to deliver an
opinion relating to the Exchange Offer Registration Statement and the
Exchange Notes in customary form, (y) its officers to execute and
deliver all customary documents and certificates requested and (z)
its independent public accountants to provide a comfort letter in
customary form, subject to receipt of appropriate documentation
(including the delivery of a customary representation letter), as
contemplated by Statement on Auditing Standards No. 72.
4. Registration Expenses. The Issuer will bear all expenses incurred
in connection with the performance of its obligations under Sections 1, 2 and
3 hereof and, in the event of any Shelf Registration Statement, will reimburse
the Holders for the reasonable fees and disbursements of one firm or counsel
designated by the Holders of a majority in principal amount of the securities
to be registered thereunder to act as counsel for the Holders in connection
therewith, and, in the case of any Exchange Offer Registration Statement, will
reimburse the Initial Purchasers, as applicable, for the reasonable fees and
disbursements of counsel in connection therewith.
5. Indemnification.
(a) In the event of a Shelf Registration or in connection
with any prospectus delivery pursuant to a Registered Exchange Offer
by an Exchanging Dealer as contemplated in Section 3(g) above, the
Issuer shall indemnify and hold harmless each Holder and each person,
if any, who controls such Holder, 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") against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
any such Registration Statement or any prospectus forming part
thereof or in any amendments thereof or supplements thereto, or arise
out of or are based upon the omission or alleged omission to state
therein 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, and agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided, however, that the Issuer will not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to
the Issuer by or on behalf of any such Holder specifically for
inclusion therein. The foregoing indemnity with respect to any untrue
statement contained in or omission from a preliminary prospectus
shall not inure to the benefit of any Holder (or any person
controlling such Holder) on account of any such loss, claim, damage
or liability arising from the sale of the Securities by such Holder
to any person if a copy of the final prospectus (or the final
prospectus as amended or supplemented) shall not have been delivered
or sent to such person at or prior to the written confirmation of the
initial resale of such Securities to such person and the untrue
statement contained in or omission from such preliminary prospectus
was corrected in the final prospectus (or the final prospectus
9
as amended or supplemented), provided that the Company has delivered
the final prospectus to the Holders in requisite quantity on a timely
basis to permit such delivery or sending. This indemnity agreement
will be in addition to any liability that the Issuer may otherwise
have.
(b) In the event of a Shelf Registration Statement, each
Holder shall indemnify and hold harmless the Issuer, its directors
and officers and each person, if any, who controls the Issuer within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act to the same extent as the foregoing indemnity from the Issuer to
the Holders, but only with reference to written information relating
to such Holder furnished to the Issuer by or on behalf of such Holder
specifically for inclusion in the documents referred to in the
foregoing indemnity; provided, however, that no such Holder shall be
liable for any indemnity claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of securities
pursuant to the Registration Statement. This indemnity agreement will
be in addition to any liability that the Holders may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 5 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 5, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a)
or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for
which indemnification is sought (in which case the indemnifying party
shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except
as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel, if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are
different from or additional to those available to the indemnifying
party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the
indemnifying party. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable
fees, costs and expenses of more than one separate firm of attorneys
(in addition to any local counsel) at any one time for all such
indemnified party or parties. Each indemnified party, as a condition
of the indemnity agreements contained in Sections 5(a) and 5(b),
shall use all reasonable efforts to cooperate with the indemnifying
party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected
without its written consent, which consent shall not be unreasonably
withheld or delayed. An indemnifying party will not, without the
prior written consent of the indemnified parties, 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
10
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.
(d) In the event that the indemnity provided in paragraph
(a) or (b) of this Section 5 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, the Issuer and the
applicable Holder or Holders (severally and not jointly) agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection
with investigating or defending same) to which the Issuer and such
Holder or Holders may be subject in such proportions that the Issuer
is responsible for that portion represented by the percentage that
the aggregate consideration received by the Issuer from the sale by
it of the Securities sold by such Holder bears to the aggregate
principal amount of Securities sold by such Holder and such Holder is
responsible for the balance; provided, however, that 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. For
purposes of this Section 5, each person who controls a Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and each director, officer, employee and agent of a
Holder shall have the same rights to contribution as such Holder, and
each person who controls the Issuer within the meaning of either the
Securities Act or the Exchange Act and each officer, director
employee and agent of the Issuer shall have the same rights to
contribution as the Issuer, subject in each case to the applicable
terms and conditions of this paragraph (d).
6. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the
Issuer has obtained the written consent of Holders of a majority in
aggregate principal amount of the Securities.
(b) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail telex, telecopier, or air courier guaranteeing
overnight delivery:
(1) if to a Holder, at the most current address
given by such Holder to the Issuer in accordance with the
provisions of this Section 6(b), which address initially is,
with respect to each Holder, the address of such Holder
maintained by the Registrar under the Indenture, with a copy
in like manner to the Initial Purchasers;
(2) if to the Initial Purchasers, initially at the
respective addresses set forth in the Purchase Agreement
with copies to the parties specified therein; and
(3) if to the Company or Holdings, initially at its
respective address set forth in the Purchase Agreement with
copies to the parties specified therein.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchasers, Holdings or the Company by notice to the
other may designate additional or different addresses for subsequent notices
or communications.
(c) Successors and Assigns. This Agreement shall be binding
upon the Company, Holdings and their successors and assigns.
11
(d) 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.
(e) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK. Specified times of day refer to New York City time.
12
Please confirm that the foregoing correctly sets forth the agreement
among the Company, Holdings and you.
Very truly yours,
GS ESCROW CORP.
By: /s/ Glenn P. Dickes
------------------------------------
Name: Glenn P. Dickes
Title: Vice President and Secretary
NEW FIRST NATIONWIDE
HOLDINGS INC. (to be renamed
GOLDEN STATE HOLDINGS INC.)
By: /s/ Glenn P. Dickes
------------------------------------
Name: Glenn P. Dickes
Title: Vice President and Secretary
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
SALOMON BROTHERS INC
GOLDMAN, SACHS & CO.
BEAR, STEARNS & CO. INC.
LEHMAN BROTHERS INC.
CHASE SECURITIES INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
by SALOMON BROTHERS INC
by /s/ Jeffrey S. Poorman
--------------------------
Name: Jeffrey S. Poorman
Title: Director
ANNEX A TO
REGISTRATION AGREEMENT
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the 1933 Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Notes received in exchange for Notes where such Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Issuer has agreed that, for a period of 180 days
after the expiration of the Registered Exchange Offer (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX B TO
REGISTRATION AGREEMENT
Each broker-dealer that receives Exchange Notes for its own
account in exchange for Notes, where such Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution."
ANNEX C TO
REGISTRATION AGREEMENT
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Notes received
in exchange for Existing Notes where such Existing Notes were acquired as a
result of market-making activities or other trading activities. The Issuer has
agreed that for a period of 180 days after the expiration of the Registered
Exchange Offer, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until __________, 199_, all dealers effecting transactions in the
Exchange Notes may be required to deliver a prospectus.1
The Issuer will not receive any proceeds from any sale of
Exchange Notes by broker-dealers. Exchange Notes received by broker-dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Notes or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such
Exchange Notes. Any broker-dealer that resells Exchange Notes that were
received by it for its own account pursuant to the Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Notes
may be deemed to be an "underwriter" within the meaning of the 1933 Act and
any profit on any such resale of Exchange Notes and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the 1933 Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within
the meaning of the 1933 Act.
For a period of 180 days after the expiration of the
Registered Exchange Offer, the Issuer will promptly send additional copies of
this Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Issuer has agreed to pay all expenses incident to the Exchange Offer other
than commissions or concessions of any brokers or dealers and will indemnify
the holders of the Notes (including any broker-dealers) against certain
liabilities, including liabilities under the 1933 Act.
- ---------------------
1 The legend required by Item 502(e) of Regulation S-K must appear on the
back page of the Exchange Offer Prospectus.
ANNEX D TO
REGISTRATION AGREEMENT
Rider A
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
Rider B
If the undersigned is not a broker-dealer, the undersigned represents that it
is not engaged in, and does not intend to engage in, a distribution of
Exchange Notes. If the undersigned is a broker-dealer that will receive
Exchange Notes for its own account in exchange for Existing Notes, it
represents that the Existing Notes to be exchanged for Exchange Notes were
acquired by it as a result of market-making or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale
of such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the 1933 Act.