EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
Dated as of June 9, 1997
by and among
IMPERIAL CREDIT CAPITAL TRUST I,
IMPERIAL CREDIT INDUSTRIES, INC.,
IMPERIAL BUSINESS CREDIT, INC.
IMPERIAL CREDIT ADVISORS, INC.,
FRANCHISE MORTGAGE ACCEPTANCE CO. LLC., and
AUTO MARKETING NETWORK, INC., as Guarantors
and
LEHMAN BROTHERS INC.,
as Initial Purchaser
This Registration Rights Agreement (this "Agreement") is made and entered
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into as of June 9, 1997 by and among Imperial Credit Industries, Inc., a
California corporation (the "Company"), Imperial Business Credit, Inc., a
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California corporation, Imperial Credit Advisors, Inc., a California
corporation, Franchise Mortgage Acceptance Co. LLC, a California limited
liability company, and Auto Marketing Network, Inc., a Florida corporation
(together, the "Guarantors"), Imperial Credit Capital Trust I, a Delaware
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statutory business trust (the "Trust," and together with the Company and the
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Guarantors, the "Registrants"), and Lehman Brothers Inc. (the "Initial
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Purchaser").
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This Agreement is entered into in connection with the Purchase Agreement,
dated as of June 5, 1997, among the Registrants and the Initial Purchaser (the
"Purchase Agreement"), which provides for the sale by the Trust to the Initial
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Purchaser of $70,000,000 aggregate liquidation amount of the Trust's Remarketed
Par Securities, Series A, liquidation amount $1,000 per security (the "Preferred
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Securities"). The Company will be the owner of all of the beneficial ownership
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interest represented by the common securities (the "Common Securities") of the
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Trust. The Preferred Securities and the Common Securities will be guaranteed
(the "Guarantee") by the Company, to the extent of funds held by the Trust.
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Concurrently with the issuance of the Preferred Securities, the Guarantee and
the Common Securities, the Trust will invest the proceeds of each thereof in the
Company's Resettable Rate Debentures, Series A (the "Debentures" and, together
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with the Preferred Securities, the Guarantee and the Debenture Guarantees (as
defined herein), the "Securities"). To induce the Initial Purchaser to enter
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into the Purchase Agreement and the Remarketing Agreement (as defined herein),
the Registrants have agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchaser and its direct and indirect
transferees and assigns. The execution and delivery of this Agreement is a
condition to the Initial Purchaser's obligation to purchase the Preferred
Securities under the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
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Additional Distributions: As defined in Section 5.
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Additional Interest: As defined in Section 5.
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Additional Interest Payment Date: With respect to the Transfer Restricted
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Securities, each Distribution Date until the earlier of (i) the date on which
Additional Interest (and corresponding Additional Distributions) no longer are
payable or (ii) maturity of the Securities.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
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Closing Date: The date of this Agreement.
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Commission: The Securities and Exchange Commission.
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Consummate: A registered Exchange Offer shall be deemed "Consummated" for
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purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the 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 principal amount as the
aggregate principal amount of Transfer Restricted Securities that were tendered
by Holders thereof pursuant to the Exchange Offer.
Debenture Guarantees: The Debt Guarantee, dated as of June 9, 1997, among
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the Guarantors, the Company and Chase Trust Company of California, as trustee.
Debentures: As defined in the preamble.
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Declaration: Declaration of Trust, dated as of June 9, 1997, among Chase
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Trust Company of California, as Property Trustee, Chase Manhattan Bank 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.
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Effectiveness Target Date: As defined in Section 5.
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Exchange Act: The Securities Exchange Act of 1934, as amended.
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Exchange Offer: The registration by the Registrants under the Act of the
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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 principal
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
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relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the purchasers of Transfer
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Restricted Securities in the Remarketing 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.
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Guarantee: The Guarantee, dated as of June 9, 1996, between the Company
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and Chase Trust Company of California, as Guarantee Trustee, pursuant to which
the Guarantee is being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Guarantors: As defined in the preamble hereto.
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Holders: As defined in Section 2(b) hereof.
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Indemnified Party: As defined in Section 8(a) hereof.
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Indenture: The Indenture, dated as of June 9, 1997, among the Company,
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Chase Trust Company of California, as trustee (the "Trustee"), and the
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Guarantors, pursuant to which the Debentures and the New Debentures are to be
issued, as such Indenture is amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchaser: As defined in the preamble hereto.
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NASD: National Association of Securities Dealers, Inc.
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New Debentures: The Company's Resettable Rate Debentures, Series B to be
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issued pursuant to the Indenture in the Exchange Offer.
New Securities: The securities to be issued pursuant to the Indenture,
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the Declaration and the Guarantee in the Exchange Offer, or if the Debentures
have been distributed to the Holders of the Preferred Securities in liquidation
of the Trust, the New Debentures.
Person: An individual, partnership, corporation, trust or unincorporated
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organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as
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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 Guarantors and the Company or, if the
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Debentures have been distributed to the Holders of the Preferred Securities in
liquidation of the Trust, the Company only.
Registration Default: As defined in Section 5 hereof.
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Registration Statement: Any registration statement of the Registrants
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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.
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Remarketing Agreement: That certain Remarketing Agreement dated as of
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June 9, 1997 by and among the Company, the Trust and the Broker Dealer or Broker
Dealers named therein, as such agreement is amended from time to time.
Securities: As defined in the preamble hereto.
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Shelf Filing Deadline: As defined in Section 4 hereof.
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Shelf Registration Statement: As defined in Section 4 hereof.
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TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
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in effect on the date of the Indenture.
Transfer Restricted Securities: Each Security, (for the purposes of this
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definition, if the Debentures have been distributed to the Holders of Preferred
Securities in liquidation of the Trust, each Debenture) 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 Act and disposed of in accordance with the Shelf Registration
Statement or (d) the date after the Closing Date on which such Security is sold
to the public pursuant to Rule 144 under the Act;
Underwritten Registration or Underwritten Offering: A registration in
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which securities of the Registrants are sold to an underwriter for reoffering to
the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
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benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a
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holder of Transfer Restricted Securities (each, a "Holder") whenever such Person
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owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), the Registrants shall (i) cause to be filed with the
Commission as soon as practicable after the Closing Date, but in no event later
than 30 days after the Closing Date, an Exchange Offer Registration Statement
under the Act relating to the New Securities and the Exchange Offer, (ii)
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use their respective best efforts to cause such Registration Statement to become
effective at the earliest possible time, but in no event later than 90 days
after the Closing Date, (iii) in connection with the foregoing, file (A) all
pre-effective amendments to such Registration Statement as may be necessary in
order to cause such Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings in connection
with the registration and qualification of the New Securities to be made under
the Blue Sky laws of such jurisdictions as are necessary to permit Consummation
of the Exchange Offer, and (iv) upon the effectiveness of such Registration
Statement, commence the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting registration of the New Securities to be offered in
exchange for the Transfer Restricted Securities and to permit resales of New
Securities held by Broker-Dealers as contemplated by Section 3(c) below.
(b) The 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. Registrants 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. Registrants shall use their respective
best efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but in no event later than 30 business days thereafter.
(c) The 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 Company), 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 Act and must, therefore,
deliver a prospectus meeting the requirements of the 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 Securities held by any such Broker-Dealer except to the extent
required by the Commission as a result of a change in policy after the date of
this Agreement.
The Registrants shall use their 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
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Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of one year 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
one-year period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Registrants are not required to file
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an Exchange Offer Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or Commission
policy (after the procedures set forth in Section 6(a) below have been complied
with), (ii) the Company has received an opinion of independent tax counsel,
experienced in such matters, to the effect that, as a result of the consummation
of the Exchange Offer there is more than an insubstantial risk that (A) the
Trust would be subject to United States federal income tax with respect to
income received or accrued on the Debentures or New Debentures, (B) interest
payable by the Company on the Debentures or New Debentures would not be
deductible by the Company, in whole or in part, for United States federal income
tax purposes, or (C) the Trust would be subject to more than a de minimis amount
of other taxes, duties or other governmental charges or (iii) if any Holder of
Transfer Restricted Securities shall notify the Company within 20 business days
of the Consummation of the Exchange Offer (A) that such Holder is prohibited by
applicable law or Commission policy from participating in the Exchange Offer, or
(B) that such Holder may not resell the New Securities acquired by it in the
Exchange Offer to the public without delivering a prospectus and that the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C) that such
Holder is a Broker-Dealer and holds Securities acquired directly from the
Registrants or one of their affiliates, then the Registrants shall use their
respective best efforts to:
(x) cause to be filed a shelf registration statement pursuant to Rule
415 under the Act, which may be an amendment to the Exchange Offer
Registration Statement (in either event, the "Shelf Registration Statement")
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on or prior to the earliest to occur of (1) the 30th day after the date on
which the Registrants determine that they are not required to file the
Exchange Offer Registration Statement, (2) the 30th day after the date on
which the Registrants receive notice from a Holder of Transfer Restricted
Securities as contemplated by clause (ii) above, and (3) the 60th day after
the Closing Date (such earliest date being the "Shelf Filing Deadline"),
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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) use their best efforts to cause such Shelf Registration Statement
to be declared effective by the Commission on or before the 30th day after
the Shelf Filing Deadline.
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The Registrants shall use their 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 Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period of at least three years following the Closing Date.
(b) Provision by Holders of Certain Information in Connection with the
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Shelf Registration Statement. No Holder of Transfer Restricted Securities may
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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 corresponding 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. 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.
SECTION 5. ADDITIONAL INTEREST AND ADDITIONAL DISTRIBUTIONS
If (i) 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, (ii) 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"), (iii) the
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Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) 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 immediately 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 (i) through (iv), a "Registration Default"), the Company and each of the
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Guarantors hereby jointly and severally will pay additional interest
("Additional Interest") on the Debentures (including in respect of amounts
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occurring during any Extension Period) and corresponding Additional
Distributions (the "Additional Distributions") will become payable on the
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Transfer Restricted 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 or principal amount of Transfer
Restricted Securities held by such Holder for each week or portion thereof that
the Registration Default continues. The amount of the Additional Interest (and
corresponding Additional Distributions) shall increase by an additional $.05 per
week per $1,000 liquidation or principal amount of Transfer Restricted
Securities 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 $.50 per week per $1,000 liquidation
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or principal amount of Transfer Restricted Securities. All accrued Additional
Interest (and corresponding Additional Distributions) shall be paid by the
Company to DTC by wire transfer of immediately available funds or by federal
funds check and to holders of definitive securities by wire transfer to the
accounts specified by them or by mailing checks to their registered addresses if
no such accounts have been specified on each Additional Interest Payment Date,
as provided in the Indenture. 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 and the Guarantors 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
Security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
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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
each 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 each 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.
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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 Morgan Stanley and Co., Inc.
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(available June 5, 1991) and Exxon Capital Holdings Corporation (available
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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 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 Company or the Trust.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Registrants shall provide a supplemental letter to the
Commission (A) stating that the Company, the Guarantors and the Trust are
registering the Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available May 13, 1988),
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Morgan Stanley and Co., Inc. (available June 5, 1991) and, if applicable, any
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no-action letter obtained pursuant to clause (i) above and (B) including a
representation that neither the Company, the Guarantors nor the Trust has
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
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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 Company will as expeditiously as possible prepare and file
with the Commission a Registration Statement relating to the registration on any
appropriate form under the 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
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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
(including, if required by the Act or any regulation thereunder, financial
statements of the Guarantors) 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
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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 its best efforts to cause such amendment to be
declared effective and such Registration Statement and the related Prospectus
to become usable for their intended purpose(s) as soon as practicable
thereafter;
(ii) prepare and file with the Commission such amendments and post-
effective amendments to the Registration Statement as may be necessary to
keep the Registration Statement effective for the applicable period set forth
in Section 3 or 4 hereof, as applicable, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 under the Act, and to comply fully with the
applicable provisions of Rules 424 and 430A under the Act in a timely manner;
and comply with the provisions of the 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 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 Company, the Trust and the Guarantors 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
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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 Company and the Trust 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 Company's and the Trust's representatives
available (and representatives of the Guarantors) 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 each of the
Registrants and cause each of the Registrant's officers, directors, managers
and employees to supply all information reasonably requested by any such
Holder, underwriter, attorney or accountant in connection with such
Registration Statement subsequent to the filing thereof and prior to its
effectiveness;
(vii) if requested by any selling Holders or the underwriter(s), if
any, promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the Transfer Restricted
Securities, information with respect to the principal amount of Transfer
Restricted Securities being sold to such underwriter(s), the purchase price
being paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
practicable after the Company and the Trust are notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if
so requested by the Holders of a majority in aggregate principal amount of
Securities covered thereby or the underwriter(s), if any;
11
(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, if
requested in writing by a Holder, 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, and cause the Guarantors to enter into, such
agreements (including an underwriting agreement), and make, and cause the
Guarantors to 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 the 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
whether or not an underwriting agreement is entered into and whether or not
the registration is an Underwritten Registration, the Registrants shall:
(A) furnish to each Purchaser, 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 Consummation of the Exchange Offer and, if
applicable, the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf Registration Statement,
as the case may be, signed by (y) the President, any Vice President, or
any Manager and (z) a principal financial or accounting officer of each
of the Company and each Guarantor, confirming, as of the date thereof,
the matters set forth in paragraphs (b), (c), (d) and (e) of Section 8
of the Purchase Agreement and such other matters as such parties may
reasonably request;
(2) an opinion, dated the date of Consummation of the Exchange
Offer or the date of effectiveness of the Shelf Registration Statement,
as the case may be, of counsel for the Registrants covering the matters
set forth in paragraph [h] of Section 8 of the Purchase Agreement and
such other matter 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
12
Company, the Initial Purchaser representatives and the Initial
Purchaser's 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 Registrants 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, and, in the case of
the Exchange Offer Registration Statement, as of the date of
Consummation, 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 and,
in the case of the opinion dated the date of Consummation of the
Exchange Offer, as of the date of Consummation, 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 as of the date of
Consummation of the Exchange Offer or the date of effectiveness of the
Shelf Registration Statement, as the case may be, 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, and affirming the
matters set forth in the comfort letters delivered pursuant to Section
8(m) of the Purchase Agreement, without exception;
(B) set forth in full or incorporate by reference in the underwriting
agreement, if any, the indemnification provisions and procedures of
Section 8 hereof with respect to all parties to be indemnified pursuant to
said Section; and
(C) deliver such other documents and certificates as may be reasonably
requested by such parties to evidence compliance with clause (A) above and
with any customary conditions contained in the underwriting agreement or
other agreement entered into by the Company and the Trust pursuant to this
clause (xi), if any.
If at any time the representations and warranties of the Company, the
Trust and the Guarantors contemplated in clause (A)(1) above cease to be true
and correct, the Company, the Trust or the Guarantors shall so advise the
Purchasers and the underwriter(s), if any,
13
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, and cause the Guarantors to 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 request and do any and all other acts
or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the Shelf
Registration Statement; provided, however, that neither the Company, the
Guarantors nor the Trust 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) shall issue, upon the request of any Holder of Securities covered
by the Shelf Registration Statement, New Securities, having an aggregate
principal amount equal to the aggregate principal amount of Securities
surrendered to the Company 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
Company for cancellation;
(xiv) cooperate with, and cause the Guarantors to 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 (viii) above;
(xvi) if any fact or event contemplated by clause (c)(iii)(D) above
shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein not misleading;
14
(xvii) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Registration Statement and provide
the Trustee under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with The
Depositary Trust Company;
(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 reasonable 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 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, and cause the
Guarantors to cooperate, with the Trustee and the Holders of Securities to
effect such changes to the Indenture, the Declaration and the Guarantee as
may be required for such Indenture, Declaration and Guarantee to be so
qualified in accordance with the terms of the TIA; and execute, and cause the
Guarantors to execute, and use their best efforts to cause the Indenture
Trustee, the 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,
Declaration and the Guarantee to be so qualified in a timely manner;
(xxi) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed if requested by the
Holders of a majority in aggregate principal amount of Securities or the
managing underwriter(s), if any; and
(xxii) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 and
Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security that,
upon receipt of any notice from the Company 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
15
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
------
either 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 either Registrant, each Holder
will deliver to either Registrant (at such Registrant's expense) all copies,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Transfer Restricted Securities that was current at the
time of receipt of such notice. In the event either Registrant 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.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Registrants' performance of or compliance
with this Agreement will be borne by the Registrants, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made by the 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), messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel for
the Registrants and, subject to Section 7(b) below, the Holders of Transfer
Restricted Securities; (v) all application and filing fees in connection with
listing Securities on a national securities exchange or automated quotation
system pursuant to the requirements hereof; and (vi) all fees and disbursements
of independent certified public accountants of the Company and the Trust
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Registrants will, in any event, bear their internal expenses
(including, without limitation, all salaries and expenses of its 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,
retained by the Registrants.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchaser and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Latham & Watkins or such other
16
counsel as may be chosen by the Holders of a majority in principal amount of the
Transfer Restricted Securities for whose benefit such Registration Statement is
being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company, the Trust and each Guarantor, jointly and severally,
agree to indemnify and hold harmless (i) each Holder, each participating Broker-
Dealer or the Initial Purchaser selling New Securities and (ii) each person, if
any, who controls (within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act) any such person (any of the persons referred to in this clause
(ii) being hereinafter referred to as a "controlling person") and (iii) the
------------------
respective officers, directors, partners, employees, representatives and agents
of any Holder or any controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an "Participant"), to the
-----------
fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including without limitation and
as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing or defending any claim or action, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to any Participant) directly or
indirectly caused by, related to, based upon, arising out of or in connection
with any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus (or any amendment or
supplement thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any act or failure to act or any alleged act or
failure to act in connection with, or relating in any manner to the transactions
contemplated hereby, except insofar as such losses, claims, damages, liabilities
or expenses are caused by an untrue statement or omission or alleged untrue
statement or omission that is made in reliance upon and in conformity with
information relating to any of the Holders furnished in writing to the Company
and the Trust by any of the Holders expressly for use therein.
In case any action or proceeding (including any governmental or regulatory
investigation or proceeding) shall be brought or asserted against any of the
Participants with respect to which indemnity may be sought against the Company,
the Trust or the Guarantors, such Participant (or the Participant controlled by
such controlling person) shall promptly notify the Company and the Trust in
writing; provided, that the failure to give such notice shall not relieve the
Company, the Trust or the Guarantors of its respective obligations pursuant to
this Agreement. Such Participant shall have the right to employ its own counsel
in any such action and the fees and expenses of such counsel shall be paid, as
incurred, by the Company, the Trust and the Guarantors (regardless of whether it
is ultimately determined that an Participant is not entitled to indemnification
hereunder). The Company, the Trust and the Guarantors shall not, in connection
with any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for such Participants, which firm shall be designated by
the Holders. The Company and the Trust shall be liable for any settlement of any
such action or proceeding effected with the Company's or the Trust's respective
prior written consent, which consent shall not be withheld unreasonably, and the
Company and the
17
Trust agree to indemnify and hold harmless any Participant from and against any
loss, claim, damage, liability or expense by reason of any settlement of any
action effected with the written consent of the Company or the Trust. Neither
the Company nor the Trust, without the prior written consent of each
Participant, settle or compromise or consent to the entry of judgment in or
otherwise seek to terminate any pending or threatened action, claim, litigation
or proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not any Participant is a party thereto), unless such
settlement, compromise, consent or termination includes an unconditional release
of each Participant from all liability arising out of such action, claim,
litigation or proceeding.
(b) Each Participant agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Trust and each Guarantor, and their respective
directors, officers, and any person controlling (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Company, the Trust and the
Guarantors, and the respective officers, directors, partners, employees,
managers, representatives and agents of each such person, to the same extent as
the foregoing indemnity from the Company, the Trust and the Guarantors to each
of the Participants, but only with respect to claims and actions based on
information relating to such Participant furnished in writing by such
Participant expressly for use in any Registration Statement. In case any action
or proceeding shall be brought against the Company, the Trust, the Guarantors or
their respective directors, managers, officers or any such controlling person in
respect of which indemnity may be sought against a Participant, such Participant
shall have the rights and duties given the Company, the Trust, and the
Guarantors and the Company, the Trust and the Guarantors and their directors or
officers or such controlling person shall have the rights and duties given to
each Participant by the preceding paragraph. In no event shall the liability of
any selling Participant hereunder be greater in amount than the dollar amount of
the proceeds received by such Participant upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(c) If the indemnification provided for in this Section 8 is unavailable
to an indemnified party under Section 8(a) or Section 8(b) hereof (other than by
reason of exceptions provided in those Sections) in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Trust and the Company on the one hand and the Participants on the other hand
from their sale of Transfer Restricted Securities or if such allocation is not
permitted by applicable law, the relative fault of the Trust, the Company and
the Guarantors on the one hand and of the Participant on the other in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Trust, the Company and the Guarantors on the one hand
and of the Participant on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Trust or any Guarantor or by the
Participant and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, claims, damages,
18
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in the second paragraph of Section 8(a), any legal
or other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The Registrants and each Participant agree that it would not be just and
equitable if contribution pursuant to this Section 8(c) were 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 account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, 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, none of the Participants shall
be required to contribute, in the aggregate, any amount in excess of the amount
by which the total discount received by such Participant with respect to the
Securities exceeds the amount of any damages which such Participant has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Participant's obligations to contribute pursuant to this
Section 8(c) are several in proportion to the respective principal amount of
Securities held by each of the Participants hereunder and not joint.
SECTION 9. RULE 144A
The Registrants hereby agree with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A.
SECTION 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.
19
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Registrants agree that monetary damages (including the
--------
liquidated damages contemplated hereby) would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company and the Trust will not, and
--------------------------
will cause the Guarantors not to, on or after the date of this Agreement enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. Neither the Company nor the Trust has previously entered into
any agreement granting any registration rights, with respect to its securities,
to any Person, which are inconsistent with the rights granted to the Holders in
this Agreement. 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 Company's and the Trust's securities under any agreement in effect on the
date hereof.
(c) Adjustments Affecting the Securities. The Company and the Trust will
------------------------------------
not take any action, or permit any change to occur, with respect to the
Securities that would materially and adversely affect the ability of the Holders
to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
----------------------
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company and the Trust have
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or registered.
(e) Notices. All statements, reports, notices and other communications
-------
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or
20
certified, return receipt requested), telex, telecopier, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Declaration; and
(ii) if to the Registrants:
Imperial Credit Industries, Inc.
23550 Hawthorne Boulevard
Building 1, Suite 210
Torrance, California 90505
Telecopier No.: (310) 373-4305
Attention: Chief Financial Officer
With a copy to:
Freshman, Marantz, Orlanski, Cooper & Klein
9100 Wilshire Boulevard
Beverly Hills, California 90212
Telecopier No.: (310) 274-8357
Attention: Thomas J. Poletti
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
21
(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 Purchase
----------------
Agreement, the Remarketing Agreement, the Indenture, the Guarantee and the
Debenture Guarantees, is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company and the Trust with respect to the
Transfer Restricted Securities. This 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 Act) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
IMPERIAL CREDIT INDUSTRIES, INC.
By: /s/ H. Wayne Snavely
---------------------------------
Name: H. Wayne Snavely
Title: Chairman
IMPERIAL CREDIT CAPITAL TRUST I
By: /s/ Kevin E. Villani
---------------------------------
IMPERIAL BUSINESS CREDIT, INC.
By: /s/ H. Wayne Snavely
---------------------------------
Name: H. Wayne Snavely
Title: Chairman
IMPERIAL CREDIT ADVISORS, INC.
By: /s/ H. Wayne Snavely
---------------------------------
Name: H. Wayne Snavely
Title: Chairman
FRANCHISE MORTGAGE ACCEPTANCE CO. LLC
By: /s/ H. Wayne Snavely
---------------------------------
Name: H. Wayne Snavely
Title: Chairman
AUTO MARKETING NETWORK, INC.
By: /s/ H. Wayne Snavely
---------------------------------
Name: H. Wayne Snavely
Title: Chairman
23
Accepted as of the date hereof
LEHMAN BROTHERS INC.
By: /s/ David J. Kim
---------------------------------
Name: David J. Kim
Title: Senior Vice President
24