Registration No. 333-______
As filed with the Securities and Exchange Commission on May 16, 1997
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CRESTAR FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
Virginia 6711 54-0722175
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
CRESTAR CAPITAL TRUST I
(Exact name of registrant as specified in its charter)
Delaware 6719 54-1829502
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
919 East Main Street
P.O. Box 26665
Richmond, Virginia 23261-6665
(804) 782-5000
(Address, including zip code, and telephone
number, including area code, of registrant's
principal executive offices)
JOHN C. CLARK, III
Corporate Senior Vice President and General Counsel
Crestar Financial Corporation
919 East Main Street
P.O. Box 26665
Richmond, Virginia 23261-6665
(804) 782-7445
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy To:
LATHAN M. EWERS, JR.
Hunton & Williams
951 East Byrd Street
Richmond, Virginia 23219-4074
(804) 788-8269
APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC:
As soon as practicable after the Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box.
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED TO BE REGISTERED OFFERING PRICE PER AGGREGATE OFFERING PRICE REGISTRATION
UNIT (1) PER UNIT (1) FEE (2)
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8.16% Capital Securities of $200,000,000 100% $200,000,000 $60,606
Crestar Capital Trust I
8.16% Junior Subordinated
Deferrable Interest
Debentures Due December 15,
2026, of Crestar Financial
Corporation(2)
Crestar Financial Corporation
Guarantee with respect to
8.16% Capital Securities of
Crestar Capital Trust I (3)
TOTAL $200,000,000 100% $200,000,000
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(1) Estimate solely for the purpose of computing the registration fee.
(2) No separate consideration will be received for the 8.16% Junior
Subordinated Deferrable Interest Debentures of Crestar Financial
Corporation (the "Junior Subordinated Debentures") distributed upon any
liquidation of Crestar Capital Trust I.
(3) No separate consideration will be received for the Crestar Financial
Corporation Guarantee.
(4) Such amount represents the liquidation amount of the Crestar Capital Trust
I 8.16% Capital Securities to be exchanged hereunder and the principal
amount of Junior Subordinated Debentures that may be distributed to
holders of such Capital Securities upon any liquidation of Crestar Capital
Trust I.
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The Registrants hereby amend this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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CROSS-REFERENCE SHEET
ITEM OF FORM S-4 LOCATION IN PROSPECTUS
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1. Forepart of Registration Statement and Facing Page; Cross Reference Sheet; Outside Front
Outside Front Cover Page of Cover Page of Prospectus
Prospectus
2. Inside Front and Outside Back Cover Inside Front Cover Page of Prospectus; Table of
Pages of Prospectus Contents; Available Information; Incorporation of
Certain Information by Reference
3. Risk Factors, Ratio of Earnings to Summary; Comparative Per Share Data
Fixed Charges and Other Information
4. Terms of the Transaction Summary; The Holding Company Merger;
Comparative Rights of Shareholders; Annex I;
Annex II; Annex III
5. ProForma Financial Information Pro Forma Condensed Financial Information
6. Material Contracts with the Company Not Applicable
Being Acquired
7. Additional Information Required for Not Applicable
Reoffering by Persons and Parties
Deemed to be Underwriters
8. Interests of Named Experts and Counsel Legal Opinions
9. Disclosure of Commission's Position on Not Applicable
Indemnification for Securities Act
Liabilities
10. Information with Respect to S-3 Available Information; Incorporation of Certain
Registrants Information by Reference; Summary
11. Incorporation of Certain Information by Incorporation of Certain Information by Reference
Reference
12. Information with Respect to S-2 or S-3 Not Applicable
Registrants
13. Incorporation of Certain Information by Not Applicable
Reference
14. Information with Respect to Registrants Not Applicable
Other than S-2 or S-3 Registrants
15. Information with Respect to S-3 Available Information; Incorporation of Certain
Companies Information by Reference; Summary; Supervision
and Regulation; Business of Citizens; Price Range of
Citizens Common Stock and Dividend Policy;
Experts
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16. Information with Respect to S-2 or S-3 Not Applicable
Companies
17. Information with Respect to Companies Not Applicable
other than S-2 or S-3 Companies
18. Information if Proxies, Consents or Incorporation of Certain Information By Reference;
Authorizations are to be Solicited Summary -- Shareholder Meetings; The Holding
Company Merger; Summary -- No Dissenters'
Rights
19. Information if Proxies, Consents or Not Applicable
Authorizations are not to be Solicited,
or in an Exchange Offer
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NO MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED MAY 16, 1997
PROSPECTUS
CRESTAR CAPITAL TRUST I
OFFER TO EXCHANGE ITS
8.16% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING
8.16% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
CRESTAR FINANCIAL CORPORATION
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON ____________, 1997, UNLESS EXTENDED.
Crestar Capital Trust I, a statutory business trust created under the
laws of the State of Delaware (the "Trust"), hereby offers, upon the terms and
subject to the conditions set forth in this Prospectus (as the same may be
amended or supplemented from time to time, the "Prospectus") and in the
accompanying Letter of Transmittal (which together constitute the "Exchange
Offer"), to exchange up to $200,000,000 aggregate Liquidation Amount of its
8.16% Capital Securities (the "Exchange Capital Securities") which have been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
pursuant to a Registration Statement (as defined herein) of which this
Prospectus constitutes a part, for a like Liquidation Amount of its outstanding
8.16% Capital Securities (the "Old Capital Securities"), of which $200,000,000
aggregate Liquidation Amount is outstanding. Pursuant to the Exchange Offer,
Crestar Financial Corporation, a Virginia corporation (the "Company"), is also
offering to exchange (i) its guarantee of payments of cash distributions and
payments on liquidation of the Trust or redemption of the Old Capital Securities
(the "Old Guarantee") for a like guarantee in respect of the Exchange Capital
Securities (the "Guarantee") and (ii) all of its 8.16% Junior Subordinated
Deferrable Interest Debentures due December 15, 2026 (the "Old Junior
Subordinated Debentures") for a like aggregate principal amount of its 8.16%
Junior Subordinated Deferrable Interest Debentures due December 15, 2026 (the
"Exchange Debentures"), which Guarantee and Exchange Debentures also have been
registered under the Securities Act. The Old Capital Securities, the Old
Guarantee and the Old Junior Subordinated Debentures are collectively referred
to herein as the "Old Securities" and the Exchange Capital Securities, the
Guarantee and the Exchange Debentures are collectively referred to herein as the
"Exchange Securities."
The terms of the Exchange Securities are identical in all material
respects to the respective terms of the Old Securities, except that (i) the
Exchange Securities have been registered under the Securities Act and therefore
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generally will not be subject to certain restrictions on transfer applicable to
the Old Securities, (ii) the Exchange Capital Securities will not provide for
any increase in the Distribution rate thereon, and (iii) the Exchange Debentures
will not provide for any increase in the interest rate thereon. See "Description
of Exchange Capital Securities" and "Description of Old Securities." The
Exchange Capital Securities are being offered for exchange in order to satisfy
certain obligations of the Company and the Trust under three Registration Rights
Agreements dated as of December 31, 1996 (the "Registration Rights Agreement")
among the Company, the Trust and the Initial Purchasers (as defined herein). In
the event that the Exchange Offer is consummated, any Old Capital Securities
which remain outstanding after consummation of the Exchange Offer and the
Exchange Capital Securities issued in the Exchange Offer will vote together as a
single class for purposes of determining whether holders of the requisite
percentage in outstanding Liquidation Amount thereof have taken certain actions
or exercised certain rights under the Declaration.
This Prospectus and the Letter of Transmittal are first being mailed to
all holders of Capital Securities on ___________, 1997.
SEE "RISK FACTORS" COMMENCING ON PAGE _____ FOR CERTAIN INFORMATION
THAT SHOULD BE CONSIDERED BY HOLDERS IN DECIDING WHETHER TO TENDER OLD CAPITAL
SECURITIES IN THE EXCHANGE OFFER.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is _______, 1997.
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The Old Capital Securities and the Exchange Capital Securities
(together, the "Capital Securities") represent beneficial interests in Crestar
Capital Trust I, a trust created under the laws of the State of Delaware (the
"Trust"). Crestar Financial Corporation, a Virginia corporation (the "Company"),
is the owner of all of the beneficial interests represented by common securities
of the Trust (the "Common Securities" and, collectively with the Capital
Securities, the "Trust Securities"). The Chase Manhattan Bank is the Property
Trustee of the Trust. The Trust exists for the sole purpose of issuing the Trust
Securities and investing the proceeds thereof in Junior Subordinated Debentures,
and engaging in only those activities necessary, advisable or incidental
thereto. The Junior Subordinated Debentures will mature on December 15, 2026
(the "Stated Maturity"). The Capital Securities will have a preference under
certain circumstances with respect to cash distributions and amounts payable on
liquidation, redemption or otherwise over the Common Securities. See
"Description of Exchange Securities -- Description of Exchange Capital
Securities -- Subordination of Common Securities."
Holders of Exchange Capital Securities will be entitled to receive
preferential cumulative cash distributions, and the holder of the Common
Securities will be entitled to receive cumulative cash distributions, arising
from the payment of interest on the Junior Subordinated Debentures accumulating
from December 15, 1996 and payable semi-annually in arrears on the fifteenth day
of June and December of each year, commencing June 15, 1997, at the annual rate
of 8.16% of the Liquidation Amount of $1,000 per Capital Security and at the
annual rate of 8.16% of the Liquidation Amount of $1,000 per Common Security
("Distributions"). The Company has the right to defer payments of interest on
the Junior Subordinated Debentures at any time or from time to time for a period
not exceeding 10 consecutive semi-annual periods with respect to each deferral
period (each, an "Extension Period"), provided that no Extension Period may end
on a date other than an interest payment date or extend beyond the Stated
Maturity. Upon the termination of any such Extension Period and the payment of
all amounts then due, the Company may elect to begin a new Extension Period
subject to the requirements set forth herein. If interest payments on the Junior
Subordinated Debentures are so deferred, Distributions on Trust Securities will
also be deferred and the Company will not be permitted, subject to certain
exceptions described herein, to declare or pay any cash distributions with
respect to the Company's capital stock or to make any payment with respect to
debt securities of the Company that rank pari passu with or junior to the Junior
Subordinated Debentures. During an Extension Period, interest on the Junior
Subordinated Debentures will continue to accrue (and the amount of Distributions
to which holders of the Capital Securities are entitled will accumulate) at the
rate of 8.16% per annum, compounded semi-annually, and holders of Capital
Securities will be required to accrue interest income for United States federal
income tax purposes. See "Description of Junior Subordinated Debentures --
Option to Defer Interest Payments" and "Certain Federal Income Tax Consequences
- -- Interest Income and Original Issue Discount."
The Company has, through the Guarantee Agreement, the Trust Agreement,
the Junior Subordinated Debentures, the Indenture and the Expense Agreement
(each as defined herein), taken together, fully, irrevocably and unconditionally
guaranteed on a subordinated basis all of the Trust's obligations under the
Capital Securities. See "Relationship Among the Exchange Capital Securities, the
Exchange Debentures and the Guarantee -- Full and Unconditional Guarantee." The
Old Guarantee of the Company guarantees, and the Guarantee will guarantee, the
payment of Distributions and payments on liquidation or redemption of the
Capital Securities, but only in each case to the extent of funds available
therefor held by the Trust, as described herein (the "Guarantee"). See
"Description of Guarantee." If the Company does not make interest payments on
the Junior Subordinated Debentures held by the Trust, the Trust will have
insufficient funds to pay Distributions on the Capital Securities. The Old
Guarantee and the Guarantee do not cover payment of Distributions when the Trust
does not have sufficient funds to pay such Distributions. In the event of an
Event of Default (as defined herein) under the Indenture, a holder of Capital
Securities may institute a legal proceeding directly against the Company to
enforce payment of such Distributions to such holder. See "Description of Junior
Subordinated Debentures -- Enforcement of Certain Rights By Holders of Capital
Securities." The obligations of the Company under the Old Guarantee and the
Guarantee and the Junior Subordinated Debentures are unsecured and are
subordinate and junior in right of payment to all Senior Indebtedness (as
defined in "Description of Junior Subordinated Debentures - Subordination") of
the Company. Senior Indebtedness of the Company includes existing and future
senior debt, senior subordinated debt and subordinated
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debt of the Company. As of December 31, 1996, there was $6.9 billion of Senior
Indebtedness of the Company outstanding.
The Capital Securities are subject to mandatory redemption (i) at the
Stated Maturity upon repayment of the Junior Subordinated Debentures at a
redemption price equal to the principal amount of, plus accrued interest on, the
Junior Subordinated Debentures (the "Maturity Redemption Price"), (ii) in whole
but not in part, contemporaneously with the prepayment of the Junior
Subordinated Debentures upon the occurrence and continuation of a Tax Event,
Investment Company Event or Capital Treatment Event (each as defined herein) at
a redemption price equal to the Event Prepayment Price (as defined below) (the
"Event Redemption Price") and (iii) in whole or in part on or after December 15,
2006 contemporaneously with the optional prepayment by the Company of the Junior
Subordinated Debentures at a redemption price equal to the Optional Prepayment
Price (as defined below) (the "Optional Redemption Price"). Any of the Maturity
Redemption Price, the Event Redemption Price and the Optional Redemption Price
may be referred to herein as the "Redemption Price." See "Capital Securities --
Redemption." Subject to the Company having received prior approval of the Board
of Governors of the Federal Reserve System (the "Federal Reserve") to do so if
then required under applicable capital guidelines or policies of the Federal
Reserve, the Junior Subordinated Debentures are prepayable prior to the Stated
Maturity at the option of the Company (i) on or after December 15, 2006, in
whole or in part at any time at a prepayment price (the "Optional Prepayment
Price") equal to 104.08% of the principal amount thereof on December 15, 2006,
declining ratably on each December 15 thereafter to 100% on or after December
15, 2016, plus accrued interest thereon to the date of prepayment, or (ii) at
any time, in whole but not in part, upon the occurrence and continuation of a
Tax Event, Investment Company Event or Capital Treatment Event (each as defined
herein), at a prepayment price (the "Event Prepayment Price") equal to the
greater of (a) 100% of the principal amount thereof or (b) as determined by a
Quotation Agent (as hereinafter defined), the sum of the present values of the
principal amount and premium that would be payable as part of the Redemption
Price with respect to an optional redemption of such Junior Subordinated
Debentures on December 15, 2006, together with the present values of scheduled
payments of interest from the prepayment date to December 15, 2006, in each case
discounted to the prepayment date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Adjusted Treasury Rate (as
defined herein), plus, in each case, accrued interest thereon to but excluding
the date of prepayment. However, if the Company prepays Junior Subordinated
Debentures as a result of a Tax Event, Investment Company Event or Capital
Treatment Event which occurs on or after December 15, 2006, then the Event
Prepayment Price shall be the Optional Prepayment Price that would be payable on
optional redemption of the Junior Subordinated Debentures on the date of
prepayment, which includes interest to the date of prepayment. Either of the
Optional Prepayment Price or the Event Prepayment Price may be referred to
herein as the "Prepayment Price." See "Description of Junior Subordinated
Debentures -- Optional Prepayment" and "-- Tax Event, Investment Company Event
and Capital Treatment Event Prepayment."
The Company will have the right upon the occurrence of a Tax Event,
Investment Company Event or Capital Treatment Event to terminate the Trust and,
after satisfaction of liabilities to creditors of the Trust as required by
applicable laws, cause the Junior Subordinated Debentures to be distributed to
the holders of the Capital Securities in liquidation of the Trust, subject to
the Company having received prior approval of the Federal Reserve to do so, if
then required under applicable capital guidelines or policies of the Federal
Reserve and subject to the Company having received an opinion of counsel to the
effect that such distribution will not be a taxable event to holders of Capital
Securities. See "Capital Securities -- Liquidation of the Trust and Distribution
of Junior Subordinated Debentures."
The Old Capital Securities were issued,and the Exchange Capital
Securities will be issued, and may be transferred, only in a block having a
Liquidation Amount of not less than $100,000 (100 Capital Securities). The
Distribution rate on the Trust Securities and the interest rate on the Junior
Subordinated Debentures are each subject to increase and such additional
Distributions and interest will be payable on the Distribution dates and
interest payment dates in certain circumstances.
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The Exchange Capital Securities are eligible for trading in the Private
Offerings, Resales and Trading through Automated Linkage ("PORTAL") Market of
the National Association of Securities Dealers, Inc. (the "NASD"). The Company
does not intend to apply for listing of the Exchange Capital Securities on any
securities exchange or for inclusion of the Exchange Capital Securities on any
automated quotation system.
As used herein, (i) the "Indenture" means the Junior Subordinated
Indenture, as amended and supplemented from time to time, between the Company
and The Chase Manhattan Bank as trustee (the "Debenture Trustee"), (ii) the
"Trust Agreement" means the Amended and Restated Trust Agreement relating to the
Trust among the Company, as Depositor, The Chase Manhattan Bank as Property
Trustee (the "Property Trustee"), Chase Manhattan Bank Delaware as Delaware
Trustee (the "Delaware Trustee"), and the Administrators named therein
(collectively, with the Property Trustee and Delaware Trustee, the "Issuer
Trustees"), (iii) the "Guarantee Agreement" means the Guarantee Agreement
relating to the Guarantee between the Company and The Chase Manhattan Bank as
Trustee (the "Guarantee Trustee") and (iv) the "Expense Agreement" means the
Expense Agreement between the Company and the Trust. In addition, as the context
may require, unless expressly stated otherwise, (i) "Capital Securities"
includes the Exchange Capital Securities (as defined herein), (ii) "Junior
Subordinated Debentures" includes the Exchange Debentures (as defined herein)
and (iii) "Guarantee" includes the Guarantee (as defined herein).
[NOTICE TO NEW HAMPSHIRE RESIDENTS
NEITHER THE FACT THAT A REGISTRATION STATEMENT OR AN APPLICATION FOR A
LICENSE HAS BEEN FILED UNDER CHAPTER 421-B OF THE NEW HAMPSHIRE REVISED
STATUTES WITH THE STATE OF NEW HAMPSHIRE NOR THE FACT THAT A SECURITY IS
EFFECTIVELY REGISTERED OR A PERSON IS LICENSED IN THE STATE OF NEW HAMPSHIRE
CONSTITUTES A FINDING BY THE SECRETARY OF STATE THAT ANY DOCUMENT FILED
UNDER CHAPTER 421-B IS TRUE, COMPLETE AND NOT MISLEADING. NEITHER ANY SUCH
FACT NOR THE FACT THAT AN EXEMPTION OR EXCEPTION IS AVAILABLE FOR A SECURITY
OR A TRANSACTION MEANS THAT THE SECRETARY OF STATE HAS PASSED IN ANY WAY
UPON THE MERITS OR QUALIFICATIONS OF, OR RECOMMENDED OR GIVEN APPROVAL TO,
ANY PERSON, SECURITY, OR TRANSACTION. IT IS UNLAWFUL TO MAKE, OR CAUSE TO BE
MADE, TO ANY PROSPECTIVE PURCHASER, CUSTOMER, OR CLIENT ANY REPRESENTATION
INCONSISTENT WITH THE PROVISIONS OF THIS PARAGRAPH.] [NEED?]
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No dealer, salesperson or other individual has been authorized to give
any information or to make any representations other than those contained or
incorporated by reference in this Prospectus in connection with the offer made
by this Prospectus and, if given or made, such information or representations
must not be relied upon as having been authorized by the Company, the Trust or
by the Initial Purchasers. Neither the delivery of this Prospectus nor any sale
made hereunder and thereunder shall under any circumstance create an implication
that there has been no change in the affairs of the Company or the Trust since
the date hereof. This Prospectus does not constitute an offer or solicitation by
anyone in any jurisdiction in which such offer or solicitation is not authorized
or in which the person making such offer or solicitation is not qualified to do
so or to anyone to whom it is unlawful to make such offer or solicitation.
The Trust is making the Exchange Offer of the Exchange Capital
Securities in reliance on the position of the staff of the Division of
Corporation Finance of the Securities and Exchange Commission (the "Commission")
as set forth in certain interpretive letters addressed to third parties in other
transactions. However, neither the Company nor the Trust has sought its own
interpretive letter and there can be no assurance that the staff of the
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Division of Corporation Finance of the Commission would make a similar
determination with respect to the Exchange Offer as it has in such interpretive
letters to third parties. Based on these interpretations by the staff of the
Division of Corporation Finance of the Commission, and subject to the two
immediately following sentences, the Company and the Trust believe that Exchange
Capital Securities issued pursuant to this Exchange Offer in exchange for Old
Capital Securities may be offered for resale, resold and otherwise transferred
in $100,000 minimum principal amount by a holder thereof (other than a holder
who is a broker-dealer) without further compliance with the registration and
prospectus delivery requirements of the Securities Act, provided that such
Exchange Capital Securities are acquired in the ordinary course of such holder's
business and that such holder is not participating, and has no arrangement or
understanding with any person to participate, in a distribution (within the
meaning of the Securities Act) of such Exchange Capital Securities. However, any
holder of Old Capital Securities who is an "affiliate" of the Company or the
Trust or who intends to participate in the Exchange Offer for the purpose of
distributing Exchange Capital Securities, or any broker-dealer who purchased Old
Capital Securities from the Trust for resale pursuant to Rule 144A under the
Securities Act ("Rule 144A") or any other available exemption under the
Securities Act, (a) will not be able to rely on the interpretations of
interpretive letters, (b) will not be permitted or entitled to tender such Old
Capital Securities in the Exchange Offer and (c) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any sale or other transfer of such Old Capital Securities (other
than pursuant to the Exchange Offer) unless such sale is made pursuant to an
exemption from such requirements. In addition, as described below, if any
broker-dealer holds Old Capital Securities acquires for its own account as a
result of market-making or other trading activities and exchanges such Old
Capital Securities for Exchange Capital Securities, then such broker-dealer must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resales of such Exchange Capital Securities.
Each holder of Old Capital Securities who wishes to exchange Old
Capital Securities for Exchange Capital Securities in the Exchange Offer will be
required to represent that (i) it is not an "affiliate" of the Company or the
Trust, (ii) any Exchange Capital Securities to be received by it are being
acquired in the ordinary course of its business, (iii) it has no arrangement or
understanding with any person to participate in a distribution (within the
meaning of the Securities Act) of such Exchange Capital Securities, and (iv) if
such holder is not a broker-dealer, such holder is not engaged in, and does not
intend to engage in, a distribution (within the meaning of the Securities Act)
of such Exchange Capital Securities. In addition, the Company and the Trust may
require such holder, as a condition to such holder's eligibility to participate
in the Exchange Offer, to furnish to the Company and the Trust (or an agent
thereof) in writing information as to the number of "beneficial owners" (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) on behalf of whom such holder holds the Old Capital
Securities to be exchanged in the Exchange Offer. Each broker-dealer that
receives Exchange Capital Securities for its own account pursuant to the
Exchange Offer must acknowledge that it acquired the Old Capital Securities for
its own account as the result of market-making activities or other trading
activities and must agree that it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Capital Securities. 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 Securities Act.
Based on the position taken by the staff of the Division of Corporation Finance
of the Commission in the interpretive letters referred to above, the corporation
and the Trust believe that broker-dealers who acquired Old Capital Securities
for their own accounts, as a result of market-making activities or other trading
activities ("Participating Broker-Dealers"), may fulfill their prospectus
delivery requirements with respect to the Exchange Capital Securities received
upon exchange of such Old Capital Securities (other than Old Capital Securities
which represent an unsold allotment from the original sale of the Old Capital
Securities) with a prospectus meeting the requirements of the Securities Act,
which may be the prospectus prepared for an exchange offer so long as it
contains a description of the plan of distribution with respect to the resale of
such Exchange Capital Securities. Accordingly, this Prospectus, as it may be
amended or supplemented from time to time, may be used by a Participating
Broker-Dealer during the period referred to below in connection with resales of
Exchange Capital Securities received in exchange for Old Capital Securities
where such Old Capital Securities were acquired by such Participating
Broker-Dealer for its own account as a result of market-making or other trading
activities. Subject to certain provisions set forth in the Registration Rights
Agreement, the Company and the Trust have agreed that
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this Prospectus, as it may be amended or supplemented from time to time, may be
used by a Participating Broker-Dealer in connection with resales of such
Exchange Capital Securities for a period ending 90-days after the Expiration
Date (as defined herein) (subject to extension under certain limited
circumstances described below) or, if earlier, when all such Exchange Capital
Securities have been disposed of by such Participating Broker-Dealer. See "Plan
of Distribution." However, a Participating Broker-Dealer who intends to use this
Prospectus in connection with the resale of the Exchange Capital Securities
received in exchange for Old Capital Securities pursuant to the Exchange Offer
must notify the Company or the Trust, or cause the Company or the Trust to be
notified, on or prior to the Expiration Date, that it is a Participating
Broker-Dealer. Such notice may be given in the space provided for that purpose
in the Letter of Transmittal or may be delivered to the Exchange Agent at one of
the addresses set forth herein under "The Exchange Offer -- Exchange Agent." Any
Participating Broker-Dealer who is an "affiliate" of the Company or the Trust
may not rely on such interpretive letters and must comply with the registration
and prospectus delivery requirements of the Securities act in connection with
any resale transaction. See "The Exchange Offer -- Resales of Exchange Capital
Securities."
In that regard, each Participating Broker-Dealer who surrenders Old
Capital Securities pursuant to the Exchange Offer will be deemed to have agreed,
by execution of the Letter of Transmittal or by transmission of an Agent's
Message (as defined below) in lieu thereof, that, upon receipt of notice from
the Company or the Trust of the occurrence of any event or the discovery of any
fact which makes any statement contained or incorporated by reference in this
Prospectus untrue in any material respect or which causes this Prospectus to
omit to state a material fact necessary in order to make the statements
contained or incorporated by reference herein, in light of the circumstances
under which they were made, not misleading or of the occurrence of certain other
events specified in the Registration Rights Agreement, such Participating
Broker-Dealer will suspend the sale of the Exchange Capital Securities (or the
Exchange Debentures, as applicable) pursuant to this Prospectus until the
Company or the Trust has amended or supplemented this Prospectus to correct such
misstatement or omission and has furnished copies of the amended or supplemented
Prospectus to such Participating Broker-Dealer or the Company or the Trust has
given notice that the sale of the Exchange Capital Securities (or the Guarantee
or the Exchange Debentures, as applicable) may be resumed, as the case may be.
If the Company or the Trust gives such notice to suspend the sale of the
Exchange Capital Securities (or the Guarantee or the Exchange Debentures, as
applicable), it shall extend the 90-day period referred to above during which
Participating Broker-Dealers are entitled to use this Prospectus in connection
with the resale of Exchange Capital Securities by the number of days during the
period from and including the date of the giving of such notice and including
the date when Participating Broker-Dealers shall have received copies of the
amended or supplemental Prospectus necessary to permit resales of the Exchange
Capital Securities or to and including the date on which the Company or the
Trust has given notice that the sale of Exchange Capital Securities (or the
Guarantee or the Exchange Debentures, as applicable) may be resumed, as the case
may be.
Prior to the Exchange Offer, there has been only a limited secondary
market and no public market for the Old Capital Securities. The Exchange Capital
Securities will be a new issue of securities for which there currently is no
market. Although the Initial Purchasers have informed the Company and the Trust
that they each currently intend to make a market in the Exchange Capital
Securities, they are not obligated to do so, and any such market making may be
discontinued at any time without notice. Accordingly, there can be no assurance
as to the development or liquidity of any market for the Exchange Capital
Securities. The Company and the Trust currently do not intend to apply for
listing of the Exchange Capital Securities on any securities exchange or for
inclusion in the Nasdaq Stock Market, the electronic securities market operated
by the National Association of Securities Dealers, Inc. ("Nasdaq").
Any Old Capital Securities not tendered and accepted in the Exchange
Offer will remain outstanding and will be entitled to all the same rights and
will be subject to the same limitations applicable thereto under the Trust
Agreement (except for those rights which terminated upon consummation of the
Exchange Offer). Following consummation of the Exchange Offer, the holders of
Old Capital Securities will continue to be subject to all of the existing
restrictions upon transfer thereof and neither the Company nor the Trust will
have any further obligation
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<PAGE>
to such holders (other than under certain limited circumstances) to provide for
registration under the Securities Act of the Old Capital Securities held by
them. To the extent that Old Capital Securities are tendered and accepted in the
Exchange Offer, a holder's ability to sell untendered Old Capital Securities
could be adversely affected. See "Risk Factors -- Consequences of a Failure to
Exchange Old Capital Securities."
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION. HOLDERS OF OLD CAPITAL SECURITIES ARE URGED TO READ THIS PROSPECTUS
AND THE RELATED LETTER OF TRANSMITTAL CAREFULLY BEFORE DECIDING WHETHER TO
TENDER THEIR OLD CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER.
Old Capital Securities may be tendered for exchange on or prior to 5:00
p.m., New York City time, on ___________________, 1997 (such time on such date
being hereinafter called the "Expiration Date"), unless the Exchange Offer is
extended by the Company or the Trust (in which case the term "Expiration Date"
shall mean the latest date and time to which the Exchange Offer is extended).
Tenders of Old Capital Securities may be withdrawn at any time on or prior to
the Expiration Date. The Exchange Offer is not conditioned upon any minimum
Liquidation Amount of Old Capital Securities being tendered for exchange.
However, the Exchange Offer is subject to certain events and conditions which
may be waived by the Company or the Trust and to the terms and provisions of the
Registration Rights Agreement. Old Capital Securities may be tendered in whole
or in part having an aggregate Liquidation Amount of not less than $100,000 (100
Capital Securities) or any integral multiple of $1,000 Liquidation Amount (one
Capital Security) in excess thereof. The Company has agreed to pay all expenses
of the Exchange Offer. See "The Exchange Offer -- Fees and Expenses." Holders of
the Old Capital Securities whose Old Capital Securities are accepted for
exchange will not receive Distributions on such Old Capital Securities and will
be deemed to have waived the right to receive any Distributions on such Old
Capital Securities accumulated from and after December 15, 1996. Accordingly,
holders of Exchange Capital Securities as of the record date for the payment of
Distributions on June 15, 1997 will be entitled to receive Distributions
accumulated from and including December 15, 1996.
Neither the Company nor the Trust will receive any cash proceeds from
the issuance of the Exchange Capital Securities offered hereby. No
dealer-manager is being used in connection with this Exchange Offer. See "Use
of Proceeds" and "Plan of Distribution."
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THIS EXCHANGE
OFFER AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR THE TRUST. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY OR THE TRUST SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER OR A SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR ANYONE TO WHOM IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION.
-------------------------
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<PAGE>
TABLE OF CONTENTS
AVAILABLE INFORMATION.................................................. 10
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE........................ 10
SUMMARY .............................................................. 11
RISK FACTORS........................................................... 18
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES....................... 24
USE OF PROCEEDS........................................................ 24
CRESTAR FINANCIAL CORPORATION.......................................... 24
REGULATORY CAPITAL BENEFITS TO CRESTAR FINANCIAL CORPORATION........... 26
CRESTAR CAPITAL TRUST I................................................ 26
OTHER COMPANY SECURITIES OFFERINGS..................................... 27
ACCOUNTING TREATMENT................................................... 27
THE EXCHANGE OFFER..................................................... 28
DESCRIPTION OF EXCHANGE CAPITAL SECURITIES............................. 37
DESCRIPTION OF EXCHANGE DEBENTURES..................................... 50
DESCRIPTION OF GUARANTEE............................................... 60
RELATIONSHIP AMONG THE EXCHANGE CAPITAL SECURITIES,
THE EXCHANGE DEBENTURES AND THE GUARANTEE.............................. 63
CERTAIN FEDERAL INCOME TAX CONSEQUENCES................................ 64
ERISA CONSIDERATIONS................................................... 68
PLAN OF DISTRIBUTION................................................... 70
VALIDITY OF NEW SECURITIES............................................. 71
EXPERTS .............................................................. 71
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<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Exchange Act and in accordance therewith, files reports, proxy statements and
other information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities of
the Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and
at the regional offices of the Commission located at 7 World Trade Center, 13th
Floor, Suite 1300, New York, New York 10048 and Suite 1400, Citicorp Center,
14th Floor, 500 West Madison Street, Chicago, Illinois 60661. Copies of such
material can also be obtained at prescribed rates by writing to the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549. Such information may also be accessed electronically by means of the
Commission's home page on the Internet (http://www.sec.gov.). In addition, such
reports, proxy statements and other information concerning the Company can be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005.
No separate financial statements of the Trust have been included
herein. The Company and the Trust do not consider that such financial statements
would be material to holders of the Exchange Capital Securities because the
Trust is a newly formed special purpose entity, has no operating history or
independent operations and is not engaged in and does not propose to engage in
any activity other than holding as trust assets the Junior Subordinated
Debentures and issuing the Trust Securities. See "Crestar Capital Trust I" and
"Description of Exchange Securities." In addition, the Company does not expect
that the Trust will file reports under the Exchange Act with the Commission.
This Prospectus constitutes a part of a registration statement on Form
S-4 (the "Registration Statement") filed by the Company and the Trust with the
Commission under the Securities Act. This Prospectus does not contain all the
information set forth in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission, and
reference is hereby made to the Registration Statement and to the exhibits
relating thereto for further information with respect to the Company, the Trust
and the Exchange Securities. Any statements contained herein concerning the
provisions of any document are not necessarily complete, and, in each instance,
reference is made to the copy of such document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated into this Prospectus by reference:
1. Annual Report on Form 10-K for the year ended December 31,
1996; and
[2. Quarterly Report on Form 10-Q for the quarter ended March
31, 1997.]
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to
the termination of the offering of the New Securities offered hereby shall be
deemed to be incorporated by reference into this Prospectus and to be a part of
this Prospectus from the date of filing of such document. Any statement
contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
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<PAGE>
As used herein, the terms "Prospectus" and "herein" mean this
Prospectus including the documents incorporated or deemed to be incorporated
herein by reference, as the same may be amended, supplemented or otherwise
modified from time to time. Statements contained in this Prospectus as to the
contents of any contract or other document referred to herein do not purport to
be complete, and where reference is made to the particular provisions of such
contract or other document, such provisions are qualified in all respects by
reference to all of the provisions of such contract or other document. The
Company will provide without charge to any person to whom this Prospectus is
delivered, on the written or oral request of such person, a copy of any or all
of the foregoing documents incorporated by reference herein (other than exhibits
not specifically incorporated by reference into the texts of such documents).
Requests for such documents should be directed to: Crestar Financial
Corporation, 919 Main Street, Richmond, Virginia 23219, Attention: Investor
Relations Department, Telephone 804/782-7152.
SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere in this Offering Memorandum or incorporated by
reference herein.
CRESTAR FINANCIAL CORPORATION
Crestar Financial Corporation is the holding company for Crestar Bank,
a Virginia banking corporation (the "Bank"). At December 31, 1996, Crestar
Financial Corporation had approximately $22.9 billion in total assets, $15.7
billion in total deposits and $1.8 billion in total stockholders' equity.
In 1963, six Virginia banks combined to form United Virginia Bankshares
Incorporated ("UVB"), a bank holding company formed under the Bank Holding
Company Act of 1956 (the "BHCA"). UVB (parent company of United Virginia Bank)
extended its operations into the District of Columbia by acquiring NS&T Bank,
N.A. on December 27, 1985 and into Maryland by acquiring Bank of Bethesda on
April 1, 1986, and Loyola Federal Savings Bank, Baltimore, on December 31, 1995.
On September 1, 1987, UVB was renamed Crestar Financial Corporation and its bank
subsidiaries adopted their present names. The Company's bank subsidiaries were
combined into a Virginia bank named Crestar Bank on November 14, 1996.
The Company serves customers through a network of 508 banking offices
and 496 automated teller machines (as of December 31, 1996). The Company offers
a broad range of banking services, including various types of deposit accounts
and instruments, commercial and consumer loans, trust and investment management
services, bank credit cards and international banking services. The Company's
subsidiary, Crestar Insurance Agency, Inc., offers a variety of personal and
business insurance products. Securities brokerage and investment banking
services are offered by Crestar Securities Corporation. Mortgage loan
origination, servicing and wholesale lending are offered by Crestar Mortgage
Corporation, and investment advisory services are offered by Capitoline
Investment Services Incorporated, both subsidiaries of Crestar Bank. These
various Company subsidiaries provide banking and non-banking services throughout
Virginia, Maryland and Washington, D.C. and as certain non-banking services to
customers in other states.
CRESTAR CAPITAL TRUST I
Crestar Capital Trust I is a statutory business trust, created under
Delaware law pursuant to the filing of a certificate of trust with the Delaware
Secretary of State on December 20, 1996, which will be governed by the Trust
Agreement executed by the Company, as Depositor, The Chase Manhattan Bank, as
Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee, and the
Administrators named therein. The Trust's business and affairs are conducted by
the Issuer Trustees: The Chase Manhattan Bank, as Property Trustee, Chase
Manhattan Bank Delaware, as Delaware Trustee, and three individual
Administrators who are employees or officers of or affiliated with the Company.
The Trust exists for the exclusive purposes of (i) issuing and selling the Trust
Securities, (ii) using the proceeds from the sale of the Trust Securities to
acquire the Junior Subordinated Debentures issued by the Company, (iii)
exchanging the Junior Subordinated Debentures for Exchange Debentures in the
Exchange Offer pursuant to the Indenture, and (iv) engaging in only those other
activities necessary, advisable or incidental thereto (such as registering the
transfer of the Capital Securities). Accordingly, the Junior Subordinated
Debentures will be the sole assets of the Trust, and payments by the Company
under the Junior Subordinated Debentures and the Expense Agreement will be the
sole revenues of the Trust. All of the Common Securities will be owned by the
Company.
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<PAGE>
THE EXCHANGE OFFER
THE EXCHANGE OFFER.......................... Up to $200,000,000 aggregate
Liquidation Amount of Exchange
Capital Securities are being
offered in exchange for a like
aggregate Liquidation Amount of
Old Capital Securities. Old
Capital Securities may be
tendered for exchange in whole or
in part in a Liquidation Amount
of $100,000 (100 Capital
Securities) or any
integralmultiple of $1,000 (1
Capital Security) in excess
thereof. The Company and the
Trust are making the Exchange
Offer in order to satisfy their
obligations under three
Registration Rights Agreements
relating to the Old Capital
Securities. For a description of
the procedures for tendering Old
Capital Securities, see "The
Exchange Offer--Procedures for
Tendering Old Capital
Securities."
EXPIRATION DATE............................. 5:00 p.m., New York City time, on
_______________, 1997, unless the
Exchange Offer is extended by the
Company or the Trust (in which
case the Expiration Date will be
the latest date and time to which
the Exchange Offer is extended).
See "The Exchange Offer -- Terms
of the Exchange Offer."
CONDITIONS TO THE EXCHANGE OFFER............. The Exchange Offer is subject to
certain conditions, which may be
waived by the Company and the
Trust in their sole discretion.
The Exchange Offer is not
conditioned upon any minimum
Liquidation Amount of Old Capital
Securities being tendered. See
"The Exchange Offer--Conditions
to the Exchange Offer."
OFFER....................................... The Company and the Trust reserve
the right in their sole and
absolute discretion, subject to
applicable law, at any time and
from time to time, to (i) delay
the acceptance of the Old Capital
Securities for exchange, (ii)
terminate the Exchange Offer if
certain specified conditions have
not been satisfied, (iii) extend
the Expiration Date of the
Exchange Offer and retain all Old
Capital Securities tendered
pursuant to the Exchange Offer,
subject, however, to the right of
holders of Old Capital Securities
to withdraw their tendered Old
Capital Securities, or (iv) to
waive any condition or otherwise
amend the terms of the Exchange
Offer in any respect. See "The
Exchange Offer--Terms of the
Exchange Offer."
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<PAGE>
WITHDRAWAL RIGHTS........................... Tenders of Old Capital Securities
may be withdrawn at any time on
or prior to the Expiration Date
by delivering a written notice of
such withdrawal to the Exchange
Agent in conformity with certain
procedures set forth below under
"The Exchange Offer--Withdrawal
Rights."
PROCEDURES FOR TENDERING
OLD CAPITAL SECURITIES.................... Tendering holders of Old Capital
Securities must complete and sign
a Letter of Transmittal in
accordance with the instructions
contained therein and forward the
same by mail, facsimile or hand
delivery, together with any other
required documents and the Old
Capital Securities to be
tendered, to the Exchange Agent,
or must comply with the specified
procedures for guaranteed
delivery of Letters of
Transmittal and Old Capital
Securities. Certain brokers,
dealers, commercial banks, trust
companies and other nominees may
also effect tenders by book-entry
transfer, including an Agent's
Message in lieu of a Letter of
Transmittal. Holders of Old
Capital Securities registered in
the name of a broker, dealer,
commercial bank, trust company or
other nominee are urged to
contact such person promptly if
they wish to tender Old Capital
Securities pursuant to the
Exchange Offer. See "The
Exchange Offer--Procedures for
Tendering Old Capital
Securities."
Letters of Transmittal and
certificates representing Old
Capital Securities should not be
sent to the Company or the Trust.
Such documents should only be
sent to the Exchange Agent.
RESALES OF NEW CAPITAL
SECURITIES................................ The Company and the Trust are
making the Exchange Offer in
reliance on the position of the
staff of the Division of
Corporation Finance of the
Commission as set forth in
certain interpretive letters
addressed to third parties in
other transactions. However,
neither the Company nor the Trust
has sought its own interpretive
letter and there can be no
assurance that the staff of the
Division of Corporation Finance
of the Commission would make a
similar determination with
respect to the Exchange Offer as
it has in such interpretive
letters to third parties. Based
on these interpretations by the
staff of the Division of
Corporation Finance of the
Commission, and subject to the
two immediately following
sentences, the Company and the
Trust believe that Exchange
Capital Securities issued
pursuant to this Exchange Offer
in exchange for Old Capital
Securities may be offered for
resale, resold and otherwise
transferred by a holder thereof
(other than a holder who is a
broker-dealer) without further
compliance with the registration
and prospectus delivery
requirements of the Securities
Act, provided that such Exchange
Capital Securities are acquired
in the ordinary course of such
holder's business and that such
holder is not participating, and
has no arrangement or
understanding with any person to
participate, in a distribution
(within the meaning of the
Securities Act) of such Exchange
Capital Securities. However, any
holder of
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<PAGE>
Old Capital Securities who is an
"affiliate" of the Company or the
Trust or who intends to
participate in the Exchange Offer
for the purpose of distributing
the Exchange Capital Securities,
or any broker-dealer who
purchased the Old Capital
Securities from the Trust for
resale pursuant to Rule 144A or
any other available exemption
under the Securities Act, (a)
will not be able to rely on the
interpretations of the staff of
the Division of Corporation
Finance of the Commission set
forth in the above-mentioned
interpretive letters, (b) will
not be permitted or entitled to
tender such Old Capital
Securities in the Exchange Offer
and (c) must comply with the
registration and prospectus
delivery requirements of the
Securities Act in connection with
any sale or other transfer of
such Old Capital Securities
unless such sale is made pursuant
to an exemption from such
requirements. In addition, as
described below, if any
broker-dealer holds Old Capital
Securities acquired for its own
account as a result of
market-making or other trading
activities and exchanges such Old
Capital Securities for Exchange
Capital Securities, then such
broker-dealer must deliver a
prospectus meeting the
requirements of the Securities
Act in connection with any
resales of such Exchange Capital
Securities.
Each holder of Old Capital
Securities who wishes to exchange
Old Capital Securities for
Exchange Capital Securities in
the Exchange Offer will be
required to represent in the
Letter of Transmittal or by
transmission of an Agent's
Message in lieu thereof that (i)
it is not an "affiliate" of the
Company or the Trust, (ii) any
Exchange Capital Securities to be
received by it are being acquired
in the ordinary course of its
business, (iii) it has no
arrangement or understanding with
any person to participate in a
distribution (within the meaning
of the Securities Act) of such
Exchange Capital Securities, and
(iv) if such holder is not a
broker-dealer, such holder is not
engaged in, and does not intend
to engage in, a distribution
(within the meaning of the
Securities Act) of such Exchange
Capital Securities. Each
broker-dealer that receives
Exchange Capital Securities for
its own account pursuant to the
Exchange Offer must acknowledge
that it acquired the Old Capital
Securities for its own account as
the result of market-making
activities or other trading
activities and must agree that it
will deliver a prospectus meeting
the requirements of the
Securities Act in connection with
any resale of such Exchange
Capital Securities. 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 Securities Act.
Based on the position taken by
the staff of the Division of
Corporation Finance of the
Commission in the interpretive
letters referred to above, the
Company and the Trust believe
that Participating Broker-Dealers
who acquired Old Capital
Securities for their own accounts
as a result of market-making
activities or other trading
activities may fulfill their
prospectus delivery requirements
with respect to the Exchange
Capital Securities received upon
exchange of such Old Capital
Securities (other than Old
Capital Securities which
represent an
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<PAGE>
unsold allotment from the
original sale of the Old Capital
Securities) with a prospectus
meeting the requirements of the
Securities Act, which may be the
prospectus prepared for an
exchange offer so long as it
contains a description of the
plan of distribution with respect
to the resale of such Exchange
Capital Securities. Accordingly,
this Prospectus, as it may be
amended or supplemented from time
to time, may be used by a
Participating Broker-Dealer in
connection with resales of
Exchange Capital Securities
received in exchange for Old
Capital Securities where such Old
Capital Securities were acquired
by such Participating
Broker-Dealer for its own account
as a result of market-making or
other trading activities. Subject
to certain provisions set forth
in the Registration Rights
Agreements and to the limitations
described below under "The
Exchange Offer -- Resales of
Exchange Capital Securities," the
Company and the Trust have agreed
that this Prospectus, as it may
be amended or supplemented from
time to time, may be used by a
Participating Broker-Dealer in
connection with resales of such
Exchange Capital Securities for a
period ending 90-days after the
Expiration Date (subject to
extension under certain limited
circumstances) or, if earlier,
when all such Exchange Capital
Securities have been disposed of
by such Participating
Broker-Dealer. See "Plan of
Distribution." Any Participating
Broker-Dealer who is an
"affiliate" of the Company or the
Trust may not rely on such
interpretive letters and must
comply with the registration and
prospectus delivery requirements
of the Securities Act in
connection with any resale
transaction. See "The Exchange
Offer -- Resales of New Capital
Securities."
EXCHANGE AGENT.............................. The exchange agent with respect
to the Exchange Offer is The
Chase Manhattan Bank (the
"Exchange Agent"). The
applicable addresses, and
telephone and facsimile numbers,
of the Exchange Agent are set
forth in "The Exchange Offer--
Exchange Agent" and in the Letter
of Transmittal.
USE OF PROCEEDS............................. Neither the Company nor the Trust
will receive any cash proceeds
from the issuance of the Exchange
Capital Securities offered
hereby. See "Use of Proceeds."
CERTAIN UNITED STATES FEDERAL
INCOME TAX CONSIDERATIONS;
ERISA CONSIDERATIONS...................... Holders of Old Capital Securities
should review the information set
forth under "Certain Federal
Income Tax Considerations" and
"ERISA Considerations" prior to
tendering Old Capital Securities
in the Exchange Offer.
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<PAGE>
THE EXCHANGE CAPITAL SECURITIES
SECURITIES OFFERED.......................... Up to $200,000,000 aggregate
Liquidation Amount of the
Exchange Capital Securities which
have been registered under the
Securities Act (Liquidation
Amount $1,000 per Exchange
Capital Security). The Exchange
Capital Securities will be
issued, and the Old Capital
Securities were issued, under the
Trust Agreement. The Exchange
Capital Securities and any Old
Capital Securities which remain
outstanding after consummation of
the Exchange Offer will vote
together as a single class for
purposes of determining whether
holders of the requisite
percentage in outstanding
Liquidation Amount thereof have
taken certain actions or
exercised certain rights under
the Trust Agreement. See
"Description of Exchange
Securities-- Description of
Exchange Capital Securities--
Voting Rights; Amendment of the
Trust Agreement." The terms of
the Exchange Capital Securities
are identical in all material
respects to the terms of the Old
Capital Securities, except that
the Exchange Capital Securities
have been registered under the
Securities Act and will not
provide for any increase in the
Distribution rate thereon. See
"The Exchange Offer-- Purpose of
the Exchange Offer," "Description
of Exchange Securities" and
"Description of Old Securities."
DISTRIBUTION DATES.......................... June 15 and December 15 of each
year, commencing June 15, 1997.
EXTENSION PERIODS........................... Distributions on Capital
Securities will be deferred for
the duration of any Extension
Period elected by the Company
with respect to the payment of
interest on the Junior
Subordinated Debentures. No
Extension Period will exceed 10
consecutive semi-annual periods
or extend beyond the Stated
Maturity. See "Description of
Exchange Debentures - Option to
Defer Interest Payments" and
"Certain Federal Income Tax
Consequences - Interest Income
and Original Issue Discount."
RANKING..................................... The Exchange Capital Securities
will rank pari passu, and
payments thereon will be made pro
rata, with the Old Capital
Securities and the Common
Securities except as described
under "Description of Exchange
Capital Securities -
Subordination of Common
Securities." The Exchange
Debentures will rank pari passu
with all other junior
subordinated debentures to be
issued by the Company with
substantially similar
subordination terms ("Other
Debentures") and which may be
issued and sold (if at all) to
other trusts to be established by
the Company (if any) ("Other
Trusts"), and will be unsecured
and subordinate and junior in
right of payment to the extent
and in the manner set forth in
the Indenture to all Senior
Indebtedness (as defined herein).
Senior Indebtedness of the
Company includes existing and
future senior debt, senior
subordinated debt and
subordinated debt of the Company.
As of December 31, 1996, there
was $6.9 billion of Senior
Indebtedness of the Company
outstanding. See "Description of
Exchange
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<PAGE>
Debentures." The Guarantee ranks
pari passu with all other
guarantees (if any), to be issued
by the Company with respect to
capital securities (if any), to
be issued by Other Trusts ("Other
Guarantees") and constitutes an
unsecured obligation of the
Company and ranks subordinate and
junior in right of payment to the
extent and in the manner set
forth in the Guarantee Agreement
to all Senior Indebtedness. See
"Description of Guarantee."
REDEMPTION.................................. The Exchange Capital Securities
are subject to mandatory
redemption (i) in whole but not
in part at the Stated Maturity
upon repayment of the Exchange
Debentures, (ii) in whole but not
in part at any time
contemporaneously with the
prepayment of the Exchange
Debentures upon the occurrence
and continuation of a Tax Event,
Investment Company Event or
Capital Treatment Event and (iii)
in whole or in part at any time
on or after December 15, 2006
contemporaneously with the
optional prepayment by the
Company of the Exchange
Debentures, in each case at the
applicable Redemption Price. See
"Description of Exchange Capital
Securities -- Redemption."
RATING...................................... The Exchange Capital Securities
have been rated "BBB" by Standard
& Poor's Ratings Services and
"Baa1" by Moody's Investors
Services, Inc. A security rating
is not a recommendation to buy,
sell or hold securities and may
be subject to revision or
withdrawal at any time by the
assigning rating organization.
ERISA CONSIDERATIONS........................ Prospective purchasers who
invested the assets of an
employee benefit plan subject to
Title I of ERISA or a plan or
individual retirement account
subject to Section 4975 of the
Code for their purchase of
Capital Securities should
carefully consider the
information set forth under
"ERISA Considerations."
ABSENCE OF MARKET FOR THE
EXCHANGE CAPITAL SECURITIES............... The Exchange Capital Securities
will be a new issue of securities
for which there currently is no
market. Although the Initial
Purchasers have informed the
Trust and the Company that they
each currently intend to make a
market in the Exchange Capital
Securities, the Initial
Purchasers are not obligated to
do so, and any such market making
may be discontinued at any time
without notice. Accordingly,
there can be no assurance as to
the development or liquidity of
any market for the Exchange
Capital Securities. The Trust
and the Company do not intend to
apply for listing of the Exchange
Capital Securities on any
securities exchange or for
quotation through the NASD
Automated Quotation System. See
"Offer and Resale."
USE OF PROCEEDS............................. The proceeds to the Trust from
the sale of the Capital
Securities were invested by the
Trust in the Junior Subordinated
Debentures. The Company is using
the net proceeds from the sale of
the Junior Subordinated
Debentures for general corporate
purposes. The Company expects
that the Capital Securities will
be eligible to qualify as Tier 1
capital under the capital
guidelines of the Federal
Reserve. See "Use of Proceeds."
For additional information regarding the Exchange Capital Securities,
see "Description of Exchange Capital Securities," "Description of Exchange
Debentures," "Description of Guarantee" and "Certain Federal Income Tax
Consequences."
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RISK FACTORS
Prospective investors should carefully consider the matters set forth
under "Risk Factors" beginning on page [ ].
RISK FACTORS
Prospective investors should carefully review the information contained
elsewhere in this Offering Memorandum and should particularly consider the
following matters.
RANKING OF OBLIGATIONS UNDER THE GUARANTEE AND THE JUNIOR SUBORDINATED
DEBENTURES
The obligations of the Company under the Junior Subordinated Debentures
are unsecured and rank subordinate and junior in right of payment to all Senior
Indebtedness of the Company. The obligations of the Company under the Guarantee
are unsecured and rank subordinate and junior in right of payment to all
liabilities of the Company, including obligations under the Junior Subordinated
Debentures, other than any liabilities which expressly by their terms are made
pari passu or subordinate to the obligations of the Company under the Guarantee.
At December 31, 1996, the aggregate outstanding Senior Indebtedness of the
Company was approximately $6.9 billion. None of the Indenture, the Guarantee or
the Trust Agreement places any limitation on the amount of secured or unsecured
debt, including Senior Indebtedness, that may be incurred by the Company. See
"Description of Guarantee -- Status of the Guarantee" and "Description of
Exchange Debentures -Subordination." The Company is a legal entity separate and
distinct from its principal subsidiary, Crestar Bank, and its other affiliates.
There are various legal limitations on the extent to which Crestar Bank may
extend credit, pay dividends or otherwise supply funds to the Company or various
of its affiliates. Since the Company is a holding company, the right of the
Company to participate in any distribution of assets of any subsidiary upon such
subsidiary's liquidation or reorganization or otherwise (and thus the ability of
holders of the Capital Securities to benefit indirectly from such distribution)
is subject to the prior claims of creditors of that subsidiary, except to the
extent that the Company may itself be a creditor of that subsidiary. Claims on
the Company's subsidiaries by creditors other than the Company include long-term
debt and substantial obligations in respect of federal funds purchased,
securities sold under repurchase agreements and certain other short-term
borrowings, as well as deposit liabilities. Accordingly, the Junior Subordinated
Debentures will be effectively subordinated to all existing and future
liabilities of the Company's subsidiaries, and holders of Junior Subordinated
Debentures should look only to the assets of the Company for payments on the
Junior Subordinated Debentures. See "Crestar Financial Corporation."
The ability of the Trust to pay amounts due on the Capital Securities
is solely dependent upon the Company making payments on the Junior Subordinated
Debentures as and when required.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES
So long as no Debenture Event of Default has occurred or is continuing,
the Company has the right under the Indenture to defer the payment of interest
on the Junior Subordinated Debentures at any time or from time to time for a
period not exceeding 10 consecutive semi-annual periods with respect to each
Extension Period, provided
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that no Extension Period may extend beyond the Stated Maturity. As a consequence
of any such deferral, semi-annual Distributions on the Capital Securities by the
Trust will be deferred (and the amount of Distributions to which holders of the
Capital Securities are entitled will accumulate additional Distributions thereon
at the rate of 8.16% per annum, compounded semi-annually, but not exceeding the
interest rate then accruing on the Junior Subordinated Debentures), from the
relevant payment date for such Distributions during any such Extension Period.
During any such Extension Period, the Company may not, and may not permit any
subsidiary of the Company to (i) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment with respect to,
any of the Company's capital stock or (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company (including Other Debentures) that rank pari passu with
or junior in interest to the Junior Subordinated Debentures or make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any subsidiary of the Company (including Other Guarantees) if such
guarantee ranks pari passu with or junior in interest to the Junior Subordinated
Debentures (other than (a) dividends or distributions in common stock of the
Company, (b) any declaration of a dividend in connection with the implementation
of a stockholders' rights plan, or the issuance of stock under any such plan in
the future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the Guarantee and (d) purchases of common stock related to
the issuance of common stock or rights under any of the Company's benefit plans
for its directors, officers or employees). Prior to the termination of any such
Extension Period, the Company may further extend such Extension Period provided
that such extension does not cause such Extension Period to exceed 10
consecutive semi-annual periods or to extend beyond the Stated Maturity. Upon
the termination of any Extension Period and the payment of all interest then
accrued and unpaid on the Junior Subordinated Debentures (together with interest
thereon at the annual rate of 8.16%, compounded semi-annually, to the extent
permitted by applicable law), the Company may elect to begin a new Extension
Period subject to the above requirements. There is no limitation on the number
of times that the Company may elect to begin an Extension Period. See
"Description of Capital Securities -- Distributions" and "Description of Junior
Subordinated Debentures -- Option to Defer Interest Payments."
Should an Extension Period occur, a holder of Capital Securities will
continue to accrue income for United States federal income tax purposes (in the
form of original issue discount) in respect of its pro rata share of the Junior
Subordinated Debentures held by the Trust. As a result, a holder of Capital
Securities will include such income in gross income for United States federal
income tax purposes in advance of the receipt of cash, and will not receive the
cash related to such income from the Trust if the holder disposes of the Capital
Securities prior to the record date for the payment of Distributions. See
"Certain Federal Income Tax Consequences -- Interest Income and Original Issue
Discount" and "-- Sales or Redemption of Capital Securities."
The Company believes that the likelihood of its exercising its right to
defer payments of interest is remote. However, should the Company elect to
exercise such right in the future, the market price of the Capital Securities is
likely to be affected. A holder that disposes of its Capital Securities during
an Extension Period, therefore, might not receive the same return on its
investment as a holder that continues to hold its Capital Securities. In
addition, as a result of the existence of the Company's right to defer interest
payments, the market price of the Capital Securities (which represent preferred
beneficial interests in the Trust) may be more volatile than the market prices
of other securities on which original issue discount accrues that are not
subject to such deferrals.
TAX EVENT, INVESTMENT COMPANY EVENT OR CAPITAL TREATMENT EVENT REDEMPTION
Upon the occurrence and continuation of a Tax Event, Investment Company
Event or Capital Treatment Event, the Company has the right to prepay the Junior
Subordinated Debentures in whole (but not in part) within 90 days following the
occurrence of such Tax Event, Investment Company Event or Capital Treatment
Event and therefore cause a mandatory redemption of the Capital Securities at
the Event Redemption Price. See "Description of Capital Securities --
Redemption." The exercise of such redemption right is subject to the Company
having received prior approval from the Federal Reserve to do so if then
required under applicable guidelines or policies of the Federal Reserve.
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<PAGE>
A "Tax Event" means the receipt by the Company and the Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the Issue Date, there
is more than an insubstantial risk that (i) the Trust is, or will be within 90
days of the date of such opinion, subject to United States Federal income tax
with respect to income received or accrued on the Junior Subordinated
Debentures, (ii) interest payable by the Company on the Junior Subordinated
Debentures is not, or within 90 days of such opinion, will not be, deductible by
the Company, in whole or in part, for United States Federal income tax purposes,
or (iii) the Trust is, or will be within 90 days of the date of the opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
See "-- Possible Tax Law Changes Affecting the Capital Securities" for
a discussion of certain legislative proposals that, if adopted, could give rise
to a Tax Event, which may permit the Company to cause a redemption of the
Capital Securities prior to December 15, 2006.
A "Capital Treatment Event" means the reasonable determination by the
Company that, as a result of the occurrence of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or such pronouncement, action or decision
is announced on or after the date of issuance of the Capital Securities under
the Trust Agreement, there is more than an insubstantial risk that the Company
will not be entitled to treat an amount equal to the Liquidation Amount of the
Capital Securities as "Tier 1 Capital" (or the then equivalent thereof) for
purposes of the capital adequacy guidelines of the Federal Reserve, as then in
effect and applicable to the Company. See "Description of Capital Securities --
Redemption" and "Description of Junior Subordinated Debentures -- Optional
Prepayment." See also "Certain Federal Income Tax Consequences -- Possible Tax
Law Changes."
An "Investment Company Event" means the receipt by the Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or change in interpretation
or application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), the Trust is or
will be considered an investment company that is required to be registered under
the Investment Company Act of 1940, as amended, which Change in 1940 Act Law
becomes effective on or after the date of original issuance of the Capital
Securities.
EXCHANGE OF CAPITAL SECURITIES FOR JUNIOR SUBORDINATED DEBENTURES
The Company will have the right upon the occurrence of a Tax Event,
Investment Company Event or Capital Treatment Event to terminate the Trust and,
after satisfaction of liabilities to creditors as required by applicable law,
cause the Junior Subordinated Debentures to be distributed to the holders of the
Capital Securities in liquidation of the Trust. The exercise of such right is
subject to the Company having received prior approval of the Federal Reserve if
then required under applicable capital guidelines or policies of the Federal
Reserve and subject to the Company having received an opinion of counsel to the
effect that such distribution will not be a taxable event to holders of Capital
Securities. See "Description of Capital Securities -- Liquidation of the Trust
and Distribution of Junior Subordinated Debentures."
MARKET PRICES
There can be no assurance as to the market prices for Capital
Securities or Junior Subordinated Debentures that may be distributed in exchange
for Capital Securities if a liquidation of the Trust occurs. Accordingly, the
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<PAGE>
Capital Securities that an investor may purchase whether pursuant to the offer
made hereby or in the secondary market, or the Junior Subordinated Debentures
that a holder of Capital Securities may receive in liquidation of the Trust, may
trade at a discount from the price that the investor paid to purchase the
Capital Securities offered hereby. Because holders of Capital Securities may
receive Junior Subordinated Debentures on termination of the Trust and because
Distributions are otherwise limited to payments on the Junior Subordinated
Debentures, prospective purchasers of Capital Securities are also making an
investment decision with regard to the Junior Subordinated Debentures and should
carefully review all the information regarding the Junior Subordinated
Debentures contained herein. See "Description of Junior Subordinated
Debentures."
RIGHTS UNDER THE GUARANTEE
The Chase Manhattan Bank will act as the Guarantee Trustee and will
hold the Guarantee for the benefit of the holders of the Capital Securities. The
Chase Manhattan Bank will also act as Debenture Trustee for the Junior
Subordinated Debentures and as Property Trustee under the Trust Agreement and
its affiliate Chase Manhattan Bank Delaware will act as Delaware Trustee under
the Trust Agreement. The Guarantee guarantees to the holders of the Capital
Securities the following payments, to the extent not paid by the Trust: (i) any
accumulated and unpaid Distributions required to be paid on the Capital
Securities, to the extent that the Trust has funds on hand available therefor at
such time, (ii) the redemption price with respect to any Capital Securities
called for redemption, to the extent that the Trust has funds on hand available
therefor at such time, and (iii) upon a voluntary or involuntary termination,
winding-up or liquidation of the Trust (unless the Junior Subordinated
Debentures are distributed to holders of the Capital Securities), the lesser of
(a) the aggregate of the Liquidation Amount and all accrued and unpaid
Distributions to the date of payment to the extent that the Trust has funds on
hand available therefor at such time and (b) the amount of assets of the Trust
remaining available for distribution to holders of the Capital Securities. The
holders of not less than a majority in aggregate liquidation amount of the
Capital Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of the Guarantee or to direct the exercise of any trust power conferred
upon the Guarantee Trustee under the Guarantee. Any holder of the Capital
Securities may institute a legal proceeding directly against the Company to
enforce its rights under the Guarantee without first instituting a legal
proceeding against the Trust, the Guarantee Trustee or any other person or
entity. If the Company were to default on its obligation to pay amounts payable
under the Junior Subordinated Debentures, the Trust would lack funds for the
payment of Distributions or amounts payable on redemption of the Capital
Securities or otherwise, and, in such event, holders of the Capital Securities
would not be able to rely upon the Guarantee for payment of such amounts.
Instead, in the event a Debenture Event of Default shall have occurred and be
continuing and such event is attributable to the failure of the Company to pay
interest on or principal of the Junior Subordinated Debentures on the payment
date on which such payment is due and payable, then a holder of Capital
Securities may institute a legal proceeding directly against the Company for
enforcement of payment to such holder of the principal of or interest on such
Junior Subordinated Debentures having a principal amount equal to the aggregate
Liquidation Amount of the Capital Securities of such holder (a "Direct Action").
Notwithstanding any payments made to a holder of Capital Securities by the
Company in connection with a Direct Action, the Company shall remain obligated
to pay the principal of and interest on the Junior Subordinated Debentures, and
the Company shall be subrogated to the rights of the holder of such Capital
Securities with respect to payments on the Capital Securities to the extent of
any payments made by the Company to such holder in any Direct Action. Except as
described herein, holders of Capital Securities will not be able to exercise
directly any other remedy available to the holders of the Junior Subordinated
Debentures or assert directly any other rights in respect of the Junior
Subordinated Debentures. See "Description of Exchange Debentures -- Enforcement
of Certain Rights by Holders of Capital Securities," "Description of Exchange
Debentures -- Debenture Events of Default" and "Description of Guarantee." The
Trust Agreement provides that each holder of Capital Securities by acceptance
thereof agrees to the provisions of the Guarantee Agreement and the Indenture.
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LIMITED VOTING RIGHTS
Holders of Capital Securities will generally have limited voting rights
relating only to the modification of the Capital Securities, and the exercise of
the Trust's rights as holder of Junior Subordinated Debentures. Holders of
Capital Securities will not be entitled to vote to appoint, remove or replace
the Property Trustee or the Delaware Trustee, and such voting rights are vested
exclusively in the holder of the Common Securities except upon the occurrence of
certain events described herewith. The Issuer Trustees and the Company may amend
the Trust Agreement without the consent of holders of Capital Securities to
ensure that the Trust will be classified for United States federal income tax
purposes as a grantor trust even if such action adversely affects the interests
of such holders. See "Description of Exchange Capital Securities -- Voting
Rights; Amendment of the Trust Agreement" and "Description of Exchange Capital
Securities -- Removal of Issuer Trustees; Appointment of Successors."
POSSIBLE TAX LAW CHANGES AFFECTING THE CAPITAL SECURITIES
The Clinton administration has proposed legislation (the "Proposal")
that would, among other things, deny interest deductions for interest on an
instrument issued by a corporation that has a maximum term of more than 15 years
and that is not shown as indebtedness on the separate balance sheet of the
issuer or, if the instrument is issued to a related party (other than a
corporation), where the holder or some other related party issues a related
instrument that is not shown as indebtedness on the issuer's consolidated
balance sheet. If such a provision were to apply to the Junior Subordinated
Debentures, the Company would be unable to deduct interest on the Junior
Subordinated Debentures. However, the above-described provision of the Proposal
is proposed generally to be effective only for instruments issued on or after
the date of first Congressional committee action, and under current law, the
Company is able to deduct interest on the Junior Subordinated Debentures. There
can be no assurance that future action on the Proposal or future legislative
proposals, future regulations or official administrative pronouncements, or
future judicial decisions will not affect the ability of the Company to deduct
interest on the Junior Subordinated Debentures. Such a change could give rise to
a Tax Event, which may permit the Company, upon approval of the Federal Reserve
if then required under applicable guidelines or policies of the Federal Reserve,
to cause a redemption of the Capital Securities before, as well as after,
December 15, 2006. See "Description of Capital Securities -- Redemption" and
"Certain Federal Income Tax Consequences - Possible Tax Law Changes."
CONSEQUENCES OF A FAILURE TO EXCHANGE OLD CAPITAL SECURITIES
The Old Capital Securities have not been registered under the
Securities Act or any state securities laws and therefore may not be offered,
sold or otherwise transferred except in compliance with the registration
requirements of the Securities Act and any other applicable securities laws, or
pursuant to an exemption therefrom or in a transaction not subject thereto, and
in each case in compliance with certain other conditions and restrictions. Old
Capital Securities which remain outstanding after consummation of the Exchange
Offer will continue to bear a legend reflecting such restrictions on transfer.
In addition, upon consummation of the Exchange Offer, holders of Old Capital
Securities which remain outstanding will not be entitled to any rights to have
such Old Capital Securities registered under the Securities Act or to any
similar rights under the Registration Rights Agreements (subject to certain
limited exceptions). The Company and the Trust do not intend to register under
the Securities Act any Old Capital Securities which remain outstanding after
consummation of the Exchange Offer (subject to such limited exceptions, if
applicable). To the extent that Old Capital Securities are tendered and accepted
in the Exchange Offer, a holder's ability to sell untendered Old Capital
Securities could be adversely affected.
The Exchange Capital Securities and any Old Capital Securities which
remain outstanding after consummation of the Exchange Offer will vote together
as a single class for purposes of determining whether holders of the requisite
percentage in outstanding Liquidation Amount thereof have taken certain actions
or exercised certain rights under the Declaration. See "Description of Exchange
Securities -- Description of Exchange Capital Securities -- Voting Rights;
Amendment of the Declaration."
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The Old Capital Securities provide, among other things, that, if a
registration statement relating to the Exchange Offer has not been filed by May
[30], 1997 and declared effective by June 29, 1997, the Distribution rate borne
by the Old Capital Securities, currently 8.16% per annum, commencing on June 29,
1997 will increase by 0.25% per annum until the Exchange Offer is consummated.
Upon consummation of the Exchange Offer, holders of Old Capital Securities will
not be entitled to any increase in the Distribution rate thereon or any further
registration rights under the Registration Rights Agreement, except under
limited circumstances. See "Description of Old Capital Securities."
ABSENCE OF PUBLIC MARKET
The Old Capital Securities were issued to, and the Company believes the
Old Capital Securities are currently owned by, a relatively small number of
beneficial owners. The Old Capital Securities have not been registered under the
Securities Act and will be subject to restrictions on transferability if they
are not exchanged for the Exchange Capital Securities. Although the Exchange
Capital Securities generally may be resold or otherwise transferred by the
holders (who are not affiliates of the Company or the Trust) without compliance
with the registration requirements under the Securities Act, they will
constitute a new issue of securities with no established trading market. Both
Old Capital Securities and Exchange Capital Securities may be transferred by the
holders thereof only in blocks having a Liquidation Amount of not less than
$100,000 (100 Old Capital Securities) and in integral multiples of $1,000 (1 Old
Capital Security) in excess thereof. The Company and the Trust have been advised
by the Initial Purchasers that the Initial Purchasers presently intend to make a
market in the Exchange Capital Securities. However, the Initial Purchasers are
not obligated to do so and any market-making activity with respect to the
Exchange Capital Securities may be discontinued at any time without notice. In
addition, such market-making activity will be subject to the limits imposed by
the Securities Act and the Exchange Act and may be limited during the Exchange
Offer. Accordingly, no assurance can be given that an active public or other
market will develop for the Exchange Capital Securities or the Old Capital
Securities or as to the liquidity of or the trading market for the Exchange
Capital Securities or the Old Capital Securities. If an active public market
does not develop, the market price and liquidity of the Exchange Capital
Securities may be adversely affected.
If a public trading market develops for the Exchange Capital
Securities, future trading prices will depend on many factors, including, among
other things, prevailing interest rates, the Company's financial results and the
market for similar securities. Depending on prevailing interest rates, the
market for similar securities and other factors, including the financial
condition of the Company, the Exchange Capital Securities may trade at a
discount.
Notwithstanding the registration of the Exchange Capital Securities in
the Exchange Offer, holders who are "affiliates" (as defined under Rule 405 of
the Securities Act) of the Company or the Trust may publicly offer for sale or
resell the Exchange Capital Securities only in compliance with the provisions of
Rule 144 under the Securities Act.
Each broker-dealer that receives Exchange Capital Securities for its
own account in exchange for Old Capital Securities, where such Old Capital
Securities 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 Capital Securities.
See "Plan of Distribution."
EXCHANGE OFFER PROCEDURES
Issuance of the Exchange Capital Securities in exchange for Old Capital
Securities pursuant to the Exchange Offer will be made only after a timely
receipt by the Trust of such Old Capital Securities, a properly completed and
duly executed Letter of Transmittal or Agent's Message in lieu thereof and all
other required documents. Therefore, holders of the Old Capital Securities
desiring to tender such Old Capital Securities in exchange for Exchange Capital
Securities should allow sufficient time to ensure timely delivery. Neither the
Company nor the Trust is under any
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duty to give notification of defects or irregularities with respect to the
tenders of Old Capital Securities for exchange. See "The Exchange Offer."
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following sets forth the historical ratios of earnings to fixed
charges and the historical ratios of earnings to fixed charges and preferred
stock dividends of the Company for the periods indicated:
Year Ended
December 31,
1996 1995 1994 1993 1992
----------------------------
Earnings to
Fixed Charges
Including interest on deposits.................. 1.5 1.5 1.6 1.6 1.3
Excluding interest on deposits.................. 2.6 2.8 3.6 3.8 2.9
Earnings to
Combined Fixed Charges and Preferred
Stock Dividend Requirements
Including interest on deposits.................. 1.5 1.5 1.6 1.5 1.3
Excluding interest on deposits.................. 2.6 2.8 3.6 3.7 2.8
For purposes of computing the preceding ratios, earnings represent
pre-tax income from continuing operations plus fixed charges. Fixed charges
represent interest expense (exclusive of interest on deposits in one case and
inclusive of such interest in the other), capitalized interest, amortization of
debt issuance costs, and one-third (the amount deemed to represent an
appropriate interest factor) of rent expense (net of income from subleases)
under lease commitments. Preferred stock dividend requirements represent pre-tax
earnings that would be required to cover preferred stock dividends on
outstanding preferred stock.
USE OF PROCEEDS
Neither the Company nor the Trust will receive any cash proceeds from
the issuance of the Exchange Capital Securities. In consideration for issuing
the Exchange Capital Securities in exchange for the Old Capital Securities as
described in this Prospectus, the Trust will receive Exchange Debentures in like
Liquidation Amount. The Old Capital Securities surrendered in exchange for the
Exchange Capital Securities will be retired and canceled.
The net proceeds to the Trust from the offering of the Capital
Securities was $200,000,000. All of the proceeds from the sale of Capital
Securities were invested by the Trust in Junior Subordinated Debentures. The net
proceeds from the sale of the Junior Subordinated Debentures are being used by
the Company for general corporate purposes, including the Company's working
capital needs, the funding of investments in, or extensions of credit to, the
Company's banking and nonbanking subsidiaries and possible acquisitions of other
financial institutions or, other businesses of a type eligible for bank holding
companies. Pending such use, the Company may temporarily invest the net proceeds
in investment grade securities. Based upon its historical and anticipated future
growth, including future acquisitions, and the financial needs of its
subsidiaries, the Company may engage in additional financings of a character and
in amounts to be determined as the need arises.
CRESTAR FINANCIAL CORPORATION
Crestar Bank is the holding company for Crestar Bank, a Virginia
banking corporation. At December 31, 1996, the Company had approximately $22.9
billion in total assets, $15.7 billion in total deposits, and $1.8 billion in
total stockholders' equity.
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In 1963, six Virginia banks combined to form United Virginia Bankshares
Incorporated ("UVB"), a bank holding company formed under the Bank Holding
Company Act of 1956 (the "BHCA"). UVB (parent company of United Virginia Bank)
extended its operations into the District of Columbia by acquiring NS&T Bank,
N.A. on December 27, 1985 and into Maryland by acquiring Bank of Bethesda on
April 1, 1986. On September 1, 1987, UVB became Crestar Financial Corporation
and its bank subsidiaries adopted the Crestar name.
The Company serves customers through a network of 508 banking offices
and 496 automated teller machines (as of December 31, 1996). Crestar Bank offers
a broad range of banking services, including various types of deposit accounts
and instruments, commercial and consumer loans, trust and investment management
services, bank credit cards and international banking services. Crestar
Insurance Agency, Inc., offers a variety of personal and business insurance
products. Securities brokerage and investment banking services, including mutual
funds and annuities, are offered by Crestar Securities Corporation. Mortgage
loan origination, servicing and wholesale lending are offered by Crestar
Mortgage Corporation, and investment advisory services are offered by Capitoline
Investment Services Incorporated, both of which are subsidiaries of Crestar
Bank. These various Company subsidiaries provide banking and non-banking
services throughout Virginia, Maryland and Washington, D.C., as well as certain
non-banking services to customers in other states.
The executive offices of the Company are located at Crestar Center, 919
East Main Street, Richmond, Virginia 23219. The Company's Operations Center is
located in Richmond. Regional headquarters are located in Norfolk and Roanoke,
Virginia, Washington, D.C., and Baltimore, Maryland. The Company's telephone
number is (804) 782-5171.
RECENT DEVELOPMENTS
SAIF LEGISLATION. The Company's third quarter earnings were affected by
two special items relating to recently passed legislation regarding
recapitalization of the Savings Association Insurance Fund ("SAIF") and repeal
of the thrift bad debt recapture rule. Third quarter earnings were adversely
affected by a one-time assessment on deposits insured by the SAIF; as a result
of several thrift acquisitions during recent years, approximately 45% of the
Company's deposit base are SAIF insured. The one-time assessment, on an after
tax basis, was approximately $22 million. As a result of this one-time
assessment and based on announced rate schedules, future earnings of the Company
are expected to be augmented by a reduction in ongoing SAIF assessments of
approximately $6 million annually, on an after tax basis.
Partially offsetting this one-time SAIF assessment, the Company
recognized a one-time after tax gain of approximately $11 million in the third
quarter as a result of repeal of the tax law that required merging thrift
institutions to recapture into income pre-1988 loan loss reserves.
The combined effect of the two special items resulted in an after tax
charge to third quarter earnings of $11 million, or $.10 (post-split) per share.
COMBINATION OF SUBSIDIARY BANKS. On November 14, 1996, the Company
combined its subsidiary banks, Crestar Bank MD, Crestar Bank NA, and Crestar
Bank (Virginia), into one Virginia bank named Crestar Bank. A week earlier,
Crestar Bank FSB had merged into Crestar Bank MD.
The combination of its subsidiary banks into one bank is expected to
achieve synergies and other cost savings, although the savings will be modest
since the Company, for a number of years, has for all practical purposes
operated its subsidiary banks as if they were one combined banking enterprise.
The combination of the subsidiary banks into a Virginia bank is not expected to
have any effect on the services or products offered to customers or any other
substantive change in the way the Company does business.
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COMPLETED ACQUISITION. On December 31, 1996, the Company completed its
acquisition of Citizens Bancorp ("Citizens"), in a statutory merger in exchange
for Crestar Common Stock (the "Citizens Merger"). Citizens was the second
largest bank holding company headquartered in Maryland with assets of $4.1
billion as of December 31, 1996. The merger was accounted for as a pooling of
interests business combination. Accordingly, all consolidated financial
information reflects the results of the Company and Citizens, on a combined
basis, for all periods presented.
COMMON STOCK SPLIT. In December 1996, the Company's Board of Directors
declared a two-for-one common stock split, in the form of a stock dividend. The
two-for-one stock split was distributed on January 24, 1997. Per common share
data contained in this registration statement has been adjusted, for all periods
presented, to reflect the common stock split.
HOLDING COMPANY STATUS. Since the Company is a holding company, the
rights of the Company to participate in any distribution of assets of any
subsidiary upon its liquidation or reorganization or otherwise (and thus the
ability of holders of the Junior Subordinated Debentures to benefit indirectly
from such distribution) are subject to the prior claims of creditors of that
subsidiary, except to the extent that the Company may itself be a creditor of
that subsidiary. Claims on the Company's subsidiaries by creditors other than
the Company include long-term debt and substantial obligations in respect of
federal funds purchased, securities sold under repurchase agreements and certain
other short-term borrowings, as well as deposit liabilities.
REGULATORY CAPITAL BENEFITS TO CRESTAR FINANCIAL CORPORATION
The Company is required by the Board of Governors of the Federal
Reserve System ("Federal Reserve Board") to maintain certain levels of capital
for bank regulatory purposes. For these purposes, different capital instruments
are classified as either Tier 1 or Tier 2 capital, with Tier 1 being the more
favorable classification. The Federal Reserve Board has recently stated that
long-term cumulative preferred instruments issued by a special-purpose
subsidiary of a bank holding company and structured in the manner in which the
Capital Securities are structured normally will be accorded Tier 1 Capital
treatment. The Company believes that the Capital Securities qualify for Tier 1
capital treatment. Such treatment, together with the Company's ability to
deduct, for income tax purposes, the interest payable on the Junior Subordinated
Debentures, provide the Company with a more cost-effective means of obtaining
capital for regulatory purposes than if the Company itself were to issue
additional preferred stock.
As of the date of this Prospectus, the Company has authorized preferred
stock but has no series of preferred stock outstanding.
CRESTAR CAPITAL TRUST I
Crestar Capital Trust I is a statutory business trust created under
Delaware law pursuant to the filing of a certificate of trust with the Delaware
Secretary of State on December 20, 1996, which is governed by the Trust
Agreement executed by the Company, as Depositor, the Property Trustee, the
Delaware Trustee, and three individual Administrators. The Trust exists for the
exclusive purposes of (i) issuing and selling the Capital Securities, Common
Securities and Exchange Capital Securities, (ii) using the proceeds from the
sale of Capital Securities and Common Securities to acquire Junior Subordinated
Debentures issued by the Company, (iii) exchanging the Junior Subordinate
Debentures for Exchange Debentures in the Exchange Offer pursuant to the
Indenture and (iv) engaging in only those other activities necessary, advisable
or incidental thereto (such as registering the transfer of the Capital
Securities). Accordingly, the Junior Subordinated Debentures will be the sole
assets of the Trust, and payments by the Company under the Junior Subordinated
Debentures and the related Expense Agreement will be the sole revenue of the
Trust. All of the Common Securities are owned by the Company. The Common
Securities rank pari passu, and payments will be made thereon pro rata with the
Capital
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Securities except that upon the occurrence and continuance of an event of
default under the Trust Agreement resulting from a Debenture Event of Default,
the rights of the Company as holder of the Common Securities to payment in
respect of Distributions and payments upon liquidation, redemption or otherwise
will be subordinated to the rights of the holders of the Capital Securities. See
"Description of Capital Securities -- Subordination of Common Securities". The
Company has acquired Common Securities in an aggregate liquidation amount equal
to 3% of the total capital of the Trust.
The Trust has a term of approximately 31 years, but may terminate
earlier as provided in the Trust Agreement. The Trust's business and affairs are
conducted by its administrators, each appointed by the Company as holder of the
Common Securities. Under the Trust Agreement, the trustees for the Trust are The
Chase Manhattan Bank, as the Property Trustee and Chase Manhattan Bank Delaware
as the Delaware Trustee, and, in addition, there are three individual
administrators (the "Administrators") who are employees or officers of or
affiliated with the Company the Property Trustee, the Delaware Trustee and the
Administrators, (collectively, the "Issuer Trustees"). The Chase Manhattan Bank
is also trustee under the Guarantee and the Indenture (each as defined herein).
See "Description of Guarantee" and "Description of Junior Subordinated
Debentures." The holder of the Common Securities of the Trust or the holders of
a majority in Liquidation Amount of Capital Securities if a Debenture Event of
Default has occurred under the Trust Agreement and is continuing will be
entitled to appoint, remove or replace the Property Trustee and/or the Delaware
Trustee. In no event will the holders of the Capital Securities have the right
to vote to appoint, remove or replace the Administrators; such voting rights are
vested exclusively in the holder of the Common Securities. The duties and
obligations of each Issuer Trustee are governed by the Trust Agreement. Pursuant
to the Expense Agreement, the Company pays all fees and expenses related to the
Trust and the offering of the Capital Securities and will pay, directly or
indirectly, all ongoing costs, expenses and liabilities of the Trust.
Pursuant to the Expense Agreement, the Company has irrevocably and
unconditionally guaranteed to each person or entity to whom the Trust becomes
indebted or liable, the full payment of any costs, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to the holders of any
Capital Securities or other similar interests in the Trust of the amounts due
such holders pursuant to the terms of the Capital Securities or such other
similar interests, as the case may be.
The principal executive office of the Trust is P.O. Box 26665, 919 East
Main Street, Richmond, Virginia, 23261-6665 and its telephone number is (804)
782-5171.
OTHER COMPANY SECURITIES OFFERINGS
The Company has filed shelf registration statements (the "Shelf
Registration Statements") for approximately $300 million of securities which
include subordinated debt, preferred stock and common stock. The Shelf
Registration Statements (and any similar subsequent registration statements)
could be used by the Company to issue securities which are classified as Tier 1
capital and which rank pari passu with the Capital Securities, Junior
Subordinated Debentures and the Guarantee as well as senior to such securities.
ACCOUNTING TREATMENT
For financial reporting purposes, the Trust will be treated as a
subsidiary of the Company and, accordingly, the accounts of the Trust will be
included in the consolidated financial statements of the Company. The Capital
Securities will either be presented as a separate line item in the consolidated
balance sheet of the Company, or presented as a component of long-term debt in
the consolidated balance sheet of the Company, and appropriate disclosures about
the Capital Securities, the Guarantee and the Junior Subordinated Debentures
will be included in the notes to the consolidated financial statements. For
financial reporting purposes, the Company will record Distributions payable on
the Capital Securities as an expense in the consolidated statement of income.
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THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
In connection with the sale of the Old Capital Securities, the Company
and the Trust entered into the Registration Rights Agreement with the Initial
Purchasers pursuant to which the Company and the Trust agreed to file and to use
their reasonable efforts to cause to become effective with the Commission a
registration statement with respect to the exchange of the Old Capital
Securities for the Exchange Capital Securities. A copy of the Registration
Rights Agreement has been filed as an Exhibit to the Registration Statement of
which this Prospectus is a part.
The Exchange Offer is being made to satisfy the contractual obligations
of the Company and the Trust under the Registration Rights Agreement. The form
and terms of the Exchange Capital Securities are the same as the form and terms
of the Old Capital Securities except that the Exchange Capital Securities have
been registered under the Securities Act, and will not provide for any increase
in the Distribution rate thereon. In that regard, the Old Capital Securities
provide, among other things, that, if a registration statement relating to the
Exchange Offer has not been filed by May [30], 1997 and declared effective by
June 29, 1997, the Distribution rate borne by the Old Capital Securities,
currently 8.16%, commencing on June 29, 1997 will increase by 0.25% per annum
until the Exchange Offer is consummated. Upon consummation of the Exchange
Offer, holders of Old Capital Securities will not be entitled to any increase in
the Distribution rate thereon or any further registration rights under the
Registration Rights Agreement, except under limited circumstances. See "Risk
Factors -- Consequences of a Failure to Exchange Old Capital Securities" and
"Description of Old Capital Securities."
The Exchange Offer is not being made to, nor will the Trust accept
tenders for exchange from, holders of Old Capital Securities in any jurisdiction
in which the Exchange Offer or the acceptance thereof would not be in compliance
with the securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder" with respect
to the Exchange Offer means any person in whose name the Old Capital Securities
are registered on the books of the Trust or any other person who has obtained a
properly completed bond power from such holder, or any participant in the
Depository Trust Company ("DTC") system whose name appears on a security
position listing as the holder of such Old Capital Securities and who desires to
deliver such Old Capital Securities by book-entry transfer at DTC.
Pursuant to the Exchange Offer, the Company will exchange promptly
after the Expiration Date, the Old Junior Subordinated Debentures, in an amount
corresponding to the Old Capital Securities accepted for exchange, for a like
aggregate principal amount of the Exchange Debentures. The Guarantee and
Exchange Debentures have been registered under the Securities Act.
TERMS OF THE EXCHANGE OFFER
The Trust hereby offers, upon the terms and subject to the conditions
set forth in this Prospectus and in the accompanying Letter of Transmittal, to
exchange up to $200,000,000 aggregate Liquidation Amount of Exchange Capital
Securities for a like aggregate Liquidation Amount of Old Capital Securities
properly tendered on or prior to the Expiration Date and not properly withdrawn
in accordance with the procedures described below. The Trust will issue,
promptly after the Expiration Date, an aggregate Liquidation Amount of up to
$200,000,000 of Exchange Capital Securities in exchange for a like principal
amount of outstanding Old Capital Securities tendered and accepted in connection
with the Exchange Offer. Holders may tender their Old Capital Securities in
whole or in part in a Liquidation Amount of not less than $100,000 (100 Capital
Securities) or any integral multiple of $1,000 Liquidation Amount (1 Capital
Security) in excess thereof.
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The Exchange Offer is not conditioned upon any minimum Liquidation
Amount of Old Capital Securities being tendered. As of the date of this
Prospectus, $200,000,000 aggregate Liquidation Amount of Old Capital Securities
is outstanding.
Holders of Old Capital Securities do not have any appraisal or
dissenters' rights in connection with the Exchange Offer. Old Capital Securities
which are not tendered for or are tendered but not accepted in connection with
the Exchange Offer will remain outstanding and be entitled to the benefits of
the Declaration, but will not be entitled to any further registration rights
under the Registration Rights Agreement, except under limited circumstances. See
"Risk Factors -- Consequences of a Failure to Exchange Old Capital Securities"
and "Description of Old Securities."
If any tendered Old Capital Securities are not accepted for exchange
because of an invalid tender, the occurrence of certain other events set forth
herein or otherwise, certificates for any such unaccepted Old Capital Securities
will be returned, without expense, to the tendering holder thereof promptly
after the Expiration Date.
Holders who tender Old Capital Securities in connection with the
Exchange Offer will not be required to pay brokerage commissions or fees or,
subject to the instructions in the Letter of Transmittal, transfer taxes with
respect to the exchange of Old Capital Securities in connection with the
Exchange Offer. The Company will pay all charges and expenses, other than
certain applicable taxes described below, in connection with the Exchange Offer.
See "-- Fees and Expenses."
NEITHER THE COMPANY, ITS BOARD OF DIRECTORS NOR ANY ISSUER TRUSTEE OF
THE TRUST MAKES ANY RECOMMENDATION TO HOLDERS OF OLD CAPITAL SECURITIES AS TO
WHETHER TO TENDER OR REFRAIN FROM TENDERING ALL OR ANY PORTION OF THEIR OLD
CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER. IN ADDITION, NO ONE HAS BEEN
AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION. HOLDERS OF OLD CAPITAL SECURITIES
MUST MAKE THEIR OWN DECISION WHETHER TO TENDER PURSUANT TO THE EXCHANGE OFFER
AND, IF SO, THE AGGREGATE AMOUNT OF OLD CAPITAL SECURITIES TO TENDER BASED ON
SUCH HOLDERS OWN FINANCIAL POSITION AND REQUIREMENTS.
The term "Expiration Date" means 5:00 p.m., New York City time, on,
1997 unless the Exchange Offer is extended by the Company or the Trust (in which
case the term "Expiration Date" shall mean the latest date and time to which the
Exchange Offer is extended).
The Company and the Trust expressly reserve the right in their sole and
absolute discretion, subject to applicable law, at any time and from time to
time, (i) to delay the acceptance of the Old Capital Securities for exchange,
(ii) to terminate the Exchange Offer (whether or not any Old Capital Securities
have theretofore been accepted for exchange) if the Trust determines, in its
sole and absolute discretion, that any of the events or conditions referred to
under "-- Conditions to the Exchange Offer" have occurred or exist or have not
been satisfied, (iii) to extend the Expiration Date of the Exchange Offer and
retain all Old Capital Securities tendered pursuant to the Exchange Offer,
subject, however, to the right of holders of Old Capital Securities to withdraw
their tendered Old Capital Securities as described under "-- Withdrawal Rights,"
and (iv) to waive any condition or otherwise amend the terms of the Exchange
Offer in any respect. If the Exchange Offer is amended in a manner determined by
the Company and the Trust to constitute a material change, or if the Company and
the Trust waive a material condition of the Exchange Offer, the Company and the
Trust will promptly disclose such amendment by means of a prospectus supplement
that will be distributed to the holders of the Old Capital Securities, and the
Company and the Trust will extend the Exchange Offer to the extent required by
Rule 14e-1 under the Exchange Act.
Any such delay in acceptance, extension, termination or amendment will
be followed promptly by oral (promptly confirmed in writing) or written notice
thereof to the Exchange Agent and by making a public
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announcement thereof, and such announcement in the case of an extension will be
made no later than 9:00 a.m., New York City time, on the next business day after
the previously scheduled Expiration Date. Without limiting the manner in which
the Company and the Trust may choose to make any public announcement and subject
to applicable law, the Company and the Trust shall have no obligation to
publish, advertise or otherwise communicate any such public announcement other
than by issuing a release to an appropriate news agency.
ACCEPTANCE FOR EXCHANGE AND ISSUANCE OF EXCHANGE CAPITAL SECURITIES
Upon the terms and subject to the conditions of the Exchange Offer, the
Trust will exchange, and will issue to the Exchange Agent, Exchange Capital
Securities for Old Capital Securities validly tendered and not withdrawn
promptly after the Expiration Date.
In all cases, delivery of Exchange Capital Securities in exchange for
Old Capital Securities tendered and accepted for exchange pursuant to the
Exchange Offer will be made only after timely receipt by the Exchange Agent of
(i) Old Capital Securities or a book-entry confirmation of a book-entry transfer
of Old Capital Securities into the Exchange Agent's account at DTC, (ii) the
Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees or (in case of a book-entry
transfer) an Agent's Message in lieu of the Letter of Transmittal, and (iii) any
other documents required by the Letter of Transmittal.
The term "book-entry confirmation" means a timely confirmation of a
book-entry transfer of Old Capital Securities into the Exchange Agent's account
at DTC. The term "Agent's Message" means a message, transmitted by DTC to and
received by the Exchange Agent and forming a part of book-entry confirmation,
which states that DTC has received an express acknowledgment from the tendering
participant, which acknowledgment states that such participant has received and
agrees to be bound by, and make the representations and warranties contained in,
the Letter of Transmittal and that the Trust and the Company may enforce such
Letter of Transmittal against such participant.
Subject to the terms and conditions of the Exchange Offer, the Trust
will be deemed to have accepted for exchange, and thereby exchanged, Old Capital
Securities validly tendered and not withdrawn as, if and when the Trust gives
oral (promptly confirmed in writing) or written notice to the Exchange Agent of
the Trust's acceptance of such Old Capital Securities for exchange pursuant to
the Exchange Offer. The Exchange Agent will act as agent for the Trust for the
purpose of receiving tenders of Old Capital Securities, Letters of Transmittal
and related documents, and as agent for tendering holders for the purpose of
receiving Old Capital Securities, Letters of Transmittal and related documents
and transmitting Exchange Capital Securities to validly tendering holders. Such
exchange will be made promptly after the Expiration Date. If for any reason
whatsoever, acceptance for exchange or the exchange of any Old Capital
Securities tendered pursuant to the Exchange Offer is delayed (whether before or
after the Trust's acceptance for exchange of Old Capital Securities) or the
Trust extends the Exchange Offer or is unable to accept for exchange or exchange
Old Capital Securities tendered pursuant to the Exchange Offer, then, without
prejudice to the Trust's rights set forth herein, the Exchange Agent may,
nevertheless, on behalf of the Trust and subject to Rule 14e-1(c) under the
Exchange Act, retain tendered Old Capital Securities and such Old Capital
Securities may not be withdrawn except to the extent tendering holders are
entitled to withdrawal rights as described under "-- Withdrawal Rights."
Pursuant to the Letter of Transmittal or Agent's Message in lieu
thereof, a holder of Old Capital Securities will warrant and agree in the Letter
of Transmittal that it has full power and authority to tender, exchange, sell,
assign and transfer Old Capital Securities, that the Trust will acquire good,
marketable and unencumbered title to the tendered Old Capital Securities, free
and clear of all liens, restrictions, charges and encumbrances, and the Old
Capital Securities tendered for exchange are not subject to any adverse claims
or proxies. The holder also will warrant and agree that it will, upon request,
execute and deliver any additional documents deemed by the Trust or the Exchange
Agent to be necessary or desirable to complete the exchange, sale, assignment,
and transfer of the Old Capital Securities tendered pursuant to the Exchange
Offer.
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PROCEDURES FOR TENDERING OLD CAPITAL SECURITIES
VALID TENDER. Except as set forth below, in order for Old Capital
Securities to be validly tendered pursuant to the Exchange Offer, a properly
completed and duly executed Letter of Transmittal (or facsimile thereof), with
any required signature guarantees or (in the case of a book-entry transfer) an
Agent's Message in lieu of the Letter of Transmittal and any other required
documents, must be received by the Exchange Agent at one of its addresses set
forth under "-- Exchange Agent," and either (i) tendered Old Capital Securities
must be received by the Exchange Agent, or (ii) such Old Capital Securities must
be tendered pursuant to the procedures for book-entry transfer set forth below
and a book-entry confirmation, including an Agent's Message if the tendering
holder has not delivered a Letter of Transmittal, must be received by the
Exchange Agent, in each case on or prior to the Expiration Date, or (iii) the
guaranteed delivery procedures set forth below must be complied with.
If less than all of the Old Capital Securities are tendered, a
tendering holder should fill in the amount of Old Capital Securities being
tendered in the appropriate box on the Letter of Transmittal or so indicate in
an Agent's Message in lieu of the Letter of Transmittal. The entire amount of
Old Capital Securities delivered to the Exchange Agent will be deemed to have
been tendered unless otherwise indicated.
THE METHOD OF DELIVERY OF CERTIFICATES, THE LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL, RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY SERVICE IS RECOMMENDED. IN
ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
BOOK-ENTRY TRANSFER. The Exchange Agent will establish an account with
respect to the Old Capital Securities at DTC for purposes of the Exchange Offer
within two business days after the date of this Prospectus. Any financial
institution that is a participant in DTC's book-entry transfer facility system
may make a book-entry delivery of the Old Capital Securities by causing DTC to
transfer such Old Capital Securities into the Exchange Agent's account at DTC in
accordance with DTC's procedures for transfers. However, although delivery of
Old Capital Securities may be effected through book-entry transfer into the
Exchange Agent's account at DTC, the Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, or an Agent's Message in lieu of the Letter of Transmittal, and any
other required documents, must in any case be delivered to and received by the
Exchange Agent at its address set forth under "-- Exchange Agent" on or prior to
the Expiration Date, or the guaranteed delivery procedures set forth below must
be complied with.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES
NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
SIGNATURE GUARANTEES. Certificates for the Old Capital Securities need
not be endorsed and signature guarantees on the Letter of Transmittal are
unnecessary unless (a) a certificate for the Old Capital Securities is
registered in a name other than that of the person surrendering the certificate
or (b) such holder completes the box entitled "Special Issuance Instructions" or
"Special Delivery Instructions" in the Letter of Transmittal. In the case of (a)
or (b) above, such certificates for Old Capital Securities must be duly endorsed
or accompanied by a properly executed bond power, with the endorsement or
signature on the bond power and on the Letter of Transmittal guaranteed by a
firm or other entity identified in Rule 17Ad-15 under the Exchange Act as an
"eligible guarantor institution," including (as such terms are defined therein):
(i) a bank; (ii) a broker, dealer, municipal securities broker or dealer or
government securities broker or dealer; (iii) a credit union; (iv) a national
securities exchange, registered securities association or clearing agency; or
(v) a savings association that is a participant in a Securities Transfer
Association (an "Eligible Institution"), unless surrendered on behalf of such
Eligible Institution. See Instruction 1 to the Letter of Transmittal.
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GUARANTEED DELIVERY. If a holder desires to tender Old Capital
Securities pursuant to the Exchange Offer and the certificates for such Old
Capital Securities are not immediately available or time will not permit all
required documents to reach the Exchange Agent on or prior to the Expiration
Date, or the procedure for book-entry transfer cannot be completed on a timely
basis, such Old Capital Securities may nevertheless be tendered, provided that
all of the following guaranteed delivery procedures are complied with:
(a) such tenders are made by or through an Eligible
Institution;
(b) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form accompanying the Letter
of Transmittal, is received by the Exchange Agent, as provided below,
on or prior to the Expiration Date; and
(c) the certificates (or a book-entry confirmation)
representing all tendered Old Capital Securities, in proper form for
transfer, together with a properly completed and duly executed Letter
of Transmittal (or facsimile thereof or Agent's Message in lieu
thereof), with any required signature guarantees and any other
documents required by the Letter of Transmittal, are received by the
Exchange Agent within three New York Stock Exchange trading days after
the date of execution of such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand, or
transmitted by facsimile or mailed to the Exchange Agent and must include a
guarantee by an Eligible Institution in the form set forth in such notice.
Notwithstanding any other provision hereof, the delivery of Exchange
Capital Securities in exchange for Old Capital Securities tendered and accepted
for exchange pursuant to the Exchange Offer will in all cases be made only after
timely receipt by the Exchange Agent of Old Capital Securities, or of a
book-entry confirmation with respect to such Old Capital Securities, and a
properly completed and duly executed Letter of Transmittal (or facsimile thereof
or Agent's Message in lieu thereof), together with any required signature
guarantees and any other documents required by the Letter of Transmittal.
Accordingly, the delivery of Exchange Capital Securities might not be made to
all tendering holders at the same time, and will depend upon when Old Capital
Securities, book-entry confirmations with respect to Old Capital Securities and
other required documents are received by the Exchange Agent.
The Trust's acceptance for exchange of Old Capital Securities tendered
pursuant to any of the procedures described above will constitute a binding
agreement between the tendering holder and the Trust upon the terms and subject
to the conditions of the Exchange Offer.
DETERMINATION OF VALIDITY. All questions as to the form of documents,
validity, eligibility (including time of receipt) and acceptance for exchange of
any tendered Old Capital Securities will be determined by the Company and the
Trust, in their sole discretion, whose determination shall be final and binding
on all parties. The Company and the Trust reserve the absolute right, in their
sole and absolute discretion, to reject any and all tenders determined by them
not to be in proper form or the acceptance of which, or exchange for, may, in
the opinion of counsel to the Company and the Trust, be unlawful. The Company
and the Trust also reserve the absolute right, subject to applicable law, to
waive any of the conditions of the Exchange Offer as set forth under "--
Conditions to the Exchange Offer" or any condition or irregularity in any tender
of Old Capital Securities of any particular holder whether or not similar
conditions or irregularities are waived in the case of other holders.
The interpretation by the Company and the Trust of the terms and
conditions of the Exchange Offer (including the Letter of Transmittal and the
instructions thereto) will be final and binding. No tender of Old Capital
Securities will be deemed to have been validly made until all irregularities
with respect to such tender have been cured or waived. Neither the Company, the
Trust, any affiliates or assigns of the Company or the Trust, the
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Exchange Agent nor any other person shall be under any duty to give any
notification of any irregularities in tenders or incur any liability for failure
to give any such notification.
If any Letter of Transmittal, endorsement, bond power, power of
attorney, or any other document required by the Letter of Transmittal is signed
by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and unless waived by the Company
and the Trust, proper evidence satisfactory to the Company and the Trust, in
their sole discretion, of such person's authority to so act must be submitted.
A beneficial owner of Old Capital Securities that are held by or
registered in the name of a broker, dealer, commercial bank, trust company or
other nominee or custodian is urged to contact such entity promptly if such
beneficial holder wishes to participate in the Exchange Offer.
RESALES OF EXCHANGE CAPITAL SECURITIES
The Trust is making the Exchange Offer for the Exchange Capital
Securities in reliance on the position of the staff of the Division of
Corporation Finance of the Commission as set forth in certain interpretive
letters addressed to third parties in other transactions. However, neither the
Company nor the Trust sought its own interpretive letter and there can be no
assurance that the staff of the Division of Corporation Finance of the
Commission would make a similar determination with respect to the Exchange Offer
as it has in such interpretive letters to third parties. Based on these
interpretations by the staff of the Division of Corporation Finance of the
Commission, and subject to the two immediately following sentences, the Company
and the Trust believe that Exchange Capital Securities issued pursuant to the
Exchange Offer in exchange for Old Capital Securities may be offered for resale,
resold and otherwise transferred by a holder thereof (other than a holder who is
a broker-dealer) without further compliance with the registration and prospectus
delivery requirements of the Securities Act, provided that such Exchange Capital
Securities are acquired in the ordinary course of such holder's business and
that such holder is not participating, and has no arrangement or understanding
with any person to participate, in a distribution (within the meaning of the
Securities Act) of such Exchange Capital Securities. However, any holder of Old
Capital Securities who is an "affiliate" of the Company or the Trust or who
intends to participate in the Exchange Offer for the purpose of distributing
Exchange Capital Securities, or any broker-dealer who purchased Old Capital
Securities from the Trust for resale pursuant to Rule 144A or any other
available exemption under the Securities Act, (a) will not be able to rely on
the interpretations of the staff of the Division of Corporation Finance of the
Commission set forth in the above-mentioned interpretive letters, (b) will not
be permitted or entitled to tender such Old Capital Securities in the Exchange
Offer and (c) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any sale or other transfer
of such Old Capital Securities unless such sale is made pursuant to an exemption
from such requirements. In addition, as described below, if any broker-dealer
holds Old Capital Securities acquired for its own account as a result of
market-making or other trading activities and exchanges such Old Capital
Securities for Exchange Capital Securities, then such broker-dealer must deliver
a prospectus meeting the requirements of the Securities Act in connection with
any resales of such Exchange Capital Securities.
Each holder of Old Capital Securities who wishes to exchange Old
Capital Securities for Exchange Capital Securities in the Exchange Offer will be
required to represent that (i) it is not an "affiliate" of the Company or the
Trust, (ii) any Exchange Capital Securities to be received by it are being
acquired in the ordinary course of its business, (iii) it has no arrangement or
understanding with any person to participate in a distribution (within the
meaning of the Securities Act) of such Exchange Capital Securities, and (iv) if
such holder is not a broker-dealer, such holder is not engaged in, and does not
intend to engage in, a distribution (within the meaning of the Securities Act)
of such Exchange Capital Securities. In addition, the Company and the Trust may
require such holder, as a condition to such holder's eligibility to participate
in the Exchange Offer, to furnish to the Company and the Trust (or an agent
thereof) in writing information as to the number of "beneficial owners" (within
the meaning of Rule 13d-3 under the Exchange Act) on behalf of whom such holder
holds the Old Capital Securities to be exchanged
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in the Exchange Offer. Each broker-dealer that receives Exchange Capital
Securities for its own account pursuant to the Exchange Offer must acknowledge
that it acquired the Old Capital Securities for its own account as the result of
market-making activities or other trading activities and must agree that it will
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Capital Securities. 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 Securities Act. Based on the position taken by the staff of the
Division of Corporation Finance of the Commission in the interpretive letters
referred to above, the Company and the Trust believe that Participating
Broker-Dealers who acquired Old Capital Securities for their own accounts as a
result of market-making activities or other trading activities may fulfill their
prospectus delivery requirements with respect to the Exchange Capital Securities
received upon exchange of such Old Capital Securities (other than Old Capital
Securities which represent an unsold allotment from the original sale of the Old
Capital Securities) with a prospectus meeting the requirements of the Securities
Act, which may be the prospectus prepared for an exchange offer so long as it
contains a description of the plan of distribution with respect to the resale of
such Exchange Capital Securities. Accordingly, this Prospectus, as it may be
amended or supplemented from time to time, may be used by a Participating
Broker-Dealer during the period referred to below in connection with resales of
Exchange Capital Securities received in exchange for Old Capital Securities
where such Old Capital Securities were acquired by such Participating
Broker-Dealer for its own account as a result of market-making or other trading
activities. Subject to certain provisions set forth in the Registration Rights
Agreement, the Company and the Trust have agreed that this Prospectus, as it may
be amended or supplemented from time to time, may be used by a Participating
Broker-Dealer in connection with resales of such Exchange Capital Securities for
a period ending 90-days after the Expiration Date (subject to extension under
certain limited circumstances described below) or, if earlier, when all such
Exchange Capital Securities have been disposed of by such Participating
Broker-Dealer. See "Plan of Distribution." However, a Participating
Broker-Dealer who intends to use this Prospectus in connection with the resale
of Exchange Capital Securities received in exchange for Old Capital Securities
pursuant to the Exchange Offer must notify the Company or the Trust, or cause
the Company or the Trust to be notified, on or prior to the Expiration Date,
that it is a Participating Broker-Dealer. Such notice may be given in the space
provided for that purpose in the Letter of Transmittal or may be delivered to
the Exchange Agent at one of the addresses set forth herein under "-- Exchange
Agent." Any Participating Broker-Dealer who is an "affiliate" of the Company or
the Trust may not rely on such interpretive letters and must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction.
In that regard, each Participating Broker-Dealer who surrenders Old
Capital Securities pursuant to the Exchange Offer will be deemed to have agreed,
by execution of the Letter of Transmittal or delivery of an Agent's Message in
lieu thereof, that, upon receipt of notice from the Company or the Trust of the
occurrence of any event or the discovery of any fact which makes any statement
contained or incorporated by reference in this Prospectus untrue in any material
respect or which causes this Prospectus to omit to state a material fact
necessary in order to make the statements contained or incorporated by reference
herein, in light of the circumstances under which they were made, not misleading
or of the occurrence of certain other events specified in the Registration
Rights Agreement, such Participating Broker-Dealer will suspend the sale of
Exchange Capital Securities (or the Guarantee or the Exchange Debentures, as
applicable) pursuant to this Prospectus until the Company or the Trust has
amended or supplemented this Prospectus to correct such misstatement or omission
and has furnished copies of the amended or supplemented Prospectus to such
Participating Broker-Dealer or the Company or the Trust has given notice that
the sale of the Exchange Capital Securities (or the Guarantee or the Exchange
Debentures, as applicable) may be resumed, as the case may be. If the Company or
the Trust gives such notice to suspend the sale of the Exchange Capital
Securities (or the Guarantee or the Exchange Debentures, as applicable), it
shall extend the 90-day period referred to above during which Participating
Broker-Dealers are entitled to use this Prospectus in connection with the resale
of Exchange Capital Securities by the number of days during the period from and
including the date of the giving of such notice to and including the date when
Participating Broker-Dealers shall have received copies of the amended or
supplemented Prospectus necessary to permit resales of the Exchange Capital
Securities or to and including the date on which the Company or the Trust has
given notice that the sale of Exchange Capital Securities (or the Guarantee or
the Exchange Debentures, as applicable) may be resumed, as the case may be.
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WITHDRAWAL RIGHTS
Except as otherwise provided herein, tenders of Old Capital Securities
may be withdrawn at any time on or prior to the Expiration Date.
In order for a withdrawal to be effective, a written, telegraphic or
facsimile transmission of such notice of withdrawal must be timely received by
the Exchange Agent at one of its addresses set forth under "-- Exchange Agent"
on or prior to the Expiration Date. Any such notice of withdrawal must specify
the name of the person who tendered the Old Capital Securities to be withdrawn,
the aggregate principal amount of Old Capital Securities to be withdrawn, and
(if certificates for such Old Capital Securities have been tendered) the name of
the registered holder of the Old Capital Securities as set forth on the Old
Capital Securities, if different from that of the person who tendered such Old
Capital Securities. If Old Capital Securities have been delivered or otherwise
identified to the Exchange Agent, then prior to the physical release of such Old
Capital Securities, the tendering holder must submit the serial numbers shown on
the particular Old Capital Securities to be withdrawn and the signature on the
notice of withdrawal must be guaranteed by an Eligible Institution, except in
the case of Old Capital Securities tendered for the account of an Eligible
Institution. If Old Capital Securities have been tendered pursuant to the
procedures for book-entry transfer set forth in "-- Procedures for Tendering Old
Capital Securities," the notice of withdrawal must specify the name and number
of the account at DTC to be credited with the withdrawal of Old Capital
Securities, in which case a notice of withdrawal will be effective if delivered
to the Exchange Agent by written, telegraphic or facsimile transmission.
Withdrawals of tenders of Old Capital Securities may not be rescinded. Old
Capital Securities properly withdrawn will not be deemed validly tendered for
purposes of the Exchange Offer, but may be retendered at any subsequent time on
or prior to the Expiration Date by following any of the procedures described
above under "-- Procedures for Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including time
of receipt) of such withdrawal notices will be determined by the Trust, in its
sole discretion, whose determination shall be final and binding on all parties.
Neither the Company, the Trust, any affiliates or assigns of the Company or the
Trust, the Exchange Agent nor any other person shall be under any duty to give
any notification of any irregularities in any notice of withdrawal or incur any
liability for failure to give any such notification. Any Old Capital Securities
which have been tendered but which are withdrawn will be returned to the holder
thereof promptly after withdrawal.
DISTRIBUTIONS ON EXCHANGE CAPITAL SECURITIES
Holders of Old Capital Securities whose Old Capital Securities are
accepted for exchange will not receive Distributions on such Old Capital
Securities and will be deemed to have waived the right to receive any
Distributions on such Old Capital Securities accumulated from and including
December 15, 1996. Accordingly, holders of Exchange Capital Securities as of the
record date for the payment of Distributions on June 15, 1997 will be entitled
to receive Distributions accumulated from and including December 15, 1996.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, or any
extension of the Exchange Offer, the Company and the Trust will not be required
to accept for exchange, or to exchange, any Old Capital Securities for any
Exchange Capital Securities, and, as described below, may terminate the Exchange
Offer (whether or not any Old Capital Securities have theretofore been accepted
for exchange) or may waive any conditions to or amend the Exchange Offer, if any
of the following conditions have occurred or exists or have not been satisfied:
(a) there shall occur a change in the current interpretation
by the staff of the Commission which permits the Exchange Capital
Securities issued pursuant to the Exchange Offer in exchange for Old
Capital Securities to be offered for resale, resold and otherwise
transferred by holders thereof (other than broker-dealers and any such
holder which is an "affiliate" of the
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Company or the Trust within the meaning of Rule 405 under the
Securities Act) without compliance with the registration and prospectus
delivery provisions of the Securities Act provided that such Exchange
Capital Securities are acquired in the ordinary course of such holders'
business and such holders have no arrangement or understanding with any
person to participate in the distribution of such Exchange Capital
Securities; or
(b) any law, statute, rule or regulation shall have been
adopted or enacted which, in the judgment of the Company or the Trust,
would reasonably be expected to impair its ability to proceed with the
Exchange Offer; or
(c) a stop order shall have been issued by the Commission or
any state securities authority suspending the effectiveness of the
Registration Statement or proceedings shall have been initiated or, to
the knowledge of the Company or the Trust, threatened for that purpose
or any governmental approval has not been obtained, which approval the
Company or the Trust shall, in its sole discretion, deem necessary for
the consummation of the Exchange Offer as contemplated hereby.
If the Company or the Trust determines in its sole and absolute
discretion that any of the foregoing events or conditions has occurred or exists
or has not been satisfied, it may, subject to applicable law, terminate the
Exchange Offer (whether or not any Old Capital Securities have theretofore been
accepted for exchange) or may waive any such condition or otherwise amend the
terms of the Exchange Offer in any respect. If such waiver or amendment
constitutes a material change to the Exchange Offer, the Company or the Trust
will promptly disclose such waiver or amendment by means of a prospectus
supplement that will be distributed to the registered holders of the Old Capital
Securities and will extend the Exchange Offer to the extent required by Rule
14e-1 under the Exchange Act.
EXCHANGE AGENT
The Chase Manhattan Bank has been appointed as Exchange Agent for the
Exchange Offer. Delivery of the Letters of Transmittal and any other required
documents, questions, requests for assistance, and requests for additional
copies of this Prospectus or of the Letter of Transmittal should be directed to
the Exchange Agent by registered or certified mail or by hand or overnight
delivery as follows:
By Registered or Certified Mail or Hand or Overnight Delivery:
The Chase Manhattan Bank
55 Water Street, Room 234
North Building
New York, New York 10041
Attention: Carlos Esteves
Confirm By Telephone: (212) 638-0828
Facsimile Transmissions: (212) 638-7375 or (212) 344-9367
Delivery to other than the above addresses or facsimile numbers will
not constitute a valid delivery.
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FEES AND EXPENSES
The Company has agreed to pay the Exchange Agent reasonable and
customary fees for its services and will reimburse it for its reasonable
out-of-pocket expenses in connection therewith. The Company will also pay
brokerage houses and other custodians, nominees and fiduciaries the reasonable
out-of-pocket expenses incurred by them in forwarding copies of this Prospectus
and related documents to the beneficial owners of Old Capital Securities, and in
handling or tendering for their customers.
Holders who tender their Old Capital Securities for exchange will not
be obligated to pay any transfer taxes in connection therewith. If, however,
Exchange Capital Securities are to be delivered to, or are to be issued in the
name of, any person other than the registered holder of the Old Capital
Securities tendered, or if a transfer tax is imposed for any reason other than
the exchange of Old Capital Securities in connection with the Exchange Offer,
then the amount of any such transfer taxes (whether imposed on the registered
holder or any other persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption therefrom is not
submitted with the Letter of Transmittal, the amount of such transfer taxes will
be billed directly to such tendering holder.
Neither the Company nor the Trust will make any payment to brokers,
dealers or other nominees soliciting acceptances of the Exchange Offer.
DESCRIPTION OF EXCHANGE CAPITAL SECURITIES
Pursuant to the terms of the Trust Agreement, the Issuer Trustees has
issued the Capital Securities and the Common Securities and will issue the
Exchange Capital Securities pursuant to the Exchange Offer. The Exchange Capital
Securities will represent preferred beneficial interests in the Trust and the
holders thereof will be entitled to a preference in certain circumstances with
respect to Distributions and amounts payable on redemption of the Trust
Securities or liquidation of the Trust over the Common Securities. See "--
Subordination of Common Securities." The Trust Agreement has been qualified
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act").
This summary of certain provisions of the Exchange Capital Securities and the
Trust Agreement does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, all the provisions of the Trust
Agreement, including the definitions therein of certain terms.
GENERAL
The Capital Securities (including the Old Capital Securities and the
Exchange Capital Securities) are limited to $200,000,000 aggregate Liquidation
Amount at any one time outstanding. The Capital Securities will rank pari passu,
and payments will be made thereon pro rata, with the Common Securities except as
described under "Subordination of Common Securities." Legal title to the Junior
Subordinated Debentures will be held by the Property Trustee in trust for the
benefit of the holders of the Capital Securities and Common Securities. The
Guarantee executed by the Company for the benefit of the holders of the Exchange
Capital Securities (the "Guarantee") will be a guarantee on a subordinated basis
but will not guarantee payment of Distributions or amounts payable on redemption
of the Capital Securities or on liquidation of the Trust when the Trust does not
have funds on hand available to make such payments. See "Description of
Guarantee."
DISTRIBUTIONS
Distributions on the Exchange Capital Securities will be cumulative,
will accumulate from December 15, 1996 and will be payable at the annual rate of
8.16% of the Liquidation Amount, and will be payable semi-annually in arrears on
June 15 and December 15 of each year, commencing June 15, 1997, to the holders
of the Exchange Capital Securities on the relevant record dates. The record
dates will be the first day of the month in which the
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relevant Distribution Date (as defined below) occurs. The amount of
Distributions payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which Distributions
are payable on the Capital Securities is not a Business Day (as defined below),
payment of the Distribution payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect to any such delay), in each case with the same force and effect as if
made on such date (each date on which Distributions are payable in accordance
with the foregoing, a "Distribution Date"). A "Business Day" shall mean any day
other than a Saturday or a Sunday, or a day on which banking institutions in The
City of New York are authorized or required by law or executive order to remain
closed or a day on which the corporate trust office of the Property Trustee or
the Debenture Trustee is closed for business.
So long as no Debenture Event of Default has occurred and is
continuing, the Company has the right under the Indenture to defer the payment
of interest on the Junior Subordinated Debentures at any time or from time to
time for a period not exceeding 10 consecutive semi-annual periods with respect
to each Extension Period, provided that no Extension Period may end on a date
other than an interest payment date or extend beyond the Stated Maturity. As a
consequence of any such election, semi-annual Distributions on the Capital
Securities will be deferred by the Trust during any such Extension Period.
Distributions to which holders of the Capital Securities are entitled will
accumulate additional Distributions thereon at the rate per annum of 8.16%
thereof, compounded semi-annually from the relevant Distribution Date, but not
exceeding the interest rate then accruing on the Junior Subordinated Debentures.
The term "Distributions" as used herein shall include any such additional
Distributions. During any such Extension Period, the Company may not, and may
not permit any subsidiary of the Company to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock (which includes common and
preferred stock) or (ii) make any payment of principal, interest or premium, if
any, on or repay, repurchase or redeem any debt securities of the Company
(including Other Debentures) that rank pari passu with or junior in interest to
the Junior Subordinated Debentures or make any guarantee payments with respect
to any guarantee by the Company of the debt securities of any subsidiary of the
Company (including Other Guarantees) if such guarantee ranks pari passu with or
junior in interest to the Junior Subordinated Debentures (other than (a)
dividends or distributions in common stock of the Company, (b) any declaration
of a dividend in connection with the implementation of a stockholders' rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c) payments under
the Guarantee and (d) purchases of common stock related to the issuance of
common stock or rights under any of the Company's benefit plans for its
directors, officers or employees). Prior to the termination of any such
Extension Period, the Company may further extend such Extension Period, provided
that such extension does not cause such Extension Period to exceed 10
consecutive semi-annual periods or to extend beyond the Stated Maturity. Upon
the termination of any such Extension Period and the payment of all amounts then
due, and subject to the foregoing limitations, the Company may elect to begin a
new Extension Period. The Company must give the Property Trustee, the
Administrators and the Debenture Trustee notice of its election of any such
Extension Period at least five Business Days prior to the earlier of (i) the
date the Distributions on the Capital Securities would have been payable except
for the election to begin such Extension Period or (ii) the date the
Administrators are required to give notice to any automated quotation system or
to holders of such Capital Securities of the record date or the date such
Distributions are payable but in any event not less than five Business Days
prior to such record date. There is no limitation on the number of times that
the Company may elect to begin an Extension Period. See "Description of Exchange
Debentures -- Option to Defer Interest Payments" and "Certain Federal Income Tax
Consequences -- Interest Income and Original Issue Discount."
The revenue of the Trust available for distribution to holders of the
Capital Securities will be limited to payments under the Junior Subordinated
Debentures in which the Trust will invest the proceeds from the issuance and
sale of the Trust Securities. See "Description of Exchange Debentures -
General." If the Company does not make interest payments on the Junior
Subordinated Debentures, the Property Trustee will not have funds available to
pay Distributions on the Capital Securities. The payment of Distributions (if
and to the extent the Trust has funds available for the payment of such
Distributions and cash sufficient to make such payments) is guaranteed by the
Company on a subordinated basis as set forth herein under "Description of
Guarantee."
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REDEMPTION
Upon the repayment in full at the Stated Maturity or prepayment in
whole (but not in part) of the Junior Subordinated Debentures, the proceeds from
such repayment or prepayment shall be applied by the Property Trustee to redeem
the Trust Securities, upon not less than 15 nor more than 60 days' notice of a
date of redemption (the "Redemption Date"), at the applicable Redemption Price,
which shall be equal to (i) in the case of the repayment of the Junior
Subordinated Debentures at the Stated Maturity, the Maturity Redemption Price
(equal to the principal of, and accrued interest on, the Junior Subordinated
Debentures), (ii) in the case of the prepayment of the Junior Subordinated
Debentures upon the occurrence and continuation of a Tax Event, Investment
Company Event or Capital Treatment Event, the Event Redemption Price (which is
equal to the Event Prepayment Price in respect of the Junior Subordinated
Debentures) (see "Description of Junior Subordinated Debentures - Tax Event,
Investment Company Event or Capital Treatment Event Prepayment") and (iii) in
the case of the optional prepayment of the Junior Subordinated Debentures, the
Optional Redemption Price (equal to the Optional Prepayment Price in respect of
the Junior Subordinated Debentures). See "Description of Exchange Debentures --
Optional Prepayment."
Upon the optional prepayment in part of the Junior Subordinated
Debentures on or after December 15, 2006, the proceeds from such prepayment
shall be applied by the Property Trustee to redeem Trust Securities upon not
less than 15 nor more than 60 days' notice of a date of redemption (the
"Redemption Date"), at the Optional Redemption Price. The Trust Securities to be
redeemed shall be selected by the Company pro rata, by lot or by any other
method determined by the Trustees to be equitable.
The Company will have the right to prepay the Junior Subordinated
Debentures in whole or in part (i) on or after December 15, 2006, in whole at
any time or in part from time to time at the applicable Optional Prepayment
Price (as defined under "Description of Exchange Debentures - Optional
Prepayment"), and (ii) at any time, in whole (but not in part) upon the
occurrence of a Tax Event, Investment Company Event or Capital Treatment Event,
at the Event Prepayment Price, in each case subject to receipt of prior approval
by the Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve.
Under regulations of the Federal Reserve, any perpetual preferred
securities with a feature permitting redemption at the option of the issuer can
qualify as Tier 1 capital only if the redemption is subject to prior approval of
the Federal Reserve. Therefore, any redemption of the Junior Subordinated
Debentures and attendant redemption of the Capital Securities will be subject to
the prior approval of the Federal Reserve if such regulations have not been
revised. Under current policies, the Federal Reserve may grant approval of a
redemption without a formal application or notice if (1) the redemption,
together with other redemptions and repurchases of securities in the preceding
12 months, constitutes less than 10% of the bank holding company's net worth or
(2) both before and after the redemption, the bank holding company is
well-capitalized and highly-rated.
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF EXCHANGE DEBENTURES
The Company will have the right upon the occurrence of a Tax Event,
Investment Company Event or Capital Treatment Event to terminate the Trust and,
after satisfaction of liabilities to creditors of the Trust as required by
applicable law, cause the Junior Subordinated Debentures to be distributed to
the holders of the Trust Securities in liquidation of the Trust. Such right is
subject to the Company having received prior approval of the Federal Reserve if
then required under applicable capital guidelines or policies of the Federal
Reserve and subject to the Company having received an opinion of counsel to the
effect that such distribution will not be a taxable event to holders of Capital
Securities.
Under current United States Federal income tax law and interpretations
and assuming, as expected, the Trust is treated as a grantor trust, a
distribution of the Junior Subordinated Debentures will not be a taxable event
to holders of the Capital Securities. Should there be a change in law, a change
in legal interpretation, a Tax Event or other circumstances, however, the
distribution could be a taxable event to holders of the Capital Securities. See
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"Certain Federal Income Tax Consequences -- Distribution of Junior Subordinated
Debentures to Holders of Capital Securities."
The Trust shall automatically dissolve and its affairs shall be wound
up upon the first to occur of: (i) certain events of bankruptcy, a receivership
of the Company or the Bank, or dissolution of liquidation of the Company; (ii)
the written direction to the Property Trustee from the Depositor to dissolve the
Trust upon the occurrence of a Tax Event, Investment Company Event or Capital
Treatment Event; (iii) redemption of all of the Trust Securities as described
above under "- Redemption"; (iv) expiration of the term of the Trust; and (v)
the entry of an order for the dissolution of the Trust by a court of competent
jurisdiction.
If an early dissolution occurs as described in clause (i), (ii) (iv),
or (v) above, the Trust shall be liquidated by the Issuer Trustees as
expeditiously as the Issuer Trustees determine to be possible by distributing,
after satisfaction of liabilities to creditors of the Trust as provided by
applicable law, to the holders of the Trust Securities a Like Amount (as defined
below) of the Exchange Debentures, unless such distribution is determined by the
Property Trustee not to be practical, in which event such holders will be
entitled to receive out of the liquidation of the assets of the Trust available
for distribution to holders, after satisfaction of liabilities to creditors of
the Trust as provided by applicable law, an amount equal to the aggregate of the
Liquidation Amount plus accrued and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If such Liquidation
Distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust on the Capital Securities shall be paid on
a pro rata basis. The holder(s) of the Common Securities will be entitled to
receive distributions upon any such liquidation pro rata with the holders of the
Capital Securities, except that if a Debenture Event of Default has occurred and
is continuing, the Capital Securities shall have a priority over the Common
Securities. See "-- Subordination of Common Securities." If an early termination
occurs as described in clause (v) above, the Junior Subordinated Debentures will
be subject to optional prepayment in whole (but not in part).
"Like Amount" means Exchange Debentures having a principal amount equal
to the Liquidation Amount of the Trust Securities of the holder to whom such
Exchange Debentures are distributed.
If the Company elects not to prepay the Junior Subordinated Debentures
prior to the Stated Maturity and if there is no early dissolution of the Trust,
the Capital Securities will remain outstanding until the repayment of the Junior
Subordinated Debentures at the Stated Maturity.
After the liquidation date is fixed for any distribution of Exchange
Junior Subordinated Debentures to holders of the Trust Securities (i) the
Capital Securities will no longer be deemed to be outstanding, (ii) DTC or its
nominee, as the record holder of the Capital Securities, will receive a
registered global certificate or certificates representing the Exchange
Debentures to be delivered upon such distribution and (iii) any certificates
representing Capital Securities not held by DTC or its nominee will be deemed to
represent Exchange Debentures having a principal amount equal to the Liquidation
Amount of such Capital Securities, and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Distributions on such Capital Securities
until such certificates are presented to the Property Trustee or their agent for
cancellation whereupon the Company will issue to such holder, and the Debenture
Trustee will authenticate, a certificate representing such Junior Subordinated
Debentures.
There can be no assurance as to the market prices for the Exchange
Capital Securities or the Exchange Debentures that may be distributed in
exchange for the Trust Securities if a dissolution and liquidation of the Trust
were to occur. Accordingly, the Exchange Capital Securities that an investor may
purchase, or the Exchange Debentures that the investor may receive on
dissolution and liquidation of the Trust, may trade at a discount to the price
that the investor paid to purchase the Exchange Capital Securities offered
hereby.
REDEMPTION PROCEDURES
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Trust Securities shall be redeemed, if at all, at the applicable
Redemption Price with the proceeds from the contemporaneous repayment or
prepayment of the Exchange Debentures. Redemptions of the Trust Securities shall
be made and the applicable Redemption Price shall be payable on the Redemption
Date only to the extent that the Trust has funds on hand available for the
payment of such applicable Redemption Price. See "-- Subordination of Common
Securities."
If the Trust gives a notice of redemption in respect of the Capital
Securities, then, by 12:00 noon, New York City time, on the Redemption Date, to
the extent funds are available, with respect to the Capital Securities held in
global form, the Property Trustee will deposit irrevocably with DTC funds
sufficient to pay the applicable Redemption Price and will give DTC irrevocable
instructions and authority to pay the applicable Redemption Price to the holders
of the Capital Securities. See "-- Form, Denomination, Book-Entry Procedures and
Transfer" and "- Payment and Paying Agency." With respect to the Capital
Securities held in certificated form, the Property Trustee, to the extent funds
are available, will irrevocably deposit with the paying agent for the Capital
Securities funds sufficient to pay the applicable Redemption Price and will give
such paying agent irrevocable instructions and authority to pay the applicable
Redemption Price to the holders thereof upon surrender of their certificates
evidencing the Capital Securities. See "-- Payment and Paying Agency."
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date shall be payable to the holders of such Capital Securities on
the relevant record dates for the related Distribution Dates. If notice of
redemption shall have been given and funds deposited as required, then upon the
date of such deposit, all rights of the holders of the Exchange Capital
Securities will cease, except the right of the holders of the Exchange Capital
Securities to receive the applicable Redemption Price, but without interest on
such Redemption Price, and the Exchange Capital Securities will cease to be
outstanding. In the event that any date fixed for redemption of Exchange Capital
Securities is not a Business Day, then payment of the applicable Redemption
Price payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay). In the event that payment of the applicable Redemption Price is
improperly withheld or refused and not paid either by the Trust or by the
Company pursuant to the Guarantee as described under "Description of Guarantee,"
Distributions on Capital Securities will continue to accrue at the then
applicable rate, from the Redemption Date originally established by the Trust to
the date such applicable Redemption Price is actually paid, in which case the
actual payment date will be the date fixed for redemption for purposes of
calculating the applicable Redemption Price.
Subject to applicable law (including, without limitation, United States
Federal securities law), the Company or its subsidiaries may at any time and
from time to time purchase outstanding Capital Securities by tender, in the open
market or by private agreement.
Payment of the applicable Redemption Price on, and any distribution of
Junior Subordinated Debentures to holders of, the Trust Securities shall be made
to the applicable recordholders thereof as they appear on the register therefor
on the relevant record date, which shall be a date at least 15 days prior to the
Redemption Date or liquidation date, as applicable.
Notice of any redemption will be mailed at least 15 days but not more
than 60 days before the Redemption Date to each holder of Trust Securities at
its registered address. Unless the Company defaults in payment of the applicable
Prepayment Price on, or in the repayment of, the Junior Subordinated Debentures,
on and after the Redemption Date Distributions will cease to accrue on the Trust
Securities called for redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, the Capital
Securities and Common Securities, as applicable, shall be made pro rata based on
the Liquidation Amounts of the Capital Securities and Common Securities;
provided, however, that if on any Distribution Date or Redemption Date a
Debenture Event of Default shall have occurred and be continuing, no payment of
any Distribution on, or applicable Redemption Price of, any of the Common
Securities, and no other payment on account of the redemption, liquidation or
other acquisition of
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the Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions on all of the outstanding Capital
Securities for all Distribution periods terminating on or prior thereto, or in
the case of payment of the applicable Redemption Price the full amount of such
Redemption Price on all of the outstanding Capital Securities, shall have been
made or provided for, and all funds available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions on, or
Redemption Price of, the Capital Securities then due and payable.
In the case of any Event of Default under the Trust Agreement resulting
from a Debenture Event of Default, the Company as holder of the Common
Securities will be deemed to have waived any right to act with respect to any
such Event of Default until the effect of all such Events of Default have been
cured, waived or otherwise eliminated. Until any such Events of Default have
been so cured, waived or otherwise eliminated, the Property Trustee shall act
solely on behalf of the holders of the Capital Securities and not on behalf of
the Company as holder of the Common Securities, and only the holders of the
Capital Securities will have the right to direct the Property Trustee to act on
their behalf.
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an Event of Default under
the Trust Agreement (an "Event of Default") (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default (see "Description of
Exchange Debentures - Debenture Events of Default"); or
(ii) default by the Property Trustee in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a period
of 30 days; or
(iii) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Issuer Trustees in the Trust Agreement (other
than a covenant or warranty a default in the performance of which or the breach
of which is addressed in clause (ii) or (iii) above), and continuation of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the defaulting Issuer Trustee or Trustees by
the holders of at least 25% in aggregate Liquidation Amount of the outstanding
Capital Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" under the Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by the Company to appoint a
successor Property Trustee within 60 days thereof.
Within 90 days after the occurrence of any Event of Default actually
known to the Property Trustee, the Property Trustee shall transmit notice of
such Event of Default to the holders of the Capital Securities, the
Administrators and the Company, as Depositor, unless such Event of Default shall
have been cured or waived. The Company, as Depositor, and the Administrators are
required to file annually with the Property Trustee a certificate as to whether
or not they are in compliance with all the conditions and covenants applicable
to them under the Trust Agreement.
If a Debenture Event of Default has occurred and is continuing, the
Capital Securities shall have a preference over the Common Securities upon
termination of the Trust as described above. See "-- Liquidation of the Trust
and Distribution of Junior Subordinated Debentures."
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REMOVAL OF ISSUER TRUSTEES
Unless a Debenture Event of Default shall have occurred and be
continuing, any Issuer Trustee may be removed at any time by the holder of the
Common Securities. If a Debenture Event of Default has occurred and is
continuing, the Property Trustee and the Delaware Trustee may be removed at such
time by the holders of a majority in Liquidation Amount of the outstanding
Capital Securities. In no event will the holders of the Capital Securities have
the right to vote to appoint, remove or replace the Administrators, which voting
rights are vested exclusively in the Company as the holder of the Common
Securities. No resignation or removal of an Issuer Trustee and no appointment of
a successor trustee shall be effective until the acceptance of appointment by
the successor trustee in accordance with the provisions of the Trust Agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an Event of Default shall have occurred and be continuing, at
any time or times, for the purpose of meeting the legal requirements of the
Trust Indenture Act or of any jurisdiction in which any part of the Trust's
property may at the time be located, the Company, as the holder of the Common
Securities, and the Administrators shall have power to appoint one or more
persons either to act as a co-trustee, jointly with the Property Trustee, of all
or any part of such Trust's property, or to act as separate trustee of any such
property, in either case with such powers as may be provided in the instrument
of appointment, and to vest in such person or persons in such capacity any
property, title, right or power deemed necessary or desirable, subject to the
provisions of the Trust Agreement. In case a Debenture Event of Default has
occurred and is continuing, the Property Trustee alone shall have power to make
such appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any entity into which the Property Trustee, the Delaware Trustee or any
Administrator that is not a natural person may be merged or converted or with
which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which such Issuer Trustee shall be a party, or
any entity succeeding to all or substantially all the corporate trust business
of such Issuer Trustee, shall be the successor of such Issuer Trustee under the
Trust Agreement, provided such entity shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST
The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other entity, except as
described below or pursuant to a liquidation as described above in "-Liquidation
of the Trust and Distribution of Exchange Debentures." The Trust may, at the
request of the Company, as Depositor, with the consent of the Administrators but
without the consent of the holders of the Capital Securities, merge with or
into, consolidate, amalgamate, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to a trust organized as
such under the laws of any State; provided, that (i) such successor entity
either (a) expressly assumes all of the obligations of the Trust with respect to
the Capital Securities or (b) substitutes for the Capital Securities other
securities having substantially the same terms as the Capital Securities (the
"Successor Securities") so long as the Successor Securities rank the same as the
Capital Securities rank in priority with respect to distributions and payments
upon liquidation, redemption and otherwise, (ii) the Company expressly appoints
a trustee of such successor entity possessing the same powers and duties as the
Property Trustee as the holder of the Junior Subordinated Debentures, (iii) the
Successor Securities are listed, or any Successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Capital Securities are then listed, if any, (iv) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not cause the Capital Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Capital
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Securities (including any Successor Securities) in any material respect, (vi)
such successor entity has a purpose substantially identical to that of the
Trust, (vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Company has received an opinion from
independent counsel to the Trust experienced in such matters to the effect that
(a) such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not adversely affect the rights, preferences and privileges of the
holders of the Capital Securities (including any Successor Securities) in any
material respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an investment company under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), and
(viii) the Company or any permitted successor or assignee owns all of the common
securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided
by the Guarantee. Notwithstanding the foregoing, the Trust shall not, except
with the consent of holders of 100% in Liquidation Amount of the Trust
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other entity or permit any other entity to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be classified as other than a grantor trust for United
States Federal income tax purposes. In addition, the Property Trustee will be
required pursuant to the Indenture to exchange, as a part of the Exchange Offer,
the Junior Subordinated Debentures for the Exchange Debentures, which have terms
identical in all material respects to the Junior Subordinated Debentures except
for the transfer restrictions under the Securities Act and the provision for an
increase in the interest rate thereon under certain circumstances.
VOTING RIGHTS; AMENDMENT OF THE TRUST AGREEMENT
Except as provided below and under "Description of Guarantee -
Amendments and Assignment" and as otherwise required by law and the Trust
Agreement, the holders of the Capital Securities will have no voting rights.
The Trust Agreement may be amended from time to time by the Company and
the Issuer Trustees, without the consent of the holders of the Trust Securities
(i) to cure any ambiguity, correct or supplement any provisions in the Trust
Agreement that may be inconsistent with any other provision, or to make any
other provisions with respect to matters or questions arising under the Trust
Agreement, which shall not be inconsistent with the other provisions of the
Trust Agreement, or (ii) to modify, eliminate or add to any provisions of the
Trust Agreement to such extent as shall be necessary to ensure that the Trust
will be classified for United States Federal income tax purposes as a grantor
trust at all times that any Trust Securities are outstanding or to ensure that
the Trust will not be required to register as an "investment company" under the
Investment Company Act; provided, however, that in the case of clause (i), such
action shall not adversely affect in any material respect the interests of any
holder of Trust Securities, and any amendments of the Trust Agreement shall
become effective when notice thereof is given to the holders of the Trust
Securities. The Trust Agreement may be amended by the Issuer Trustees and the
Company with (i) the consent of holders representing not less than a majority
(based upon Liquidation Amounts) of the outstanding Trust Securities, and (ii)
receipt by the Issuer Trustees of an opinion of counsel to the effect that such
amendment or the exercise of any power granted to the Issuer Trustees in
accordance with such amendment will not affect the Trust's status as a grantor
trust for United States Federal income tax purposes or the Trust's exemption
from status as an "investment company" under the Investment Company Act,
provided that without the consent of each holder of Trust Securities, the Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a holder of Trust Securities to
institute suit for the enforcement of any such payment on or after such date.
So long as any Junior Subordinated Debentures are held by the Trust,
the Issuer Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee, or
executing any trust or power conferred on such Property Trustee with respect to
the Junior Subordinated Debentures, (ii) waive any past default that is waivable
under the Indenture, (iii) exercise any right to rescind or
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annul a declaration that the principal of all the Junior Subordinated Debentures
shall be due and payable or (iv) consent to any amendment, modification or
termination of the Indenture or the Junior Subordinated Debentures, where such
consent shall be required, without, in each case, obtaining the prior approval
of the holders of a majority in aggregate Liquidation Amount of all outstanding
Capital Securities; provided, however, that where a consent under the Indenture
would require the consent of each holder of Junior Subordinated Debentures
affected thereby, no such consent shall be given by the Property Trustee without
the prior consent of each holder of the Capital Securities. The Issuer Trustees
shall not revoke any action previously authorized or approved by a vote of the
holders of the Capital Securities except by subsequent vote of such holders. The
Property Trustee shall notify each holder of Capital Securities of any notice of
default with respect to the Junior Subordinated Debentures. In addition to
obtaining the foregoing approvals of such holders of the Capital Securities,
prior to taking any of the foregoing actions, the Issuer Trustees shall obtain
an opinion of counsel experienced in such matters to the effect that the Trust
will not be classified as an association taxable as a corporation for United
States Federal income tax purposes on account of such action.
Any required approval of holders of Capital Securities may be given at
a meeting of such holders convened for such purpose or pursuant to written
consent. The Property Trustee will cause a notice of any meeting at which
holders of Capital Securities are entitled to vote, or of any matter upon which
action by written consent of such holders is to be taken, to be given to each
holder of record of Capital Securities in the manner set forth in the Trust
Agreement.
No vote or consent of the holders of Capital Securities will be
required for the Trust to redeem and cancel the Capital Securities in accordance
with the Trust Agreement.
Notwithstanding that holders of the Capital Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Capital Securities that are owned by the Company, the Issuer Trustees or any
affiliate of the Company or any Issuer Trustees, shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
The Exchange Capital Securities may be represented by one or more
Exchange Capital Securities in registered, global form (collectively, the
"Global Capital Securities"). The Global Capital Securities will be deposited
upon issuance with the Property Trustee as custodian for DTC, in New York, New
York, and registered in the name of DTC or its nominee, in each case for credit
to an account of a direct or indirect participant in DTC as described below.
Except as set forth below, the Global Capital Securities may be
transferred, in whole and not in part, only to another nominee of DTC or to a
successor of DTC or its nominee. Beneficial interests in the Global Capital
Securities may not be exchanged for Capital Securities in certificated form
except in the limited circumstances described below.
DEPOSITARY PROCEDURES
DTC has advised the Trust and the Company that DTC is a limited-purpose
trust company created to hold securities for its participating organizations
(collectively, the "Participants") and to facilitate the clearance and
settlement of transactions in those securities between Participants through
electronic book-entry changes in accounts of its Participants. The Participants
include securities brokers and dealers (including the Initial Purchasers),
banks, trust companies, clearing corporations and certain other organizations.
Access to DTC's system is also available to other entities such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly (collectively,
the "Indirect Participants"). Persons who are not Participants may beneficially
own securities held by or on behalf of DTC only through the Participants or
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the Indirect Participants. The ownership interest and transfer of ownership
interest of each actual purchaser of each security held by or on behalf of DTC
are recorded on the records of the Participants and Indirect Participants.
DTC has also advised the Trust and the Company that, pursuant to
procedures established by it, (i) upon deposit of the Global Capital Securities,
DTC will credit the accounts of Participants designated by the Initial
Purchasers with beneficial interests in the Global Capital Securities and (ii)
ownership of such interests in the Global Capital Securities will be shown on,
and the transfer of ownership thereof will be effected only through, records
maintained by DTC (with respect to the Participants) or by the Participants and
the Indirect Participants (with respect to other owners of beneficial interests
in the Global Capital Securities).
Investors in the Restricted Global Capital Securities may hold their
interests therein directly through DTC if they are participants in such system,
or indirectly through organizations which are participants in such system.
Investors in the Regulation S Global Capital Securities must initially hold
their interests therein through Euroclear or CEDEL, if they are participants in
such systems, or indirectly through organizations which are participants in such
systems. Euroclear and CEDEL will hold interests in the Regulation S Global
Capital Securities on behalf of their participants through customers' securities
accounts in their respective names on the books of their respective
depositaries, which are Morgan Guaranty Trust Company of New York, Brussels
office, as operator of Euroclear, and Citibank, N.A., as operator of CEDEL. The
depositaries, in turn, will hold such interests in the Regulation S Global
Capital Securities in customers' securities accounts in the depositaries' names
on the books of DTC. All interest in a Global Capital Security, including those
held through Euroclear or CEDEL, may be subject to the procedures and
requirements of DTC. Those interests held through Euroclear or CEDEL may also be
subject to the procedures and requirements of such system. The laws of some
states require that certain persons take physical delivery in certificated form
of securities that they own. Consequently, the ability to transfer beneficial
interests in a Global Capital Security to such persons will be limited to that
extent. Because DTC can act only on behalf of Participants, which in turn act on
behalf of indirect Participants and certain banks, the ability of a person
having beneficial interests in a Global Capital Security to pledge such
interests to persons or entities that do not participate in the DTC system, or
otherwise take actions in respect of such interests, may be affected by the lack
of a physical certificate evidencing such interests. For certain other
restrictions on the transferability of the Capital Securities, see "-Exchange of
Book-Entry Capital Securities for Certificated Capital Securities," "-Exchange
of Certificated Capital Securities for Book-Entry Capital Securities" and
"-Exchanges between Regulation S Capital Securities and Rule 144A Capital
Securities," below.
Except as described below, owners of interests in the Global Capital
Securities will not have Capital Securities registered in their name, will not
receive physical delivery of Capital Securities in certificated form and will
not be considered the registered owners or holders thereof under the Trust
Agreement for any purpose.
Payments in respect of the Global Capital Security registered in the
name of DTC or its nominee will be payable by the Property Trustee to DTC in its
capacity as the registered holder under the Trust Agreement. Under the terms of
the Trust Agreement, the Property Trustee will treat the persons in whose names
the Capital Securities, including the Global Capital Securities, are registered
as the owners thereof for the purpose of receiving such payments and for any and
all other purposes whatsoever. Consequently, neither the Property Trustee nor
any agent thereof has or will have any responsibility or liability for (i) any
aspect of DTC's records or any Participant's or Indirect Participant's records
relating to or payments made on account of beneficial ownership interests in the
Global Capital Securities, or for maintaining, supervising or reviewing any of
DTC's records or any Participant's or Indirect Participant's records relating to
the beneficial ownership interests in the Global Capital Securities or (ii) any
other matter relating to the actions and practices of DTC or any of its
Participants or Indirect Participants. DTC has advised the Trust and the Company
that its current practice, upon receipt of any payment in respect of securities
such as the Capital Securities, is to credit the accounts of the relevant
Participants with the payment on the payment date, in amounts proportionate to
their respective holdings in Liquidation Amount of beneficial interests in the
relevant security as shown on the records of DTC unless DTC has reason to
believe it will not receive payment on such payment date. Payments by the
Participants and the Indirect Participants to the beneficial owners
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of Capital Securities will be governed by standing instructions and customary
practices and will be the responsibility of the Participants or the Indirect
Participants and will not be the responsibility of DTC, the Property Trustee or
the Trust. Neither the Trust nor the Property Trustee will be liable for any
delay by DTC or any of its Participants in identifying the beneficial owners of
the Capital Securities, and the Trust and the Property Trustee may conclusively
rely on and will be protected in relying on instructions from DTC or its nominee
for all purposes.
Except for trades involving only Euroclear and CEDEL participants,
interests in the Global Capital Securities will trade in DTC's Same-Day Funds
Settlement System and secondary market trading activity in such interests will
therefore settle in immediately available funds, subject in all cases to the
rules and procedures of DTC and its participants.
Transfers between Participants in DTC will be effected in accordance
with DTC's procedures, and will be settled in same-day funds. Transfers between
participants in Euroclear and CEDEL will be effected in the ordinary way in
accordance with their respective rules and operating procedures.
Subject to compliance with the transfer restrictions applicable to the
Capital Securities described herein, cross-market transfers between the
Participants in DTC, on the one hand, and Euroclear or CEDEL participants, on
the other hand, will be effected through DTC in accordance with DTC's rules on
behalf of Euroclear or CEDEL, as the case may be, by its respective depositary;
however, such cross-market transactions will require delivery of instructions to
Euroclear or CEDEL, as the case may be, by the counterparty in such system in
accordance with the rules and procedures and within the established deadlines
(Brussels time) of such system. Euroclear or CEDEL, as the case may be, will, if
the transaction meets its settlement requirements, deliver instructions to its
respective depositary to take action to effect final settlement on its behalf by
delivering or receiving interests in the relevant Global Capital Securities in
DTC, and making or receiving payment in accordance with normal procedures for
same-day funds settlement applicable to DTC. Euroclear participants and CEDEL
participants may not deliver instructions directly to the depositaries for
Euroclear or CEDEL.
Because of time zone differences, the securities account of a Euroclear
or CEDEL participant purchasing an interest in a Global Capital Security from a
Participant in DTC will be credited, and any such crediting will be reported to
the relevant Euroclear or CEDEL participant, during the securities settlement
processing day (which must be a business day for Euroclear and CEDEL)
immediately following the settlement date of DTC. Cash received in Euroclear or
CEDEL as a result of sales of interest in a Global Capital Security by or
through a Euroclear or CEDEL participant to a Participant in DTC will be
received with value on the settlement date of DTC but will be available in the
relevant Euroclear or CEDEL cash account only as of the business day for
Euroclear or CEDEL following DTC's settlement date.
DTC has advised the Trust and the Company that it will take any action
permitted to be taken by a holder of Capital Securities only at the direction of
one or more Participants to whose account with DTC interests in the Global
Capital Securities are credited and only in respect of such portion of the
aggregate Liquidation Amount of the Capital Securities as to which such
Participant or Participants has or have given such direction. However, if there
is an Event of Default under the Trust Agreement, DTC reserves the right to
exchange the Global Capital Securities for legended Capital Securities in
certificated form and to distribute such Capital Securities to its Participants.
The information in this section concerning DTC, Euroclear and CEDEL and
their book-entry systems has been obtained from sources that the Trust and the
Company believe to be reliable, but neither the Trust nor the Company takes
responsibility for the accuracy thereof.
Although DTC, Euroclear and CEDEL have agreed to the foregoing
procedures to facilitate transfers of interest in the Regulation S Global
Capital Securities among participants in DTC, Euroclear and CEDEL, they are
under no obligation to perform or to continue to perform such procedures, and
such procedures may be discontinued
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at any time. Neither the Trust nor the Property Trustee will have any
responsibility for the performance by DTC, Euroclear or CEDEL or their
respective participants or indirect participants of their respective obligations
under the rules and procedures governing their operations.
EXCHANGE OF BOOK-ENTRY CAPITAL SECURITIES FOR CERTIFICATED CAPITAL SECURITIES
A Global Capital Security is exchangeable for Capital Securities in
registered certificated form if (i) DTC (x) notifies the Trust that it is
unwilling or unable to continue as Depositary for the Global Capital Security
and the Trust thereupon fails to appoint a successor Depositary or (y) has
ceased to be a clearing agency registered under the Exchange Act, (ii) the
Company in its sole discretion elects to cause the issuance of the Capital
Securities in certificated form or (iii) there shall have occurred and be
continuing an Event of Default or any event which after notice or lapse of time
or both would be an Event of Default under the Trust Agreement. In all cases,
certificated Capital Securities delivered in exchange for any Global Capital
Security or beneficial interests therein will be registered in the names, and
issued in any approved denominations, requested by or on behalf of the
Depositary (in accordance with its customary procedures) and will bear in the
case of the Restricted Global Capital Security the restrictive legend referred
to in "Notice to Investors," unless the Property Trustee determines otherwise in
compliance with applicable law.
EXCHANGE OF CERTIFICATED CAPITAL SECURITIES FOR BOOK-ENTRY CAPITAL SECURITIES
Other Capital Securities which will be issued in certificated form, may
not be exchanged for beneficial interests in any Global Capital Security unless
such exchange occurs in connection with a transfer of such Other Capital
Securities and the transferor first delivers to the Property Trustee a written
certificate (in the form provided in the Trust Agreement) to the effect that
such transfer will comply with the appropriate transfer restrictions applicable
to such Capital Securities as set forth in Annex A hereto.
PAYMENT AND PAYING AGENCY
Payments in respect of the Capital Securities held in global form shall
be made to the Depositary, which shall credit the relevant accounts at the
Depositary on the applicable Distribution Dates or in respect of the Capital
Securities that are not held by the Depositary, such payments shall be made by
check mailed to the address of the holder entitled thereto as such address shall
appear on the register. The paying agent (the "Paying Agent") shall initially be
the Property Trustee and any co-paying agent chosen by the Property Trustee and
acceptable to the Administrators and the Company. The Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Property
Trustee and the Company. In the event that the Property Trustee shall no longer
be the Paying Agent, the Administrators shall appoint a successor (which shall
be a bank or trust company acceptable to the Administrators and the Company) to
act as Paying Agent.
RESTRICTIONS ON TRANSFER
The Capital Securities will be issued, and may be transferred, only in
blocks having a Liquidation Amount of not less than $100,000 (100 Capital
Securities) and multiples of $1,000 (1 Capital Security) in excess thereof. Any
attempted transfer, sale or other disposition of Capital Securities in a block
having a Liquidation Amount of less than $100,000 shall be deemed to be void and
of no legal effect whatsoever. Any such transferee shall be deemed not to be the
holder of such Capital Securities for any purpose, including but not limited to
the receipt of Distributions on such Capital Securities, and such transferee
shall be deemed to have no interest whatsoever in such Capital Securities.
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RATING
The Capital Securities have been rated "BBB" by Standard & Poor's
Rating Services and "Baa1" by Moody's Investor Services, Inc.
Registrar and Transfer Agent
The Property Trustee will act as registrar and transfer agent for the
Capital Securities.
Registration of transfers of the Capital Securities will be effected
without charge by or on behalf of the Trust, but upon payment of any tax or
other governmental charges that may be imposed in connection with any transfer
or exchange. The Trust will not be required to register or cause to be
registered the transfer of the Capital Securities after they have been called
for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance
of an Event of Default, undertakes to perform only such duties as are
specifically set forth in the Trust Agreement and, after such Event of Default,
must exercise the same degree of care and skill as a prudent person would
exercise or use in the conduct of his or her own affairs. Subject to this
provision, the Property Trustee is under no obligation to exercise any of the
powers vested in it by the Trust Agreement at the request of any holder of Trust
Securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that might be incurred thereby. If no Event of Default has
occurred and is continuing and the Property Trustee is required to decide
between alternative courses of action, construe ambiguous provisions in the
Trust Agreement or is unsure of the application of any provision of the Trust
Agreement, and the matter is not one on which holders of the Capital Securities
or the Common Securities are entitled under the Trust Agreement to vote, then
the Property Trustee shall take such action as is directed by the Company and if
not so directed, shall take such action as it deems advisable and in the best
interests of the holders of the Trust Securities and will have no liability
except for its own bad faith, negligence or willful misconduct.
MISCELLANEOUS
The Administrators are authorized and directed to conduct the affairs
of and to operate the Trust in such a way that the Trust will not be deemed to
be an "investment company" required to be registered under the Investment
Company Act or classified as an association taxable as a corporation for United
States Federal income tax purposes and so that the Junior Subordinated
Debentures will be treated as indebtedness of the Company for United States
Federal income tax purposes. In this connection, the Company and the
Administrators are authorized to take any action, not inconsistent with
applicable law, the certificate of trust of the Trust or the Trust Agreement,
that the Company and the Administrators determine in their discretion to be
necessary or desirable for such purposes, as long as such action does not
materially adversely affect the interests of the holders of the Trust
Securities.
Holders of the Trust Securities have no preemptive or similar rights.
The Trust may not borrow money or issue debt or mortgage or pledge any
of its assets.
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DESCRIPTION OF EXCHANGE DEBENTURES
The Old Junior Subordinated Debentures were issued, and the Exchange
Debentures will be issued, as a separate series under the Indenture. The
Indenture has been qualified under the Trust Indenture Act. This summary of
certain terms and provisions of the Junior Subordinated Debentures and the
Indenture does not purport to be complete, and where reference is made to
particular provisions of the Indenture, such provisions, including the
definitions of certain terms, some of which are not otherwise defined herein,
are qualified in their entirety by reference to all of the provisions of the
Indenture and those terms made a part of the Indenture by the Trust Indenture
Act.
GENERAL
Concurrently with the issuance of the Capital Securities, the Trust
invested the proceeds thereof, together with the consideration paid by the
Company for the Common Securities, in Old Junior Subordinated Debentures issued
by the Company. Pursuant to the Exchange Offer, the Company will exchange the
Old Junior Subordinated Debenture in an amount corresponding to the Old Capital
Securities accepted for exchange, for a like principal amount of Exchange
Debentures. The Exchange Debentures will bear interest at the annual rate of
8.16% of the principal amount thereof, payable semi-annually in arrears on the
fifteenth day of June and December of each year (each, an "Interest Payment
Date"), commencing June 15, 1997, to the person in whose name each Exchange
Junior Subordinated Debenture is registered, subject to certain exceptions, at
the close of business on the Business Day next preceding such Interest Payment
Date. It is anticipated that until the liquidation, if any, of the Trust, each
Exchange Junior Subordinated Debenture will be held in the name of the Property
Trustee in trust for the benefit of the holders of the Trust Securities. The
amount of interest payable for any period will be computed on the basis of a
360-day year of twelve 30-day months. In the event that any date on which
interest is payable on the Exchange Debentures is not a Business Day, then
payment of the interest payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other payment in respect
of any such delay) in each case with the same force and effect as if made on the
date such payment was originally payable. Accrued interest that is not paid on
the applicable Interest Payment Date will bear additional interest on the amount
thereof (to the extent permitted by law) at the rate per annum of 8.16% thereof,
compounded semi-annually. The term "interest" as used herein shall include
semi-annual interest payments, interest on semi-annual interest payments not
paid on the applicable Interest Payment Date and Additional Sums (as defined
below), as applicable.
The Exchange Debentures will be issued as a series of junior
subordinated debentures under the Indenture. The Exchange Debentures will mature
on December 15, 2026.
The Exchange Debentures will be unsecured and will rank junior and be
subordinate in right of payment to all Senior Indebtedness of the Company.
Because the Company is a bank holding company, the right of the Company to
participate in any distribution of assets of any subsidiary, including Crestar
Bank, upon such subsidiary's liquidation or reorganization or otherwise (and
thus the ability of holders of the Capital Securities to benefit indirectly from
such distribution), is subject to the prior claims of creditors of that
subsidiary, except to the extent that the Company may itself be recognized as a
creditor of that subsidiary. Claims on the Company's subsidiaries by creditors
other than the Company include long-term debt and substantial obligations in
respect of federal funds purchased, securities sold under repurchase agreements
and certain other short-term borrowings, as well as deposit liabilities.
Accordingly, the Exchange Debentures will be subordinated to all Senior
Indebtedness of the Company and effectively subordinated to all existing and
future liabilities of the Company's subsidiaries, and holders of Exchange
Debentures should look only to the assets of the Company for payments on the
Exchange Debentures. The Indenture does not limit the incurrence or issuance of
other secured or unsecured debt of the Company, including Senior Indebtedness
whether under the Indenture or any existing or other indenture that the Company
may enter into in the future or otherwise, including the Company's Subordinated
Indentures entered into with The Chase Manhattan Bank (formerly known as
Chemical Bank). See "-- Subordination."
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DENOMINATIONS, REGISTRATION AND TRANSFER
The Exchange Debentures will be represented by one or more certificates
registered in the name of The Chase Manhattan Bank as Property Trustee of the
Trust. If distributed to holders of Capital Securities in connection with a Tax
Event, Investment Company Event or Capital Treatment Event, the Exchange
Debentures will be represented by one or more global certificates registered in
the name of Cede & Co. as the nominee of DTC. Beneficial interests in the
Exchange Debentures will be shown on, and transfers thereof will be effected
only through, records maintained by participants in DTC. The global certificates
shall be exchangeable for Exchange Debentures in certificated form registered in
the names of persons other than Cede & Co. only if (i) DTC notifies the Company
that it is unwilling or unable to continue as a depositary for such global
security, or if at any time DTC ceases to be a "clearing agency" registered
under the Exchange Act, at a time when DTC is required to be so registered to
act as such depositary, and no successor depositary shall have been appointed by
the Company within 90 days (ii) the Company in its sole discretion determines
that such global security shall be so exchangeable, or (iii) there shall have
occurred and be continuing a Debenture Event of Default. Any global security
that is exchangeable pursuant to the preceding sentence shall be exchangeable
for certificates registered in such names as DTC shall direct. It is expected
that such instructions will be based upon directions received by DTC from its
Participants with respect to ownership of beneficial interests in such global
security. In the event that Exchange Debentures are issued in certificated form,
such Exchange Debentures will be in minimum denominations of $100,000 and
integral multiples of $1,000 in excess thereof and may be transferred or
exchanged only in such minimum denominations and in the manner and at the
offices described below.
Payments on Exchange Debentures represented by a global security will
be made to DTC, as the depositary for the Exchange Debentures. In the event
Exchange Debentures are issued in certificated form, principal and interest will
be payable, the transfer of the Exchange Debentures will be registrable, and
Exchange Debentures will be exchangeable for Exchange Debentures of other
denominations of a like aggregate principal amount, at the corporate office of
the Debenture Trustee in New York, New York, or at the offices of any paying
agent or transfer agent appointed by the Company, provided that payment of
interest may be made at the option of the Company by check mailed to the address
of the persons entitled thereto or by wire transfer. In addition, if the
Exchange Debentures are issued in certificated form, the record dates for
payment of interest will be the first day of the last month of each semi-annual
period.
For a description of DTC and the terms of the depositary arrangements
relating to payments, transfers, voting rights, redemptions and other notices
and other matters, see "Description of Exchange Capital Securities Form,
Denomination, Book-Entry Procedures and Transfer." If the Exchange Debentures
are distributed to the holders of the Trust Securities upon the termination of
the Trust, the form, denomination, book-entry and transfer procedures with
respect to the Capital Securities as described under "Description of Exchange
Capital Securities -Form, Denomination, Book-Entry Procedures and Transfer,"
shall apply to the Exchange Debentures mutatis mutandis.
PAYMENT AND PAYING AGENTS
Payment of principal of (and premium, if any) and any interest on
Exchange Debentures will be made at the office of the Debenture Trustee in the
City of New York or at the office of such Paying Agent or Paying Agents as the
Company may designate from time to time, except that at the option of the
Company payment of any interest may be made, except in the case of Exchange
Debentures in global form, (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the register for Exchange
Debentures or (ii) by transfer to an account maintained by the Person entitled
thereto as specified in such register, provided that proper transfer
instructions have been received by the relevant Record Date.
Payment of any interest on any Junior Subordinated Debenture will be
made to the Person in whose name such Junior Subordinated Debenture is
registered at the close of business on the Record Date for such interest,
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except in the case of defaulted interest. The Company may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent; however
the Company will at all times be required to maintain a Paying Agent in each
Place of Payment for the Exchange Debentures.
Any moneys deposited with the Debenture Trustee or any Paying Agent, or
then held by the Company in trust, for the payment of the principal of (and
premium, if any) or interest on any Junior Subordinated Debenture and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall, at the request of the Company, be repaid to
the Company and the holder of such Junior Subordinated Debenture shall
thereafter look, as a general unsecured creditor, only to the Company for
payment thereof.
OPTION TO DEFER INTEREST PAYMENTS
So long as no Debenture Event of Default has occurred or is continuing,
the Company has the right under the Indenture at any time during the term of the
Junior Subordinated Debentures to defer the payment of interest at any time or
from time to time for a period not exceeding 10 consecutive semi-annual periods
with respect to each Extension Period, provided that no Extension Period may end
on a date other than an interest payment date or extend beyond the Stated
Maturity. At the end of such Extension Period, the Company must pay all interest
then accrued and unpaid (together with interest thereon at the annual rate of
8.16%, compounded semi-annually, to the extent permitted by applicable law).
During an Extension Period, interest will continue to accrue and holders of
Junior Subordinated Debentures (and holders of the Capital Securities while
Capital Securities are outstanding) will be required to accrue interest income
for United States federal income tax purposes. See "Certain Federal Income Tax
Consequences -- Interest Income and Original Issue Discount."
During any such Extension Period, the Company may not, and may not
permit any subsidiary of the Company to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock (which includes common and
preferred stock) or (ii) make any payment of principal, interest or premium, if
any, on or repay, repurchase or redeem any debt securities of the Company that
rank pari passu with or junior to the Junior Subordinated Debentures or make any
guarantee payments with respect to any guarantee by the Company of the debt
securities of any subsidiary of the Company if such guarantee ranks pari passu
with or junior in interest to the Junior Subordinated Debentures (other than (a)
dividends or distributions in common stock of the Company, (b) any declaration
of a dividend in connection with the implementation of a stockholders' rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c) payments under
the Guarantee, and (d) purchases of common stock related to the issuance of
common stock or rights under any of the Company's benefit plans for its
directors, officers or employees). Prior to the termination of any such
Extension Period, the Company may further extend such Extension Period, provided
that such extension does not cause such Extension Period to exceed 10
consecutive semi-annual periods or to extend beyond the Stated Maturity. Upon
the termination of any such Extension Period and the payment of all amounts then
due on any Interest Payment Date, the Company may elect to begin a new Extension
Period subject to the above requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof. The Company must give the
Property Trustee, the Administrators and the Debenture Trustee notice of its
election of any Extension Period (or an extension thereof) at least five
Business Days prior to the earlier of (i) the date the Distributions on the
Trust Securities would have been payable except for the election to begin or
extend such Extension Period or (ii) the date the Administrators are required to
give notice to any applicable self-regulatory organization or to holders of
Capital Securities of the record date or the date such Distributions are
payable, but in any event not less than five Business Days prior to such record
date. The Administrators shall give notice of the Company's election to begin or
extend a new Extension Period to the holders of the Capital Securities. There is
no limitation on the number of times that the Company may elect to begin an
Extension Period.
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OPTIONAL PREPAYMENT
The Exchange Debentures will be prepayable, in whole or in part, at the
option of the Company at any time on or after December 15, 2006, subject to the
Company having received prior approval of the Federal Reserve if then required
under applicable capital guidelines or policies of the Federal Reserve, at a
prepayment price (the "Optional Prepayment Price") equal to the percentage of
the outstanding principal amount of the Junior Subordinated Debentures specified
below, plus, in each case, accrued interest thereon to the date of prepayment:
December 15, 2006 to December 14, 2007: 104.080%
December 15, 2007 to December 14, 2008: 103.672%
December 15, 2008 to December 14, 2009: 103.264%
December 15, 2009 to December 14, 2010: 102.856%
December 15, 2010 to December 14, 2011: 102.448%
December 15, 2011 to December 14, 2012: 102.040%
December 15, 2012 to December 14, 2013: 101.632%
December 15, 2013 to December 14, 2014: 101.224%
December 15, 2014 to December 14, 2015: 100.816%
December 15, 2015 to December 14, 2016: 100.408%
On or after December 15, 2016: 100.000%
TAX EVENT, INVESTMENT COMPANY EVENT OR CAPITAL TREATMENT EVENT PREPAYMENT
If a Tax Event, Investment Company Event or Capital Treatment Event (as
defined below) shall occur and be continuing, the Company may, at its option and
subject to receipt of prior approval of the Federal Reserve if then required
under applicable capital guidelines or policies of the Federal Reserve, prepay
the Junior Subordinated Debentures in whole (but not in part) at any time within
90 days of the occurrence of such Tax Event, Investment Company Event or Capital
Treatment Event, at a prepayment price (the "Event Prepayment Price") equal to
the greater of (i) 100% of the principal amount of such Junior Subordinated
Debentures or (ii) as determined by a Quotation Agent (as defined below), the
sum of the present values of the principal amount and premium that would be
payable as part of the Redemption Price with respect to an optional redemption
of such Junior Subordinated Debentures on December 15, 2006, together with the
present values of scheduled payments of interest from the prepayment date to
December 15, 2006 (the "Remaining Life"), in each case discounted to the
prepayment date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus, in each case, accrued
interest thereon to but excluding the date of prepayment. However, if the
Company prepays Junior Subordinated Debentures as a result of a Tax Event,
Investment Company Event or Capital Treatment Event which occurs on or after
December 15, 2006, then the Event Prepayment Price shall be the Optional
Prepayment Price that would be payable on optional redemption of the Junior
Subordinated Debentures on the date of prepayment, which includes interest to
the date of prepayment.
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"Adjusted Treasury Rate" means, with respect to any prepayment date,
the Treasury Rate plus (i) 1.00% if such prepayment date occurs on or before
December 15, 1997 or (ii) 0.50% if such prepayment date occurs after December
15, 1997.
"Treasury Rate" means (i) the yield, under the heading which represents
the average for the immediately prior week, appearing in the most recently
published statistical release designated "H.15(519)" or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities", for the
maturity corresponding to the Remaining Life (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such prepayment date. The Treasury Rate shall be calculated on the third
Business Day preceding the prepayment date.
"Comparable Treasury Issue" means with respect to any prepayment date
the United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the Remaining
Life. If no United States Treasury security has a maturity which is within a
period from three months before to three months after December 15, 2006, the two
most closely corresponding United States Treasury securities shall be used as
the Comparable Treasury Issue, and the Treasury Rate shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest month using such
securities.
"Quotation Agent" means Morgan Stanley & Co. Incorporated.
"Reference Treasury Dealer" means (i) Morgan Stanley & Co.
Incorporated, Lehman Brothers Inc. and UBS Securities LLC and their respective
successors; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury Dealer;
and (ii) any other Primary Treasury Dealer selected by the Debenture Trustee
after consultation with the Company.
"Comparable Treasury Price" means (A) the average of five Reference
Treasury Dealer Quotations for such prepayment date, after excluding the highest
and lowest such Reference Treasury Dealer Quotations, or (B) if the Debenture
Trustee obtains fewer than three such Reference Treasury Dealer Quotations, the
average of all such Quotations.
"Liquidation Amount" means the stated amount of $1,000 per Capital
Security.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any prepayment date, the average, as determined by
the Debenture Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted in
writing to the Debenture Trustee by such Reference Treasury Dealer at 5:00 p.m.
on the third Business Day preceding such prepayment date.
"Additional Sums" means the additional amounts as may be necessary in
order that the amount of Distributions then due and payable by the Trust on the
outstanding Capital Securities and Common Securities shall not be reduced as a
result of any additional taxes, duties and other governmental charges to which
the Trust has become subject as a result of a Tax Event.
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"Tax Event" means the receipt by the Company and the Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of any amendment to, or change (including any announced prospective change) in,
the laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the Issue Date, there
is more than an insubstantial risk that (i) the Trust is, or will be within 90
days of the date of such opinion, subject to United States Federal income tax
with respect to income received or accrued on the Junior Subordinated
Debentures, (ii) interest payable by the Company on the Junior Subordinated
Debentures is not, or within 90 days of the date of such opinion, will not be,
deductible by the Company, in whole or in part, for United States Federal income
tax purposes, or (iii) the Trust is, or will be within 90 days of the date of
such opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Capital Treatment Event" means the reasonable determination by the
Company that, as a result of the occurrence of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or such pronouncement, action or decision
is announced on or after the date of issuance of the Capital Securities under
the Trust Agreement, there is more than an insubstantial risk that the Company
will not be entitled to treat an amount equal to the Liquidation Amount of the
Capital Securities as "Tier 1 Capital" (or the then equivalent thereof) for
purposes of the capital adequacy guidelines of the Federal Reserve, as then in
effect and applicable to the Company.
"Investment Company Event" means the receipt by the Trust of an opinion
of counsel experienced in such matters to the effect that, as a result of the
occurrence of a change in law or regulation or change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), the Trust is or
will be considered an investment company that is required to be registered under
the Investment Company Act of 1940, as amended, which Change in 1940 Act Law
becomes effective on or after the date of original issuance of the Capital
Securities.
Notice of any prepayment will be mailed at least 30 days but not more
than 60 days before the redemption date to each holder of Junior Subordinated
Debentures to be prepaid at its registered address. Unless the Company defaults
in payment of the prepayment price, on and after the prepayment date interest
ceases to accrue on such Junior Subordinated Debentures called for prepayment.
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, the Company will also pay any
Additional Sums on the Junior Subordinated Debentures.
RESTRICTIONS ON CERTAIN PAYMENTS
The Company will also covenant that it will not, and will not permit
any subsidiary of the Company to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock (which includes common and
preferred stock) or (ii) make any payment of principal, interest or premium, if
any, on or repay or repurchase or redeem any debt securities of the Company that
rank pari passu with or junior in interest to the Junior Subordinated Debentures
or make any guarantee payments with respect to any guarantee by the Company of
the debt securities of any subsidiary of the Company if such guarantee ranks
pari passu with or junior in interest to the Junior Subordinated Debentures
(other than (a) dividends or distributions in common stock of the Company, (b)
any declaration of a dividend in connection with the implementation of a
stockholder's rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Guarantee and (d) purchases of common stock related to the
issuance of common stock or rights under any of the Company's benefit
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plans for its directors, officers or employees) if at such time (i) there shall
have occurred any event of which the Company has actual knowledge that (a) with
the giving of notice or the lapse of time, or both, would constitute a
"Debenture Event of Default" and (b) in respect of which the Company shall not
have taken reasonable steps to cure, (ii) if such Junior Subordinated Debentures
are held by the Trust, the Company shall be in default with respect to its
payment of any obligations under the Guarantee or (iii) the Company shall have
given notice of its election of an Extension Period as provided in the Indenture
and shall not have rescinded such notice, or such Extension Period, or any
extension thereof, shall be continuing.
MODIFICATION OF INDENTURE
From time to time, the Company and the Debenture Trustee may, without
the consent of the holders of Junior Subordinated Debentures, amend, waive or
supplement the Indenture for specified purposes, including, among other things,
curing ambiguities, defects or inconsistencies (provided that any such action
does not materially adversely affect the interest of the holders of Junior
Subordinated Debentures or the holders of Capital Securities so long as they
remain outstanding) and qualifying, or maintaining the qualification of, the
Indenture under the Trust Indenture Act.
The Indenture contains provisions permitting the Company and the
Debenture Trustee, with the consent of the holders of not less than a majority
in principal amount of Junior Subordinated Debentures to execute supplemental
indentures adding any provisions to or changing or eliminating any of the
provisions of such Indenture or modifying the rights of the holders of Junior
Subordinated Debentures of each such series, provided that no such supplemental
indenture may (i) change the fixed maturity of any Junior Subordinated
Debentures, or reduce the rate or extend the time of payment of any interest
thereon or on any overdue principal amount, or reduce the principal amount
thereof, or reduce any amount payable upon any redemption thereof, or change the
currency of payment of principal of or any interest thereon or on any overdue
principal amount, without the consent of the holder of each Junior Subordinated
Debenture so affected, (ii) reduce the aforesaid percentage of Junior
Subordinated Debentures, the holders of which are required to consent to any
such supplemental indenture, (iii) modify certain provisions of the Indenture
relating to waiver of compliance with covenants, waiver of defaults or
modification of the Indenture, except to increase the percentage of holders
required for such waiver or modification, or (iv) modify the provisions of the
Indenture with respect to the subordination of outstanding Junior Subordinated
Debentures of any series in a manner adverse to the holders thereof without
consent of the holders of all outstanding Junior Subordinated Debentures under
such Indenture; provided further that, so long as any of the Capital Securities
remain outstanding, no such modification may be made that adversely affects the
holders of such Capital Securities in any material respect, and no termination
of the Indenture may occur, and no waiver of any Event of Default or compliance
with any covenant under the Indenture may be effective, without the prior
consent of the holders of at least a majority of the aggregate liquidation
preference of such Capital Securities unless and until the principal of the
underlying Junior Subordinated Debentures and all accrued and unpaid interest
thereon have been paid in full and certain other conditions are satisfied.
In addition, the Company and the Debenture Trustee may execute, without
the consent of any holder of Junior Subordinated Debentures, any supplemental
indenture for the purpose of creating any new series of Junior Subordinated
Debentures.
DEBENTURE EVENTS OF DEFAULT
A Debenture Event of Default with respect to the Junior Subordinated
Debentures is defined in the Indenture as being: (a) default for 30 days in
payment of any installment of interest on the Junior Subordinated Debentures
(subject to the deferral of any due date in the case of an Extension Period);
(b) default in payment of any principal or premium, if any, on Junior
Subordinated Debentures; (c) default by the Company in performance in any
material respect of any of the covenants or agreements in the Indenture
specifically contained therein for the benefit of the Junior Subordinated
Debentures which shall not have been remedied for a period of 60 days after
written notice to
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the Company by the Debenture Trustee or to the Company and the Debenture Trustee
by the holders of not less than 25% in principal amount of the Junior
Subordinated Debentures outstanding; or (d) certain events of bankruptcy,
insolvency or reorganization of the Company or the Bank.
The Indenture provides that if a Debenture Event of Default under
clause (a), (b) or (c) above shall have occurred and be continuing either the
Debenture Trustee or the holders of not less than 25% in principal amount of the
then outstanding Junior Subordinated Debentures may declare the principal of all
the Junior Subordinated Debentures together with any accrued interest, to be due
and payable immediately. Should the Debenture Trustee or holders of such Junior
Subordinated Debentures fail to make such declaration, the holders of at least
25% in aggregate liquidation preference of the Capital Securities shall have
such right. The Indenture also provides that if a Debenture Event of Default
under clause (d) above shall have occurred and be continuing, the Junior
Subordinated Debentures shall be declared due and payable. Should the Debenture
Trustee or such holders of such Junior Subordinated Debentures fail to make such
declaration, the holders of at least 25% in aggregate liquidation preference of
the Capital Securities shall have such right. Upon certain conditions, such
declaration (including a declaration caused by a default in the payment of
principal or interest, the payment for which has subsequently been provided) may
be annulled by the holders of a majority in principal amount of the Junior
Subordinated Debentures. Should the holders of the Junior Subordinated
Debentures fail to annul such declaration and waive such default, the holders of
a majority in aggregate liquidation preference of the Capital Securities shall
have such right. In addition, past defaults may be waived by the holders of a
majority in principal amount of the Junior Subordinated Debentures, except a
default in the payment of principal of or interest on the Junior Subordinated
Debentures or in respect of a covenant or provision of the Indenture which
cannot be modified or amended without the consent of the holder of each Junior
Subordinated Debenture so affected. Should the holders of the Junior
Subordinated Debentures fail to waive such default, the holders of a majority in
aggregate liquidation preference of the Capital Securities shall have such
right.
The Indenture contains a provision entitling the Debenture Trustee,
subject to the duty of the Debenture Trustee during default to act with the
required standard of care, to be indemnified by the holders of Junior
Subordinated Debentures issued under the Indenture before proceeding to exercise
any right or power under the Indenture at the request of such holders. The
Indenture also provides that the holders of a majority in principal amount of
the outstanding Junior Subordinated Debentures issued thereunder may direct the
time, method and place of conducting any proceeding for any remedy available to
the Debenture Trustee, or exercising any trust or power conferred on the
Debenture Trustee.
The Indenture contains a covenant that the Company will file annually
with the Debenture Trustee a certificate as to the absence of any default or
specifying any default that exists.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a Debenture Event of Default has occurred and is continuing and such
event is attributable to the failure of the Company to pay interest or principal
on the Junior Subordinated Debentures on the date such interest or principal is
otherwise payable, a holder of Capital Securities may institute a legal
proceeding directly against the Company for enforcement of payment to such
holder of the principal of or interest on such related Junior Subordinated
Debentures having a principal amount equal to the aggregate Liquidation Amount
of the related Capital Securities of such holder (a "Direct Action"). The
Company may not amend the Indenture to remove the foregoing right to bring a
Direct Action without the prior written consent of the holders of all of the
Capital Securities. If the right to bring a Direct Action is removed following
the Exchange Offer, the Trust may become subject to reporting obligations under
the Securities Exchange Act of 1934, as amended. Notwithstanding any payments
made to a holder of Capital Securities by the Company in connection with a
Direct Action, the Company shall remain obligated to pay the principal of or
interest on the Junior Subordinated Debentures, and the Company shall be
subrogated to the rights of the holder of such Capital Securities with respect
to payments on the Capital Securities to the extent of any payments made by the
Company to such holder in any Direct Action.
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The holders of the Capital Securities would not be able to exercise
directly any remedies, other than those set forth in the preceding paragraph,
available to the holders of the Junior Subordinated Debentures unless there
shall have been an Event of Default under the Trust Agreement. See "Description
of Capital Securities -- Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that the Company may not merge or consolidate or
sell or convey all or substantially all of its assets unless (i) the successor
entity (if other than the Company) is a U.S. entity that assumes the Company's
obligations under such Indenture and on the Junior Subordinated Debentures
issued under such Indenture, and, after giving effect to such transaction, the
Company or the successor would not be in default under such Indenture; and (ii)
certain other conditions as prescribed in the Indenture are met.
The general provisions of the Indenture do not afford holders of the
Junior Subordinated Debentures protection in the event of a highly leveraged or
other transaction involving the Company that may adversely affect holders of the
Junior Subordinated Debentures.
SATISFACTION AND DISCHARGE
The Indenture provides that when, among other things, all Junior
Subordinated Debentures not previously delivered to the Debenture Trustee for
cancellation (i) have become due and payable or (ii) will become due and payable
at their Stated Maturity within one year, and the Company deposits or causes to
be deposited with the Debenture Trustee funds, in trust, for the purpose and in
an amount sufficient to pay and discharge the entire indebtedness on the Junior
Subordinated Debentures not previously delivered to the Debenture Trustee for
cancellation, for the principal (and premium, if any) and interest to the date
of the deposit or to the Stated Maturity, as the case may be, then the Indenture
will cease to be of further effect (except as to the Company's obligations to
pay all other sums due pursuant to the Indenture and to provide the officers'
certificates and opinions of counsel described therein), and the Company will be
deemed to have satisfied and discharged the Indenture.
SUBORDINATION
In the Indenture, the Company has covenanted and agreed that the
obligations of the Company to make any payment of or on account of the principal
of and interest on the Junior Subordinated Debentures will be subordinate and
junior in right of payment to the Company's obligations to the holders of Senior
Indebtedness of the Company to the extent described in the next two paragraphs.
Senior Indebtedness of the Company with respect to the Junior Subordinated
Debentures will include the existing and future senior notes, senior
subordinated notes and subordinated notes of the Company and means (i) any
indebtedness of the Company for borrowed or purchased money, whether or not
evidenced by bonds, debentures, notes or other written instruments, (ii)
obligations under letters of credit, (iii) any indebtedness or other obligations
of the Company with respect to commodity contracts, interest rate and currency
swap agreements, cap, floor and collar agreements, currency spot and forward
contracts, and other similar agreements or arrangements designed to protect
against fluctuations in currency exchange or interest rates, and (iv) any
guarantees, endorsements (other than by endorsement of negotiable instruments
for collection in the ordinary course of business) or other similar contingent
obligations in respect of obligations of others of a type described in (i), (ii)
or (iii) above, whether or not such obligation is classified as a liability on a
balance sheet prepared in accordance with generally accepted accounting
principles, in each case listed in (i), (ii), (iii) and (iv) above, whether
outstanding on the date of execution of the Indenture or thereafter incurred,
other than obligations "ranking on a parity" with the Junior Subordinated
Debentures or "ranking junior" to the Junior Subordinated Debentures (as those
terms are defined in the Indenture); provided, however, that the Junior
Subordinated Debentures will not be subordinate and junior in right of payment
to trade creditors. As of September 30, 1996, there was $4.8 billion of Senior
Indebtedness of the Company outstanding. The Indenture does not limit the amount
of future increase in Senior Indebtedness of the Company. The Company expects
from time to time
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to issue additional indebtedness constituting Senior Indebtedness. For purposes
of this definition, "claim" shall have the meaning assigned thereto in Section
101(4) of the United States Bankruptcy Code of 1978, as amended.
No payments on account of principal (or premium, if any) or interest,
if any, in respect of the Junior Subordinated Debentures may be made if there
shall have occurred and be continuing a default in any payment with respect to
Senior Indebtedness, or an event of default with respect to any Senior
Indebtedness resulting in the acceleration of the maturity thereof, or if any
judicial proceeding shall be pending with respect to any such default.
In the case of any insolvency, receivership, conservatorship,
reorganization, readjustment of debt, marshalling of assets and liabilities or
similar proceedings or any liquidation or winding-up of or relating to the
Company as a whole, whether voluntary or involuntary, all obligations of the
Company to holders of Senior Indebtedness of the Company shall be entitled to be
paid in full before any payment shall be made on account of the principal of or
interest on the Junior Subordinated Debentures. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior
Indebtedness of the Company, the holders of the Junior Subordinated Debentures,
together with the holders of any obligations of the Company ranking on a parity
with the Junior Subordinated Debentures, shall be entitled to be paid from the
remaining assets of the Company the amount at the time due and owing on account
of unpaid principal of and interest on the Junior Subordinated Debentures before
any payment or other distribution, whether in cash, property or otherwise, shall
be made on account of any capital stock or any obligations of the Company
ranking junior to the Junior Subordinated Debentures. By reason of such
subordination, in the event of the insolvency of the Company, holders of Senior
Indebtedness of the Company may receive more, ratably, and holders of the Junior
Subordinated Debentures having a claim pursuant to the Junior Subordinated
Debentures may receive less, ratably, than the other creditors of the Company.
Such subordination will not prevent the occurrence of any Event of Default in
respect of the Junior Subordinated Debentures.
RESTRICTIONS ON TRANSFER
The Exchange Debentures will be issued, and may be transferred only, in
minimum denominations of not less than $100,000 and multiples of $1,000 in
excess thereof. Any transfer, sale or other disposition of Exchange Debentures
in a denomination of less than $100,000 shall be deemed to be void and of no
legal effect whatsoever. Any such transferee shall be deemed not to be the
holder of such Exchange Debentures for any purpose, including but not limited to
the receipt of payments on such Exchange Debentures, and such transferee shall
be deemed to have no interest whatsoever in such Exchange Debentures.
GOVERNING LAW
The Indenture and the Exchange Debentures will be governed by and
construed in accordance with the laws of the State of New York except that the
rights and duties of the Trustee are governed by the laws of the State of the
Trustee's principal place of business.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
Following the Exchange Offer and the qualification of the Indenture
under the Trust Indenture Act, the Debenture Trustee shall have and be subject
to all the duties and responsibilities specified with respect to an indenture
trustee under the Trust Indenture Act. Subject to such provisions, the Debenture
Trustee is under no obligation to exercise any of the powers vested in it by the
Indenture at the request of any holder of Exchange Debentures, unless offered
reasonable indemnity by such holder against the costs, expenses and liabilities
which might be incurred thereby. The Debenture Trustee is not required to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of its duties if the Debenture Trustee reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
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DESCRIPTION OF GUARANTEE
The Guarantee Agreement was executed and delivered by the Company
concurrently with the issuance by the Trust of the Old Capital Securities for
the benefit of the holders from time to time of the Old Capital Securities. The
Guarantee Agreement also provides a Guarantee as herein described for the
Guarantee for the benefit of the holders from time to time of the Exchange
Capital Securities. The Guarantee Agreement has been qualified under the Trust
Indenture Act. The Chase Manhattan Bank acts as Guarantee Trustee. This summary
of certain provisions of the Guarantee Agreement does not purport to be complete
and is subject to, and qualified in its entirety by reference to, all of the
provisions of the Guarantee Agreement, including the definitions therein of
certain terms. The Guarantee Trustee will hold the Guarantee for the benefit of
the holders of the Exchange Capital Securities.
GENERAL
The Company has irrevocably agreed to pay in full on a subordinated
basis, to the extent set forth herein, the Guarantee Payments (as defined below)
to the holders of the Exchange Capital Securities, as and when due, regardless
of any defense, right of set-off or counterclaim that the Trust may have or
assert other than the defense of payment. The following payments with respect to
the Exchange Capital Securities, to the extent not paid by or on behalf of the
Trust (the "Guarantee Payments"), are subject to the Guarantee: (i) any accrued
and unpaid Distributions required to be paid on Capital Securities, to the
extent that the Trust has funds on hand available therefor at such time, (ii)
the applicable Redemption Price with respect to Capital Securities called for
redemption to the extent that the Trust has funds on hand available therefor at
such time, or (iii) upon a voluntary or involuntary termination, dissolution,
winding up or liquidation of the Trust, the lesser of (a) the Liquidation
Distribution and (b) the amount of assets of the Trust remaining available for
distribution to holders of Capital Securities. The Company's obligation to make
a Guarantee Payment may be satisfied by direct payment of the required amounts
by the Company to the holders of the Exchange Capital Securities or by causing
the Trust to pay such amounts to such holders.
The Guarantee is an irrevocable guarantee on a subordinated basis of
the Trust's obligations under the Exchange Capital Securities, but will apply
only to the extent that the Trust has funds sufficient to make such payments,
and is not a guarantee of collection. If the Company does not make interest
payments on Junior Subordinated Debentures held by the Trust, the Trust will not
be able to pay Distributions on its Capital Securities and will not have funds
legally available therefor. In such event, holders of the Capital Securities
would not be able to rely on the Guarantee for such payments.
The Guarantee ranks subordinate and junior in right of payment to all
liabilities of the Company, other than any liabilities which expressly by their
terms are made pari passu or subordinate to the obligations of the Company under
the Guarantee. See "-- Status of the Guarantee." Because the Company is a
holding company, the right of the Company to participate in any distribution of
assets of any subsidiary upon such subsidiary's liquidation or reorganization or
otherwise, is subject to the prior claims of creditors of that subsidiary,
except to the extent the Company may itself be recognized as a creditor of that
subsidiary. Claims on the Company's subsidiaries by creditors other than the
Company include long-term debt and substantial obligations in respect of federal
funds purchased, securities sold under repurchase agreements and certain other
short-term borrowings, as well as deposit liabilities. There are various legal
limitations on the extent to which Crestar Bank, which is the Company's
principal subsidiary, may extend credit, pay dividends or otherwise supply funds
to the Company or its affiliates. Accordingly, the Company's obligations under
the Guarantee will be effectively subordinated to all existing and future
liabilities of the Company's subsidiaries, and claimants should look only to the
assets of the Company for payments thereunder. See "Crestar Financial
Corporation." The Guarantee does not limit the incurrence or issuance of other
secured or unsecured debt of the Company, including Senior Indebtedness, whether
under the Indenture, any other indenture that the Company may enter into in the
future or otherwise.
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The Company has, through the Guarantee, the Guarantee Agreement, the
Exchange Trust Agreement, the Exchange Debentures, the Indenture and the Expense
Agreement, taken together, fully, irrevocably and unconditionally guaranteed on
a subordinated basis all of the Trust's obligations under the Exchange Capital
Securities. No single document standing alone or operating in conjunction with
fewer than all of the other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of providing a full,
irrevocable and unconditional guarantee of the Trust's obligations under the
Exchange Capital Securities. See "Relationship Among the Exchange Capital
Securities, the Exchange Debentures and the Guarantee."
STATUS OF THE GUARANTEE
The Guarantee constitutes an unsecured obligation of the Company and
ranks subordinate and junior in right of payment to all liabilities of the
Company, other than any liabilities which expressly by their terms are made pari
passu or subordinate to the obligations of the Company under the Guarantee.
The Guarantee ranks pari passu with all Other Guarantees issued by the
Company. The Guarantee constitutes a guarantee of payment and not of collection
(i.e., the guaranteed party may institute a legal proceeding directly against
the Company to enforce its rights under the Guarantee without first instituting
a legal proceeding against any other person or entity). The Guarantee will be
held for the benefit of the holders of the Exchange Capital Securities. The
Guarantee will not be discharged except by payment of the Guarantee Payments in
full to the extent not paid by the Trust or upon distribution to the holders of
the Exchange Capital Securities or the Exchange Debentures. The Guarantee does
not place a limitation on the amount of additional Senior Indebtedness that may
be incurred by the Company. The Company expects from time to time to incur
additional indebtedness constituting Senior Indebtedness.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely
affect the rights of holders of the Exchange Capital Securities (in which case
no vote will be required), the Guarantee Agreement may not be amended without
the prior approval of the holders of not less than a majority of the aggregate
Liquidation Amount of such outstanding Exchange Capital Securities. The manner
of obtaining any such approval will be as set forth under "Description of
Exchange Capital Securities - Voting Rights; Amendment of the Trust Agreement."
All guarantees and agreements contained in the Guarantee Agreement shall bind
the successors, assigns, receivers, trustees and representatives of the Company
and shall inure to the benefit of the holders of the Exchange Capital Securities
then outstanding.
EVENTS OF DEFAULT
An event of default under the Guarantee Agreement will occur upon the
failure of the Company to perform any of its payment or other obligations
thereunder. The holders of not less than a majority in aggregate Liquidation
Amount of the Exchange Capital Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of the Guarantee or to direct the exercise of any
trust or power conferred upon the Guarantee Trustee under the Guarantee
Agreement.
To the extent permitted by law, any holder of the Exchange Capital
Securities may institute a legal proceeding directly against the Company to
enforce its rights under the Guarantee without first instituting a legal
proceeding against the Trust, the Guarantee Trustee or any other person or
entity.
The Company, as guarantor, is required to file annually with the
Guarantee Trustee a certificate as to whether or not the Company is in
compliance with all the conditions and covenants applicable to it under the
Guarantee Agreement.
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CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Guarantee Agreement provides that the Company shall not consolidate
with or merge into any other entity or convey, transfer or lease its properties
and assets substantially as an entirety to any entity, and no entity shall
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless (i) in
case the Company consolidates with or merges into another entity or conveys or
transfers its properties and assets substantially as an entirety to any entity,
the successor entity expressly assumes the Company's obligations on the
Guarantee; (ii) immediately after giving effect thereto, no event of default
under the Guarantee Agreement, and no event which, after notice or lapse of time
or both, would become an event of default under the Guarantee Agreement, shall
have happened and be continuing; and (iii) certain other conditions as
prescribed in the Guarantee Agreement are met.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance
of a default by the Company in performance of the Guarantee, undertakes to
perform only such duties as are specifically set forth in the Guarantee
Agreement and, after default with respect to the Guarantee, must exercise the
same degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the Guarantee
Trustee is under no obligation to exercise any of the powers vested in it by the
Guarantee Agreement at the request of any holder of the Exchange Capital
Securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that might be incurred thereby.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect upon
full payment of the applicable Redemption Price of the Exchange Capital
Securities, upon full payment of the amounts payable upon liquidation of the
Trust or upon distribution of Exchange Debentures to the holders of the Exchange
Capital Securities. The Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of the Exchange
Capital Securities must restore payment of any sums paid under the Exchange
Capital Securities or the Guarantee.
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the
laws of the State of New York; provided, however that the rights and duties of
the Guarantee Trustee shall be construed in accordance with the laws of the
State of the Guarantee Trustee's principal place of business.
THE EXPENSE AGREEMENT
Pursuant to an Expense Agreement entered into by the Company under the
Trust Agreement (the "Expense Agreement"), the Company will irrevocably and
unconditionally guarantee to each person or entity to whom the Trust becomes
indebted or liable, the full payment of any costs, expenses or liabilities of
the Trust, other than obligations of the Trust to pay to the holders of any
Trust Securities or other similar interests in the Trust of the amounts due such
holders pursuant to the terms of the Trust Securities or such other similar
interests, as the case may be.
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RELATIONSHIP AMONG THE EXCHANGE CAPITAL SECURITIES,
THE EXCHANGE DEBENTURES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Exchange Capital
Securities (to the extent the Trust has funds available for the payment of such
Distributions) are irrevocably guaranteed by the Company as and to the extent
set forth under "Description of Guarantee." Taken together, the Company's
obligations under the Exchange Debentures, the Indenture, the Exchange Trust
Agreement, the Expense Agreement, the Guarantee Agreement and the Guarantee
provide, in the aggregate, a full, irrevocable and unconditional guarantee of
payments of distributions and other amounts due on the Exchange Capital
Securities. No single document standing alone or operating in conjunction with
fewer than all of the other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of providing a full,
irrevocable and unconditional guarantee of the Trust's obligations under the
Exchange Capital Securities. If and to the extent that the Company does not make
payments on the Exchange Debentures, the Trust will not pay Distributions or
other amounts due on the Exchange Capital Securities. The Guarantee does not
cover payment of Distributions when the Trust does not have sufficient funds to
pay such Distributions. In such event, the remedy of a holder of Exchange
Capital Securities is to institute a Direct Action. The obligations of the
Company under the Guarantee are subordinate and junior in right of payment to
all Senior Indebtedness.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on
the Exchange Debentures, such payments will be sufficient to cover Distributions
and other payments due on the Exchange Capital Securities, primarily because:
(i) the aggregate principal amount or Prepayment Price of the Exchange
Debentures will be equal to the sum of the aggregate Liquidation Amount or
Redemption Price, as applicable, of the Exchange Capital Securities and Common
Securities; (ii) the interest rate and interest and other payment dates on the
Junior Subordinated Debentures will match the Distribution rate and Distribution
and other payment dates for the Trust Securities; (iii) under the Expense
Agreement, the Company shall pay for all and any costs, expenses and liabilities
of the Trust except the Trust's obligations to holders of Trust Securities under
such Trust Securities; and (iv) the Exchange Trust Agreement further provides
that the Trust will not engage in any activity that is not consistent with the
limited purposes thereof.
ENFORCEMENT RIGHTS OF HOLDERS OF EXCHANGE CAPITAL SECURITIES
A holder of any Exchange Capital Security may institute a legal
proceeding directly against the Company to enforce its rights under the
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee, the Trust or any other person or entity.
A default or event of default under any Senior Indebtedness would not
constitute a default or Event of Default under the Exchange Trust Agreement.
However, in the event of payment defaults under, or acceleration of, Senior
Indebtedness, the subordination provisions of the Indenture provide that no
payments may be made in respect of the Exchange Debentures until such Senior
Indebtedness has been paid in full or any payment default thereunder has been
cured or waived. Failure to make required payments on Junior Subordinated
Debentures would constitute an Event of Default under the Exchange Trust
Agreement.
LIMITED PURPOSE OF THE TRUST
The Exchange Capital Securities evidence a beneficial interest in the
Trust, and the Trust exists for the sole purpose of issuing the Trust Securities
and investing the proceeds of the Trust Securities in Junior Subordinated
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Debentures and exchanging the Junior Subordinated Debentures in the Exchange
Offer pursuant to the Indenture. A principal difference between the rights of a
holder of a Capital Security and a holder of a Junior Subordinated Debenture is
that a holder of a Junior Subordinated Debenture is entitled to receive from the
Company the principal amount of and interest accrued on Junior Subordinated
Debentures held, while a holder of Capital Securities is entitled to receive
Distributions from the Trust (or from the Company under the Guarantee) if and to
the extent the Trust has funds available for the payment of such Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or
liquidation of the Trust involving the liquidation of the Junior Subordinated
Debentures, after satisfaction of liabilities to creditors as required by
applicable law, the holders of the Trust Securities will be entitled to receive,
out of assets held by the Trust, the Liquidation Distribution in cash. See
"Description of Exchange Capital Securities -- Liquidation of the Trust and
Distribution of Exchange Debentures." Upon any voluntary or involuntary
liquidation or bankruptcy of the Company, the Property Trustee, as holder of the
Junior Subordinated Debentures, would be a subordinated creditor of the Company,
subordinated in right of payment to all Senior Indebtedness as set forth in the
Indenture, but entitled to receive payment in full of principal and interest,
before any stockholders of the Company receive payments or distributions. Since
the Company is the guarantor under the Guarantee and has agreed under the
Expense Agreement to pay for all costs, expenses and liabilities of the Trust
(other than the Trust's obligations to the holders of its Trust Securities), the
positions of a holder of Exchange Capital Securities and a holder of Exchange
Debentures relative to other creditors and to stockholders of the Company in the
event of liquidation or bankruptcy of the Company are expected to be
substantially the same.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the principal United States federal
income tax consequences of the Exchange Offer and the purchase, ownership and
disposition of Capital Securities to the beneficial owners of Capital Securities
(the "Securityholders"). The statements of law and legal conclusions set forth
in this summary regarding the tax consequences are based on the opinion of
Hunton & Williams, counsel to the Company and the Trust. This summary does not
address all tax consequences that may be applicable to a Securityholder, nor
does it address the tax consequences to (i) persons that may be subject to
special treatment under United States federal income tax law, such as banks,
insurance companies, thrift institutions, regulated investment companies, real
estate investment trusts, tax-exempt organizations and dealers in securities or
currencies, (ii) persons that will hold Capital Securities as part of a position
in a "straddle" or as part of a "hedging," "conversion" or other integrated
investment transaction for federal income tax purposes, (iii) except with
respect to the discussion under the caption "United States Alien
Securityholders," persons whose functional currency is not the United States
dollar or (iv) persons that do not hold Capital Securities as capital assets.
This summary is based upon the Internal Revenue Code of 1986, as
amended (the "Code"), Treasury Regulations, Internal Revenue Service (the "IRS")
rulings and pronouncements and judicial decisions now in effect, all of which
are subject to change at any time. Such changes may be applied retroactively in
a manner that could cause the tax consequences to vary substantially from the
consequences described below, possibly adversely affecting a beneficial owner of
Capital Securities. In particular, legislation has been proposed that could
adversely affect the Company's ability to deduct interest on the Junior
Subordinated Debentures, which may in turn permit the Company to cause a
redemption of the Capital Securities. See "-- Possible Tax Law Changes."
The authorities on which this summary is based (including authorities
distinguishing debt from equity) are subject to various interpretations, and it
is therefore possible that the federal income tax treatment of the Capital
Securities may differ from the treatment described below. No ruling has been
received from the IRS regarding the
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tax consequences of the Capital Securities. Counsel's opinion regarding such tax
consequences represents only counsel's best legal judgment based on current
authorities and is not binding on the IRS or the courts.
INVESTORS ARE ADVISED TO CONSULT WITH THEIR OWN TAX ADVISORS IN LIGHT
OF THEIR OWN PARTICULAR CIRCUMSTANCES AS TO THE FEDERAL TAX CONSEQUENCES OF THE
EXCHANGE OFFER AND THE PURCHASE, OWNERSHIP AND DISPOSITION OF CAPITAL
SECURITIES, AS WELL AS THE EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
EXCHANGE OF CAPITAL SECURITIES
The exchange of Old Capital Securities for Exchange Capital Securities
will not be a taxable event to Securityholders for United States federal income
tax purposes. Accordingly, the Exchange Capital Securities will have the same
issue price as the Old Capital Securities, and a Securityholder will have the
same adjusted tax basis and holding period for Exchange Capital Securities as
the holder had for Old Capital Securities immediately before the exchange.
CLASSIFICATION OF THE TRUST
Under current law and assuming compliance with the terms of the Trust
Agreement, the Trust will be classified as a grantor trust and not as an
association taxable as a corporation for United States federal income tax
purposes. As a result, each Securityholder will be treated as owning an
undivided beneficial interest in the Junior Subordinated Debentures.
Accordingly, each Securityholder will be required to include in its gross income
its pro rata share of the interest income, including original issue discount,
paid or accrued with respect to the Junior Subordinated Debentures whether or
not cash is actually distributed to the Securityholders. See "-- Interest Income
and Original Issue Discount." No amount included in income with respect to the
Capital Securities will be eligible for the dividends-received deduction.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under Treasury Regulations applicable to debt instruments issued on or
after August 13, 1996 (the "Treasury Regulations"), a "remote" contingency that
stated interest will not be timely paid will be ignored in determining whether a
debt instrument is issued with original issue discount ("OID"). The Company
believes that the likelihood of its exercising its option to defer payments of
interest on the Junior Subordinated Debentures is remote. Based on the
foregoing, in the opinion of counsel to the Company, the Junior Subordinated
Debentures are not to be considered issued with OID at the time of their
original issuance and, accordingly, a Securityholder should include in gross
income such Securityholder's allocable share of interest on the Junior
Subordinated Debentures (other than an amount of the first interest payment
attributable to pre-issuance accrued interest, which a Securityholder may treat
as a reduction of the issue price of the Junior Subordinated Debentures rather
than as gross income) in accordance with such Securityholder's method of tax
accounting.
Under the Treasury Regulations, if the Company should actually exercise
its option to defer any payment of interest, the Junior Subordinated Debentures
would at that time be treated as issued with OID, and all stated interest on the
Junior Subordinated Debentures would thereafter be treated as OID as long as the
Junior Subordinated Debentures remained outstanding. In such event, all of a
Securityholder's taxable interest income with respect to the Junior Subordinated
Debentures would be accounted for as OID on an economic accrual basis regardless
of such Securityholder's method of tax accounting, and actual payments of stated
interest would not be reported as taxable income. Consequently, a Securityholder
would be required to include in gross income OID even though the Company would
not make any cash payments during an Extension Period.
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The Treasury Regulations have not been addressed in any rulings or
other interpretations by the IRS, and it is possible that the IRS could take a
position contrary to the interpretation herein.
MARKET DISCOUNT AND AMORTIZABLE PREMIUM
A secondary market purchaser of Capital Securities at a discount from
the adjusted issue price of the pro rata share of Junior Subordinated Debentures
represented by the Capital Securities (that is, the principal amount plus any
accrued but unpaid OID) acquires such Capital Securities with "market discount"
if the discount is not less than the product of (i) 0.25% of the adjusted issue
price multiplied by (ii) the number of complete years to maturity of the Junior
Subordinated Debentures after the date of purchase. A purchaser of Capital
Securities with market discount generally will be required to treat any gain on
the sale, redemption or other disposition of all or part of such Capital
Securities as ordinary income to the extent of accrued (but not previously
taxable) market discount. Market discount generally will accrue ratably during
the period from the date of purchase to the maturity date, unless the
Securityholder elects to accrue such market discount on the basis of a constant
interest rate. A Securityholder who acquires Capital Securities at a market
discount may be required to defer some interest deductions attributable to any
indebtedness incurred or continued to purchase or carry the Capital Securities.
A secondary market purchaser of Capital Securities at a premium over
the stated principal amount of the pro rata share of Junior Subordinated
Debentures (plus accrued interest) generally may elect to amortize such premium
("Section 171 premium"), under a constant yield method, as an offset to interest
income on the Junior Subordinated Debentures. If the Junior Subordinated
Debentures are deemed to be issued with OID and are acquired at a premium over
the adjusted issue price, the premium will not be Section 171 premium but will
be amortized as a reduction in the amount of OID includable in the
Securityholder's income.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBENTURES TO HOLDERS OF CAPITAL SECURITIES
A distribution by the Trust of the Junior Subordinated Debentures as
described under the caption "Description of Capital Securities - Liquidation of
the Trust and Distribution of Junior Subordinated Debentures" is conditioned on
receipt by the Company of an opinion of counsel to the effect that such
distribution would be a non-taxable event to Securityholders for United States
federal income tax purposes. Under current law, such a distribution would be
non-taxable and would result in the Securityholder receiving directly his pro
rata share of the Junior Subordinated Debentures previously held indirectly
through the Trust, with a holding period and aggregate tax basis equal to the
holding period and aggregate tax basis such Securityholder had in its Capital
Securities before such distribution. A Securityholder would account for
interest, market discount and amortizable premium in respect of Junior
Subordinated Debentures received from the Trust as described above under "-
Interest Income and Original Issue Discount" and "- Market Discount and
Amortizable Premium."
SALES OR REDEMPTION OF CAPITAL SECURITIES
Upon a sale (including redemption) of Capital Securities, a
Securityholder will recognize gain or loss equal to the difference between its
adjusted tax basis in the Capital Securities and the amount realized on the sale
of such Capital Securities (excluding any amount attributable to any accrued
interest with respect to such Securityholder's pro rata share of the Junior
Subordinated Debentures not previously included in income, which will be taxable
as ordinary income). Provided that the Company does not exercise its option to
defer payment of interest on the Junior Subordinated Debentures, and the Capital
Securities are not considered to be issued with OID, a Securityholder's adjusted
tax basis in the Capital Securities generally will be the Securityholder's
purchase price, increased by any market discount included in income and reduced
by any amortized Section 171 premium for such Capital Securities. If the Junior
Subordinated Debentures are deemed to be issued with OID as a result of the
Company's deferral of any interest payment, a Securityholder's tax basis in the
Capital Securities generally will be increased by OID previously includable in
such Securityholder's gross income to the date of disposition and decreased by
distributions or other payments received on the Capital Securities since and
including the commencement date of the first
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<PAGE>
Extension Period. Such gain or loss, except to the extent of any accrued market
discount, generally will be a capital gain or loss, and generally will be a
long-term capital gain or loss if the Capital Securities have been held for more
than one year.
Should the Company exercise its option to defer any payment of interest
on the Junior Subordinated Debentures, the Capital Securities may trade at a
price that does not accurately reflect the value of accrued but unpaid interest
with respect to the underlying Junior Subordinated Debentures. As a result, and
because a Securityholder will be required to include in income accrued but
unpaid interest on Junior Subordinated Debentures and to add such amount to its
adjusted tax basis, such Securityholder may recognize a capital loss on a sale
of Capital Securities during an Extension Period. Subject to certain limited
exceptions, capital losses cannot be applied to offset ordinary income for
United States federal income tax purposes.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
The amount of interest paid and any OID accrued on the Junior
Subordinated Debentures to Securityholders (other than corporations and other
exempt Securityholders) will be reported to the IRS. It is expected that such
income will be reported to Securityholders on Form 1099 and mailed to
Securityholders by January 31 following each calendar year. "Backup" withholding
at a rate of 31% will apply to payments of interest and payments of disposition
(including redemption) proceeds to a non-exempt Securityholder unless the
Securityholder furnishes to the payor its taxpayer identification number,
certifies that such number is correct, and meets certain other conditions. Any
amounts withheld from a Securityholder under the backup withholding rules will
be allowable as a refund or a credit against such Securityholder's United States
federal income tax liability.
UNITED STATES ALIEN SECURITYHOLDERS
For purposes of this discussion, a United States Alien Securityholder
is any corporation, individual, partnership, estate or trust that for United
States federal income tax purposes is a foreign corporation, a non-resident
alien individual, a foreign partnership or a non-resident fiduciary of a foreign
estate or trust. This discussion assumes that income with respect to the Capital
Securities is not effectively connected with a trade or business in the United
States in which the United States Alien Securityholder is engaged.
Under current United States federal income tax law:
(i) payments by the Trust or any of its paying agents to any holder of
Capital Securities that is a United States Alien Securityholder
generally will not be subject to withholding or other United
States federal income tax, provided that, in the case of payments
with respect to interest (including OID), (a) the beneficial owner
of the Capital Securities does not actually or constructively own
10% or more of the total combined voting power of all classes of
stock of the Company entitled to vote, (b) the beneficial owner of
the Capital Securities is not a controlled foreign corporation
that is related to the Company through stock ownership, and (c)
either (A) the beneficial owner of the Capital Securities
certifies to the Trust or its agent, under penalties of perjury,
that it is a United States Alien Securityholder and provides its
name and address or (B) a securities clearing organization, bank
or other financial institution that holds customers' securities in
the ordinary courses of its trade or business (a "Financial
Institution") and holds the Capital Securities in such capacity
certifies to the Trust or its agent under penalties of perjury
that such statement has been received from the beneficial owner by
it or by a Financial Institution between it and the beneficial
owner and furnishes the Trust or its agent with a copy thereof;
and
(ii) a United States Alien Securityholder of Capital Securities
generally will not be subject to withholding or other United
States federal income tax on any gain realized upon the sale or
other disposition of Capital Securities.
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POSSIBLE TAX LAW CHANGES
The Clinton administration has proposed legislation (the "Proposal")
that would, among other things, deny interest deductions for interest on an
instrument issued by a corporation that has a maximum term of more than 15 years
and that is not shown as indebtedness on the separate balance sheet of the
issuer or, if the instrument is issued to a related party (other than a
corporation), where the holder or some other related party issues a related
instrument that is not shown as indebtedness on the issuer's consolidated
balance sheet. If such a provision were to apply to the Junior Subordinated
Debentures, the Company would be unable to deduct interest on the Junior
Subordinated Debentures. However, the above-described provision of the Proposal
is proposed generally to be effective only for instruments issued on or after
the date of first Congressional committee action, and under current law, the
Company is able to deduct interest on the Junior Subordinated Debentures. There
can be no assurance that future action on the Proposal or future legislative
proposals, future regulations or official administrative pronouncements, or
future judicial decisions will not affect the ability of the Company to deduct
interest on the Junior Subordinated Debentures. Such a change could give rise to
a Tax Event, which may permit the Company, upon approval of the Federal Reserve
if then required under applicable guidelines or policies of the Federal Reserve,
to cause a redemption of the Capital Securities before, as well as after,
December 15, 2006. See "Description of Capital Securities -- Redemption" and
"Description of Capital Securities - Liquidation of the Trust and Distribution
of Junior Subordinated Debentures."
ERISA CONSIDERATIONS
GENERAL
A fiduciary of an employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") should
consider fiduciary standards under ERISA in the context of the particular
circumstances of such plan before authorizing an investment in the Exchange
Capital Securities. Such fiduciary should consider whether the investment
satisfies ERISA's diversification and prudence requirements, whether the
investment constitutes unauthorized delegation of fiduciary authority and
whether the investment is in accordance with the documents and instruments
governing the plan. In addition, ERISA and the Code prohibit a wide range of
transactions ("Prohibited Transactions") involving the assets of a plan subject
to ERISA or the assets of an individual retirement account or plan subject to
Section 4975 of the Code (hereinafter an "ERISA Plan") and persons who have
certain specified relationships to the ERISA Plan ("parties in interest," within
the meaning of ERISA, and "disqualified persons," within the meaning of the
Code). Such transactions may require "correction" and may cause the ERISA Plan
fiduciary to incur certain liabilities and the parties in interest or
disqualified persons to be subject to excise taxes.
The acquisition of any Exchange Capital Security by any person who is
using for such acquisition the assets of an ERISA Plan shall constitute a
representation by such person to the Company that (i) if the Company or a
subsidiary or affiliate of the Company is a "party in interest" or a
"disqualified person" with respect to such ERISA Plan, then such security is
being acquired pursuant to an exemption from the Prohibited Transaction rules
under ERISA and the Code, and (ii) neither the Company nor a subsidiary or
affiliate of the Company is a "fiduciary," within the meaning of Section 3(21)
of ERISA and the regulations thereunder, with respect to such person's interest
in the Exchange Capital Securities or the Exchange Debentures.
Governmental plans and certain church plans (each as defined under
ERISA) are not subject to the Prohibited Transaction rules. Such plans may,
however, be subject to federal, state or local laws or regulations which may
affect their investment in the Exchange Capital Securities. Any fiduciary of
such a governmental or church plan considering an investment in the Exchange
Capital Securities should determine the need for, and the availability, if
necessary, of any exemptive relief under such laws or regulations.
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<PAGE>
The discussion herein of ERISA is general in nature and is not intended
to be all inclusive. Any fiduciary of an ERISA Plan, governmental plan or church
plan considering an investment in the Exchange Capital Securities should consult
with its legal advisors regarding the consequences of such investment.
PROHIBITED TRANSACTIONS
The Company (or a subsidiary or affiliate of the Company) may be a
party in interest or a disqualified person with respect to an ERISA Plan
investing in the Exchange Capital Securities, and, therefore, such investments
by an ERISA Plan may give rise to a Prohibited Transaction. Consequently, before
investing in the Exchange Capital Securities, any person who is, or who in
acquiring such securities is using the assets of, an ERISA Plan should determine
that either a statutory or an administrative exemption from the Prohibited
Transaction rules discussed below or otherwise available is applicable to such
person's investment in the Exchange Capital Securities, or that its investment
in such securities will not result in a Prohibited Transaction.
Certain statutory or administrative exemptions from the Prohibited
Transaction rules under ERISA and the Code may be available to an ERISA Plan
which is investing in the Exchange Capital Securities. Included among these
exemptions are: Prohibited Transaction Class Exemption ("PTCE") 90-1, regarding
investments by insurance company pooled separate accounts; PTCE 91-38, regarding
investments by bank collective investment funds; PTCE 84-14, regarding
transactions effected by qualified professional asset managers; PTCE 96-23,
regarding transactions effected by in-house asset managers; or PTCE 95-60,
regarding investments by insurance company general accounts.
TRUST ASSETS AS "PLAN ASSETS"
The Department of Labor has issued final regulations (the "Labor
Regulations") as to what constitutes assets of an employee benefit plan ("plan
asset") under ERISA. The Labor Regulations provide that, as a general rule, when
an ERISA Plan acquires an equity interest in an entity and such interest does
not represent a "publicly offered security" nor a security issued by an
investment company registered under the Investment Company Act of 1940, the
ERISA Plan's assets include both the equity interest and an undivided interest
in each of the underlying assets of the entity, unless it is established either
that the entity is an operating company or that equity participation in the
entity by "benefit plan investors" is not "significant." For purposes of the
Labor Regulations, the Trust will not be an investment company nor an operating
company and the Capital Securities will not constitute a "publicly offered
security." As discussed below, the Exchange Capital Securities may qualify as
"publicly offered securities" for purposes of the Labor Regulations, but such
result cannot be assured.
Under the Labor Regulations, equity participation by benefit plan
investors will not be considered "significant" on any date only if, immediately
after the most recent acquisition of Capital Securities, the aggregate interest
in the Capital Securities held by benefit plan investors will be less than 25%
of the value of the Capital Securities. Although it is possible that the equity
participation by benefit plan investors on any date will not be "significant"
for purposes of the Labor Regulations, such result cannot be assured.
Consequently, if ERISA Plans or investors using plan assets of ERISA plans
purchase the Capital Securities, the Trust's assets could be deemed to be "plan
assets" of such ERISA Plans for purposes of the fiduciary responsibility
provisions of ERISA and the Code. Under ERISA, any person who exercises any
authority or control respecting the management or disposition of the assets of
an ERISA Plan is considered to be a fiduciary of such ERISA Plan. For example,
the Property Trustee could therefore become a fiduciary of the ERISA Plans that
invest in the Capital Securities and be subject to the general fiduciary
requirements of ERISA in exercising its authority with respect to the management
of the assets of the Trust. However, the Property Trustee will have only limited
discretionary authority with respect to the Trust's assets and the remaining
functions and responsibilities performed by the Property Trustee will be for the
most part custodial and ministerial in nature. Inasmuch as the Property Trustee
or another person with authority or control respecting the management or
disposition of the Trust assets may become a fiduciary with respect to the ERISA
Plans that will purchase the Capital Securities, there may be an improper
delegation by such ERISA Plans of the responsibility to manage plan assets.
-69-
<PAGE>
The Exchange Capital Securities are being distributed pursuant to an
effective registration statement under the Securities Act and subsequently will
be registered under the Exchange Act. The Exchange Capital Securities may
qualify as "publicly offered securities" under the Labor Regulations if, in
addition to such distribution and registration, at the time of the Exchange
Offer they are also "widely held" and "freely transferable". Under the Labor
Regulations, a class of securities is "widely held" only if it is a class of
securities that is owned by 100 or more investors independent of the issuer and
of one another. Although it is possible that the Exchange Capital Securities
will be "widely held," such result cannot be assured. Whether a security is
"freely transferable" for purposes of the Labor Regulations is a factual
question to be determined on the basis of all relevant facts and circumstances.
If at the time of the Exchange Offer the Exchange Capital Securities qualify as
"publicly offered securities," the assets of the Trust should not be "plan
assets" as of such time. If the Exchange Capital Securities do not qualify as
"publicly offered securities," the "plan asset" considerations discussed in the
immediately preceding paragraph in connection with the Capital Securities could
also be applicable in connection with the investment by ERISA Plans in the
Exchange Capital Securities.
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Capital Securities for its
own account in connection with the Exchange Officer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange Capital
Securities. This Prospectus, as it may be amended or supplemented from time to
time, may be used by Participating Broker-Dealers during the period referred to
below in connection with resales of Exchange Capital Securities received in
exchange for Old Capital Securities if such Old Capital Securities were acquired
by such Participating Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities. The Company and the Trust
have agreed that this Prospectus, as it may be amended or supplemented from time
to time, may be used by a Participating Broker-Dealer in connection with resales
of such Exchange Capital Securities for a period ending 90 days after the
Expiration Date (subject to extension under certain limited circumstances
described herein) or, if earlier, when all such Exchange Capital Securities have
been disposed of by such Participating Broker-Dealer. However, a Participating
Broker-Dealer who intends to use this Prospectus in connection with the resale
of Exchange Capital Securities received in exchange for Old Capital Securities
pursuant to the Exchange Offer must notify the Company or the Trust, or cause
the Company or the Trust to be notified, on or prior to the Expiration Date,
that it is a Participating Broker-Dealer. Such notice may be given in the space
provided for that purpose in the Letter of Transmittal or may be delivered to
the Exchange Agent at one of the addresses set forth herein under "The Exchange
Offer -- Exchange Agent." See "The Exchange Offer -- Resales of Exchange Capital
Securities."
Neither the Company nor the Trust will receive any cash proceeds from
the issuance of the Exchange Capital Securities offered hereby. Exchange Capital
Securities received by broker-dealers for their own accounts in connection with
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 Capital Securities 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 at 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 commission or concessions from any such
broker-dealer and/or the purchasers of any such Exchange Capital Securities.
Any broker-dealer that resells Exchange Capital Securities that were
received by it for its own account in connection with the Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Capital
Securities may be deemed to be an "underwriter" within the meaning of the
Securities Act, and any profit on any such resale of Exchange Capital Securities
and any commissions or concessions received by any such persons may be deemed to
be underwriting compensation under the Securities 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 Securities Act.
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VALIDITY OF NEW SECURITIES
The validity of the Guarantee and the Exchange Debentures will be
passed upon for the Company by Hunton & Williams, Richmond, Virginia. Certain
matters relating to United States federal income tax considerations will be
passed upon for the Company by Hunton & Williams, Richmond, Virginia. Certain
matters of Delaware law relating to the validity of the Exchange Capital
Securities will be passed upon on behalf of the Trust by Richards, Layton &
Finger, P.A., special Delaware counsel to the Trust.
EXPERTS
The consolidated financial statements of the Company appearing in the
Company's Annual Report on Form 10-K for the fiscal year ended December 31,
1996, incorporated by reference herein, have been incorporated by reference
herein in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing. Our report refers
to our reliance on another auditors' report with respect to amounts related to
Citizens Bancorp included in the aforementioned consolidated financial
statements.
The consolidated financial statements of Citizens Bancorp which have
been consolidated with those of the Company in the Company's Annual Report on
Form 10-K for the year ended December 31, 1996, have been audited by Deloitte &
Touche LLP as stated in their report. The incorporation by reference herein of
the Company's Annual Report on Form 10-K for the year ended December 31, 1996,
has been so incorporated in reliance upon the report of Deloitte & Touche LLP,
independent auditors, given upon their authority as experts in accounting and
auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Registrant's Articles of Incorporation implement the provisions of the
Virginia State Corporation Act ("VSCA"), which provide for the indemnification
of Registrant's directors and officers in a variety of circumstances, which may
include indemnification for liabilities under the Securities Act of 1933. Under
Sections 13.1-697 and 13.1-702 of the VSCA, a Virginia corporation generally is
authorized to indemnify its directors and officers in civil and criminal actions
if they acted in good faith and believed their conduct to be in the best
interests of the corporation and, in the case of criminal actions, had no
reasonable cause to believe that the conduct was unlawful. Registrant's Articles
of Incorporation require indemnification of directors and officers with respect
to certain liabilities, expenses and other amounts imposed upon them by reason
of having been a director or officer, except in the case of willful misconduct
or a knowing violation of criminal law. Registrant also carries insurance on
behalf of directors, officers, employees or agents that may cover liabilities
under the Securities Act of 1933. In addition, the VSCA and Registrant's
Articles of incorporation eliminate the liability of a director or officer in a
stockholder or derivative proceeding. This elimination of liability will not
apply in the event of willful misconduct or a knowing violation of the criminal
law or any federal or state securities law. Sections 13.1-692.1 and 13.1-696 to
- -704 of the VSCA are incorporated herein by reference.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Exhibit
4.1 Indenture of Crestar Financial Corporation, with The Chase
Manhattan Bank, as Trustee, relating to the Junior Subordinated
Debentures
4.2 First Supplemental Indenture of Crestar Financial Corporation,
with The Chase Manhattan Bank, as Trustee, relating to the Junior
Subordinated Debentures
4.3 Form of Certificate of Junior Subordinated Debenture (included as
Exhibit A to Exhibit 4.2)
4.4 Certificate of Trust of Crestar Capital Trust I
4.5 Amended and Restated Trust Agreement for Crestar Capital Trust I
4.6 Form of Exchange Capital Security Certificate for Crestar Capital
Trust I (included as Exhibit A-1 to Exhibit 4.5)
4.7 Form of Guarantee of Crestar Financial Corporation relating to the
Capital Securities
4.8 Registration Rights Agreement for Capital Securities
4.9 Registration Rights Agreement for Junior Subordinated Debentures
4.10 Registration Rights Agreement for Guarantee
5.1 Opinion and consent of Hunton & Williams to Crestar Financial
Corporation as to legality of the Exchange Debentures and the
Guarantee to be issued by Crestar Financial Corporation
5.2 Opinion of Richards, Layton & Finger, P.A., special Delaware
counsel, as to legality of the Exchange Capital Securities to be
issued by Crestar Capital Trust I
8 Opinion of Hunton & Williams as to certain federal income tax
matters
12 Computation of ratio of earnings to fixed charges
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Hunton & Williams (included in Exhibit 5.1)
23.4 Consent of Richards, Layton & Finger, P.A. (including in Exhibit
5.2)
II-1
<PAGE>
24 Power of Attorney of certain officers and directors of Crestar
Financial Corporation (included on Signature Page)
25.1 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to
act as trustee as to the Capital Securities
25.2 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to
act as trustee as to the Junior Subordinated Debentures
25.3 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to
act as trustee as to the Guarantee for the benefit of the holders
of Exchange Capital Securities of Crestar Capital Trust I
99.1 Form Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Exchange Agent Agreement
ITEM 22. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that, in the opinion of the Securities and
Exchange Commission, such indemnification is against the public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against liabilities (other than the payment of the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time it was
declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
II-2
<PAGE>
SIGNATURE OF REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Richmond,
Commonwealth of Virginia, on May 15, 1997.
CRESTAR FINANCIAL CORPORATION
(Registrant)
By: /s/ Richard G. Tilghman
-------------------
Richard G. Tilghman
Chairman of the Board and
Chief Executive Officer
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on May 15, 1997. Each of the directors and/or officers of
Crestar Financial Corporation whose signature appears below hereby appoints John
C. Clark, III, Linda F. Rigsby and Lathan M. Ewers, Jr., and each of them
severally, as his attorney-in-fact to sign in his name and behalf, in any and
all capacities stated below and to file with the Commission, any and all
amendments, including post-effective amendments to this registration statement,
making such changes in the registration statement as appropriate, and generally
to do all such things in their behalf in their capacities as officers and
directors to enable Crestar Financial Corporation to comply with the provisions
of the Securities Act of 1933, and all requirements of the Securities and
Exchange Commission.
SIGNATURE TITLE
--------- -----
/s/ Richard G. Tilghman Chairman of the Board and
- ----------------------- Chief Executive Officer and Director
Richard G. Tilghman (Principal Executive Officer)
/s/ James M. Wells President and Chief Operating Officer
- ------------------ and Director
James M. Wells III
/s/ Richard F. Katchuk Corporate Executive Vice President
- ---------------------- and Chief Financial Officer
Richard F. Katchuk (Principal Financial Officer)
/s/ James D. Barr Group Executive Vice President,
- ----------------- Controller and Treasurer
James D. Barr (Principal Accounting Officer)
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<PAGE>
/s/ J. Carter Fox Director
- -----------------
J. Carter Fox
/s/ Bonnie Guiton Hill Director
- ----------------------
Bonnie Guiton Hill
/s/ Charles R. Longsworth Director
- -------------------------
Charles R. Longsworth
/s/ Patrick J. Maher Director
- --------------------
Patrick J. Maher
/s/ Frank E. McCarthy Director
- ---------------------
Frank E. McCarthy
/s/ Paul D. Miller Director
- ------------------
Paul D. Miller
/s/ G. Gilmer Minor, III Director
- ------------------------
G. Gilmer Minor, III
/s/ Gordon F. Rainey, Jr. Director
- -------------------------
Gordon F. Rainey, Jr.
/s/ Frank S. Royal Director
- -------------------
Frank S. Royal, M.D.
Director
- --------------------
Alfred H. Smith, Jr.
II-4
<PAGE>
/s/ Jeffrey R. Springer Director
- -----------------------
Jeffrey R. Springer
/s/ Eugene P. Trani Director
- -------------------
Eugene P. Trani
/s/ L. Dudley Walker Director
- --------------------
L. Dudley Walker
/s/ Robert C. Wilburn Director
- ---------------------
Robert C. Wilburn
/s/ Karen Hastie Williams Director
- -------------------------
Karen Hastie Williams
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<PAGE>
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, Crestar
Capital Trust I certifies that it has reasonable grounds to believe that it
meets all the requirements for filing this Form 4 registration statement and has
duly caused this registration statement to be signed by the following persons
thereunto duly authorized in the City of Richmond, Commonwealth of Virginia, in
the capacities indicated on May 15, 1997. Each of the administrators of Crestar
Capital Trust I whose signature appears below hereby appoints John C. Clark,
III, Linda F. Rigsby and Lathan M. Ewers, Jr., and each of them severally, as
his attorney-in-fact to sign in his name and behalf, in any and all capacities
stated below and to file with the Commission, any and all amendments, including
post-effective amendments to this registration statement, making such changes in
the registration statement as appropriate, and generally to do all such things
in their behalf in their capacities as administrators to enable Crestar Capital
Trust I to comply with the provisions of the Securities Act of 1933, and all
requirements of the Securities and Exchange Commission.
CRESTAR CAPITAL TRUST I
By: /s/ Eugene S. Putnam, Jr.
---------------------
Eugene S. Putnam, Jr.
as Administrator
By: /s/ Eileen G. Sadowski
----------------------
Eileen G. Sadowski
as Administrator
By: /s/ Mark Smith
--------------
Mark Smith
as Administrator
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description Page
- ------- ----------- ----
<S> <C>
4.1 Indenture of Crestar Financial Corporation, with The Chase
Manhattan Bank, as Trustee, relating to the Junior Subordinated
Debentures
4.2 First Supplemental Indenture of Crestar Financial Corporation,
with The Chase Manhattan Bank, as Trustee, relating to the Junior
Subordinated Debentures
4.3 Form of Certificate of Junior Subordinated Debenture (included as
Exhibit A to Exhibit 4.2)
4.4 Certificate of Trust of Crestar Capital Trust I
4.5 Amended and Restated Trust Agreement for Crestar Capital Trust I
4.6 Form of Exchange Capital Security Certificate for Crestar Capital
Trust I (included as Exhibit A-1 to Exhibit 4.5)
4.7 Form of Guarantee of Crestar Financial Corporation relating to the
Capital Securities
4.8 Registration Rights Agreement for Capital Securities
4.9 Registration Rights Agreement for Junior Subordinated Debentures
4.10 Registration Rights Agreement for Guarantee
5.1 Opinion and consent of Hunton & Williams to Crestar Financial
Corporation as to legality of the Exchange Debentures and the
Guarantee to be issued by Crestar Financial Corporation
5.2 Opinion of Richards, Layton & Finger, P.A., special Delaware
counsel, as to legality of the Exchange Capital Securities to be
issued by Crestar Capital Trust I
8 Opinion of Hunton & Williams as to certain federal income tax
matters
12 Computation of ratio of earnings to fixed charges
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Hunton & Williams (included in Exhibit 5.1)
23.4 Consent of Richards, Layton & Finger, P.A. (including in Exhibit
5.2)
24 Power of Attorney of certain officers and directors of Crestar
Financial Corporation (included on Signature Page)
25.1 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to
act as trustee as to the Capital Securities
25.2 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to
act as trustee as to the Junior Subordinated Debentures
25.3 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to
act as trustee as to the Guarantee for the benefit of the holders
of Exchange Capital Securities of Crestar Capital Trust I
99.1 Form Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Exchange Agent Agreement
</TABLE>
II-7
CRESTAR FINANCIAL CORPORATION
and
THE CHASE MANHATTAN BANK
Trustee
-----------
INDENTURE
Dated as of December 31, 1996
JUNIOR SUBORDINATED DEBENTURES
<PAGE>
Reconciliation and Tie Sheet*
between
Provisions of the Trust Indenture Act of 1939, as amended
and
Indenture Dated as of December 31, 1996
between
Crestar Financial Corporation
and
The Chase Manhattan Bank, Trustee
Section of Act Section of Indenture
310(a)(1)
310(a)(2)
310(a)(3) Inapplicable
310(a)(4) Inapplicable
310(b) ,
310(c) Inapplicable
311(a) ,
311(b) ,
311(c) Inapplicable
312(a) ,
312(b)
312(c)
313(a)
313(b)(1) Inapplicable
313(b)(2)
313(c)
313(d)
314(a)(1)
314(a)(2)
314(a)(3)
314(a)(4)
314(b) Inapplicable
314(c)(1)
314(c)(2)
314(c)(3) Inapplicable
314(d) Inapplicable
314(e)
314(f) Omitted
315(a)
315(b)
315(c)
315(d)
315(e)
316(a)(1) ,
316(a)(2) Omitted
316(b)
316(c)
317(a)
317(b)
318(a)
- ---------------------
<PAGE>
Section of Act Section of Indenture
*This Reconciliation and Tie Sheet is not part of the Indenture.
<PAGE>
PAGE
TABLE OF CONTENTS
PAGE
ARTICLE 1DEFINITIONS
SECTION 1.01. Certain Terms Defined 2
ARTICLE 2ISSUE, DESCRIPTION, EXECUTION, REGISTRATION OF TRANSFER AND
EXCHANGE OF SECURITIES
SECTION 2.01. Amount, Series and Delivery of
Securities 13
SECTION 2.02. Form of Securities and Trustee s
Certificate 17
SECTION 2.03. Denominations of and Payment of
Interest on Securities 19
SECTION 2.04. Execution of Securities 20
SECTION 2.05. Registration, Transfer and Exchange of
Securities 21
SECTION 2.06. Temporary Securities 24
SECTION 2.07. Mutilated, Destroyed, Lost or Stolen
Securities 24
SECTION 2.08. Cancellation and Destruction of
Surrendered Securities 25
SECTION 2.09. Authenticating Agents 25
SECTION 2.10. Deferrals of Interest Payment Dates27
SECTION 2.11. Right of Set-off; Subrogation 28
SECTION 2.12. Shortening or Extension of Stated
Maturity 29
SECTION 2.13. Agreed Tax Treatment 29
ARTICLE 3REDEMPTION OF SECURITIES
SECTION 3.01. Applicability of Article 29
SECTION 3.02. Mailing of Notice of Redemption 30
SECTION 3.03. When Securities Called for Redemption
Become Due and Payable 31
SECTION 3.04. Right of Redemption of Securities
Initially Issued to a Crestar Capital Trust32
ARTICLE 4PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal of and Interest on
Securities 33
SECTION 4.02. Maintenance of Offices or Agencies for
Registration of Transfer, Exchange and Payment of
Securities 33
SECTION 4.03. Appointment to Fill a Vacancy in the
Office of Trustee 34
SECTION 4.04. Duties of Paying Agent 34
<PAGE>
PAGE
SECTION 4.05. Further Assurances 35
SECTION 4.06. Officers Certificate as to Defaults;
Notices of Certain Defaults 35
SECTION 4.07. Waiver of Covenants 35
SECTION 4.08. Additional Sums 36
SECTION 4.09. Additional Covenants 36
ARTICLE 5SECURITYHOLDERS LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Company to Furnish Trustee Information
as to the Names and Addresses of Securityholders
37
SECTION 5.02. Trustee to Preserve Information as to
the Names and Addresses of Securityholders
Received by it 38
SECTION 5.03. Annual and Other Reports to Be Filed by
Company with Trustee 39
SECTION 5.04. Trustee to Transmit Annual Report to
Securityholders 40
ARTICLE 6REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 6.01. Events of Default Defined 42
SECTION 6.02. Covenant of Company to Pay to Trustee
Whole Amount Due on Securities on Default in
Payment of Interest or Principal 45
SECTION 6.03. Application of Moneys Collected by
Trustee 47
SECTION 6.04. Limitation on Suits by Holders of
Securities 48
SECTION 6.05. On Default Trustee May Take Appropriate
Action 49
SECTION 6.06. Rights of Holders of Majority in
Principal Amount of Securities to Direct Trustee
and to Waive Default 50
SECTION 6.07. Trustee to Give Notice of Defaults Known
to It, but May Withhold in Certain Circumstances
51
SECTION 6.08. Requirement of an Undertaking to Pay
Costs in Certain Suits under the Indenture or
Against the Trustee 51
ARTICLE 7CONCERNING THE TRUSTEE
SECTION 7.01. Upon Event of Default Occurring and
Continuing, Trustee Shall Exercise Powers Vested
in It, and Use Same Degree of Care and Skill in
Their Exercise, as a Prudent Man Would Use 52
SECTION 7.02. Reliance on Documents, Opinions, Etc 53
SECTION 7.03. Trustee Not Liable for Recitals in
Indenture or in Securities 54
SECTION 7.04. May Own Securities 54
<PAGE>
PAGE
SECTION 7.05. Moneys Received by Trustee to Be Held in
Trust Without Interest 54
SECTION 7.06. Trustee Entitled to Compensation,
Reimbursement and Indemnity 55
SECTION 7.07. Right of Trustee to Rely on Officers
Certificate Where No Other Evidence Specifically
Prescribed 55
SECTION 7.08. Disqualification; Conflicting
Interests 56
SECTION 7.09. Requirements for Eligibility of
Trustee 56
SECTION 7.10. Resignation of Trustee 56
SECTION 7.11. Acceptance by Successor Trustee 58
SECTION 7.12. Successor to Trustee by Merger,
Consolidation or Succession to Business 59
SECTION 7.13. Limitations on Rights of Trustee as a
Creditor to Obtain Payment of Certain Claims
Within Three Months Prior to Default or During
Default, or to Realize on Property as Such
Creditor Thereafter 60
ARTICLE 8CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Evidence of Action by Securityholders64
SECTION 8.02. Proof of Execution of Instruments and
of Holding of Securities 65
SECTION 8.03. Who May Be Deemed Owners of Securities
65
SECTION 8.04. Securities Owned by Company or
Controlled or Controlling Persons Disregarded for
Certain Purposes 66
SECTION 8.05. Instruments Executed by Securityholders
Bind Future Holders 66
ARTICLE 9SECURITYHOLDERS MEETINGS
SECTION 9.01. Purposes for Which Meetings May Be
Called 67
SECTION 9.02. Manner of Calling Meetings 67
SECTION 9.03. Call of Meeting by Company or
Securityholders 67
SECTION 9.04. Who May Attend and Vote at Meetings68
SECTION 9.05. Regulations May Be Made by Trustee68
SECTION 9.06. Manner of Voting at Meetings and Record
to be Kept 69
SECTION 9.07. Exercise of Rights of Trustee,
Securityholders and Holders of Preferred
Securities Not to Be Hindered or Delayed 70
<PAGE>
PAGE
ARTICLE 10SUPPLEMENTAL INDENTURES
SECTION 10.01. Purposes for Which Supplemental
Indentures May Be Entered into Without Consent of
Securityholders 70
SECTION 10.02. Modification of Indenture with Consent
of Holders of a Majority in Principal Amount of
Securities 72
SECTION 10.03. Effect of Supplemental Indentures 73
SECTION 10.04. Securities May Bear Notation of Changes
by Supplemental Indentures 74
SECTION 10.05. Revocation and Effect of Consents 74
ARTICLE 11CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate, Etc., on
Certain Terms 75
SECTION 11.02. Successor Corporation Substituted75
SECTION 11.03. Opinion of Counsel to Trustee 76
ARTICLE 12SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 12.01. Satisfaction and Discharge of
Indenture 76
SECTION 12.02. Application by Trustee of Funds
Deposited for Payment of Securities 77
SECTION 12.03. Repayment of Moneys Held by Paying
Agent 77
SECTION 12.04. Repayment of Moneys Held by Trustee77
ARTICLE 13IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND
EMPLOYEES
SECTION 13.01. Incorporators, Stockholders, Officers,
Directors and Employees of Company Exempt from
Individual Liability 78
ARTICLE 14SUBORDINATION OF SECURITIES
SECTION 14.01. Agreement to Subordinate 78
SECTION 14.02. Obligation of the Company
Unconditional 80
SECTION 14.03. Limitations on Duties to Holders of
Senior Indebtedness of the Company 81
SECTION 14.04. Notice to Trustee of Facts Prohibiting
Payment 81
SECTION 14.05. Application by Trustee of Moneys
Deposited with It 82
SECTION 14.06. Subrogation 82
SECTION 14.07. Subordination Rights Not Impaired by
Acts or Omissions of Company or Holders of Senior
Indebtedness of the Company 82
<PAGE>
PAGE
SECTION 14.08. Authorization of Trustee to Effectuate
Subordination of Securities 83
SECTION 14.09. No Payment When Senior Indebtedness in
Default 83
SECTION 14.10. Right of Trustee to Hold Senior
Indebtedness of the Company 84
SECTION 14.11. Article Fourteen Not to Prevent
Defaults 84
ARTICLE 15CONVERSION OF SECURITIES
SECTION 15.01. Applicability of Article 84
SECTION 15.02. Conversion Privilege 84
SECTION 15.03. Exercise of Conversion Privilege84
SECTION 15.04. Fractional Interests 86
SECTION 15.05. Conversion Price 86
SECTION 15.06. Adjustment of Conversion Price 86
SECTION 15.07. Continuation of Conversion Privilege in
Case of Reclassification, Change, Merger,
Consolidation or Sale of Assets 89
SECTION 15.08. Notice of Certain Events 90
SECTION 15.09. Taxes on Conversion 91
SECTION 15.10. Company to Provide Stock 91
SECTION 15.11. Disclaimer of Responsibility for
Certain Matters 92
SECTION 15.12. Return of Funds Deposited for
Redemption of Converted Securities 92
ARTICLE 16MISCELLANEOUS PROVISIONS
SECTION 16.01. Successors and Assigns of Company Bound
by Indenture 93
SECTION 16.02. Acts of Board, Committee or Officer of
Successor Corporation Valid 93
SECTION 16.03. Required Notices or Demands May Be
Served by Mail 93
SECTION 16.04. Officers Certificate and Opinion of
Counsel to Be Furnished upon Applications or
Demands by the Company 93
SECTION 16.05. Payments Due on Saturdays, Sundays, and
Holidays 94
SECTION 16.06. Provisions Required by Trust Indenture
Act of 1939 to Control 95
SECTION 16.07. Indenture and Securities to Be
Construed in Accordance with the Laws of the
State of New York 95
SECTION 16.08. Provisions of the Indenture and
Securities for the Sole Benefit of the Parties
and the Securityholders 95
SECTION 16.09. Indenture May Be Executed in
Counterparts 95
SECTION 16.10. Securities in Foreign Currencies95
<PAGE>
PAGE
<PAGE>
INDENTURE, dated as of the 31st day of December, 1996 between Crestar Financial
Corporation, a corporation duly organized and existing under the laws of the
Commonwealth of Virginia (hereinafter sometimes referred to as the "Company"),
party of the first part, and The Chase Manhattan Bank, a banking corporation
duly organized and existing under the laws of the State of New York (hereinafter
sometimes referred to as the "Trustee"), party of the second part,
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issuance from time to time of its unsecured junior subordinated debentures
or other evidences of indebtedness (hereinafter referred to as the
"Securities"), without limit as to principal amount, issuable in one or more
series, the amount and terms of each such series to be determined as hereinafter
provided, including, without limitation, Securities issued to evidence loans
made to the Company of the proceeds from the issuance from time to time by one
or more business trusts (each a "Crestar Capital Trust," and collectively, the
"Crestar Capital Trusts") of preferred interests in such Trusts (the "Preferred
Securities" which may also be referred to, without limitation, as the "Capital
Securities") and common interests in such Trusts (the "Common Securities," and
collectively with the Preferred Securities, the "Trust Securities"); to be
authenticated by the certificate of the Trustee; and, to provide the terms and
conditions upon which the Securities are to be authenticated, issued and
delivered, the Company has duly authorized the execution of this Indenture; and
WHEREAS, all acts and things necessary to make the Securities when executed
by the Company and authenticated and delivered by the Trustee as in this
Indenture provided, the valid, binding and legal obligations of the Company, and
to constitute these presents a valid indenture and agreement according to its
terms, have been done and performed and the execution of this Indenture and the
issue hereunder of the Securities have in all respects been duly authorized, and
the Company, in the exercise of the legal rights and power vested in it,
executes this Indenture and proposes to make, execute, issue and deliver the
Securities;
<PAGE>
NOW, THEREFORE, in order to declare the terms and conditions upon which the
Securities are authenticated, issued and delivered, and in consideration of the
premises and of the purchase and acceptance of the Securities by the holders
thereof, the Company covenants and agrees with the Trustee, for the equal and
proportionate benefit of the respective holders from time to time of the
Securities or of series thereof, as follows:
I. ARTICLE
DEFINITIONS
A. SECTION . Certain Terms Defined. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
1 The terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
2 All other terms used herein which are defined in the Trust Indenture Act
of 1939, as amended, either directly or by reference therein, have the meanings
assigned to them therein;
3 All accounting terms used herein and not expressly defined herein shall
have the meanings assigned to them in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean such
accounting principles which are generally accepted at the date or time of such
computation; and
4 The terms "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Act:
The term the "Act" means the Securities Act of 1933, as amended.
Additional Interest:The term "Additional Interest" means the interest,
if any, that shall accrue on any interest on the Securities of any series the
payment of which has not been made on the applicable interest payment date and
which shall accrue at the rate per annum specified or determined as specified in
such Security.
Additional Sums:
The term "Additional Sums" shall have the meaning specified in Section .
Administrator:
The term "Administrator" means, in respect of any Crestar Capital Trust,
each Person identified as an "Administrator" in the related Trust Agreement,
solely in such Person's capacity as Administrator of such Crestar Capital Trust
under such Trust Agreement and not in such Person's individual capacity, or any
successor administrator appointed as therein provided.
<PAGE>
Authenticating Agent:
The term "Authenticating Agent" shall mean any Authenticating Agent
appointed by the Trustee pursuant to Section .
Authorized Newspaper:
The term "Authorized Newspaper" shall mean a newspaper in the city of
Richmond, Commonwealth of Virginia, and the Borough of Manhattan, The City of
New York, State of New York, each of which is printed in the English language
and customarily published at least once a day for at least five days in each
calendar week and of general circulation in the respective cities. Whenever
successive publications are required to be made in an Authorized Newspaper, the
successive publications may be made in the same or in a different newspaper
meeting the foregoing requirements and in each case on any day of the week. If
it is impossible or, in the opinion of the Trustee, impracticable to publish any
notice in the manner herein provided, then such publication in lieu thereof as
shall be made with the approval of the Trustee shall constitute a sufficient
publication of such notice.
Board of Directors:
The term "Board of Directors," when used with reference to the Company,
shall mean the Board of Directors of the Company or the Executive Committee or
any other committee of or created by the Board of Directors of the Company duly
authorized to act hereunder.
Business Day:
The term "business day" shall mean any day which is not a Saturday or
Sunday and which in the City of New York is neither a legal holiday nor a day on
which banking institutions are authorized by law or executive order to close or
a day on which the corporate trust office of the Trustee is closed for business.
Capital Stock:
The term "Capital Stock" shall mean shares of capital stock of any class of
any corporation whether now or hereafter authorized regardless of whether such
capital stock shall be limited to a fixed sum or percentage in respect of the
rights of the holders thereof to participate in dividends and in the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up.
<PAGE>
Capital Treatment Event:
A "Capital Treatment Event" means the reasonable determination by the
Company that, as a result of the occurrence of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or such pronouncement, action or decision
is announced on or after the date of issuance of the Capital Securities of any
Crestar Capital Trust under the relevant Trust Agreement, there is more than an
insubstantial risk that the Company will not be entitled to treat an amount
equal to the liquidation amount of such Capital Securities as Tier 1 Capital (or
the then equivalent thereof) for purposes of the capital adequacy guidelines of
the Federal Reserve, as then in effect and applicable to the Company.
Commission:
The term "Commission" shall mean the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
Common Stock:
The term "Common Stock" means the common stock, par value $5.00 per share,
of the Company.
Company:
The term "Company" shall mean Crestar Financial Corporation, a corporation
duly organized and existing under the laws of the Commonwealth of Virginia and,
subject to the provisions of Article , shall also include its successors and
assigns.
Crestar Guarantee:
The term "Crestar Guarantee" means the guarantee by the Company of
distributions on the Preferred Securities of a Crestar Capital Trust to the
extent provided in a Guarantee Agreement delivered by the Company to such
Crestar Capital Trust.
Depositary:
<PAGE>
The term "Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more global
Securities, the person designated as Depositary by the Company pursuant to
Section until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter the term "Depositary"
shall mean or include each person who is then a Depositary hereunder and if at
any time there is more than one such person, the term "Depositary" as used with
respect to the Securities of any series shall mean the Depositary with respect
to the Securities of such series.
Distributions:
The term "Distributions," with respect to the Trust Securities issued by a
Crestar Capital Trust, means amounts payable in respect of such Trust Securities
as provided in the related Trust Agreement and referred to therein as
"Distributions."
Event of Default:
The term "Event of Default" with respect to Securities of any series shall
mean any event specified as such in Section and any other event as may be
established with respect to the Securities of such series as contemplated by
Section .
Extension Period:
The term "Extension Period" has the meaning specified in Section .
Federal Reserve:
The "Federal Reserve" means the Board of Governors of the Federal
Reserve System.
Indenture:
The term "Indenture" shall mean this instrument as originally executed, or,
if amended or supplemented as herein provided, then as so amended or
supplemented, and shall include the form and terms of particular series of
Securities established as contemplated by Sections and .
Investment Company Event:
An "Investment Company Event" means the receipt by a Crestar Capital Trust
of an Opinion of Counsel experienced in such matters to the effect that, as a
result of the occurrence of a change in law or regulation or change in
interpretation or application of law or regulation by any legislative body,
court, government agency or regulatory authority (a "Change in 1940 Act Law"),
such Trust is or will be considered an investment company that is required to be
registered under the 1940 Act, which Change in 1940 Act Law becomes effective on
or after the date of original issuance of the Capital Securities of such Crestar
Capital Trust.
<PAGE>
Maturity:
The term "Maturity" when used with respect to any Security means the date
on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
1940 Act:
The term "1940 Act" means the Investment Company Act of 1940, as amended.
Officers Certificate:
The term "Officers Certificate" shall mean a certificate signed by the
Chairman of the Board, any Vice Chairman of the Board, the President, any Vice
Chairman or any Vice President of the Company (whether or not designated by a
number or a word or words added before or after the title Vice President) and by
the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee. Each such certificate
shall include the statements provided for in Section , if and to the extent
required by the provisions thereof and will comply with Section 314 of the Trust
Indenture Act of 1939.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed by
legal counsel, who shall be satisfactory to the Trustee, and who may be an
employee of, or counsel to, the Company and delivered to the Trustee. Each such
opinion shall include the statements provided for in Section, if and to the
extent required by the provisions thereof and will comply with Section 314 of
Trust Indenture Act of 1939.
Original Issue Date:
The term "Original Issue Date" means the first date of issuance of each
Security.
Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon declaration pursuant to Section .
Paying Agent:
The term "Paying Agent" means the Trustee or any Person authorized by the
Company to pay the principal or interest on any Securities on behalf of the
Company.
<PAGE>
Person:
The term "Person" or "person" shall mean any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Principal:
The term "principal," wherever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any."
Property Trustee:
The term "Property Trustee" means, in respect of any Crestar Capital Trust,
the commercial bank or trust company identified as the "Property Trustee" in the
related Trust Agreement, solely in its capacity as Property Trustee of such
Crestar Capital Trust under such Trust Agreement and not in its individual
capacity, or its successor in interest in such capacity, or any successor
property trustee appointed as therein provided.
Ranking junior to the Securities:
The term "ranking junior to the Securities" when used with respect to any
obligation of the Company shall mean (i) any Crestar Guarantee of any Crestar
Capital Trust and (ii) any other obligation of the Company which (a) ranks
junior to and not equally with or prior to the Securities (or any other
obligations of the Company ranking on a parity with the Securities) in right of
payment upon the happening of any event of the kind specified in the first
sentence of the first paragraph of Section, or (b) is specifically designated
as ranking junior to the Securities by express provision in the instrument
creating or evidencing such obligation.
The securing of any obligations of the Company, otherwise ranking junior to
the Securities, shall be deemed to prevent such obligations from constituting
obligations ranking junior to the Securities.
Ranking on a parity with the Securities:
The term "ranking on a parity with the Securities" when used with respect
to any obligation of the Company shall mean any obligation of the Company which
(a) ranks equally with and not prior to the Securities in right of payment upon
the happening of any event of the kind specified in the first sentence of the
first paragraph of Section, or (b) is specifically designated as ranking on a
parity with the Securities by express provision in the instrument creating or
evidencing such obligation.
<PAGE>
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities, shall not be deemed to prevent such obligations from
constituting obligations ranking on a parity with the Securities.
Register:
The term "Register" shall have the meaning specified in Section .
Resolution of the Company:
The term "Resolution of the Company" means a resolution of the Company, in
the form of a resolution of the Board of Directors or in the form of a
resolution of senior officers of the Company pursuant to the Bylaws,
authorizing, ratifying, setting forth or otherwise validating agreements,
execution and delivery of documents, the issuance, form and terms of securities,
or any other actions or proceedings pursuant or with respect to this Indenture.
Responsible Officer:
The term "Responsible Officer," when used with respect to the Trustee,
shall mean the chairman and vice chairman of the board of directors, the
president, the chairman and vice chairman of the executive committee of the
board of directors, every vice president or officer senior thereto, every
assistant vice president, the secretary, every assistant secretary, the
treasurer, every assistant treasurer, every corporate trust officer, every
assistant corporate trust officer, and every other officer and assistant officer
of the Trustee customarily performing functions similar to those performed by
the persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of, and familiarity
with, a particular subject.
Rights Plan:
The term "Rights Plan" means a plan of the Company providing for the
issuance by the Company to all holders of its Common Stock of rights entitling
the holders thereof to subscribe for or purchase shares of Common Stock or any
class or series of preferred stock, which rights (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuances of Common Stock, in each case
until the occurrence of a specified event or events.
Security or Securities; outstanding:
The term "Security" or "Securities" shall mean any security or securities
of the Company, as the case may be, without regard to series, authenticated and
delivered under this Indenture.
The term "outstanding," when used with reference to Securities, shall,
subject to the provisions of Section , mean as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
<PAGE>
except
(a) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own paying agent), provided that such Securities shall have reached their Stated
Maturity or, if such Securities are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as in Article provided,
or provision satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered or which have been paid
pursuant to the terms of Section unless proof satisfactory to the Trustee is
presented that any such Securities are held by persons in whose hands any of
such Securities is a valid, binding and legal obligation of the Company.
In determining whether the holders of the requisite principal amount of
outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of an Original Issue
Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section .
Securityholder; registered holder:
The terms "Securityholder," "holder of Securities," "registered holder" or
other similar term, shall mean any person who shall at the time be the
registered holder of any Security or Securities on the Register kept for that
purpose in accordance with the provisions of this Indenture.
<PAGE>
Senior Indebtedness of the Company:
The term "Senior Indebtedness of the Company" shall mean (i) any
indebtedness of the Company for borrowed or purchased money, whether or not
evidenced by bonds, debentures, notes or other written instruments, (ii)
obligations under letters of credit, (iii) any indebtedness or other obligations
of the Company with respect to commodity contracts, interest rate and currency
swap agreements, cap, floor and collar agreements, currency spot and forward
contracts, and other similar agreements or arrangements designed to protect
against fluctuations in currency exchange or interest rates, and (iv) any
guarantees, endorsements (other than by endorsement of negotiable instruments
for collection in the ordinary course of business) or other similar contingent
obligations in respect of obligations of others of a type described in (i), (ii)
or (iii) above whether or not such obligation is classified as a liability on a
balance sheet prepared in accordance with generally accepted accounting
principles, in each case listed in (i), (ii), (iii) and (iv) above whether
outstanding on the date of execution of this Indenture or thereafter incurred,
other than obligations ranking on a parity with the Securities or ranking junior
to the Securities; provided, however, that "Senior Indebtedness of the Company"
does not include trade creditors. Senior Indebtedness of the Company shall also
include (x) all indebtedness of the Company issued under the Subordinated
Indenture dated February 1, 1985 between United Virginia Bankshares Incorporated
and The Chase Manhattan Bank, as supplemented, including the Company's 8 1/4%
Subordinated Notes due 2002 and 8% Subordinated Notes due 1998, (y) all
indebtedness of the Company issued under the Subordinated Indenture dated
September 1, 1993 between the Company and The Chase Manhattan Bank, including
the Company's 8 3/4% Subordinated Notes due 2004, and (z) certain other Senior
Indebtedness of the Company, including the Company's 4 - 7% Federal Home Loan
Bank obligations payable through 2015, 7 - 11 1/4% Collateralized Mortgage
Obligation Bonds maturing through 2019, 7 - 8 1/4% Mortgage Indebtedness
maturing through 2009 and 8 - 14% Capital Lease Obligations maturing through
2006.
Stated Maturity:
The term "Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon means the date specified
pursuant to the terms of such Security as the date on which the principal of
such Security or such installment of interest is due and payable in the case of
such principal, as such date may be shortened or extended or provided pursuant
to the terms of such Security and this Indenture.
<PAGE>
Subsidiary:
The term "Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For purposes of this definition, "voting stock" means stock which
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.
Tax Event:
A "Tax Event" means the receipt by the Company and a Crestar Capital Trust
of an Opinion of Counsel (as defined in the relevant Trust Agreement)
experienced in such matters to the effect that, as a result of any amendment to,
or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which
pronouncement or decision is announced on or after the Original Issue Date of
the Capital Securities of such Crestar Capital Trust (as defined in the relevant
Trust Agreement), there is more than an insubstantial risk that (i) such Crestar
Capital Trust is, or will be within 90 days of the date of such Opinion of
Counsel, subject to United States Federal income tax with respect to income
received or accrued on the corresponding Series of Securities issued by the
Company to such Crestar Capital Trust, (ii) interest payable by the Company on
such corresponding series of Securities is not, or within 90 days of such
Opinion of Counsel, will not be, deductible by the Company, in whole or in part,
for United States Federal income tax purposes, or (iii) such Crestar Capital
Trust is, or will be within 90 days of the date of such Opinion of Counsel,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
Trust Agreement:
The term "Trust Agreement" means any Trust Agreement governing any Crestar
Capital Trust, whether now existing or created in the future, relating to the
Securities of any series in each case and including, without limitation, the
Amended and Restated Trust Agreement dated December 31, 1996 of Crestar Capital
Trust I.
Trustee; Principal Office of the Trustee:
The term "Trustee" shall mean The Chase Manhattan Bank and, subject to the
provisions of Article , shall also include its successors. The term "principal
office" of the Trustee shall mean the corporate trust office of the Trustee in
the City of New York, State of New York, at which the corporate trust business
of the Trustee shall, at any particular time, be principally administered. The
present address of the principal office of the Trustee is 450 West 33rd Street,
New York, New York 10001.
<PAGE>
Trust Indenture Act of 1939:
Except as herein otherwise expressly provided or unless the context
requires otherwise, the term "Trust Indenture Act of 1939" shall mean the Trust
Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, as
in force at the date as of which this Indenture was originally executed.
I. ARTICLE
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION OF TRANSFER AND EXCHANGE OF
SECURITIES
A. SECTION . Amount, Series and Delivery of Securities. The aggregate
principal amount of Securities which may be authenticated and delivered
under this Indenture is unlimited.
The Securities may be issued in one or more series. The terms of each
series (which terms shall not be inconsistent with the provisions of this
Indenture) including:
(1) The designation of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities and which
shall include the word "subordinated" or a word of like meaning);
(2) Any limit upon the aggregate principal amount of the Securities of
the series which may be executed, authenticated and delivered under this
Indenture; provided, however, that nothing contained in this Section or
elsewhere in this Indenture or in the Securities or in such resolution or in
such certificate is intended to or shall limit execution by the Company or
authentication and delivery by the Trustee of Securities under the circumstances
contemplated by Sections , , , , and;
(3) The date or dates (if any) on which the principal of the
Securities of the series is payable;
(4) The rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue, the
dates on which such interest shall be payable, the record date for the interest
payable on any interest payment date and the right to defer payment of interest
in accordance with Section;
(5) The place or places where Securities of the series may be
presented for payment and for the other purposes provided in Section;
(6) Any price or prices at which, any period or periods within which,
and any terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(7) The type or types (if any) of Capital Stock of the Company into
which, any period or periods within which, and any terms and conditions upon
which Securities of the series may be made payable, converted, exchanged in
whole or in part, at the option of the holder or of the Company;
(8) If other than denominations of $1,000 and any whole multiple
thereof, the denominations in which Securities of the series shall be
<PAGE>
issuable;
(9) If other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section;
(10) If other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency (which may be a composite currency) in which
payment of the principal of (and premium, if any) and interest, if any, on the
Securities of that series shall be payable;
(11) If the principal of (and premium, if any) or interest, if any, on
the Securities of that series are to be payable, at the election of the Company
or a holder thereof, in a coin or currency (including a composite currency)
other than that in which the Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such election may
be made;
(12) If the amounts of payments of principal of (and premium, if any)
or interest, if any, on the Securities of the series may be determined with
reference to an index based on a coin or currency (including a composite
currency) other than that in which the Securities are stated to be payable, the
manner in which such amounts shall be determined;
(13) If the Securities of the series are payable at maturity or upon
earlier redemption in Capital Stock, the terms and conditions upon which such
payment shall be made;
(14) The person or persons who shall be registrar for the
Securities of the series, and the place or places where the Register of the
Securities of the series shall be kept;
(15) Any Events of Default with respect to the Securities of
a particular series, if not set forth herein;
(16) Whether any Securities of the series are to be issuable in global
form with or without coupons, and, if so, the Depositary for such global
Securities and whether beneficial owners of interests in any such global
Security may exchange such interests for definitive Securities of such series
and of like tenor of any authorized form and denomination and the circumstances
under which, and the place or places where, any such exchanges may occur, if
other than in the manner provided in Section;
(17) The form of Trust Agreement and Crestar Guarantee
Agreement, if applicable;
(18) If applicable, the relative degree to which Securities of the
series shall be senior to or be subordinated to other Series of such Securities
or other indebtedness of the Company in right of payment, whether such other
series of Securities or other indebtedness are outstanding or not; and
(19) Any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture); or in any case, the method
for determining such terms, the persons authorized to determine such terms and
the limits, if any, within which any such determination of such terms is to be
made shall either be established in or pursuant to a Resolution of the Company
and set forth in an Officers Certificate, or set forth in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series.
<PAGE>
The Securities of all series shall be subordinate to Senior Indebtedness of
the Company as provided in Article . The applicable Officers Certificate or
supplemental indenture may provide that Securities of any particular series may
be issued at various times, with different dates on which the principal or any
installment of principal is payable, with different rates of interest, if any,
or different methods by which interest may be determined, with different dates
from which such interest shall accrue, with different dates on which such
interest may be payable or with any different terms other than Events of Default
but all such Securities of a particular series shall for all purposes under this
Indenture including, but not limited to, voting and Events of Default, be
treated as Securities of a single series.
If any of the terms of the series are established by action taken pursuant
to a Resolution of the Company, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers Certificate
or supplemental indenture setting forth the terms of the series.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication by it, and the Trustee shall thereupon
authenticate and deliver said Securities to or upon the written order of the
Company, signed by its Chairman of the Board, or its President, or any Vice
Chairman or any Vice President of the Company (whether or not designated by a
number or word or words added before or after the title Vice President), and by
its Treasurer or an Assistant Treasurer or its Secretary or an Assistant
Secretary, without any further corporate action by the Company. If the form or
terms of the Securities of the series have been established in or pursuant to
one or more Resolutions of the Company and set forth in an Officers Certificate
or set forth in one or more indentures supplemental hereto, as permitted by this
Section and Section , in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section) shall be
fully protected in relying upon:
1 an Opinion of Counsel stating:
a If the form or terms of such Securities have been
established by or pursuant to Resolutions of the Company as permitted by Section
and set forth in an Officers Certificate, that such form and terms have been
established in conformity with the provisions of this Indenture;
b If the form or terms of such Securities have been established by or
pursuant to a Resolution of the Company and set forth in one or more indentures
supplemental hereto as permitted by Section , that such form and terms have been
established in conformity with the provisions of this Indenture;
c That such Securities, when authenticated and delivered by the Trustee and
issued by the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute legal,
<PAGE>
valid and binding obligations of the Company, enforceable in accordance with
their terms, entitled to the benefits of the Indenture, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting the enforcement of creditors rights and to general equity
principles;
d If the form or terms of such Securities provide for the conversion of
such Securities into shares of Capital Stock of the Company, or the payment in
Capital Stock upon maturity or earlier redemption of the Securities, that the
Company has reserved a number of shares of Capital Stock sufficient for issuance
upon such conversion or payment, and such shares of Capital Stock are fully paid
and nonassessable; and
e Such other matters as the Trustee may reasonably request;
and
f An Officers Certificate setting forth the form and terms of the
Securities of such series pursuant to Section and Section hereof (but only if
the form and terms of the Securities of such series are not set forth in one or
more supplemental indentures hereto) and stating that all conditions precedent
provided for in this Indenture relating to the authentication and delivery of
such Securities have been complied with, that no Event of Default with respect
to any series of Securities has occurred and is continuing and that the issuance
of such Securities is not and will not result in (i) an Event of Default or an
event or condition which, upon the giving of notice (or the acquisition of
knowledge) or the lapse of time or both, would become an Event of Default or
(ii) a default under the provisions of any other instrument or agreement by
which the Company is bound.
The Trustee shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect the Trustee s
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
If all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver either an Opinion of Counsel or an Officers
Certificate at the time of issuance of each Security, provided that such Opinion
of Counsel and Officers Certificate, with appropriate modifications, are instead
delivered at or prior to the time of issuance of the first Security of such
series.
Each Security shall be dated the date of its authentication.
A. SECTION . Form of Securities and Trustee's Certificate. The Securities
of each series shall be substantially of the tenor and purport as shall be
authorized in or pursuant to a Resolution of the Company and set forth in an
Officers Certificate or set forth in an indenture or indentures supplemental
hereto in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification or designation and
such legends or endorsements thereon as the Company may deem appropriate and as
are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any
<PAGE>
rule or regulation of any stock exchange on which the Securities may be listed,
or to conform to usage. If the form of Securities of any series is authorized by
action taken pursuant to a Resolution of the Company, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers Certificate contemplated by Section setting forth the
terms of the series.
The Securities may be printed, lithographed or fully or partly engraved.
The Trustee's certificate of authentication shall be in substantially the
following form:
"This is one of the Securities, of the series designated herein,
described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By:
Authorized Officer"
If Securities of a series are issuable in global form, as specified
pursuant to Section , then, notwithstanding clause (8) of Section and the
provisions of Section , such Security shall represent such of the outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of outstanding Securities from time to time
endorsed thereon and that the aggregate amount of outstanding Securities
represented thereby may from time to time be increased or reduced to reflect
exchanges or transfers. Any endorsement of a Security in global form to reflect
the amount, or any increase or decrease in the amount, of outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such person or persons as shall be specified in such
Security or by the Company. Subject to the provisions of Section and, if
applicable, Section , the Trustee shall deliver and redeliver any Security in
global form in the manner and upon written instructions given by the person or
persons specified in such Security or by the Company. Any instructions by the
Company with respect to endorsement or delivery or redelivery of a Security in
global form after the original issuance of the Securities of such series shall
be in writing but need not comply with Section and need not be accompanied by an
Opinion of Counsel.
Unless otherwise specified pursuant to Section , payment of principal of
and any premium and any interest on any Security in global form shall be made to
the person or persons specified therein.
The owners of beneficial interests in any global Security shall have no
rights under this Indenture with respect to any global Security held on their
behalf by a Depositary, and such Depositary may be treated by the
<PAGE>
Company, the Trustee, and any agent of the Company or the Trustee as the sole
holder and owner of such global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by a Depositary,
or impair, as between a Depositary and its participants in any global Security,
the operation of customary practices governing the exercise of the rights of a
holder of a Security of any series, including, without limitation, the granting
of proxies or other authorization of participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action that a
holder is entitled to give or take under this Indenture.
Neither the Company, the Trustee nor any Authenticating Agent will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Each Depositary designated pursuant to Section for a global Security must,
at the time of its designation and at all times while it serves as Depositary,
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation.
A. SECTION . Denominations of and Payment of Interest on Securities. The
Securities of each series shall be issuable as fully registered Securities
without coupons in such denominations as shall be specified as contemplated by
Section . In the absence of any such provisions with respect to the Securities
of any series, the Securities of such series shall be issuable in denominations
of $1,000 and integral multiples of $1,000 in excess thereof.
If the Securities of any series shall bear interest, each Security of such
series shall bear interest from the applicable date at the rate or rates per
annum, and such interest shall be payable on the dates, specified on, or
determined in the manner provided for in, the Security. The person in whose name
any Security is registered at the close of business on any record date (as
hereinbelow defined) for the Security with respect to any interest payment date
for such Security shall be entitled to receive the interest payable thereon on
such interest payment date notwithstanding the cancellation of such Security
upon any registration of transfer, exchange or conversion thereof subsequent to
such record date and prior to such interest payment date, unless such Security
shall have been called for redemption on a date fixed for redemption subsequent
to such record date and prior to such interest payment date, or unless the
Company shall default in the payment of interest due on such interest payment
date on such Security, in which case such defaulted interest shall be paid to
the person in whose name such Security (or any Security or Securities issued
upon registration of transfer or exchange thereof) is registered at the close of
business on the record date for the payment of such defaulted interest, or
except as otherwise specified as contemplated by Section . The term "record
date" as used in this Section with respect to any regular
<PAGE>
interest payment date for any Security shall mean such day or days as shall be
specified as contemplated by Section; provided, however, that in the absence of
any such provisions with respect to any Security, such term shall mean: (1) the
first day of the calendar month including such interest payment date if such
interest payment date is the fifteenth day of a calendar month; or (2) the
fifteenth day of the calendar month preceding the calendar month including such
interest payment date if such interest payment date is the first day of a
calendar month; provided, further, that (except as otherwise specified as
contemplated by Section) if the day which would be the record date as provided
herein is not a Business Day, then it shall mean the Business Day next preceding
such day. Such term, as used in this Section, with respect to the payment of any
defaulted interest on any Security shall mean (except as otherwise specified as
contemplated by Section) the fifth day next preceding the date fixed by the
Company for the payment of defaulted interest, established by notice given by
first class mail by or on behalf of the Company to the holder of such Security
not less than 10 days preceding such record date, or, if such fifth day is not a
Business Day, the Business Day next preceding such fifth day.
A. SECTION . Execution of Securities. The Securities shall be signed on
behalf of the Company, manually or in facsimile, by its Chairman of the Board or
any Vice Chairman of the Board, or its President or any Vice Chairman or any
Vice President of the Company (whether or not designated by a number or word or
words added before or after the title Vice President) and by its Treasurer or an
Assistant Treasurer or its Secretary or an Assistant Secretary under its
corporate seal, which may be affixed thereto or printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form recited
herein, executed by or on behalf of the Trustee manually by an authorized
officer, shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate by the Trustee upon any Security
executed by the Company shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
holder is entitled to the benefits of this Indenture. Typographical or other
errors or defects in the seal or facsimile signature on any Security or in the
text thereof shall not affect the validity or enforceability of such Security if
it has been duly authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities, manually or in facsimile, shall cease to be such officer before the
Securities so signed shall have been authenticated and delivered by the Trustee,
or disposed of by the Company, such Securities nevertheless may be authenticated
and delivered or disposed of as though the person who signed such Securities had
not ceased to be such officer of the Company; and any Security may be signed on
behalf of the Company, manually or in facsimile, by such persons as, at the
actual date of the execution of such Security, shall be the proper officers of
the Company, although at the date of the execution of this Indenture any such
person was not such officer.
A. SECTION . Registration, Transfer and Exchange of Securities.
Securities of any series (other than a global Security, except as set forth
<PAGE>
below) may be exchanged for a like aggregate principal amount of Securities of
the same series of the same tenor and terms of other authorized denominations.
Securities to be exchanged shall be surrendered at the offices or agencies to be
maintained by the Company in accordance with the provisions of Section and the
Company shall execute and the Trustee shall authenticate and deliver, or cause
to be authenticated and delivered, in exchange therefor the Security or
Securities which the Securityholder making the exchange shall be entitled to
receive.
The Company shall keep, at one of the offices or agencies to be maintained
by the Company in accordance with the provisions of Section with respect to the
Securities of each series, a Register (herein defined as the "Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall register the Securities of such series and the transfer of Securities of
such series as in this Article provided. Such Register shall be in written form
or in any other form capable of being converted into written form within a
reasonable time. At all reasonable times the Register shall be open for
inspection by the Trustee and any registrar of the Securities of such series
other than the Trustee. Upon due presentment for registration of transfer of any
Security of any series at the offices or agencies of the Company to be
maintained by the Company in accordance with Section with respect to the
Securities of such series, the Company shall execute and register and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Security or Securities of the same series of like tenor and
terms for a like aggregate principal amount of authorized denominations.
Every Security issued upon registration of transfer or exchange of
Securities pursuant to this Section shall be the valid obligation of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Security or Securities surrendered upon registration of such
transfer or exchange.
All Securities of any series presented or surrendered for exchange,
registration of transfer, redemption, conversion or payment shall, if so
required by the Company or any registrar of the Securities of such series, be
accompanied by a written instrument or instruments of transfer, in form
satisfactory to the Company and such registrar, duly executed by the registered
holder or by his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
The Company shall not be required to exchange or register the transfer of
(a) any Securities of any series during a period beginning at the opening of
business fifteen days before the day of the mailing of a notice of redemption of
outstanding Securities of such series and ending at the close of business on the
day of such mailing, or (b) any Securities or portions thereof called or
selected for redemption, except, in the case of Securities called for redemption
in part, the portion thereof not so called
<PAGE>
for redemption.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for Securities in definitive form, a global
Security representing all or a portion of the Securities of a series may not be
transferred, except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
Notwithstanding the foregoing, except as otherwise specified pursuant to
Section , any global Security shall be exchangeable pursuant to this Section
only as provided in this paragraph. If at any time the Depositary for the
Securities of a series notifies the Company that it is unwilling or unable to
continue as Depositary for the Securities of such series, or if at any time the
Depositary for the Securities of such series shall no longer be eligible to so
act, the Company shall appoint a successor Depositary with respect to the
Securities of such series. If (a) a successor Depositary for the Securities of
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility (thereby
automatically making the Company's election pursuant to Section no longer
effective with respect to the Securities of such series), (b) the beneficial
owners of interests in a global Security are entitled to exchange such interests
for Securities of such series and of the same tenor and terms, as specified
pursuant to Section , or (c) the Company in its sole discretion determines that
the Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities, then
without unnecessary delay, but, if appropriate, in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such global Security, executed by the Company. On or
after the earliest date on which such interests are or may be so exchanged, such
global Security shall be surrendered by the Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities upon payment by the beneficial owners of such
interest, at the option of the Company, of a service charge for such exchange
and of a proportionate share of the cost of printing such definitive Securities,
and the Trustee shall authenticate and deliver, (a) to each person specified by
the Depositary in exchange for each portion of such global Security, an equal
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of the same tenor and terms as the portion of such
global Security to be exchanged, and (b) to such Depositary a global Security in
a denomination equal to the difference, if any, between the principal amount of
the surrendered global Security and the aggregate principal amount of definitive
Securities delivered to holders thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of 15 Business Days
before any selection of Securities of that series to be redeemed and ending on
the relevant redemption date. If a Security is issued in exchange for any
<PAGE>
portion of a global Security after the close of business at the office or agency
where such exchange occurs on (i) any record date and before the opening of
business at such office or agency on the relevant interest payment date, or (ii)
any record date for the payment of defaulted interest and before the opening of
business at such office or agency on the related proposed date for payment of
defaulted interest, then interest or default interest, as the case may be, will
not be payable on such interest payment date or proposed date for payment of
defaulted interest, as the case may be, in respect of such Security, but will be
payable on such interest payment date or proposed date for payment of defaulted
interest, as the case may be, only to the person to whom interest in respect of
such portion of such global Security is payable in accordance with the
provisions of this Indenture and such global Security.
<PAGE>
A. SECTION . Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute and the Trustee shall
authenticate and deliver temporary Securities of such series (printed or
lithographed) of any denomination and substantially in the form of the
definitive Securities of such series, but with or without a recital of specific
redemption prices or conversion provisions and with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be
determined by the Company. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every such temporary
Security shall be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Securities. Without unreasonable delay the Company will execute and deliver to
the Trustee definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange therefor, at
the offices or agencies to be maintained by the Company as provided in Section
with respect to the Securities of such series, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such series. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series authenticated and delivered hereunder.
B. SECTION . Mutilated, Destroyed, Lost or Stolen Securities. In case any
temporary or definitive Security shall become mutilated or be destroyed, lost or
stolen, the Company, in the case of any mutilated Security shall, and in the
case of any destroyed, lost or stolen Security in its discretion may, execute,
and upon its request the Trustee shall authenticate and deliver, or cause to be
authenticated and delivered, a new Security of the same series of like tenor and
terms in exchange and substitution for the mutilated Security, or in lieu of and
in substitution for the Security so destroyed, lost or stolen. In case any such
Security shall have matured or shall be about to mature, instead of issuing a
substituted Security, the Company may pay or authorize payment of the same
(without surrender thereof, except in the case of a mutilated Security). In
every case the applicant for a substituted Security or for such payment shall
furnish to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
to the Trustee evidence to their satisfaction of the destruction, loss or theft
of such Security and of the ownership thereof. The Trustee may authenticate any
such substituted Security and deliver the same, or the Trustee or any paying
agent of the Company may make any such payment, upon the written request or
authorization of any officer of the Company. Upon the issue of any substituted
Security, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other reasonable expenses connected therewith (including the fees and expenses
of the Trustee).
To the extent permitted by mandatory provisions of law, every substituted
Security issued pursuant to the provisions of this Section in
<PAGE>
substitution for any destroyed, lost or stolen Security shall constitute an
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be found at any time, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of the same series duly issued hereunder.
To the full extent legally enforceable, all Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
A. SECTION . Cancellation and Destruction of Surrendered Securities. All
Securities surrendered for the purpose of payment, redemption, exchange,
substitution or registration of transfer, shall, if surrendered to the Company
or any agent of the Company or of the Trustee, be delivered to the Trustee, and
the same, together with Securities surrendered to the Trustee for cancellation,
shall be cancelled by it, and no Securities shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. The
Trustee shall dispose of cancelled Securities in accordance with its customary
procedures and deliver a certificate of disposition thereof to the Company
unless by an Officers Certificate the Company shall direct that cancelled
Securities be returned to it. If the Company shall purchase or otherwise acquire
any of the Securities, however, such purchase or acquisition shall not operate
as a payment, redemption or satisfaction of the Indebtedness represented by such
Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee for cancellation.
B. SECTION . Authenticating Agents. The Trustee may from time to time
appoint one or more Authenticating Agents with respect to one or more series of
Securities, which shall be authorized to act on behalf of the Trustee and
subject to its direction in authenticating and delivering Securities of such
series pursuant hereto in connection with exchanges, registrations of transfer,
redemptions or conversions as fully to all intents and purposes as though any
such Authenticating Agent had been expressly authorized to execute and deliver
Securities of such series, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as though authenticated by the Trustee. Wherever reference is made in
this Indenture to the authentication or delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication or delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee by
an Authenticating Agent. Each Authenticating Agent shall at all times be a
corporation (including a banking association) organized and doing business under
the laws of the United States or any State or territory thereof or of the
District of Columbia, having a combined capital and surplus of at least five
million dollars, authorized under such laws to exercise corporate trust powers
and subject to supervision or examination
<PAGE>
by federal, state, territorial, or District of Columbia authorities. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect herein specified in this Section.
Any corporation succeeding to the corporate agency business of an
Authenticating Agent shall continue to be an Authenticating Agent, if such
successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may, or at the request of the Company
promptly shall, appoint a successor Authenticating Agent. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent herein. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have agreed with the Trustee that: it will perform and carry out the
duties of an Authenticating Agent as herein set forth, including among other
things the duties to authenticate and deliver Securities of any series for which
it has been appointed an Authenticating Agent when presented to it in connection
with exchanges, registrations of transfer or any redemptions or conversions
thereof; it will furnish from time to time as requested by the Trustee
appropriate records of all transactions carried out by it as Authenticating
Agent and will furnish the Trustee such other information and reports as the
Trustee may reasonably require; it is eligible for appointment as Authenticating
Agent under this Section and will notify the Trustee promptly if it shall cease
to be so qualified; and it will indemnify the Trustee against any loss,
liability or expense incurred by the Trustee and will defend any claim asserted
against the Trustee by reason of any acts or failures to act of the
Authenticating Agent but it shall have no liability for any action taken by it
at the specific written direction of the Trustee.
<PAGE>
A. SECTION . Deferrals of Interest Payment Dates. If specified as
contemplated by Section or Section with respect to the Securities of a
particular series, so long as no Event of Default has occurred and is
continuing, the Company shall have the right, at any time during the term of
such series, from time to time to defer the payment of interest on such
Securities for such period or periods as may be specified as contemplated by
Section (each, an "Extension Period") during which Extension Periods the Company
shall have the right to make partial payments of interest on any interest
payment date. No Extension Period shall end on a date other than an interest
payment date. At the end of any such Extension Period the Company shall pay all
interest then accrued and unpaid on the Securities (together with Additional
Interest thereon, if any, at the rate specified for the Securities of such
series to the extent permitted by applicable law); provided, however, that no
Extension Period shall extend beyond the Stated Maturity of the principal of the
Securities of such series; provided, further, that during any such Extension
Period, the Company shall not, and shall cause any Subsidiary not to, (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Company's capital
stock, or (ii) make any payment of principal of or interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Company that rank
pari passu with or junior in interest to the Securities of such series or make
any guarantee payments with respect to any Crestar Guarantee or other guarantee
by the Company of the debt securities of any Subsidiary of the Company that by
their terms rank pari passu or junior in interest to the Securities of such
series (other than (a) dividends or distributions in Common Stock; (b) any
declaration of a dividend in connection with the implementation of a Rights
Plan, the issuance of any Common Stock of any class or series of preferred stock
of the Company under any Rights Plan or the redemption or repurchase of any
rights distributed pursuant to a Rights Plan; (c) payments under any Crestar
Guarantee; and (d) purchases of Common Stock related to the issuance of Common
Stock or rights under any of the Company's benefit plans for its directors,
officers or employees). Prior to the termination of any such Extension Period,
the Company may further extend the interest payment period, provided that no
Extension Period shall exceed the period or periods specified in such Securities
or extend beyond the Stated Maturity of the principal of such Securities. Upon
termination of any Extension Period and upon the payment of all accrued and
unpaid interest and any Additional Interest then due on any interest payment
date, the Company may elect to begin a new Extension Period, subject to the
above requirements. No interest shall be due and payable during an Extension
Period, except at the end thereof. The Company shall give the Trustee notice of
its election to begin any such Extension Period at least five Business Days
prior to the next succeeding interest payment date on which interest on
Securities of such series would be payable but for such deferral or, with
respect to the Securities of a series issued to a Crestar Capital Trust, so long
as such Securities are held by such Crestar Capital Trust, prior to the earlier
of (i) the next succeeding date on which Distributions on the Preferred
Securities of such Crestar Capital Trust would be payable but for such deferral,
or (ii) the date the Administrators of such Crestar Capital Trust are required
to give notice to any securities exchange or other applicable self-regulatory
organization or to holders of
<PAGE>
such Preferred Securities of the record date or the date such Distributions are
payable, but in any event not less than five Business Days prior to such record
date.
The Trustee shall promptly give notice of the Company's election to begin
any such Extension Period to the holders of the outstanding Securities of such
series.
A. SECTION . Right of Set-off; Subrogation. With respect to the Securities
of a series issued to a Crestar Capital Trust, notwithstanding anything to the
contrary in the Indenture, the Company shall have the right to set-off any
payment it is otherwise required to make thereunder in respect of any such
Security to the extent the Company has theretofore made, or is concurrently on
the date of such payment making, a payment under the Crestar Guarantee relating
to such Security. Notwithstanding any payment by the Company to a holder of the
corresponding series of Preferred Securities issued by such Crestar Capital
Trust in connection with a suit instituted by such holder directly against the
Company pursuant to Section , the Company shall remain obligated to pay the
principal of or interest on the Securities of such Series, and the Company shall
be subrogated to the rights of the holder of such Preferred Securities with
respect to payments on such Preferred Securities to the extent of any payments
made by the Company to such holder in any such suit.
B. SECTION . Shortening or Extension of Stated Maturity. If specified as
contemplated by Section or Section with respect to the Securities of a
particular series, the Company shall have the right to (i) shorten the Stated
Maturity of the principal of the Securities of such series at any time to any
date not earlier than the first date on which the Company has the right to
redeem the Securities of such Series, and (ii) extend the Stated Maturity of the
principal of the Securities of such series at any time at its election for one
or more periods, but in no event to a date later than the 49th anniversary of
the first interest payment date following the Original Issue Date of the
Securities of such series; provided that, if the Company elects to exercise its
right to extend the Stated Maturity of the principal of the Securities of such
series pursuant to this clause (ii), at the time such election is made and at
the time of extension (A) the Company is not in bankruptcy, otherwise insolvent
or in liquidation, (B) the Company is not in default in the payment of any
interest or principal on such Securities, (C) in the case of any series of
Securities issued to a Crestar Capital Trust, such Crestar Capital Trust is not
in arrears on payments of Distributions on the Preferred Securities issued by
such Crestar Capital Trust and no deferred Distributions are accumulated, and
(D) such Securities are rated not less than BBB- by Standard & Poor's Ratings
Services or Baa3 by Moody's Investors Service, Inc. or the equivalent by any
other nationally recognized statistical rating organization. In the event the
Company elects to shorten or extend the Stated Maturity of the Securities, it
shall give notice to the Trustee, and the Trustee shall give notice of such
shortening or extension to the holders no less than 30 and no more than 60 days
prior to the effectiveness thereof.
<PAGE>
C. SECTION . Agreed Tax Treatment. Each Security issued hereunder shall
provide that the Company and, by its acceptance of a Security or a beneficial
interest therein, the holder of, and any Person that acquires a beneficial
interest in, such Security agree that for United States federal, state and local
tax purposes it is intended that such Security constitute indebtedness.
I. ARTICLE
REDEMPTION OF SECURITIES
A. SECTION . Applicability of Article. Securities of any series which are
redeemable prior to Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by Section for
Securities of any series) in accordance with this Article.
B. SECTION . Mailing of Notice of Redemption. In case the Company shall
desire to exercise any right to redeem all or, as the case may be, any part of
the Securities of any series pursuant to this Indenture, it shall give notice of
such redemption to holders of the Securities to be redeemed as hereinafter in
this Section provided.
The Company covenants that it will pay to the Trustee or one or more paying
agents, on or before the Business Day next preceding the date fixed for each
redemption of Securities, a sum in cash sufficient to redeem on the redemption
date all the Securities so called for redemption at the applicable redemption
price, together with any accrued interest on the Securities to be redeemed to
the date fixed for redemption.
Notice of redemption shall be given to the holders of Securities to be
redeemed as a whole or in part by mailing by first class mail, postage prepaid,
a notice of such redemption not less than 30 nor more than 60 days prior to the
date fixed for redemption to their last addresses as they shall appear upon the
Register, but failure to give such notice by mailing in the manner herein
provided to the holder of any Security designated for redemption as a whole or
in part, or any defect therein, shall not affect the validity of the proceedings
for the redemption of any other Security.
Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives the notice.
Each such notice of redemption shall specify the date fixed for redemption
and the redemption price at which Securities are to be redeemed or if the
redemption price cannot be calculated prior to the time the notice is required
to be given, the manner of calculation thereof, and shall state that payment of
the redemption price of the Securities or portions thereof to be redeemed will
be made at any of the offices or agencies to be maintained by the Company in
accordance with the provisions of Section with respect to the Securities to be
redeemed, upon
<PAGE>
presentation and surrender of such Securities or portions thereof, and that, if
applicable, interest accrued to the date fixed for redemption will be paid as
specified in said notice and on and after said date interest thereon will cease
to accrue and shall also specify, if applicable, the conversion price and the
date on which the right to convert the Securities will expire and that holders
must comply with Article hereof in order to convert their Securities. If less
than all the Securities of any series are to be redeemed, the notice of
redemption to each holder shall specify such holder's Securities of such series
to be redeemed as a whole or in part. In case any Security is to be redeemed in
part only, the notice which relates to such Security shall state the portion of
the principal amount thereof to be redeemed (which shall be equal to the minimum
authorized denomination for Securities of such series or any whole multiple
thereof), and shall state that on and after the redemption date, upon surrender
of such Security, the holder will receive the redemption price in respect to the
principal amount thereof called for redemption and, without charge, a new
Security or Securities of the same series of authorized denominations for the
principal amount thereof remaining unredeemed.
In the case of any redemption at the election of the Company, the Company
shall, at least 60 days prior to the date fixed for redemption (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
redemption date, the basis for such redemption and of the principal amount of
Securities of the applicable series to be redeemed. In the case of any
restriction on such redemption provided in the terms of such Securities or that
is subject to compliance with conditions provided in the terms of such
Securities, the Company shall furnish the Trustee with an Officers Certificate
evidencing compliance with such restriction or conditions.
If less than all the Securities of any series are to be redeemed, the
Company shall give the Trustee, at least 60 days in advance of the date fixed
for redemption, notice of the aggregate principal amount of Securities of such
series to be redeemed, and thereupon the Trustee shall select, pro rata, by lot,
or in any manner it shall deem fair, the Securities of such series to be
redeemed as a whole or in part and shall thereafter promptly notify the Company
in writing of the particular Securities of such series or portions thereof to be
redeemed. If the Securities of any series to be redeemed consist of Securities
having different dates on which the principal or any installment of principal is
payable or different rates of interest, if any, or different methods by which
interest may be determined or have any other different tenor or terms, then the
Company may, by written notice to the Trustee, direct that Securities of such
series to be redeemed shall be selected from among groups of such Securities
having specified tenor or terms and the Trustee shall thereafter select the
particular Securities to be redeemed in the manner set forth in the preceding
sentence from among the group of such Securities so specified.
<PAGE>
A. SECTION . When Securities Called for Redemption Become Due and Payable.
If the giving of notice of redemption shall have been completed as above
provided, the Securities or portions of Securities specified in such notice
shall become due and payable on the date and at the place or places stated in
such notice at the applicable redemption price, together, if applicable, with
any interest accrued (including any Additional Interest) to the date fixed for
redemption, and on and after such date fixed for redemption (unless the Company
shall default in the payment of such Securities at the applicable redemption
price, together with any interest accrued to the date fixed for redemption) any
interest on the Securities or portions of Securities so called for redemption
shall cease to accrue, and, except as provided in Sections and , such Securities
shall cease from and after the date fixed for redemption to be entitled to any
benefit or security under this Indenture, and the holders thereof shall have no
right in respect of such Securities except the right to receive the redemption
price thereof and any unpaid interest accrued to the date fixed for redemption.
On presentation and surrender of such Securities at said place of payment in
said notice specified, the said Securities or portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together with any
interest accrued to the date fixed for redemption; provided, however, that,
except as otherwise specified as contemplated by Section , any regular payment
of interest becoming due on the date fixed for redemption shall be payable to
the holders of the Securities registered as such on the relevant record date as
provided in Article hereof. Upon presentation of any Security which is redeemed
in part only, the Company shall execute and the Trustee shall authenticate and
deliver at the expense of the Company a new Security of the same series of like
tenor and terms of authorized denomination in principal amount equal to the
unredeemed portion of the Security so presented; except that if a global
Security is so surrendered, the Company shall execute, and the Trustee shall
authenticate and deliver to the Depositary for such global Security, without
service charge, a global Security in a denomination equal to and in exchange for
the unredeemed portion of the principal of the global Security so surrendered.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
date fixed for redemption at the rate borne by or prescribed therefor in the
Security, or, in the case of a Security which does not bear interest, at the
rate of interest set forth therefor in the Security to the extent permitted by
law.
A. SECTION . Right of Redemption of Securities Initially Issued to a
Crestar Capital Trust. In the case of the Securities of a series initially
issued to a Crestar Capital Trust, except as otherwise specified as contemplated
by Section , the Company, at its option, may redeem such Securities (i) on or
after the date five years after the Original Issue Date of such Securities, in
whole at any time or in part from time to time, or (ii) upon the occurrence and
during the continuation of a Tax Event, Capital Treatment Event or an Investment
Company event, at any time within 90 days following the occurrence of such Tax
Event, Capital Treatment Event or Investment Company Event in respect of such
Crestar Capital Trust, in
<PAGE>
whole (but not in part), in each case at a redemption price equal to 100% of the
principal amount thereof.
I. ARTICLE
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants as follows:
A. SECTION . Payment of Principal of and Interest on Securities. The
Company will duly and punctually pay or cause to be paid the principal of and
interest, if any, on each of the Securities at the time and places and in the
manner provided herein and in the Securities. Except as otherwise specified as
contemplated by Section , if the Securities of any series bear interest, each
installment of interest on the Securities of such series may at the option of
the Company be paid (i) by mailing a check or checks for such interest payable
to the person entitled thereto pursuant to Section to the address of such person
as it appears on the Register of the Securities of such series or (ii) by
transfer to an account maintained by the Person entitled thereto as specified in
the Register of Securities, provided that proper transfer instructions have been
received by the record date.
B. SECTION . Maintenance of Offices or Agencies for Registration of
Transfer, Exchange and Payment of Securities. So long as any of the Securities
shall remain outstanding, the Company will maintain an office or agency in the
City of New York, New York, where the Securities may be presented for
registration, conversion, exchange and registration of transfer as in this
Indenture provided, and where notices and demands to or upon the Company in
respect of the Securities or of this Indenture may be served, and where the
Securities may be presented for payment. In case the Company shall designate and
maintain some office or agency other than the previously designated office or
agency, it shall give the Trustee prompt written notice thereof. In case the
Company shall fail to maintain any such office or agency or shall fail to give
such notice of the location or of any change in the location thereof to the
Trustee, presentations and demands may be made and notices may be served at the
principal office of the Trustee.
In addition to such office or agency, the Company may from time to time
constitute and appoint one or more other offices or agencies for such purposes
with respect to Securities of any series, and one or more paying agents for the
payment of Securities of any series, in such cities or in one or more other
cities, and may from time to time rescind such appointments, as the Company may
deem desirable or expedient, and as to which the Company has notified the
Trustee; provided, however, that no such appointment or rescission shall in any
manner relieve the Company of its obligation to maintain such office or agency
in the said City of New York, where Securities of such series may be presented
for payment.
<PAGE>
A. SECTION . Appointment to Fill a Vacancy in the Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section , a Trustee, so that there shall
at all times be a Trustee with respect to each series of Securities hereunder.
1. SECTION . Duties of Paying Agent. If the Company shall appoint a Paying
Agent other than the Trustee with respect to Securities of any series, it will
cause such Paying Agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of this
Section and Section ,
a that it will hold all sums held by it as such agent for the payment of
the principal of or interest, if any, on the Securities of such series (whether
such sums have been paid to it by the Company or by any other obligor on the
Securities of such series) in trust for the benefit of the holders of the
Securities entitled to such principal or interest and will notify the Trustee of
the receipt of sums to be so held,
b that it will give the Trustee notice of any failure by the Company (or by
any other obligor on the Securities of such series) to make any payment of the
principal of or interest on the Securities of such series when the same shall be
due and payable, and
c that it will at any time during the continuance of any Event of Default,
upon the written request of the Trustee, deliver to the Trustee all sums so held
in trust by it.
d Whenever the Company shall have one or more Paying Agents with respect to
the Securities of any series, it will, prior to each due date of the principal
of or any interest on a Security of such series, deposit with a Paying Agent of
such series a sum sufficient to pay the principal or interest so becoming due,
such sum to be held in trust for the benefit of the holders of Securities
entitled to such principal or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
2 If the Company shall act as its own Paying Agent with respect to the
Securities of any series, it will, on or before the Business Day next preceding
each due date of the principal of or any interest on a Security of such series,
set aside, segregate and hold in trust for the benefit of the holder of such
Security, a sum sufficient to pay such principal or interest so becoming due and
will notify the Trustee of such action, or any failure by it or any other
obligor on the Securities of such series to take such action and will at any
time during the continuance of any Event of Default, upon the written request of
the Trustee, deliver to the Trustee all sums so held in trust by it.
4 Anything in this Section to the contrary notwithstanding, the Company
may, at any time, for the purpose of obtaining a satisfaction and discharge of
this Indenture with respect to one or more or all series of Securities
hereunder, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust for such series by it, or any Paying Agent hereunder, as
required by this Section, such sums are to be held by the Trustee upon the trust
herein contained.
5 Anything in this Section to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section is subject
<PAGE>
to the provisions of Sections and .
B. SECTION . Further Assurances. From time to time whenever reasonably
demanded by the Trustee, the Company will make, execute and deliver or cause to
be made, executed and delivered any and all such further and other instruments
and assurances and take all such further action as may be reasonably necessary
or proper to carry out the intention of or to facilitate the performance of the
terms of this Indenture or to secure the rights and remedies hereunder of the
holders of the Securities of any series.
C. SECTION . Officers Certificate as to Defaults; Notices of Certain
Defaults. The Company will, so long as any of the Securities are outstanding,
deliver to the Trustee on or before September 15 of each year, beginning with
the year 1997, a certificate signed by the Company's principal executive
officer, principal financial officer or principal accounting officer stating
that a review has been made under his or her supervision of the activities of
the Company during such year and of the performance under this Indenture and, to
the best of his or her knowledge, the Company has complied with all conditions
and covenants under this Indenture throughout such year, or if there has been a
default in the fulfillment of any such obligation, specifying each such default
known and the nature and status thereof. For purposes of this Section, such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
D. SECTION . Waiver of Covenants. The Company may omit in any particular
instance to comply with any covenant or condition specifically contained in this
Indenture for the benefit of one or more series of Securities, if before the
time for such compliance the holders of a majority in principal amount of the
Securities of all series affected (all series voting as one class) at the time
outstanding (determined as provided in Section) shall waive such compliance in
such instance, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
e. SECTION . Additional Sums. In the case of the Securities of a series
issued to a Crestar Capital Trust, so long as no Event of Default has occurred
and is continuing and except as otherwise specified as contemplated by Section
or Section , in the event that (i) a Crestar Capital Trust is the holder of all
of the Outstanding Securities of such series, (ii) a Tax Event in respect of
such Crestar Capital Trust shall have occurred and be continuing and (iii) the
Company shall not have (a) redeemed the Securities of such series or (b)
terminated such Crestar Capital Trust pursuant to the termination provisions of
the related Trust Agreement, the Company shall pay to such Crestar Capital Trust
(and its permitted successors or assigns under the related Trust Agreement) for
so long as such Crestar Capital Trust (or its permitted successor or assignee)
is the registered holder of any Securities of such series, such additional
amounts as may be necessary in order that the amount of Distributions (including
any Additional Amounts (as defined in the Trust Agreement)),
<PAGE>
then due and payable by such Crestar Capital Trust on the related Preferred
Securities and Common Securities that at any time remain outstanding in
accordance with the terms thereof shall not be reduced as a result of any
additional taxes, duties and other governmental charges to which such Crestar
Capital Trust has become subject as a result of such Tax Event (but not
including withholding taxes imposed on holders of such Preferred Securities and
Common Securities)(the "Additional Sums"). Whenever in this Indenture or the
Securities there is a reference in any context to the payment of principal of or
interest on the Securities, such mention shall be deemed to include mention of
the payments of the Additional Sums provided for in this paragraph to the extent
that, in such context, Additional Sums are, were or would be payable in respect
thereof pursuant to the provisions of this paragraph and express mention of the
payment of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made, provided, however, that the deferral of the payment
of interest pursuant to Section or the Securities shall not defer the payment of
any Additional Sums that may be due and payable.
f. SECTION . Additional Covenants. The Company covenants and agrees with
each holder of Securities of a series issued to a Crestar Capital Trust that it
will not, and it will not permit any Subsidiary of the Company to, (a) declare
or pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any shares of the Company's Capital Stock,
or (b) make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu
with or junior to the Securities of such series or make any guarantee payments
with respect to any guarantee by the Company of debt securities of any
subsidiary of the Company if such guarantee ranks pari passu with or junior in
interest to the Securities (other than (a) dividends or distributions in Common
Stock of the Company, (b) any declaration of a dividend in connection with the
implementation of a Rights Plan, or the issuance of stock under any such Rights
Plan in the future, or the redemption or repurchase of any such rights pursuant
thereto, (c) payments under any Crestar Guarantee, and (d) purchases of Common
Stock related to the issuance of Common Stock under any of the Company's benefit
plans for its directors, officers or employees) if at such time (i) there shall
have occurred any event of which the Company has actual knowledge that (a) with
the giving of notice or the lapse of time or both, would constitute an Event of
Default hereunder and (b) in respect of which the Company shall not have taken
reasonable steps to cure, (ii) the Company shall be in default with respect to
its payment of any obligations under the related Crestar Guarantee or (iii) the
Company shall have given notice of its election to begin an Extension Period as
provided herein and shall not have rescinded such notice, or such period, or any
extension thereof, shall be continuing.
The Company also covenants with each holder of Securities of a series
issued to a Crestar Capital Trust (i) to maintain directly or indirectly 100%
ownership of the Common Securities of such Crestar Capital Trust; provided,
however, that any permitted successor of the Company hereunder may succeed to
the Company's ownership of such Common Securities, (ii) not
<PAGE>
to voluntarily terminate, wind up or liquidate such Crestar Capital Trust,
except (a) in connection with a prepayment in full of the Securities or a
distribution of the Securities of such series to the holders of Preferred
Securities in liquidation of such Crestar Capital Trust or (b) in connection
with certain mergers, consolidations or amalgamations permitted by the relevant
Trust Agreement and (iii) to use its reasonable efforts, consistent with the
terms and provisions of such Trust Agreement, to cause such Crestar Capital
Trust to remain classified as a grantor trust and not an association taxable as
a corporation for United States federal income tax purposes.
I. ARTICLE
SECURITYHOLDERS LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
A. SECTION . Company to Furnish Trustee Information as to the Names and
Addresses of Securityholders. The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee, semiannually not more than 5
days after December 1 and June 1 of each year beginning with June 1997, and at
such other times as the Trustee may request in writing within 30 days after
receipt by the Company of any such request, a list in such form as the Trustee
may reasonably require containing all information in the possession or control
of the Company, or any Paying Agent or any registrar of the Securities of such
series, other than the Trustee, as to the names and addresses of the holders of
Securities of such series obtained (in the case of each list other than the
first list) since the date as of which the next previous list was furnished;
provided, however, that if the Trustee shall be the registrar of the Securities
of such series, no such list need be furnished. Any such list may be dated as of
a date not more than fifteen days prior to the time such information is
furnished or caused to be furnished, and need not include information received
after such date.
a. SECTION . Trustee to Preserve Information as to the Names and Addresses
of Securityholders Received by it. The Trustee shall preserve, in as current a
form as is reasonably practicable, all information as to the names and addresses
of the holders of Securities of each series contained in the most recent list
furnished to it as provided in Section and received by it in the capacity of
Paying Agent or registrar (if so acting). The Trustee may destroy any list
furnished to it as provided in Section upon receipt of a new list so furnished.
2 In case three or more holders of Securities (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other holders of
Securities of any series or with holders of all Securities with respect to their
rights under this Indenture or under such Securities, and is accompanied by a
copy of the form of proxy or
<PAGE>
other communication which such applicants propose to transmit, then the Trustee
shall, within five Business Days after the receipt of such application, at its
election, either
a afford such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of Section ,
or
b inform such applicants as to the approximate number of holders of
Securities of such series or all Securities, as the case may be, whose names and
addresses appear in the information preserved at the time by the Trustee in
accordance with the provisions of Section , and as to the approximate cost of
mailing to such Securityholders the form of proxy or other communications, if
any, specified in such application.
If the Trustee shall elect not to afford such access to such information,
the Trustee shall, upon the written request of such applicants, mail to each of
the holders of Securities of such series, or all Securities, as the case may be,
whose name and address appear in the information preserved at the time by the
Trustee in accordance with the provisions of Section , a copy of the form of
proxy or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender, the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the holders of
Securities of such series or all Securities, as the case may be, or would be in
violation of applicable law. Such written statement shall specify the basis of
such opinion. If the Commission, after opportunity for a hearing upon the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Securityholders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
1 Each and every holder of the Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Paying Agent nor any registrar shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the holders of Securities in accordance with the provisions of Section ,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under said Section .
2 If there shall be different Trustees acting hereunder with respect to
separate series of Securities, applicants shall make separate applications
hereunder to each such Trustee, and such Trustees shall collaborate, if
necessary, in acting under this Section.
<PAGE>
c. SECTION . Annual and Other Reports to Be Filed by Company with Trustee.
The Company covenants and agrees to file with the Trustee within fifteen days
after the Company is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then it
will file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations.
4 The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents, and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
5 The Company covenants and agrees to transmit to the holders of Securities
within 30 days after the filing thereof with the Trustee, in the manner and to
the extent provided in Section with respect to reports pursuant to Section ,
such summaries of any information, documents and reports required to be filed by
the Company pursuant to Sections and as may be required by rules and regulations
prescribed from time to time by the Commission.
6 SECTION . Trustee to Transmit Annual Report to Securityholders. On or
before November 15, 1997, and on or before November 15 in every year thereafter,
if and so long as any Securities are outstanding hereunder, the Trustee shall
transmit to the Securityholders as hereinafter in this Section provided, a brief
report dated as of the preceding September 15 with respect to any of the
following events which may have occurred within the previous twelve (12) months
(but if no such event has occurred within such period no report need be
transmitted):
a Any change to its eligibility under Section , and its
qualifications under Section;
b The creation of or any material change to a relationship which, with the
occurrence of an Event of Default, would create a conflicting interest within
the meaning of the Trust Indenture Act;
c The character and amount of any advances (and if the Trustee elects so to
state, the circumstances surrounding the making thereof) made by the Trustee (as
such) which remain unpaid on the date of such report, and for the reimbursement
of which it claims or may claim a lien or charge, prior to that of the
Securities of any series, on any property or funds held or collected by it as
Trustee, except that the Trustee shall not be required (but may elect) to state
such advances if such advances so remaining unpaid aggregate not more than
one-half of one percent of the
<PAGE>
principal amount of the Securities of such series outstanding on the date
of such report;
d Any change to the amount, interest rate, and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the Securities) to
the Trustee in its individual capacity, on the date of such report, with a brief
description of any property held as collateral security therefor, except
indebtedness based upon a creditor relationship arising in any manner described
in paragraphs , , , or;
e Any change to the property and funds, if any, physically in
the possession of the Trustee (as such) on the date of such report;
f Any additional issue of Securities which the Trustee has not
previously reported; and
g Any action taken by the Trustee in the performance of its duties under
this Indenture which it has not previously reported and which in its opinion
materially affects the Securities, except action in respect of a default, notice
of which has been or is to be withheld by it in accordance with the provisions
of Section .
7 The Trustee shall transmit to the Securityholders, as hereinafter
provided, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to the provisions of Section (or if such report has
not yet been so transmitted, since the date of execution of this Indenture), for
the reimbursement of which it claims or may claim a lien or charge prior to that
of the Securities of any series on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to this subsection,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate ten percent or
less of the principal amount of Securities of such series outstanding at such
time, such report to be transmitted within 90 days after such time.
8 Reports pursuant to this Section shall be transmitted by mail to all
holders of Securities of any series, as the names and addresses of such holders
shall appear upon the Register of the Securities of such series.
9 A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with each stock exchange upon which the
Securities of any series are listed and also with the Commission. The Company
will notify the Trustee when and as the Securities of any series become listed
on any stock exchange.
<PAGE>
I. ARTICLE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
A. SECTION . Events of Default Defined. The term "Event of Default"
whenever used herein with respect to Securities of any series shall mean
any one of the following events:
1 Default in the payment of any installment of interest upon any of the
Securities of such series as and when the same shall become due and payable, and
continuance of such default for a period of 30 days (subject to the deferral of
any due date in the case of an Extension Period); or
2 Default in the payment of all or any part of the principal of any of the
Securities of such series as and when the same shall become due and payable
either at maturity, upon any redemption, by declaration or otherwise; or
3 Failure on the part of the Company duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Company in the Securities or in this Indenture (including any supplemental
indenture or pursuant to any Officers Certificate as contemplated by Section)
specifically contained for the benefit of the Securities of such series, for a
period of 60 days after there has been given, by registered or certified mail,
to the Company by the Trustee, or to the Company and the Trustee by the holders
of not less than 25% in principal amount of the Securities of such series and
all other series so benefited (all series voting as one class) at the time
outstanding under this Indenture a written notice specifying such failure and
stating that such is a "Notice of Default" hereunder; or
4 The commencement by the Company of a voluntary case under Chapter 7 or
Chapter 11 of the federal Bankruptcy Code or any other similar state or federal
law now or hereafter in effect, or the consent by the Company to the entry of a
decree or order for relief in an involuntary case under any such law, or the
consent by the Crestar Bank, a Virginia banking corporation (the "Bank"), to the
appointment of a liquidating agent or committee, conservator or receiver of the
Bank under Title 6.1 Sections 100-110 or Sections 110.1-110.13 of the Code of
Virginia or 12 U.S.C. (ss) 1821 (other than a conservator appointed as a result
of circumstances described in 12 U.S.C. (ss) 1821 (c)(5)(D),(E) or (M)) or other
similar state or federal law now or hereafter in effect; or
5 The entry of a decree or order for relief by a court having jurisdiction
in the premises in respect of the Company in an involuntary case under Chapter 7
or Chapter 11 of the federal Bankruptcy Code or any other similar state or
federal law now or hereafter in effect, and the continuance of any such decree
or order unstayed and in effect for a period of 90 days, or the appointment of a
liquidating agent or committee, conservator or receiver of the Bank under Title
6.1 Sections 100-110 or Sections 110.1-110.13 of the Code of Virginia or 12
U.S.C. (ss) 1821 (other than a conservator appointed as a result of
circumstances described in 12 U.S.C. (ss) 1821 (c)(5)(D),(E) or (M)) or other
similar state or federal law
<PAGE>
now or hereafter in effect, and the continuance of any such appointment unstayed
and in effect for a period of 90 days.
If an Event of Default under clauses , or shall have occurred and be
continuing (but, in the case of clause , only if the Event of Default is with
respect to less than all series of Securities then outstanding under this
Indenture), unless the principal of all the Securities shall have already become
due and payable, either the Trustee or the holders of not less than 25% in
principal amount of all the then outstanding Securities of the series as to
which such Event of Default under clauses , or has occurred (each such series
voting as a separate class in the case of an Event of Default under clauses or ,
and all such series voting as one class in the case of an Event of Default under
clause), by notice in writing to the Company (and to the Trustee if given by
Securityholders) may declare the principal amount (or if Securities of any
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all the Securities of
such series, or of all such series in the case of an Event of Default under
clause , in each case together with any accrued interest, to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable; provided, however, that in the case of the
Securities of a series issued to a Crestar Capital Trust, if upon an Event of
Default, the Trustee or the holders of at least 25% in principal amount of the
outstanding Securities of that series fail to declare the principal of all the
Securities of that series to be immediately due and payable, the holders of at
least 25% in aggregate liquidation amount of the corresponding series of
Preferred Securities then outstanding shall have such right by a notice in
writing to the Company and the Trustee. If an Event of Default under clauses , ,
or shall have occurred and be continuing (but, in the case of clause), only if
the Event of Default is with respect to all Securities then outstanding under
the Indenture), then and in each and every such case, unless the principal of
all the Securities shall have already become due and payable, either the Trustee
or the holders of not less than 25% in principal amount of all the then
outstanding Securities of each series as to which such Event of Default under
clauses , , or above has occurred (voting as one class), by notice in writing to
the Company (and to the Trustee if given by Securityholders) may declare the
principal amount (or if Securities of any series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all the Securities as to which the Event of Default
under clauses , , or above has occurred, together with any accrued interest, to
be due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable, anything contained in this
Indenture or in the Securities to the contrary notwithstanding; provided,
however, that in the case of the Securities of a series issued to a Crestar
Capital Trust, if upon an Event of Default, the Trustee or the holders of not
less than 25% in principal amount of the outstanding Securities of that series
fail to declare the principal of all the Securities of that series to be
immediately due and payable, the holders of at least 25% in aggregate
liquidation amount of the corresponding series of Preferred Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee. The foregoing provisions, however, are subject to the
<PAGE>
condition that if, at any time after the principal amount (or specified portion
thereof) of the Securities of any one or more series (or of all the Securities,
as the case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of moneys due shall have been obtained or
entered as hereinafter provided, the Company shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of such series (or upon all the Securities, as the case may be)
and the principal of any and all Securities of such series (or of any and all
the Securities, as the case may be) which shall have become due otherwise than
by declaration (with interest on overdue installments of interest to the extent
permitted by law and on such principal at the rate or rates of interest borne
by, or prescribed therefor in, the Securities of each such series to the date of
such payment or deposit) and the amounts payable to the Trustee under Section ,
and any and all defaults under the Indenture with respect to Securities of such
series (or all Securities, as the case may be), other than the nonpayment of
principal of and any accrued interest on Securities of such series (or any
Securities, as the case may be) which shall have become due by declaration,
shall have been cured, remedied or waived as provided in Section , then and in
every such case the holders of a majority in principal amount of the Securities
of such series (or of all the Securities, as the case may be) then outstanding
and as to which such Event of Default has occurred (such series or all series
voting as one class, if more than one series are so entitled) by written notice
to the Company and to the Trustee, may rescind and annul such declaration and
its consequences. In the case of Securities issued to a Crestar Capital Trust,
should the holders of such Securities fail to annul such declaration and waive
such default, the holders of a majority in aggregate liquidation preference of
related Preferred Securities shall have such right; but no such rescission and
annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon.
In case the Trustee, any holder of Securities or any holder of Preferred
Securities shall have proceeded to enforce any right under this Indenture and
such proceedings shall have been discontinued or abandoned because of such
rescission or annulment or for any other reason or shall have been determined
adversely to the Trustee, such holder of Securities or such holder of Preferred
Securities then and in every such case the Company, the Trustee, the holders of
the Securities of such series (or of all the Securities, as the case may be) and
the holders of Preferred Securities shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of
the Company and the Trustee, the holders of the Securities of such series (or of
all the Securities, as the case may be) and the holders of Preferred Securities
shall continue as though no such proceedings had been taken.
A. SECTION . Covenant of Company to Pay to Trustee Whole Amount Due on
Securities on Default in Payment of Interest or Principal. The Company covenants
that (1) in case default shall be made in the payment of any installment of
interest on any of the Securities of any series as and when the same shall
become due and payable, and such default shall have continued for a period of 30
days (subject to the deferral of any due date
<PAGE>
in the case of an Extension Period), or (2) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or upon declaration or
otherwise, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Securities of such series, the
whole amount that then shall have become due and payable on all such Securities
of such series for principal or interest, or both, as the case may be, with
interest upon the overdue principal and installments of interest (to the extent
permitted by law) at the rate or rates of interest borne by or prescribed
therefor in the Securities of such series; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including a reasonable compensation to the Trustee, its agents,
attorneys and counsel, and any expenses or liabilities incurred, and all
advances made, by the Trustee hereunder other than through its negligence or bad
faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor upon such
Securities, and collect in the manner provided by law out of the property of the
Company or any other obligor upon such Securities wherever situated the moneys
adjudged or decreed to be payable.
The Trustee shall be entitled and empowered, either in its own name or as
trustee of an express trust, or as attorney-in-fact for the holders of the
Securities of any series, or in any one or more of such capacities (irrespective
of whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section) to file and prove a claim or claims for the whole amount of
principal (or, if the Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) and interest owing and unpaid in respect of the Securities
of such series and to file such other documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for reasonable
compensation of the Trustee, its agents and counsel, and for reimbursement of
all expenses, disbursements and liabilities incurred, and all advances made, by
the Trustee, its agents and counsel, except as a result of its negligence or bad
faith) and of the holders of the Securities of such series allowed in any equity
receivership, insolvency, bankruptcy, liquidation, arrangement, readjustment,
reorganization or any other judicial proceedings relative to the Company or any
other obligor on the Securities or their creditors, or their property. The
Trustee is hereby irrevocably appointed (and the successive respective holders
of the Securities of each series by taking and holding the same shall be
conclusively deemed to have so appointed the Trustee) the true and lawful
attorney-in-fact of the respective holders of the Securities of such
<PAGE>
series, with authority to make and file in the respective names of the holders
of the Securities of such series, or on behalf of the holders of the Securities
of such series as a class, any proof of debt, amendment of proof of debt, claim,
petition or other document in any such proceeding and to receive payment of any
sums becoming distributable on account thereof, and to execute any such other
papers and documents and to do and perform any and all such acts and things for
and on behalf of such holders of the Securities, as may be necessary or
advisable in the opinion of the Trustee in order to have the respective claims
of the Trustee and of the holders of the Securities of such series allowed in
any such proceedings, and to receive payment of or on account of such claims and
to distribute the same, and any receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section; provided,
however, that nothing herein shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of such series or the rights of any holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
holder of Securities of such series in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities of any series, may be enforced by the Trustee without the
possession of any of the Securities of such series, or the production thereof on
any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee, shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
such Trustee, its agents and counsel, for the ratable benefit of the holders of
the Securities of such series.
A. SECTION . Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities in respect of which
moneys have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection, and
of all amounts payable to the Trustee under Section;
Second: In case the principal of the outstanding Securities in respect
of which moneys have been collected shall not have become due and be
unpaid, to the payment of any interest on such Securities, in the order of
the maturity of the installments of such interest, with interest upon the
overdue installments of interest (so far as permitted by law and to the
extent that such interest has been
<PAGE>
collected by the Trustee) at the rate or rates of interest borne by, or
prescribed therefor in, such Securities, such payments to be made ratably
to the persons entitled thereto, without discrimination or preference;
Third: In case the principal of the outstanding Securities in respect
of which such moneys have been collected shall have become due, by
declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon such Securities for principal and interest, if any, with
interest on the overdue principal and any installments of interest (so far
as permitted by law and to the extent that such interest has been collected
by the Trustee) at the rate or rates of interest borne by, or prescribed
therefor in, such Securities; and in case such moneys shall be insufficient
to pay in full the whole amount so due and unpaid upon such Securities,
then to the payment of such principal and interest, without preference or
priority of principal over interest, or of interest over principal, or of
any installment of interest over any other installment of interest, or of
any Security over any other Security, ratably to the aggregate of such
principal and accrued and unpaid interest; and
Fourth: To the payment of the remainder, if any, to the Company,
its successors or assigns, or to whomsoever may be lawfully entitled
to receive the same, or as a court of competent jurisdiction may
direct.
A. SECTION . Limitation on Suits by Holders of Securities. No holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
such holder previously shall have given to the Trustee written notice of default
and of the continuance thereof, as hereinbefore provided, and unless also the
holders of not less than 25% in principal amount of all the Securities at the
time outstanding (considered as one class) shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding and no direction inconsistent with
such written request shall have been given to the Trustee pursuant to Section;
it being understood and intended, and being expressly covenanted by the taker
and holder of every Security with every other taker and holder and the Trustee,
that no one or more holders of Securities shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of the holders of any other of such Securities,
or to obtain or seek to obtain priority over or preference to any other such
holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of
Securities. For the protection and
<PAGE>
enforcement of the provisions of this Section, each and every Securityholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Notwithstanding any other provisions in this Indenture, the right of any
holder of any Security to receive payment of the principal of and interest on
such Security, on or after the respective due dates expressed in such Security
(or, in the case of redemption on or after the date fixed for redemption), or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
holder.
A. SECTION . On Default Trustee May Take Appropriate Action. In case of a
default hereunder the Trustee may in its discretion proceed to protect and
enforce the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
of such rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law. All powers and remedies given
by this Article to the Trustee or to the Securityholders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the holders of the
Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and no
delay or omission of the Trustee, of any holder of any of the Securities or any
holder of Preferred Securities to exercise any right or power accruing upon any
default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section , every power
and remedy given by this Article or by law to the Trustee, to the
Securityholders or the holders of Preferred Securities may be exercised from
time to time, and as often as shall be deemed expedient, by the Trustee, by the
Securityholders or by the holders of Preferred Securities, as the case may be.
In the case of Securities of a series issued to a Crestar Capital Trust,
any holder of the corresponding series of Preferred Securities issued by such
Crestar Capital Trust shall have the right, upon the occurrence of an Event of
Default described in Section or , to institute a suit directly against the
Company for enforcement of payment to such holder of principal of (including
premium, if any) and interest (including any Additional Interest) on the
Securities having a principal amount equal to the aggregate liquidation amount
of such Preferred Securities of the corresponding series held by such holder.
A. SECTION . Rights of Holders of Majority in Principal Amount of
Securities to Direct Trustee and to Waive Default. The holders of a
majority in principal amount of the Securities of any one or more series or
of all the Securities, as the case may be (voting as one class), at the
<PAGE>
time outstanding (determined as provided in Section) shall have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to such one or more series; provided, however, that,
subject to Section , the Trustee shall have the right to decline to follow any
such direction if the Trustee being advised by Opinion of Counsel determines
that the action so directed may not lawfully be taken, or if the Trustee in good
faith shall, by a Responsible Officer or Officers of the Trustee, determine that
the proceedings so directed would be illegal or involve it in personal liability
or be unduly prejudicial to the rights of Securityholders of such one or more
series not parties to such direction, and provided further that nothing in this
Indenture shall impair the right of the Trustee to take any action deemed proper
by the Trustee and which is not inconsistent with such direction by such
Securityholders of such one or more series. The holders of a majority in
principal amount of the Securities of all series as to which a default hereunder
has occurred (all series voting as one class) at the time outstanding
(determined as provided in Section) and, in the case of any Securities of a
series issued to a Crestar Capital Trust, the holders of a majority in aggregate
liquidation amount of the Preferred Securities issued by such Crestar Capital
Trust, may waive any past default hereunder with respect to such series and its
consequences, except a default in the payment of the principal of or interest on
any of such Securities or in respect of a covenant or provision hereof which
under Article cannot be modified or amended without the consent of the holder of
each Security so affected. Upon any such waiver, such default shall cease to
exist and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Indenture, but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon. Any such
waiver shall be deemed to be on behalf of the holders of all the Securities of
such series or, in the case of a waiver by holders of Preferred Securities
issued by such Crestar Capital Trust, on behalf of all holders of Preferred
Securities issued by such Crestar Capital Trust.
B. SECTION . Trustee to Give Notice of Defaults Known to It, but May
Withhold in Certain Circumstances. The Trustee shall, within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, give to the holders of the Securities of such series in the manner and
to the extent provided in Section with respect to reports pursuant to Section ,
notice of such default known to the Trustee unless such default shall have been
cured, remedied or waived before the giving of such notice (the term "default"
for the purposes of this Section being hereby defined to be the events specified
in Sections , , or , default in the payment of the principal of or interest on
Securities of any series, and any additional events specified in the terms of
any series of Securities pursuant to Section , not including any periods of
grace provided for therein, and irrespective of the giving of written notice
specified in any such terms, and irrespective of the delivery of any Officers
Certificate provided for in any such terms); provided, that, except in the case
of default in the payment of the principal of or interest on any of the
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the Board of
<PAGE>
Directors, the Executive Committee, or a Trust Committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the holders of the Securities
of such series.
C. SECTION . Requirement of an Undertaking to Pay Costs in Certain Suits
under the Indenture or Against the Trustee. All parties to this Indenture agree,
and each holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs, including
reasonable attorneys fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any holder of Securities of
any series, or group of such Securityholders, holding in the aggregate more than
ten percent in principal amount of all the Securities (all series considered as
one class) outstanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of or interest on any Security, on
or after the due date expressed in such Security (or in the case of any
redemption, on or after the date fixed for redemption).
I. ARTICLE
CONCERNING THE TRUSTEE
A. SECTION . Upon Event of Default Occurring and Continuing, Trustee Shall
Exercise Powers Vested in It, and Use Same Degree of Care and Skill in Their
Exercise, as a Prudent Man Would Use. The Trustee, prior to the occurrence of an
Event of Default and after the curing, remedying or waiving of all Events of
Default which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default has occurred (which has not been cured, remedied or waived) the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own willful misconduct; provided, however, that
1 Prior to the occurrence of an Event of Default and after the curing,
remedying or waiving of all Events of Default which may have occurred:
A the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture and the
<PAGE>
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
b in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture;
2 The Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
3 The Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
holders of Securities pursuant to Section relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture;
4 Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section;
and
5 None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
B SECTION . Reliance on Documents, Opinions, Etc. Except as otherwise
provided in Section :
1 The Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, debenture, note or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
2 Any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by an Officers Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
Resolution of the Company may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company;
<PAGE>
3 The Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with such written advice or Opinion of Counsel;
4 The Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request, order or direction of any
of the Securityholders, pursuant to the provisions of this Indenture, unless
such Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;
5 The Trustee shall not be liable for any action taken or omitted by it in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
6 The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
note or other paper or document, unless requested in writing to do so by the
holders of Securities pursuant to Section; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such costs, expenses or liabilities as a condition
to so proceeding; and provided further, that nothing in this subsection (f)
shall require the Trustee to give the Securityholders any notice other than that
required by Section . The reasonable expense of every such examination shall be
paid by the Company or, if paid by the Trustee, shall be repaid by the Company
upon demand;
7 The Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder; and
8 The Trustee shall be under no responsibility for the
approval by it in good faith of any expert for any of the purposes
expressed in this Indenture.
C SECTION . Trustee Not Liable for Recitals in Indenture or in Securities.
The recitals contained herein and in the Securities (other than the certificate
of authentication on the Securities) shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities. The Trustee shall not be accountable for
the use or application by the Company of any of the Securities or of the
proceeds thereof.
D. SECTION . May Own Securities. The Trustee or any agent of the
Company or of the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Securities with the same rights it would
have if it were not Trustee or such agent.
<PAGE>
E. SECTION . Moneys Received by Trustee to Be Held in Trust Without
Interest. Subject to the provisions of Section , all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder.
F. SECTION . Trustee Entitled to Compensation, Reimbursement and Indemnity.
The Company covenants and agrees to pay to the Trustee from time to time, and
the Trustee shall be entitled to, reasonable compensation (which shall not be
limited by any provision of law in regard to the compensation of a trustee of
any express trust), and, the Company will pay or reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in connection with the acceptance or administration of its trust
under this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel and of all persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Company also covenants to indemnify the Trustee and
its agents for, and to hold them harmless against, any loss, liability or
expense incurred without negligence or bad faith on their part and arising out
of or in connection with the acceptance or administration of this trust and
performance of their duties hereunder, including the costs and expenses
(including fees and disbursements of their counsel) of defending themselves
against any claim or liability in connection with the exercise or performance of
any of the powers or duties hereunder. The obligations of the Company under this
Section to compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture and the resignation or removal of the Trustee.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of or interest, if any,
on particular Securities.
G. SECTION . Right of Trustee to Rely on Officers Certificate Where No
Other Evidence Specifically Prescribed. Except as otherwise provided in Section
, whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee be deemed to be
conclusively proved and established by an Officers Certificate delivered to the
Trustee, and such Certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the faith
thereof.
H. SECTION . Disqualification; Conflicting Interests. If the Trustee
has or shall acquire any conflicting interest, within the meaning of the
<PAGE>
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture.
I. SECTION . Requirements for Eligibility of Trustee. The Trustee hereunder
shall at all times be a corporation organized and doing business under the laws
of the United States or any State or territory thereof or of the District of
Columbia authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000, subject to supervision or
examination by federal, state, territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section . Neither the Company, any other
obligor upon the Securities, nor any person directly or indirectly controlling,
controlled by, or under common control with the Company or any such obligor
shall serve as Trustee under this Indenture.
1. SECTION . Resignation of Trustee. The Trustee, or any trustee or
trustees hereafter appointed, may at any time resign with respect to one or more
or all series of Securities by giving written notice of such resignation to the
Company and by giving to the holders of Securities of the applicable series
notice thereof in the manner and to the extent provided in Section with respect
to reports pursuant to Section . Upon receiving such notice of resignation and
if the Company shall deem it appropriate evidence satisfactory to it of such
mailing, the Company shall promptly appoint a successor Trustee with respect to
the applicable series (it being understood that any successor Trustee may be
appointed with respect to the Securities of one or more or all of such series
and at any time there shall be only one Trustee with respect to the Securities
of any particular series) by written instrument, in duplicate, executed pursuant
to a Resolution of the Company, one copy of which instrument shall be delivered
to the resigning Trustee and one copy to the successor Trustee. If no successor
Trustee shall have been so appointed with respect to any series and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Securityholder
who has been a bona fide holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section , on
behalf of himself and all others similarly situated, petition any such court for
the appointment of a successor Trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint a successor
Trustee.
2 In case at any time any of the following shall occur:
a The Trustee shall fail to comply with the provisions of
hereof and Section 310(b) of the Trust indenture Act after written request
<PAGE>
therefor by the Company or by any Securityholder who has been a bona fide holder
of a Security or Securities of the applicable series for at least six months,
unless the Trustee's duty to resign is stayed as provided in Section 310(b) of
the Trust Indenture Act, or
b The Trustee shall cease to be eligible in accordance with the provisions
of Section and shall fail to resign after written request therefor by the
Company or by any such Securityholder, or
c The Trustee shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, the Company may remove the Trustee with
respect to the applicable series and appoint a successor Trustee with respect to
the applicable series by written instrument, in duplicate, executed pursuant to
a Resolution of the Company, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor Trustee, or, subject to the
provisions of Section , any Securityholder who has been a bona fide holder of a
Security or Securities of the applicable series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee with respect to the applicable series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor Trustee.
1 The holders of a majority in principal amount of the Securities of any
one series voting as a separate class or all series voting as one class at the
time outstanding (determined as provided in Section) may at any time remove the
Trustee with respect to the applicable series or all series, as the case may be,
and appoint a successor Trustee with respect to the applicable series or all
series, as the case may be, by written instrument or instruments signed by such
holders or their attorneys-in-fact duly authorized, or by the affidavits of the
permanent chairman and secretary of a meeting of the Securityholders evidencing
the vote upon a resolution or resolutions submitted thereto with respect to such
removal and appointment (as provided in Article), and by delivery thereof to
the Trustee so removed, to the successor Trustee and to the Company.
2 Any resignation or removal of the Trustee and any appointment of a
successor Trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor Trustee as provided in
Section .
<PAGE>
B. SECTION . Acceptance by Successor Trustee. Any successor Trustee with
respect to all series of Securities appointed as provided in Section shall
execute, acknowledge and deliver to the Company and to its predecessor Trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee with respect to all series
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as Trustee herein; but, nevertheless, on the
written request of the Company or of the successor Trustee, the Trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the provisions
of Section , execute and deliver an instrument transferring to such successor
Trustee all the rights and powers with respect to such series of the Trustee so
ceasing to act. Upon the request of any such successor Trustee, the Company
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor Trustee all such rights and powers.
Any Trustee ceasing to act shall, nevertheless, retain a lien upon all property
or funds held or collected by such Trustee or any successor Trustee to secure
any amounts then due it pursuant to the provisions of Section .
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of such series
shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of such series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of such
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental Indenture shall
constitute such Trustees coTrustees of the same trust and that each such Trustee
shall be Trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein
and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of such series to which the
appointment of such successor Trustee relates; but, on request of the Company or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to
<PAGE>
the Securities of such series to which the appointment of such successor
Trustee relates.
No successor Trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor Trustee shall be qualified
under the provisions of Section and eligible under the provisions of Section .
Upon acceptance of appointment by a successor Trustee as provided in this
Section, the successor Trustee shall at the expense of the Company transmit
notice of the succession of such Trustee hereunder to the holders of Securities
of any applicable series in the manner and to the extent provided in Section
with respect to reports pursuant to Section .
A. SECTION . Successor to Trustee by Merger, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions of Section and
eligible under the provisions of Section , without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor Trustee or
to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
<PAGE>
1. SECTION . Limitations on Rights of Trustee as a Creditor to Obtain
Payment of Certain Claims Within Three Months Prior to Default or During
Default, or to Realize on Property as Such Creditor Thereafter. Subject to the
provisions of Section , if the Trustee shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Company or of any other
obligor on the Securities within three months prior to a default, as defined in
, or subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in a special account for the benefit
of the Trustee individually, the holders of the Securities of the one or more
indenture securities (as defined in Section):
a An amount equal to any and all reductions in the amount due and owing
upon any claim as such creditor in respect of principal or interest, effected
after the beginning of such three months period, and valid as against the
Company and its other creditors, except any such reduction resulting from the
receipt or disposition of any property described in paragraph , or from the
exercise of any right of set-off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against the Company upon the date of
such default; and
b All property received by the Trustee in respect of any claims as such
creditor, either as security therefor, or in satisfaction or composition
thereof, or otherwise, after the beginning of such three months period, or an
amount equal to the proceeds of any such property if disposed of, subject,
however, to the rights, if any, of the Company and its other creditors in such
property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) To retain for its own account (i) payments made on account of any
such claim by any person (other than the Company) who is liable thereon, (ii)
the proceeds of the bona fide sale of any such claim by the Trustee to a third
person, and (iii) distributions made in cash, securities, or other property in
respect of claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to title 11 of the United States Code or
applicable state laws;
(B) To realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the beginning
of such three months period;
(C) To realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for any
such claim, if such claim was created after the beginning of such three months
period and such property was received as security therefor simultaneously with
the creation thereof, and if the Trustee shall sustain the burden of proving
that at the time such property was so received, the Trustee had no reasonable
cause to believe that a default, as defined in Section , would occur within
three months; or
(D) To receive payment on any claim referred to in paragraph (B) or
(C) against the release of any property held as security for such claim as
provided in such paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C), and (D), property substituted
<PAGE>
after the beginning of such three months period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and to the
extent that any claim referred to in any such paragraphs is created in renewal
of or in substitution for or for the purpose of repaying or refunding any
pre-existing claim of the Trustee as such creditor, such claim shall have the
same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the holders of Securities of the one or more series for which it is
acting as Trustee, and the holders of other indenture securities in such manner
that the Trustee, such Securityholders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to title 11 of the
United States Code or applicable state law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Company of the funds and property in
such special account and before crediting to the respective claims of the
Trustee, such Securityholders, and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to title 11 of the United States Code
or applicable state law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim in
bankruptcy or receivership or in proceedings for reorganization pursuant to
title 11 of the United States Code or applicable state law, whether such
distribution is made in cash, securities, or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership or proceeding for
reorganization is pending shall have jurisdiction (i) to apportion among the
Trustee, such Securityholders, and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held in
such special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made to
the Trustee, such Securityholders and the holders of other indenture securities
with respect to their respective claims, in which event it shall not be
necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claim, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of such
three months period shall be subject to the provisions of Section as
<PAGE>
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three months period, it shall be
subject to the provisions of this Section if and only if the following
conditions exist:
(i) The receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had continued as
trustee, occurred after the beginning of such three months period; and
(ii) Such receipt of property or reduction of claim occurred
within three months after such resignation or removal;
1 There shall be excluded from the operation of Section a
creditor relationship arising from:
a The ownership or acquisition of securities issued under any indenture, or
any security or securities having a maturity of one year or more at the time of
acquisition by the Trustee;
b Advances authorized by a receivership or bankruptcy court of competent
jurisdiction, or by this Indenture, for the purpose of preserving any property
which shall at any time be subject to the lien of this Indenture or of
discharging tax liens or other prior liens or encumbrances thereon, if notice of
such advances and of the circumstances surrounding the making thereof is given
to the Securityholders at the time and in the manner provided in Section with
respect to reports pursuant to Sections or thereof, respectively;
c Disbursements made in the ordinary course of business in the capacity of
Trustee under an indenture, transfer agent, registrar, custodian, Paying Agent,
fiscal agent or depositary, or other similar capacity;
d An indebtedness created as a result of services rendered or premises
rented; or an indebtedness created as a result of goods or securities sold in a
cash transaction as defined in Section;
e The ownership of stock or of other securities of a corporation organized
under the provisions of Section 25(a) of the Federal Reserve Act, as amended,
which is directly or indirectly a creditor of the Company; or
f The acquisition, ownership, acceptance or negotiation of any drafts,
bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in Section .
2 As used in this Section:
a The term "default" shall mean any failure to make payment in full of the
principal of or interest upon any of the Securities or upon the other indenture
securities when and as such principal or interest becomes due and payable.
b The term "other indenture securities" shall mean securities upon which
the Company is an obligor (as defined in the Trust Indenture Act of 1939, as
amended) outstanding under any other indenture (A) under which the Trustee is
also trustee, (B) which contains provisions substantially similar to the
provisions of Section , and (C) under which a default exists at the time of the
apportionment of the funds and property held in said special account.
c The term "cash transaction" shall mean any transaction in which full
payment for goods or securities sold is made within seven days after delivery of
the goods or securities in currency or in checks or other
<PAGE>
orders drawn upon banks or bankers and payable upon demand.
d The term "self-liquidating paper" shall mean any draft, bill
of exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase, processing,
manufacture, shipment, storage or sale of goods, wares or merchandise and which
is secured by documents evidencing title to, possession of, or a lien upon, the
goods, wares or merchandise, or the receivables or proceeds arising from the
sale of the goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with the
creation of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
e The term "Company" shall mean any obligor upon the
Securities.
I. ARTICLE
CONCERNING THE SECURITYHOLDERS
1. SECTION . Evidence of Action by Securityholders. Whenever in this
Indenture it is provided that the holders of a specified percentage in principal
amount of the Securities of any or all series may take any action (including the
making of any demand or request, the giving of any notice, consent, or waiver or
the taking of any other action), the fact that at the time of taking any such
action the holders of such specified percentage have joined therein may be
evidenced by any instrument or any number of instruments of similar tenor
executed by such Securityholders in person or by agent or proxy appointed in
writing, or by the record of such holders of Securities voting in favor thereof
at any meeting of such Securityholders duly called and held in accordance with
the provisions of Article , or by a combination of such instrument or
instruments and any such record of such a meeting of such Securityholders.
If there shall be more than one Trustee acting hereunder with respect to
separate series of Securities, such Trustees shall collaborate, if necessary, in
acting under Article and in determining whether the holders of a specified
percentage in principal amount of the Securities of any or all series have taken
any such action.
A. SECTION . Proof of Execution of Instruments and of Holding of
Securities. Subject to the provisions of Sections , and , proof of the execution
of any instrument by a Securityholder or his agent or proxy and proof of the
holding by any person of any of the Securities shall be sufficient if made in
the following manner:
The fact and date of the execution by any such person of any instrument may
be proved in any reasonable manner acceptable to the Trustee.
The ownership of Securities of any series shall be proved by the Register
of such Securities of such series, or by certificates of the
<PAGE>
Security registrar or registrars thereof.
The Trustee shall not be bound to recognize any person as a Securityholder
unless and until the title to the Securities held by him is proved in the manner
in this Article provided.
The record of any Securityholders meeting shall be proved in the manner
provided in Section .
The Trustee may accept such other proof or require such additional proof of
any matter referred to in this Section as it shall deem reasonable.
A. SECTION . Who May Be Deemed Owners of Securities. Prior to due
presentment for registration of transfer of any Security, the Company, the
Trustee and any agent of the Company or the Trustee may deem and treat the
person in whose name such Security shall be registered upon the Register of
Securities of the series of which such Security is a part as the absolute owner
of such Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or an account of the principal of and interest,
subject to Section , on such Security and for all other purposes; and neither
the Company nor the Trustee nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. All such payments so made to any such
holder for the time being, or upon his order, shall be valid, and, to the extent
of the sum or sums so paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Security.
B. SECTION . Securities Owned by Company or Controlled or Controlling
Persons Disregarded for Certain Purposes. In determining whether the holders of
the requisite principal amount of Securities have concurred in any demand,
direction, request, notice, vote, consent, waiver or other action under this
Indenture, Securities which are owned by the Company or any other obligor on the
Securities or by any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any other obligor
on the Securities shall be disregarded and deemed not to be outstanding for the
purpose of any such determination, provided that for the purposes of determining
whether the Trustee shall be protected in relying on any such demand, direction,
request, notice, vote, consent, waiver or other action, only Securities which a
Responsible Officer of the Trustee assigned to its principal office knows are so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as outstanding for the purposes of this Section, if
the pledgee shall establish to the satisfaction of the Trustee the pledgee s
right to vote such Securities and that the pledgee is not a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. Upon request of the Trustee,
the Company shall furnish to the Trustee promptly an Officers Certificate
listing and identifying all Securities, if any, known by the Company to be owned
or held by or for the account of the Company or any other obligor on the
Securities or by any person directly or indirectly controlling or controlled by
or under direct
<PAGE>
or indirect common control with the Company or any other obligor on the
Securities; and, subject to the provisions of Section , the Trustee shall be
entitled to accept such Officers Certificate as conclusive evidence of the facts
therein set forth and of the fact that all Securities not listed therein are
outstanding for the purpose of any such determination.
C. SECTION . Instruments Executed by Securityholders Bind Future Holders.
At any time prior to (but not after) the evidencing to the Trustee, as provided
in Section , of the taking of any action by the holders of the percentage in
principal amount of the Securities specified in this Indenture in connection
with such action, any holder of a Security which is shown by the evidence to be
included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee at its principal office and upon
proof of holding as provided in Section , revoke such action so far as concerns
such Security. Except as aforesaid any such action taken by the holder of any
Security and any direction, demand, request, notice, waiver, consent, vote or
other action of the holder of any Security which by any provisions of this
Indenture is required or permitted to be given shall be conclusive and binding
upon such holder and upon all future holders and owners of such Security, and of
any Security issued in lieu thereof or upon registration of transfer thereof,
irrespective of whether any notation in regard thereto is made upon such
Security. Any action taken by the holders of the percentage in principal amount
of the Securities of any or all series specified in this Indenture in connection
with such action shall be conclusively binding upon the Company, the Trustee and
the holders of all of the Securities of such series subject, however, to the
provisions of Section .
I. ARTICLE
SECURITYHOLDERS MEETINGS
A. SECTION . Purposes for Which Meetings May Be Called. A meeting of
holders of Securities of any or all series may be called at any time and
from time to time pursuant to the provisions of this Article for any of the
following purposes:
1 To give any notice to the Company or to the Trustee, or to give any
directions to the Trustee, or to consent to the waiving of any default hereunder
and its consequences, or to take any other action authorized to be taken by
holders of Securities of any or all series, as the case may be, pursuant to any
of the provisions of Article;
2 To remove the Trustee and appoint a successor Trustee
pursuant to the provisions of Article;
3 To consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section; or
4 To take any other action authorized to be taken by or on behalf of the
holders of any specified principal amount of the Securities of any or all
series, as the case may be, under any other provision of this Indenture or under
applicable law.
<PAGE>
B. SECTION . Manner of Calling Meetings. The Trustee may at any time call a
meeting of Securityholders to take any action specified in Section , to be held
at such time and at such place in the Borough of Manhattan, City of New York,
State of New York, as the Trustee shall determine. Notice of every meeting of
Securityholders setting forth the time and place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be mailed not less
than 20 nor more than 60 days prior to the date fixed for the meeting.
C. SECTION . Call of Meeting by Company or Securityholders. In case at any
time the Company, pursuant to a resolution of its Board of Directors, or the
holders of not less than ten percent in principal amount of the Securities of
any or all series, as the case may be, then outstanding, shall have requested
the Trustee to call a meeting of holders of Securities of any or all series, as
the case may be, to take any action authorized in Section by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed notice of such meeting within 20
days after receipt of such request, then the Company or such holders of
Securities in the amount above specified may determine the time and place in the
Borough of Manhattan, City of New York, State of New York for such meeting and
may call such meeting to take any action authorized in Section , by mailing
notice thereof as provided in Section .
1. SECTION . Who May Attend and Vote at Meetings. To be entitled to vote at
any meeting of Securityholders a person shall be a holder of one or more
Securities with respect to which the meeting is being held, or be a person
appointed by an instrument in writing as proxy by such holder of one or more
Securities. The only persons who shall be entitled to be present or to speak at
any meeting of Securityholders shall be the persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee and its counsel
and any representatives of the Company and its counsel.
D. SECTION . Regulations May Be Made by Trustee. Notwithstanding any other
provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Securityholders, in regard to proof
of the holding of Securities and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall think
fit. Except as otherwise permitted or required by any such regulations, the
holding of Securities shall be proved in the manner specified in Section and the
appointment of any proxy shall be proved in the manner specified in said Section
; provided, however, that such regulations may provide that written instruments
appointing proxies regular on their face, may be presumed valid and genuine
without the proof hereinabove or in said Section specified.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section , in which case the
<PAGE>
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section , at any meeting each Securityholder
or proxy shall be entitled to one vote for each $1,000 principal amount of
Securities held or represented by him, provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding;
provided, however, that each holder of Original Issue Discount Securities shall
be entitled to one vote for each $1,000 amount which would be due upon
acceleration of his Original Issue Discount Security on the date of the meeting.
The chairman of the meeting shall have no right to vote other than by virtue of
Securities held by him or instruments in writing as aforesaid duly designating
him as the person to vote on behalf of other Securityholders. Any meeting of
Securityholders duly called pursuant to the provisions of Section or may be
adjourned from time to time, and the meeting may be held so adjourned without
further notice.
At any meeting of Securityholders, the presence of persons holding or
representing Securities in principal amount sufficient to take action on the
business for the transaction of which such meeting was called shall constitute a
quorum, but, if less than a quorum is present, the persons holding or
representing a majority in principal amount of the Securities represented at the
meeting may adjourn such meeting with the same effect for all intents and
purposes, as though a quorum had been present.
A. SECTION . Manner of Voting at Meetings and Record to be Kept. The vote
upon any resolution submitted to any meeting of Securityholders shall be by
written ballots on which shall be subscribed the signatures of the holders of
Securities or of their representatives by proxy and the principal amount or
principal amounts of the Securities held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as
provided in Section . The record shall show the principal amount or principal
amounts of the Securities voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
<PAGE>
matters therein stated.
A. SECTION . Exercise of Rights of Trustee, Securityholders and Holders of
Preferred Securities Not to Be Hindered or Delayed. Nothing in this Article
contained shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Securityholders or any rights expressly or impliedly
conferred hereunder to make such call any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee, to the
Securityholders or the holders of Preferred Securities under any of the
provisions of this Indenture or of the Securities.
I. ARTICLE
SUPPLEMENTAL INDENTURES
A. SECTION . Purposes for Which Supplemental Indentures May Be Entered into
Without Consent of Securityholders. The Company, when authorized by a Resolution
of the Company, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto, in form satisfactory to such
Trustee (which shall comply with the provisions of the Trust Indenture Act of
1939 as then in effect), for one or more of the following purposes:
1 To evidence the succession of another corporation to the Company, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Company pursuant to Article hereof
and to comply with Section;
2 To add to the covenants of the Company such further covenants,
restrictions or conditions as the Company and the Trustee shall consider to be
for the protection of the holders of all or any series of Securities (and if
such covenants, restrictions or conditions are to be for the benefit of less
than all series of Securities, stating that such covenants, restrictions or
conditions are expressly being included solely for the benefit of such series),
and to make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions or conditions a default or an Event
of Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect to any such additional covenant, restriction or condition such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default;
3 To add or change any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the issuance of Securities in
bearer form, registrable or not registrable as to principal, and with or without
interest coupons;
4 To change or eliminate any of the provisions of this Indenture; provided,
however, that any such change or elimination shall become effective only when
there is no Security of any series outstanding
<PAGE>
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision;
5 To establish the form or terms of Securities of any series
as permitted by Sections or;
6 To cure any ambiguity or to correct or supplement any provision contained
herein or in any supplemental indenture which may be defective or inconsistent
with any other provisions contained herein or in any supplemental indenture, or
to make such other provision in regard to matters or questions arising under
this Indenture or any supplemental indenture; provided that such action shall
not adversely affect the interest of the holders of Securities of any series in
any material respect or, in the case of the Securities of a series issued to a
Crestar Capital Trust and for so long as any of the corresponding series of
Preferred Securities issued by such Crestar Capital Trust shall remain
outstanding, the holders of such Preferred Securities;
7 To mortgage or pledge to the Trustee as security for the
Securities any property or assets which the Company may desire to mortgage
or pledge as security for the Securities; and
8 To qualify, or maintain the qualification of, the Indenture
under the Trust Indenture Act of 1939.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, mortgage, pledge or assignment of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed by the Company and the Trustee without the consent of the holders of
any of the Securities at the time outstanding, notwithstanding any of the
provisions of Section .
A. SECTION . Modification of Indenture with Consent of Holders of a
Majority in Principal Amount of Securities. With the consent (evidenced as
provided in Section) of the holders of not less than a majority in principal
amount of the Securities of all series at the time outstanding (determined as
provided in Section) affected by such supplemental indenture (voting as one
class), the Company, when authorized by a Resolution of the Company, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall be in conformity with the provisions
of the Trust Indenture Act of 1939 as then in effect) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Securities of each such series; provided,
however, that no such supplemental indenture shall (i) change the fixed maturity
of any Securities, or reduce the rate or extend the time of payment of any
interest thereon or on any overdue principal amount, or reduce the principal
amount thereof, or change the provisions pursuant to which the rate of interest
on any Security is determined if such change could reduce the rate of interest
thereon, or reduce the minimum rate of interest
<PAGE>
thereon, or reduce any amount payable upon any redemption thereof, or adversely
affect any right to convert the Securities in accordance herewith, or reduce the
amount to be paid at maturity or upon redemption in Capital Stock or make the
principal thereof or any interest thereon or on any overdue principal amount
payable in any coin or currency other than that provided in the Security without
the consent of the holder of each Security so affected, (ii) reduce the
aforesaid percentage of Securities, the holders of which are required to consent
to any such supplemental indenture without the consent of the holders of all
Securities then outstanding, (iii) modify any of the provisions of this Section,
Section or Section , except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the holders of all Securities then outstanding or (iv) modify the
provisions of Article with respect to the subordination of outstanding
Securities of any series in a manner adverse to the holders thereof; without the
consent of the holder of each Security so offered, provided further that, in the
case of the Securities of a series issued to a Crestar Capital Trust, so long as
any of the corresponding series of Preferred Securities issued by such Crestar
Capital Trust remains outstanding, (i) no such amendment shall be made that
adversely affects the holders of such Preferred Securities in any material
respect, and no termination of this Indenture shall occur, and no waiver of any
Event of Default with respect to such series or compliance with any covenant
with respect to such series under this Indenture shall be effective, without the
prior consent of the holders of at least a majority of the aggregate liquidation
amount of such Preferred Securities then outstanding unless and until the
principal (and premium, if any) of the Securities of such series and all accrued
and unpaid interest (including any Additional Interest) thereon have been paid
in full; and (ii) no amendment shall be made to Section of this Indenture that
would impair the rights of the holders of such Preferred Securities provided
therein or to this Indenture that requires the consent of each holder of the
Securities of such series without the prior consent of each holder of such
Preferred Securities then outstanding unless and until the principal (and
premium, if any) of the Securities of such series and all accrued and unpaid
interest (including any Additional Interest) thereon have been paid in full.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities or Preferred Securities,
or which modifies the rights of holders of Securities or holders of Preferred
Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the holders of
Securities or holders of Preferred Securities of any other series.
Upon the request of the Company, accompanied by a copy of a Resolution of
the Company certified by the Secretary or an Assistant Secretary of the Company
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental
<PAGE>
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall mail a notice to the holders of Securities of each series so affected,
setting forth in general terms the substance of such supplemental indenture. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
A. SECTION . Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Securities shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
The Trustee shall be entitled to receive, and subject to the provisions of
Section shall be entitled to rely upon, an Opinion of Counsel as conclusive
evidence that any such supplemental indenture complies with the provisions of
this Article.
A. SECTION . Securities May Bear Notation of Changes by Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article, or after any
action taken at a Securityholders meeting pursuant to Article , may bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture or as to any action taken at any such meeting. If the
Company or the Trustee shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Board of Directors of the
Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities then outstanding.
B. SECTION . Revocation and Effect of Consents. Subject to Section , until
an amendment, supplement, waiver or other action becomes effective, a consent to
it by a Securityholder of a Security is a continuing consent conclusive and
binding upon such Securityholder and every subsequent Securityholder of the same
Security or portion thereof, and of any Security issued upon the registration of
transfer thereof or in exchange therefor or
<PAGE>
in place thereof, even if notation of the consent is not made on any such
Security.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Securityholders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
preceding paragraph, those Persons who were Securityholders at such record date
(or their duly designated proxies), and only such Persons, shall be entitled to
consent or revoke such consent to such amendment, supplement or waiver, whether
or not such Persons continue to be Securityholders after such record date. No
such consent shall be valid or effective for more than 180 days after such
record date.
After an amendment, supplement, waiver or other action becomes effective,
it shall bind every Securityholder.
I. ARTICLE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
A. SECTION . Company May Consolidate, Etc., on Certain Terms. The Company
covenants that it will not merge or consolidate with any other corporation or
sell or convey all or substantially all of its assets to any Person unless (i)
either the Company shall be the continuing corporation, or the successor
corporation (if other than the Company) shall be a corporation organized and
existing under the laws of the United States of America or a State thereof or
the District of Columbia and such corporation shall expressly assume the due and
punctual payment of the principal of and interest on all the Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by the
Company by supplemental indenture in form satisfactory to the Trustee, executed
and delivered to the Trustee by such corporation, (ii) the Company or such
successor corporation, as the case may be, shall not, immediately after such
merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition and (iii) in the case of
Securities of a series issued to a Crestar Capital Trust, such consolidation,
merger, sale or conveyance is permitted under the relevant Trust Agreement and
Crestar Guarantee and does not give rise to any breach or violation of such
Trust Agreement or Crestar Guarantee.
B. SECTION . Successor Corporation Substituted. In case of any such
consolidation, merger, sale or conveyance and upon any such assumption by the
successor corporation, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
as the party of the first part. Such successor corporation thereupon may cause
to be signed, and may issue either in its own name or in the name of the
Company, any or all of the Securities issuable hereunder which theretofore shall
not have been delivered to the Trustee; and upon the order of such successor
corporation, instead of the Company, and
<PAGE>
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the officers of the
Company to the Trustee, and any Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.
<PAGE>
A. SECTION . Opinion of Counsel to Trustee. The Trustee shall be entitled
to receive, and subject to the provisions of Section shall be entitled to rely
upon, an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale or conveyance and any such assumption, complies with the provisions
of this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
I. ARTICLE
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
A. SECTION . Satisfaction and Discharge of Indenture. If the Company shall
deliver to the Trustee for cancellation all Securities of any series theretofore
authenticated (other than any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided
in Section) and not theretofore cancelled, or all the Securities of such series
not theretofore cancelled or delivered to the Trustee for cancellation shall
have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption,
and the Company shall deposit with the Trustee as trust funds the entire amount
sufficient to pay at maturity or upon redemption all of such Securities not
theretofore cancelled or delivered to the Trustee for cancellation, including
principal and any interest due or to become due to such date of maturity or
redemption date, as the case may be, and if in either case the Company shall
also pay or cause to be paid all other sums payable hereunder by the Company
with respect to Securities of such series, then this Indenture shall cease to be
of further effect with respect to Securities of such series (except as to
remaining rights of registration of transfer, conversion, substitution and
exchange and the Company's right of optional redemption of Securities of such
series, rights hereunder of holders to receive payments of principal of, and any
interest on, the Securities of such series, and other rights, duties and
obligations of the holders of Securities of such series as beneficiaries hereof
with respect to the amounts, if any, so deposited with the Trustee, and the
rights, obligations and immunities of the Trustee hereunder), and the Trustee,
on demand of the Company, and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture. Notwithstanding the foregoing, in any case where the Securities are
not due and payable and have not been called for redemption, such Securities
shall remain recourse obligations of the Company. The Company hereby agrees to
compensate the Trustee for any services thereafter reasonably and properly
rendered and to reimburse the Trustee for any costs or expenses theretofore and
thereafter reasonably and properly incurred by the Trustee in connection with
this Indenture or the Securities of such series.
Notwithstanding the satisfaction and discharge of this Indenture with
<PAGE>
respect to the Securities of any or all series, the obligations of the Company
to the Trustee under Section hereof shall survive.
A. SECTION . Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section , all moneys deposited with the Trustee pursuant
to Section shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent), to the holders of the particular Securities of such series, for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest.
B. SECTION . Repayment of Moneys Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any series, all moneys with respect to Securities of such series then held by
any Paying Agent under the provisions of this Indenture shall, upon demand of
the Company, be paid to the Trustee and thereupon such Paying Agent shall be
released from all further liability with respect to such moneys.
C. SECTION . Repayment of Moneys Held by Trustee. Any moneys deposited with
the Trustee or any Paying Agent for the payment of the principal of or any
interest on any Securities of any series and not applied but remaining unclaimed
by the holders of Securities of such series for two years after the date upon
which such payment shall have become due and payable, shall, at the request of
the Company, be repaid to the Company by the Trustee or by such Paying Agent;
and the holder of any of the Securities of such series entitled to receive such
payment shall thereafter look only to the Company for the payment thereof;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once a week for two successive weeks (in each case on any day of the
week) in an Authorized Newspaper, or mailed to the registered holders thereof, a
notice that said moneys have not been so applied and that after a date named
therein any unclaimed balance of said money then remaining will be returned to
the Company.
<PAGE>
I. ARTICLE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND EMPLOYEES
A. SECTION . Incorporators, Stockholders, Officers, Directors and Employees
of Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement of this Indenture, or of any Security, or for
any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer, director or employee, as such, past,
present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability of every name and nature, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against every such incorporator, stockholder, officer or
director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom are
hereby expressly waived and released as a condition of and as a consideration
for, the execution of this Indenture and the issue of such Securities.
<PAGE>
I. ARTICLE
SUBORDINATION OF SECURITIES
A. SECTION . Agreement to Subordinate. The Company, for itself, its
successors and assigns, covenants and agrees, and each holder of a Security of
any series likewise covenants and agrees by his acceptance thereof, that the
obligation of the Company to make any payment on account of the principal of and
interest on each and all of the Securities of any series shall be subordinate
and junior in right of payment to the Company's obligations to the holders of
Senior Indebtedness of the Company, and that in the case of any insolvency,
receivership, conservatorship, reorganization, readjustment of debt, marshalling
of assets and liabilities or similar proceedings or any liquidation or
winding-up of or relating to the Company as a whole, whether voluntary or
involuntary, all obligations of the Company to holders of Senior Indebtedness of
the Company shall be entitled to be paid in full before any payment shall be
made on account of the principal of or interest on any of the Securities. In the
event of any such proceeding, after payment in full of all sums owing with
respect to Senior Indebtedness of the Company, the holders of the Securities of
each series, together with the holders of any obligations of the Company ranking
on a parity with the Securities, shall be entitled to be paid from the remaining
assets of the Company the amounts at the time due and owing on account of unpaid
principal of and interest on the Securities of any series before any payment or
other distribution, whether in cash, property or otherwise, shall be made on
account of any capital stock or any obligations of the Company ranking junior to
the Securities. In addition, in the event of any such proceeding, if any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, including any such payment or distribution which
may be payable or deliverable by reason of the payment of any other indebtedness
of the Company being subordinated to the payment of the Securities of any series
shall be received by the Trustee or the holders of the Securities of any series
before all Senior Indebtedness of the Company is paid in full, such payment or
distribution shall be held in trust for the benefit of and shall be paid over to
the holders of such Senior Indebtedness of the Company or their representative
or representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness of the Company may
have been issued, ratably, for application to the payment of all Senior
Indebtedness of the Company remaining unpaid until all such Senior Indebtedness
of the Company shall have been paid in full, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness of
the Company. The obligations of the Company in respect of the Securities of all
series shall rank on a parity with any obligations of the Company ranking on a
parity with the Securities. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section .
The Company shall give prompt written notice to the Trustee of any
insolvency, receivership, conservatorship, reorganization, readjustment of
<PAGE>
debt, marshalling of assets and liabilities or similar proceedings or any
liquidation or winding-up of or relating to the Company as a whole, whether
voluntary or involuntary and of any event specified in Section . The Trustee,
subject to the provisions of Section , shall be entitled to assume that, and may
act as if, no event referred to in the preceding sentence has occurred unless a
Responsible Officer of the Trustee assigned to the Trustee's Corporate Trustee
Administration Department has received at the principal office of the Trustee
from the Company or any one or more holders of Senior Indebtedness of the
Company or any trustee or representative therefor (who shall have been certified
or otherwise established to the satisfaction of the Trustee to be such a holder
or trustee or representative) written notice thereof. Upon any distribution of
assets of the Company referred to in this Article, the Trustee and holders of
the Securities of each series shall be entitled to rely upon any order or decree
of a court of competent jurisdiction in which proceedings relating to any event
specified in the first sentence of this paragraph are pending for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon, and all other facts
pertinent thereto or to this Article, and the Trustee, subject to the provisions
of Article , and the holders of the Securities of each series shall be entitled
to rely upon a certificate of the liquidating trustee or agent or other person
making any distribution to the Trustee or to the holders of the Securities of
each series for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article. In the absence
of any such liquidating trustee, agent or other person, the Trustee shall be
entitled to rely upon a written notice by a Person representing himself to be a
holder of Senior Indebtedness of the Company (or a trustee or representative on
behalf of such holder) as evidence that such Person is a holder of such Senior
Indebtedness (or is such a trustee or representative). In the event that the
Trustee determines, in good faith, that further evidence is required with
respect to the right of any Person, as a holder of Senior Indebtedness of the
Company, to participate in any payment or distribution pursuant to this Article,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by
such Person, as to the extent to which such Person is entitled to participation
in such payment or distribution, and as to other facts pertinent to the rights
of such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
<PAGE>
A. SECTION . Obligation of the Company Unconditional. Nothing contained in
this Article or elsewhere in this Indenture is intended to or shall impair, as
between the Company and the holders of the Securities of each series, the
obligation of the Company, which is absolute and unconditional, to pay to such
holders the principal of and interest on such Securities of each series when,
where and as the same shall become due and payable, all in accordance with the
terms of such Securities, or is intended to or shall affect the relative rights
of such holders and creditors of the Company other than the holders of the
Senior Indebtedness of the Company, nor shall anything herein or therein prevent
the Trustee or the holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness of the
Company in respect of cash, property, or securities of the Company received upon
the exercise of any such remedy.
B. SECTION . Limitations on Duties to Holders of Senior Indebtedness of the
Company. With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness of
the Company shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness of the Company, except with respect to moneys held in trust
pursuant to the first paragraph of Section .
C. SECTION . Notice to Trustee of Facts Prohibiting Payment.
Notwithstanding any of the provisions of this Article or any other provisions of
this Indenture, the Trustee shall not at any time be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until a Responsible Officer of the
Trustee assigned to its Corporate Trustee Administration Department shall have
received at the principal office of the Trustee written notice thereof from the
Company or from one or more holders of Senior Indebtedness of the Company or
from any trustee or representative therefor who shall have been certified by the
Company or otherwise established to the reasonable satisfaction of the Trustee
to be such a holder, trustee or representative; and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Section , shall
be entitled in all respects to assume that no such facts exist; provided,
however, that, if prior to the fifth Business Day preceding the date upon which
by the terms hereof any such moneys may become payable for any purpose, or in
the event of the execution of an instrument pursuant to Section acknowledging
satisfaction and discharge of this Indenture, then if prior to the second
Business Day preceding the date of such execution, the Trustee shall not have
received with respect to such moneys the notice provided for in this Section,
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such moneys and/or apply the same
to the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such date;
provided, however, no
<PAGE>
such application shall affect the obligations under this Article of the Persons
receiving such moneys from the Trustee.
D. SECTION . Application by Trustee of Moneys Deposited with It. Anything
in this Indenture to the contrary notwithstanding, any deposit of moneys by the
Company with the Trustee or any agent (whether or not in trust) for any payment
of the principal of or interest on any Securities shall, except as provided in
Section , be subject to the provisions of Section .
E. SECTION . Subrogation. Subject to the payment in full of all Senior
Indebtedness of the Company, the holders of the Securities of each series shall
be subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of assets of the Company applicable to such
Senior Indebtedness until the Securities shall be paid in full, and none of the
payments or distributions to the holders of such Senior Indebtedness to which
the holders of the Securities of any series or the Trustee would be entitled
except for the provisions of this Article or of payments over, pursuant to the
provisions of this Article, to the holders of such Senior Indebtedness by the
holders of such Securities or the Trustee shall, as between the Company, its
creditors other than the holders of such Senior Indebtedness, and the holders of
such Securities, be deemed to be a payment by the Company to or on account of
such Senior Indebtedness; it being understood that the provisions of this
Article are and are intended solely for the purpose of defining the relative
rights of the holders of such Securities, on the one hand, and the holders of
the Senior Indebtedness of the Company, on the other hand.
F. SECTION . Subordination Rights Not Impaired by Acts or Omissions of
Company or Holders of Senior Indebtedness of the Company. No right of any
present or future holders of any Senior Indebtedness of the Company to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof with which any such holder may have or be
otherwise charged. The holders of Senior Indebtedness of the Company may, at any
time or from time to time and in their absolute discretion, change the manner,
place or terms of payment, change or extend the time of payment of, or renew or
alter, any such Senior Indebtedness of the Company, or amend or supplement any
instrument pursuant to which any such Senior Indebtedness of the Company is
issued or by which it may be secured, or release any security therefor, or
exercise or refrain from exercising any other of their rights under the Senior
Indebtedness of the Company including, without limitation, the waiver of default
thereunder, all without notice to or assent from the holders of the Securities
of each series or the Trustee and without affecting the obligations of the
Company, the Trustee or the holders of such Securities under this Article.
G. SECTION . Authorization of Trustee to Effectuate Subordination of
Securities. Each holder of a Security of any series, by his acceptance
<PAGE>
thereof, authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate, as between the holders
of such Securities and the holders of Senior Indebtedness of the Company, the
subordination provided in this Article. If, in the event of any proceeding or
other action relating to the Company referred to in the first sentence of
Section , a proper claim or proof of debt in the form required in such
proceeding or action is not filed by or on behalf of the holders of the
Securities of any series prior to fifteen days before the expiration of the time
to file such claim or claims, then the holder or holders of Senior Indebtedness
of the Company shall have the right to file and are hereby authorized to file an
appropriate claim for and on behalf of the holders of such Securities.
H. SECTION . No Payment When Senior Indebtedness in Default. In the event
and during the continuation of any default in the payment of principal of (or
premium, if any) or interest on any Senior Indebtedness, or in the event that
any event of default with respect to any Senior Indebtedness shall have occurred
and be continuing and shall have resulted in such Senior Indebtedness becoming
or being declared due and payable prior to the date on which it would otherwise
have become due and payable, unless and until such event of default shall have
been cured or waived or shall have ceased to exist and such acceleration shall
have been rescinded or annulled, or in the event any judicial proceeding shall
be pending with respect to any such default in payment or such event or default,
then no payment or distribution of any kind or character, whether in cash,
properties or securities shall be made by the Company on account of principal of
(or premium, if any) or interest (including any Additional Interest), if any, on
the Securities or on account of the purchase or other acquisition of Securities
by the Company or any subsidiary.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such holder, then and in such event payment shall be paid over and delivered
forthwith to the Company.
A. SECTION . Right of Trustee to Hold Senior Indebtedness of the Company.
The Trustee shall be entitled to all of the rights set forth in this Article in
respect of any Senior Indebtedness of the Company at any time held by it in its
individual capacity to the same extent as any other holder of such Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
B. SECTION . Article Fourteen Not to Prevent Defaults. The failure to make
a payment pursuant to the terms of Securities of any series by reason of any
provision in this Article shall not be construed as preventing the occurrence of
a default under this Indenture.
<PAGE>
I. ARTICLE
CONVERSION OF SECURITIES
A. SECTION . Applicability of Article. Securities of any series which are
convertible into Capital Stock of the Company shall be convertible in accordance
with their terms and (except as otherwise specified as contemplated by Section
for Securities of any series) in accordance with this Article.
B. SECTION . Conversion Privilege. If Securities of a series are subject to
conversion, as specified pursuant to Section , then subject to and upon
compliance with the provisions of this Article, at the option of the holder
thereof, any such Security may, at any time until and including, but not after
the close of business on the date specified in such Security, or in case such
Security or some portion thereof shall be called for redemption pursuant to
Section prior to such date, then, with respect to such Security or portion
thereof as is so called, until and including, but (if no default is made in
making due provision for the payment of the redemption price) not after, the
close of business on, the date fixed for redemption, be converted, in whole, or
in part in whole multiples of $1,000 principal amount, at 100% of the principal
amount of such Security (or portion thereof), into fully paid and non-assessable
shares of the Company's Capital Stock, as specified in the Security, issuable
upon conversion of the Securities, at the conversion price in effect at the Date
of Conversion (as hereinafter defined).
C. SECTION . Exercise of Conversion Privilege. In order to exercise the
conversion privilege, the holder of any Security to be converted shall surrender
such Security to the Company at any time during usual business hours at the
offices or agencies to be maintained by the Company in accordance with the
provisions of Section with respect to the Securities to be converted,
accompanied by a fully executed written notice, in the form set forth on the
reverse of the Security, that the holder elects to convert such Security or a
stated portion thereof constituting a whole multiple of $1,000 principal amount,
and, if such Security is surrendered for conversion during the period between
the close of business on the record date next preceding the Interest Payment
Date (as defined in the Security) and the opening of business on the Interest
Payment Date and has not been called for redemption on a redemption date within
such period (or on such Interest Payment Date), accompanied also by payment of
an amount equal to the interest payable on such Interest Payment Date on the
principal amount of the Security being surrendered for conversion. Such notice
shall also state the name or names (with address) in which the certificate or
certificates for shares of Capital Stock shall be issued. Securities surrendered
for conversion shall (if so required by the Company or the registrar of such
Securities) be duly endorsed by, or be accompanied by written instrument or
instruments of transfer in form satisfactory to the Company and such registrar
duly executed by, the holder or its attorney duly authorized in writing. As
promptly as practicable after the receipt
<PAGE>
of such notice and the surrender of such Security as aforesaid, the Company
shall, subject to the provisions of Section , issue and deliver at such office
or agency to such holder, or to such other person on his written order, a
certificate or certificates for the number of full shares of Capital Stock
issuable on such conversion of Securities in accordance with the provisions of
this Article and cash, as provided in Section , in respect of any fraction of a
share of Capital Stock otherwise issuable upon conversion. Such conversion shall
be deemed to have been effected immediately prior to the close of business on
the date (herein called the "Date of Conversion") on which such notice shall
have been received by the Company and such Security shall have been surrendered
as aforesaid, accompanied (if required by this Section) also by payment of an
amount equal to the interest payable on the next Interest Payment Date on the
principal amount of the Security being surrendered for conversion, and the
person or persons in whose name or names any certificate or certificates for
shares of Capital Stock shall be issuable upon such conversion shall be deemed
to have become on the Date of Conversion the holder or holders of record of the
shares of Capital Stock represented thereby; provided, however, that any such
surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the person or persons in whose name or names the
certificate or certificates for such shares are to be issued as the recordholder
or holders thereof for all purposes at the opening of business on the next
succeeding day on which such stock transfer books are open but such conversion
shall nevertheless be at the conversion price in effect at the close of business
on the date when such Security shall have been so surrendered with the
conversion notice. In the case of conversion of a portion, but less than all, of
a Security, the Company shall execute, and the Trustee shall authenticate and
deliver to the holder thereof, at the expense of the Company, a Security or
Securities in the aggregate principal amount of the unconverted portion of the
Security surrendered. Except as otherwise expressly provided in Section , no
payment or adjustment shall be made for interest accrued on any Security
converted or for accrued dividends or distributions on any Capital Stock issued
upon conversion of any Security or portion thereof.
D. SECTION . Fractional Interests. No fractions of shares or scrip
representing fractions of shares shall be issued upon conversion of Securities.
If more than one Security shall be surrendered for conversion at one time by the
same holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities so surrendered. If any fraction of a share of Capital Stock would,
except for the provisions of this Section, be issuable on the conversion of any
Security or Securities, the Company shall make payment in lieu thereof in an
amount of United States dollars equal to the value of such fraction computed on
the basis of the current market price of the Capital Stock, rounded to the
nearest cent. The current market price of a share of Capital Stock is the
closing price reported by the New York Stock Exchange consolidated transaction
reporting system for the last trading day before the Date of Conversion. In the
absence of such a quotation, the Company shall determine the current market
price on the basis of such quotation or quotations as it considers appropriate.
Any determination that the Company or the Board of Directors
<PAGE>
makes regarding fractional shares shall be conclusive.
E. SECTION . Conversion Price. The conversion price per share of
Capital Stock issuable upon conversion of the Securities shall be as
specified in such Securities.
F. SECTION . Adjustment of Conversion Price. The conversion price
(herein called the "Conversion Price") shall be subject to adjustment from
time to time as follows:
a In case the Company shall pay a dividend or make a distribution in shares
of Capital Stock, subdivide its outstanding shares of Capital Stock into a
greater number of shares or combine its outstanding shares of Capital Stock into
a smaller number of shares, the Conversion Price in effect immediately prior to
such action shall be adjusted so that the holder of any Security thereafter
surrendered for conversion shall be entitled to receive the number of shares of
Capital Stock which he would have owned immediately following such action had
such Security been converted immediately prior thereto. An adjustment made
pursuant to this Section shall become effective immediately, except as provided
in Section , after the record date in the case of a dividend and shall become
effective immediately after the effective date in the case of a subdivision or
combination. If after an adjustment a holder upon conversion of the Capital
Stock may receive shares of two or more classes of Capital Stock of the Company,
the Company shall determine the allocation of the adjusted Conversion Price
between the classes of Capital Stock. After such allocation, the conversion
privilege and Conversion Price of each class of Capital Stock shall thereafter
be subject to adjustment on terms comparable to those set forth in this
paragraph.
b In case the Company shall issue rights or warrants to all holders of
Capital Stock entitling them (for a period not exceeding 45 days from the date
of such issuance) to subscribe for or purchase shares of Capital Stock at a
price per share less than the current market price per share (as determined
pursuant to Section below) of the Capital Stock on the record date mentioned
below, the Conversion Price shall be adjusted to a price, computed to the
nearest cent, in accordance with the following formula:
N x P
-----------------------
AP = CP x 0 + M
----------
0 + N
where:
AP = the adjusted Conversion Price.
CP = the current Conversion Price.
O = the number of shares of Capital Stock outstanding on the record date
for the distribution.
N = the number of additional shares of Capital Stock offered.
P = the offering price per share of the additional shares.
<PAGE>
M = the current market price per share of Capital Stock on the record
date.
Such adjustment shall become effective immediately, except as provided in
Section , after the record date for the determination of holders entitled to
receive such rights or warrants.
1 In case the Company shall distribute to all holders of Capital Stock,
evidences of indebtedness, equity securities other than Capital Stock or other
assets (other than cash dividends or other distributions to the extent paid from
current or retained earnings of the Company), or shall distribute to all holders
of Capital Stock rights or warrants to subscribe to securities (other than those
referred to in Section), then in each such case the Conversion Price shall be
adjusted in accordance with the following formula:
AP = CP x M - F
---------
M
where:
AP = the adjusted Conversion Price.
CP = the current Conversion Price.
M = the current market price per share of Capital Stock on the record
date mentioned below.
F = the fair market value on the record date of the assets, securities,
rights or warrants applicable to one share of Capital Stock, as
determined by the Company.
Such adjustment shall become effective immediately, except as provided in
Section , after the record date for the determination of stockholders entitled
to receive such distribution.
1 For the purpose of any computation under Sections and , the current
market price per share of Capital Stock on any date shall be deemed to be the
average of the closing price of the Capital Stock reported by the New York Stock
Exchange consolidated transaction reporting system for the 30 consecutive
trading days commencing 45 trading days before the date of determination. In the
absence of one or more such quotations, the Company shall determine the current
market price on the basis of such quotations as it considers appropriate.
2 In any case in which this Section shall require that an adjustment be
made immediately following a record date, the Company may elect to defer the
effectiveness of such adjustment (but in no event until a date later than the
effective time of the event giving rise to such adjustment), in which case the
Company shall, with respect to any Security converted after such record date and
before such adjustment shall have become effective (i) defer paying any cash
payment pursuant to Section or issuing to the holder of such Security the number
of shares of Capital Stock and other capital stock of the Company issuable upon
such conversion
<PAGE>
in excess of the number of shares of Capital Stock and other capital stock of
the Company issuable thereupon only on the basis of the Conversion Price prior
to adjustment, and (ii) not later than five Business Days after such adjustment
shall have become effective, pay to such holder the appropriate cash payment
pursuant to Section and issue to such holder the additional shares of Capital
Stock and other capital stock of the Company issuable on such conversion.
3 No adjustment in the Conversion Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in such price;
provided, that any adjustments which by reason of this Section are not required
to be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Article shall be made to the nearest
cent or to the nearest one-hundredth of a share, as the case may be.
4 Whenever the Conversion Price is adjusted as herein provided, the Company
shall promptly (i) file with the Trustee and each conversion agent an Officers
Certificate setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment, which
certificate shall be conclusive evidence of the correctness of such adjustment,
and (ii) mail or cause to be mailed a notice of such adjustment to each holder
of Securities entitled to the benefits of this Article at his address as the
same appears on the registry books of the Company. Anything in this Section to
the contrary notwithstanding the Company shall be entitled to make such
adjustments in the Conversion Price, in addition to those required by this
Section, and to make any election under Treasury Regulation (ss)1.305-3(d)(2),
as it in its discretion shall determine to be advisable in order that any stock
dividend, subdivision of shares, distribution of rights or warrants to purchase
stock or securities, or distribution of other assets (other than cash dividends)
hereafter made by the Company to its stockholders shall not be taxable.
A. SECTION . Continuation of Conversion Privilege in Case of
Reclassification, Change, Merger, Consolidation or Sale of Assets. If any of the
following shall occur, namely: any reclassification or change of outstanding
shares of Capital Stock issuable upon conversion of the Securities (other than a
change in par value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination), any consolidation,
merger or combination of the Company with another corporation as a result of
which the holders of Capital Stock shall be entitled to receive stock, other
securities or other assets with respect to or in exchange for Capital Stock or
sale or conveyance of all or substantially all of the property or business of
the Company as an entirety as a result of which the holders of Capital Stock
shall be entitled to receive stock, other securities or other assets with
respect to or in exchange for Capital Stock, then the Company or such successor
or purchasing corporation, as the case may be, shall, as a condition precedent
to such reclassification, change, consolidation, merger, combination, sale or
conveyance, execute and deliver to the Trustee a supplemental indenture (which
shall conform to the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) providing that the holder of each Security then outstanding
shall have the right to convert such Security into the
<PAGE>
kind and amount of shares of stock and other securities and property receivable
upon such reclassification, change, consolidation, merger, combination, sale or
conveyance by a holder of the number of shares of Capital Stock issuable upon
conversion of such Security immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance. Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article. If, in the
case of any such consolidation, merger, combination, sale or conveyance, the
stock or other securities and property receivable thereupon by a holder of
shares of Capital Stock includes shares of stock or other securities and
property of a corporation other than the successor or purchasing corporation, as
the case may be, in such consolidation, merger, combination, sale or conveyance,
then such supplemental indenture shall also be executed by such other
corporation and shall contain such additional provisions to protect the
interests of the holders of the Securities as the Board of Directors shall
reasonably consider necessary by reason of the foregoing. The provisions of this
Section shall similarly apply to successive consolidations, mergers,
combinations, sales or conveyances.
Notice of the execution of each such supplemental indenture shall be mailed
to each holder of Securities at his address as the same appears on the registry
books of the Company.
Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property receivable by holders of Securities upon the
conversion of their Securities after any such reclassification, change,
consolidation, merger, sale or conveyance or to any adjustment to be made with
respect thereto, but, subject to the provisions of Sections and , may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, the Officers Certificate (which the Company shall be
obligated to file with the Trustee prior to the execution of such any
supplemental indenture) with respect thereto.
A. SECTION . Notice of Certain Events. In case:
1 the Company shall declare a dividend (or any other
distribution) payable to the holders of Capital Stock otherwise than in
cash; or
2 the Company shall authorize the granting to the holders of
Capital Stock of rights to subscribe for or purchase any shares of stock of
any class or of any other rights; or
3 the Company shall authorize any reclassification or change of the Capital
Stock (other than a subdivision or combination of its outstanding shares of
Capital Stock), or any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required, or the
sale or conveyance of all or substantially all the property or business of the
Company; then, the Company shall cause to be filed at the office or agency
<PAGE>
maintained for the purpose of conversion of the Securities as provided in
Section , and shall cause to be mailed to each holder of Securities entitled to
the benefits of this Article, at his address as it shall appear on the registry
books of the Company, at least 20 days before the date hereinafter specified (or
the earlier of the dates hereinafter specified, in the event that more than one
date is specified), a notice stating the date on which (1) a record is expected
to be taken for the purpose of such dividend, distribution or rights, or if a
record is not to be taken, the date as of which the holders of Capital Stock of
record to be entitled to such dividend, distribution or rights are to be
determined, or (2) such reclassification, change, consolidation, merger, sale,
conveyance, dissolution, liquidation or winding-up is expected to become
effective and the date, if any is to be fixed, as of which it is expected that
holders of Capital Stock of record shall be entitled to exchange their shares of
Capital Stock for securities or other property deliverable upon such
reclassification, change, consolidation, merger, sale, conveyance, dissolution,
liquidation or winding-up.
A. SECTION . Taxes on Conversion. The Company will pay any and all
documentary, stamp or similar taxes payable to the United States of America or
any political subdivision or taxing authority thereof or therein in respect of
the issue or delivery of shares of Capital Stock on conversion of Securities
pursuant thereto; provided, however, that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in the
issue or delivery of shares of Capital Stock in a name other than that of the
holder of the Securities to be converted and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery has paid to
the Company the amount of any such tax or has established, to the satisfaction
of the Company, that such tax has been paid. The Company shall pay no tax that
may be payable with respect to any other taxes imposed in connection with
conversion of Securities.
B. SECTION . Company to Provide Stock. The Company shall reserve, free from
preemptive rights, out of its authorized but unissued shares of Capital Stock,
sufficient shares to provide for the conversion of the Securities from time to
time as such Securities are presented for conversion, provided, that nothing
contained herein shall be construed to preclude the Company from satisfying its
obligations in respect of the conversion of Securities by delivery of
repurchased shares of Capital Stock which are held in the treasury of the
Company.
If any shares of Capital Stock to be reserved for the purpose of conversion
of Securities hereunder require registration with or approval of any
governmental authority under any federal or state law before such shares may be
validly issued or delivered upon conversion, then the Company covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be, provided, however, that nothing in
this Section shall be deemed to affect in any way the obligations of the Company
to convert Securities into Capital Stock as provided in this Article.
Before taking any action which would cause an adjustment reducing the
<PAGE>
Conversion Price below the then par value, if any, of the Capital Stock, the
Company will take all corporate action which may, in the Opinion of Counsel, be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable shares of Capital Stock at such adjusted Conversion Price.
The Company covenants that all shares of Capital Stock which may be issued
upon conversion of Securities will upon issue be fully paid and nonassessable by
the Company and free of preemptive rights.
A. SECTION . Disclaimer of Responsibility for Certain Matters. Neither the
Trustee nor any agent of the Trustee shall at any time be under any duty or
responsibility to any holder of Securities to determine whether any facts exist
which may require an adjustment of the Conversion Price, or with respect to the
Officers Certificate referred to in Section , or with respect to the nature or
extent of any such adjustment when made, or with respect to the method employed,
or herein or in any supplemental indenture provided to be employed, in making
the same. Neither the Trustee nor any agent of the Trustee shall be accountable
with respect to the validity or value (or the kind or amount) of any shares of
Capital Stock, or of any securities or property, which may at any time be issued
or delivered upon the conversion of any Security; and neither the Trustee nor
any conversion agent makes any representation with respect thereto. Neither the
Trustee nor any agent of the Trustee shall be responsible for any failure of the
Company to issue, register the transfer of or deliver any shares of Capital
Stock or stock certificates or other securities or property upon the surrender
of any Security for the purpose of conversion or, subject to Sections and , to
comply with any of the covenants of the Company contained in this Article.
B. SECTION . Return of Funds Deposited for Redemption of Converted
Securities. Any funds which at any time shall have been deposited by the Company
or on its behalf with the Trustee or any other Paying Agent for the purpose of
paying the principal of and interest on any of the Securities and which shall
not be required for such purposes because of the conversion of such Securities,
as provided in this Article, shall after such conversion be repaid to the
Company by the Trustee or such other Paying Agent.
I. ARTICLE
MISCELLANEOUS PROVISIONS
A. SECTION . Successors and Assigns of Company Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company shall bind its successors and
assigns, whether so expressed or not.
B. SECTION . Acts of Board, Committee or Officer of Successor
Corporation Valid. Any act or proceeding by any provision of this
<PAGE>
Indenture authorized or required to be done or performed by any board, committee
or officer or officers of the Company shall and may be done and performed with
like force and effect by the like board, committee or officer or officers of any
corporation that shall at the time be the lawful sole successor of the Company.
C. SECTION . Required Notices or Demands May Be Served by Mail. Any notice
or demand which by any provisions of this Indenture is required or permitted to
be given or served by the Trustee, by the holders of Securities or by the
holders of Preferred Securities to or on the Company may be given or served by
registered mail postage prepaid addressed (until another address is filed by the
Company with the Trustee for such purpose), as follows: Crestar Financial
Corporation, Attention: [Name of the department], 919 East Main Street, P.O. Box
26665, Richmond, Virginia 23261-6665. Any notice, direction, request, demand,
consent or waiver by the Company, by any Securityholder or by any holder of a
Preferred Security to or upon the Trustee shall be deemed to have been
sufficiently given, made or filed, for all purposes, if given, made or filed in
writing at the principal office of the Trustee, Attention: Corporate Trustee
Administration Department.
D. SECTION . Officers Certificate and Opinion of Counsel to Be Furnished
upon Applications or Demands by the Company. Upon any request or application by
the Company to the Trustee to take any action under any of the provisions of
this Indenture, the Company shall furnish to the Trustee an Officers Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture, other than certificates provided pursuant to Section , shall
include (1) a statement that the person making such certificate or opinion has
read such covenant or condition; (2) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in the
opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a statement as to whether
or not, in the opinion of such person, such condition or covenant has been
complied with.
Any certificate, statement or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters
<PAGE>
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, upon the certificate, statement or
opinion of or representations by an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows that the certificate, statement or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
A. SECTION . Payments Due on Saturdays, Sundays, and Holidays. In any case
where the date of payment of interest on or principal of the Securities of any
series or the date fixed for any redemption of any Security of any series shall
not be a Business Day, then payment of interest or principal need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date fixed for the payment of interest on or
principal of the Security or the date fixed for any redemption of any Security
of such series, and no additional interest shall accrue for the period after
such date and before payment.
B. SECTION . Provisions Required by Trust Indenture Act of 1939 to Control.
If and to the extent that any provision of this Indenture limits, qualifies or
conflicts with another provision included in this Indenture which is required to
be included in this Indenture by any of Sections 310 to 317, inclusive, of the
Trust Indenture Act of 1939, as amended, such required provision shall control.
C. SECTION . Indenture and Securities to Be Construed in Accordance with
the Laws of the State of New York. This Indenture and each Security shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State,
provided, however, that the rights and duties of the Trustee hereunder shall be
construed in accordance with the laws of the State of the Trustee's principal
place of business.
D. SECTION . Provisions of the Indenture and Securities for the Sole
Benefit of the Parties and the Securityholders. Nothing in this Indenture
or in the Securities, expressed or implied, shall give or be construed to
<PAGE>
give any person, firm or corporation, other than the parties hereto and their
successors and assigns and the holders of the Securities, any legal or equitable
right, remedy or claim under or in respect of this Indenture, or under any
covenant, condition and provision herein contained; all its covenants,
conditions and provisions being for the sole benefit of the parties hereto and
their successors and assigns and of the holders of the Securities and, to the
extent expressly provided in Sections , , , , and , the holders of Preferred
Securities.
E. SECTION . Indenture May Be Executed in Counterparts. This Indenture
may be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the
same instrument.
F. SECTION . Securities in Foreign Currencies. Whenever this Indenture
provides for any action by, or any distribution to, holders of Securities
denominated in United States dollars and in any other currency, in the absence
of any provision to the contrary in the form of Security of any particular
series, the relative amount in respect of any Security denominated in a currency
other than United States dollars shall be treated for any such action or
distribution as that amount of United States dollars that could be obtained for
such amount on such reasonable basis of exchange and as of such date as the
Company may specify in a written notice to the Trustee.
The Chase Manhattan Bank, the party of the second part, hereby accepts the
trusts in this Indenture declared and provided, upon the terms and conditions
hereinabove set forth.
<PAGE>
IN WITNESS WHEREOF, CRESTAR FINANCIAL CORPORATION, the party of the first
part, has caused this Indenture to be signed and acknowledged by its Chairman of
the Board or its Vice Chairman of the Board or its President or one of its Vice
Presidents, and The Chase Manhattan Bank, the party of the second part, has
caused this Indenture to be signed and acknowledged by one of its Vice
Presidents, all as of the day and year first written above.
CRESTAR FINANCIAL CORPORATION
By:
Name:
Title:
THE CHASE MANHATTAN BANK, as Trustee
By:
Name:
Title:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
FIRST SUPPLEMENTAL INDENTURE
between
CRESTAR FINANCIAL CORPORATION
and
THE CHASE MANHATTAN BANK
Dated as of December 31, 1996
8.16% Junior Subordinated Deferrable Interest Debentures
due December 15, 2026
-----------------------------------------------------------------------
-----------------------------------------------------------------------
<PAGE>
<TABLE>
<S> <C>
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definition of Terms..............................................................2
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE JUNIOR SUBORDINATED DEBENTURES
SECTION 2.01. Designation and Principal Amount.................................................6
SECTION 2.02. Stated Maturity..................................................................6
SECTION 2.03. Form and Payment; Minimum Transfer Restriction...................................6
SECTION 2.04. Exchange and Registration of Transfer of Junior Subordinated
Debentures; Restrictions on Transfers; Depositary......................................7
SECTION 2.05. Interest........................................................................13
ARTICLE 3
REDEMPTION AND PREPAYMENT OF THE JUNIOR SUBORDINATED DEBENTURES
SECTION 3.01. Optional Prepayment by Company..................................................14
SECTION 3.02. Tax Event, Investment Company Event or Capital Treatment
Event Prepayment......................................................................15
SECTION 3.03. Notice of Prepayment............................................................16
ARTICLE 4
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.01. Extension of Interest Period....................................................16
SECTION 4.02. Notice of Extension.............................................................17
ARTICLE 5
EXPENSES
SECTION 5.01. Payment of Expenses.............................................................18
SECTION 5.02. Payment upon Resignation or Removal.............................................18
ARTICLE 6
FORM OF JUNIOR SUBORDINATED DEBENTURE
SECTION 6.01. Form of Junior Subordinated Debenture...........................................19
<PAGE>
ARTICLE 7
ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBENTURES
SECTION 7.01. Original Issue of Junior Subordinated Debentures................................19
ARTICLE 8
EXCHANGE OF SECURITIES
SECTION 8.01. Mandatory Tender in Exchange Offer..............................................20
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Ratification of Indenture; First Supplemental Indenture Controls
.....................................................................................20
SECTION 9.02. Trustee Not Responsible for Recitals............................................20
SECTION 9.03. Governing Law...................................................................20
SECTION 9.04. Separability....................................................................20
SECTION 9.05. Counterparts....................................................................21
</TABLE>
<PAGE>
FIRST SUPPLEMENTAL INDENTURE dated as of December 31, 1996 (the "First
Supplemental Indenture") between Crestar Financial Corporation, a Virginia
corporation (the "Company"), and The Chase Manhattan Bank, as trustee (the
"Trustee") under the Indenture dated as of December 31, 1996 between the Company
and the Trustee (the "Base Indenture" and together with the First
Supplemental Indenture, the "Indenture").
WHEREAS, the Company executed and delivered the Base Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debentures (the "Debentures") to be issued from time to time in one
or more series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company
desires to provide for the establishment of two separate series of its
Debentures, both to be known as its 8.16% Junior Subordinated Deferrable
Interest Debentures due December 15, 2026 (collectively, the "Junior
Subordinated Debentures"), the form and substance of such Junior Subordinated
Debentures and the terms, provisions and conditions thereof to be set forth as
provided in the Base Indenture and this First Supplemental Indenture;
WHEREAS, the Company desires that (x) the first series of Junior
Subordinated Debentures (the "Private Debentures") be originally issued on
December 31, 1996, pursuant to the Indenture, the Purchase Agreement (as defined
below) and the Trust Agreement (as defined below), the certificates for which
initially shall bear legends in the form set forth in Section 2.04(e) indicating
that they have not been registered under the Securities Act and restricting
transfers thereof , and (y) the second series of Junior Subordinated Debentures
(the "Exchange Debentures") be issuable upon surrender of and in exchange for
the Private Debentures pursuant to Section 8.01;
WHEREAS, Crestar Capital Trust I, a Delaware statutory business trust
(the "Trust"), has offered to the purchasers (the "Purchasers") named in
Schedule I to the Purchase Agreement (the "Purchase Agreement") dated as of
December 20, 1996 among the Purchasers, the Trust and the Company in a private
placement $200,000,000 aggregate liquidation amount of its 8.16% Capital
Securities (the "Capital Securities") representing undivided beneficial
interests in the assets of the Trust and proposes to invest the proceeds from
such offering, together with the proceeds of the issuance and sale by the Trust
to the Company of $6,200,000 aggregate liquidation amount of its Common
Securities, in $206,200,000 aggregate principal amount of the Junior
Subordinated Debentures; and
<PAGE>
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture and all requirements necessary to make this
First Supplemental Indenture a valid instrument in accordance with its terms and
to make the Junior Subordinated Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects.
NOW, THEREFORE, in consideration of the purchase and acceptance of the
Junior Subordinated Debentures by the Purchasers, and for the purpose of setting
forth, as provided in the Base Indenture, the form and substance of the Junior
Subordinated Debentures and the terms, provisions and conditions thereof, the
Company covenants and agrees with the Trustee as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definition of Terms. For all purposes of the First
Supplemental Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms which are defined in the Base Indenture have the same
meanings when used in this First Supplemental Indenture;
(b) the terms defined in this Article have the meaning assigned to
them in this Article and include the plural as well as the singular;
(c) all other terms used herein which are defined in the Trust
Indenture Act of 1939, whether directly or by reference therein, have the
meanings assigned to them therein;
(d) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of America
at the date of such computation;
<PAGE>
(e) a reference to a Section or Article is to a Section or Article of
this First Supplemental Indenture unless otherwise stated;
(f) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this First Supplemental Indenture as a whole and not to
any particular Article, Section or other subdivision;
(g) headings are for convenience of reference only and do not affect
interpretation;
(h) the term "prepayment" as used herein means "redemption" as such
term is used in the Base Indenture; and
(i) the following terms have the meanings given to them in the Trust
Agreement (as defined herein): (i) Affiliate, (ii) Administrator, (iii) Business
Day, (iv) Clearing Agency, (v) Capital Securities Certificate, (vi) Capital
Treatment Event, (vii) Debenture Exchange and Registration Rights Agreement,
(viii) Delaware Trustee, (ix) Investment Company Event, (x) Property Trustee,
(xi) PORTAL Market, (xii) QIB, (xiii) Registration Rights Agreements, (xiv)
Regulation S, (xv) Rule 144(k), (xvi) Rule 144A, (xvii) Tax Event, (xviii) Trust
Securities and (xix) Capital Securities Exchange and Registration Rights
Agreement.
"Additional Interest" has the meaning specified in Section 2.05.
"Adjusted Treasury Rate" means, with respect to any prepayment date,
the Treasury Rate plus (i) 1.00% if such prepayment date occurs on or before
December 15, 1997 or (ii) 0.50% if such prepayment date occurs after December
15, 1997.
"Capital Securities" has the meaning specified in the fourth recital to
this First Supplemental Indenture.
"Comparable Treasury Issue" means with respect to any prepayment date
the United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the Remaining
Life. If no United States Treasury security has a maturity which is within a
period from three months before to three months after December 15, 2006, the two
most closely corresponding United States Treasury securities shall be used as
the Comparable Treasury Issue, and the Treasury Rate shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest month using such
securities.
<PAGE>
"Comparable Treasury Price" means (A) the average of five Reference
Treasury Dealer Quotations for the applicable prepayment date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the
Trustee obtains fewer than three such Reference Treasury Dealer Quotations, the
average of all such Quotations.
"Compounded Interest" has the meaning specified in Section 4.01.
"Coupon Rate" has the meaning specified in Section 2.05(a).
"Deferred Interest" has the meaning specified in Section 4.01.
"Event Prepayment Price" has the meaning specified in Section 3.02.
"Exchange Debenture" has the meaning specified in the third recital to
this First Supplemental Indenture.
"Extension Period" has the meaning specified in Section 4.01.
"Global Debenture" has the meaning specified in Section 2.04(a).
"Global Private Debenture" has the meaning specified in Section
2.04(a).
"Interest Payment Date" has the meaning specified in Section 2.05.
Liquidation Amount" means the stated amount of $1,000 per Capital
Security.
"Minimum Transfer Restrictions" has the meaning specified in Section
2.03(b).
"Non U.S. Person" means a Person other than a U.S. Person, including
dealers or other professional fiduciaries in the United States acting on a
discretionary basis for foreign beneficial owners of Junior Subordinated
Debentures (other than an estate or trust).
"Optional Prepayment Price" has the meaning specified in Section
3.01(a).
"Prepayment Date" has the meaning specified in Section 3.01(a).
"Prepayment Price" means the Optional Prepayment Price and the Event
Prepayment Price, collectively.
<PAGE>
"Private Debenture" has the meaning specified in the third recital to
this First Supplemental Indenture.
"Purchase Agreement" has the meaning specified in the fourth recital to
this First Supplemental Indenture.
"Purchasers" has the meaning specified in the fourth recital to this
First Supplemental Indenture.
"Quotation Agent" means Morgan Stanley & Co. Incorporated.
"Record Date" has the meaning specified in Section 2.05(a).
"Reference Treasury Dealer" means (i) Morgan Stanley & Co.
Incorporated, Lehman Brothers Inc. and UBS Securities LLC and their respective
successors; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury Dealer;
and (ii) any other Primary Treasury Dealer selected by the Trustee after
consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any prepayment date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such prepayment date.
"Remaining Life" has the meaning specified in Section 3.02.
"Restricted Security" has the meaning specified in Section 2.04(e).
"Special Interest" has the meaning specified in Section 2.05(c).
"Transfer Restriction Termination Date" means the first date on which
the Junior Subordinated Debentures (other than Junior Subordinated Debentures
acquired by the Company or any Affiliate thereof) may be sold pursuant to Rule
144(k).
"Treasury Rate" means (i) the yield, under the heading which represents
the average for the immediately prior week, appearing in the most recently
published statistical release designated "H.R.(519)" or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on
<PAGE>
actively traded United States Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities", for the maturity corresponding
to the Remaining Life (if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Remaining Life shall be determined and the Treasury Rate
shall be interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date or does
not contain such yields, the rate per annum equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such prepayment date. The
Treasury Rate shall be calculated on the third Business Day preceding the
prepayment date.
"Trust Agreement" means the Amended and Restated Trust Agreement dated
as of December 31, 1996 among the Company, as Depositor, The Chase Manhattan
Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee,
and the Administrators named therein (the forms of which Trust Agreement and
related Capital Securities Guarantee Agreement are annexed hereto as Exhibits E
and F).
"U.S. Person" has the meaning given such term in Rule 902(o) of
Regulation S.
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE JUNIOR SUBORDINATED DEBENTURES
SECTION 2.01. Designation and Principal Amount. There is hereby
authorized two series of Debentures, both to be designated the "8.16% Junior
Subordinated Deferrable Interest Debentures due December 15, 2026," limited in
aggregate principal amount to $206,200,000, which amount shall be as set forth
in any written orders of the Company for the authentication and delivery of
Junior Subordinated Debentures pursuant to Section 2.01 of the Base Indenture
and Section 7.01(a).
SECTION 2.02. Stated Maturity. The Stated Maturity of the Junior
Subordinated Debentures is December 15, 2026, and shall not be subject to
extension.
<PAGE>
SECTION 2.03. Form and Payment; Minimum Transfer Restriction. (a)
Except as provided in Section 2.01, the Private Debentures shall be issued to
the Trust in fully registered certificated form without coupons in minimum
denominations of $100,000 and integral multiples of $1,000 in excess thereof.
Exchange Debentures shall be issued in minimum denominations of $1,000 and
integral multiples of $1,000 in excess thereof. Principal and interest on the
Junior Subordinated Debentures issued in certificated form will be payable, the
transfer of such Junior Subordinated Debentures will be registrable and such
Junior Subordinated Debentures will be exchangeable for Junior Subordinated
Debentures bearing identical terms and provisions at the principal office of the
Trustee; provided, however, that payment of interest may be made at the option
of the Company by check mailed to the registered holder at such address as shall
appear in the Register. Notwithstanding the foregoing, so long as the registered
holder of any Junior Subordinated Debentures is the Property Trustee, the
payment of the principal of and interest (including Compounded Interest,
Additional Interest and Special Interest, if any) on such Junior Subordinated
Debentures held by the Property Trustee will be made at such place and to such
account as may be designated by the Property Trustee. The Register for the
Junior Subordinated Debentures shall be kept at the principal office of the
Trustee and the Trustee is hereby appointed registrar for the Junior
Subordinated Debentures.
(b) The Private Debentures may be transferred or exchanged only in
minimum denominations of $100,000 and integral multiples of $1,000 in excess
thereof, and any attempted transfer, sale or other disposition of Private
Debentures in a denomination of less than $100,000 shall be deemed to be void
and of no legal effect whatsoever (the foregoing restriction being the "Minimum
Transfer Restriction").
SECTION 2.04. Exchange and Registration of Transfer of Junior
Subordinated Debentures; Restrictions on Transfers; Depositary. If distributed
to holders of Capital Securities pursuant to Section 9.04 of the Trust
Agreement, the Junior Subordinated Debentures will be issued to such holders in
the same form as the Capital Securities that such Junior Subordinated Debentures
replace in accordance with the following procedures:
(a) So long as Junior Subordinated Debentures are eligible for
book-entry settlement with the Depositary, unless otherwise required by law, all
Junior Subordinated Debentures that are so eligible may be represented by one or
more Junior Subordinated Debentures in global form (a "Global Debenture")
registered in the name of the Depositary or the nominee of the Depositary,
except as otherwise specified below. The transfer and exchange of beneficial
interests in any such Junior Subordinated Debenture in global form shall be
effected through
<PAGE>
the Depositary in accordance with the Indenture and the procedures of the
Depositary therefor.
Private Debentures that are distributed to QIBs in replacement of
Capital Securities represented by a global Capital Security will be represented
by a global Private Debenture (the "144A Global Debenture"). Private Debentures
that are distributed to Non-U.S. Persons in replacement of Capital Securities
represented by a global Capital Security will be represented by a global Private
Debenture (the "Regulation S Global Debenture"). Each of the 144A Global
Debenture and the Regulation S Global Debenture shall be referred to herein as a
"Global Private Debenture." Private Debentures that are distributed to QIBs or
to Non-U.S. Persons in replacement of definitive Capital Securities will be
represented by definitive Private Debentures as set forth in Section 2.04(b). If
Global Private Debentures are issued, transfers of interests in the Private
Debentures between the 144A Global Debenture and the Regulation S Global
Debenture will be made in accordance with the standing instructions and
procedures of the Depositary and its participants and in accordance with Section
2.04(d), and the Trustee shall make appropriate endorsements to reflect
increases or decreases in the principal amounts of such Global Private
Debentures to reflect any such transfers.
Except as provided in Section 2.04(e) below, beneficial owners of a
Junior Subordinated Debenture in global form shall not be entitled to have
certificates registered in their names, will not receive or be entitled to
receive physical delivery of certificates in definitive form and will not be
considered registered holders of such Junior Subordinated Debentures in global
form.
(b) Capital Securities held in certificated form, except for
certificates representing Capital Securities held by the Depositary or its
nominee (or any successor Clearing Agency or its nominee), shall upon
presentation to the Trustee by the Property Trustee or by the holder thereof or
by the Property Trustee on behalf of such holders shall be exchanged for Junior
Subordinated Debentures in fully registered certificated form of like aggregate
principal amount and tenor.
(c) So long as the Private Debentures are eligible for book-entry
settlement, and to the extent that beneficial interests in Private Debentures
are held by QIBs or Non-U.S. Persons, as the case may be, in a Global Private
Debenture, or unless otherwise required by law, upon any transfer of a
definitive Private Debenture to a QIB in accordance with Rule 144A or to a
Non-U.S. Person in accordance with Regulation S, and upon receipt of the
definitive Private Debenture or Private Debentures being so transferred, and
subject to Section 2.04(d)(i), the Trustee shall make an endorsement on any 144A
Global Debenture or any Regulation S Global Debenture, as the case may be, to
reflect an increase in the aggregate principal amount of the Private Debentures
represented by such Global
<PAGE>
Private Debenture in accordance with the standing instructions and procedures of
the Depositary, and the Trustee shall cancel such definitive Private Debenture
or Private Debentures the aggregate principal amount of Private Debentures
represented by such Global Private Debenture to be increased accordingly;
provided that no definitive Private Debenture, or portion thereof, in respect of
which the Company or an Affiliate of the Company held any beneficial interest
shall be included in such Global Private Debenture until such definitive Private
Debenture is freely tradable in accordance with Rule 144(k); provided further
that the Trustee shall, at the written request of the Company, issue Private
Debentures in definitive form upon any transfer of a beneficial interest in the
Global Private Debenture to the Company or any Affiliate of the Company.
Any Global Debenture may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent with the
provisions of the Indenture as may be required by the Depositary, by the New
York Stock Exchange or by the National Association of Securities Dealers, Inc.
in order for the Private Debentures to be tradeable on the PORTAL Market or as
may be required for the Private Debentures to be tradeable on any other market
developed for trading of securities pursuant to Rule 144A or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Junior Subordinated
Debentures may be listed or traded or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Junior Subordinated Debentures are subject.
(d) Prior to the Transfer Restriction Termination Date,
(i) any transfer of a definitive Private Debenture
shall be registered upon the Register only upon receipt by the
Trustee of such Private Debenture accompanied by a duly
completed and executed certificate of transfer in the form
attached to Exhibit A and, in the case of a transfer to an
institutional accredited investor (as defined in Rule
501(a)(1), (2), (3) or (7) under the Act) in a transaction
exempt from the registration requirements of the Act, upon
receipt by the Trustee of a written certificate in the form of
Exhibit B (or other certifications, legal opinions or other
information as the Company may reasonably request to confirm
that such transfer is exempt from the registration
requirements of the Act);
(ii) any transfer pursuant to Rule 144A under the Act
of a beneficial interest in a Regulation S Global Debenture
shall be reflected by an increase in the 144A Global Debenture
and a
<PAGE>
corresponding decrease in the Regulation S Global Debenture
(in accordance with Section 2.04(a)) only upon receipt by the
Trustee of a written certificate in the form of Exhibit C (or
such other certifications, legal opinions or other information
as the Company may reasonably require to confirm that such
transfer is being made pursuant to Rule 144A); and
(iii) any transfer in accordance with Rule 904 of
Regulation S of a beneficial interest in a 144A Global
Debenture shall be reflected by an increase in the Regulation
S Global Debenture and a corresponding decrease in the 144A
Global Debenture (in accordance with Section 2.04(a)) only
upon receipt by the Trustee of a written certificate in the
form of Exhibit D (or such other certifications, legal
opinions or other information as the Company may reasonably
require to confirm that such transfer is being made pursuant
to Rule 904 of Regulation S).
(e) Each Private Debenture that bears or is required to bear the
legend set forth in this Section 2.04(e) (a "Restricted Security") shall be
subject to the restrictions on transfer provided in the legend set forth in this
Section 2.04(e), unless such restrictions on transfer shall be waived by the
written consent of the Company, and the registered holder of each Restricted
Security, by such securityholder's acceptance thereof, agrees to be bound by
such restrictions on transfer. As used in this Section 2.04(e) and in Section
2.04(f), the terms "transfer" encompasses any sale, pledge, transfer or other
disposition of any Restricted Security.
Prior to the Transfer Restriction Termination Date, any certificate
evidencing a Private Debenture shall bear a legend in substantially the
following form, unless otherwise agreed by the Company (with written notice
thereof to the Trustee):
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT)
<PAGE>
("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY
UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION)
RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (A)
TO CRESTAR FINANCIAL CORPORATION OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO THE CHASE MANHATTAN BANK, AS TRUSTEE, A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE OR
TRANSFER AGENT), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT OR (F) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THE SECURITY EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE
SECURITY EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO
THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE CHASE
MANHATTAN BANK, AS TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S.
PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE CHASE
MANHATTAN BANK, AS TRUSTEE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN
<PAGE>
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED AFTER
THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO THE SALES OF THE
SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
Following the Transfer Restriction Termination Date or the sale of a
Private Debenture pursuant to an effective registration statement or Rule 144
(or any successor provision) under the Securities Act, any Private Debenture or
security issued in exchange or substitution therefor (other than Private
Debentures acquired by the Company or any Affiliate thereof since the issue date
of the Capital Securities) may upon surrender of such Private Debenture for
exchange to the Security registrar in accordance with the provisions of this
Section 2.04, be exchanged for a new Private Debenture or Private Debentures, of
like tenor and aggregate principal amount, which shall not bear the restrictive
legend required by this Section 2.04(e).
Notwithstanding any other provisions of the Indenture (other than the
provisions set forth in this Section 2.04(e)), a Junior Subordinated Debenture
in global form may not be exchanged in whole or in part for Junior Subordinated
Debentures registered, and no transfer of a Junior Subordinated Debenture in
global form may be registered, in the name of any person other than the
Depositary or a nominee thereof unless (i) such Depositary (A) has notified the
Company that it is unwilling or unable to continue as Depositary for such Global
Debenture or (B) shall no longer be eligible to so act and a successor
Depositary for such Global Debenture is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, (ii) there shall have occurred and be continuing an Event of
Default, or any event which after notice or lapse of time or both would be an
Event of Default under the Indenture, with respect to such Global Debenture, or
(iii) the Company instructs the Trustee to exchange such Global Debenture for a
Junior Subordinated Debenture that is not a Global Debenture (in which case such
exchange shall be effected by the Trustee).
The Depositary shall be a clearing agency registered under the Exchange
Act. The Company initially appoints The Depository Trust Company to act as
Depositary with respect to the Junior Subordinated Debentures in global form.
Initially, the Global Debentures shall be issued to the Depositary, registered
in the name of Cede & Co., as the nominee of the Depositary, and deposited with
the Trustee, as custodian for Cede & Co.
<PAGE>
If at any time the Depositary for the Global Debentures notifies the
Company that it is unwilling or unable to continue as Depositary for such Junior
Subordinated Debentures or if the Depositary ceases to be eligible to so act,
the Company may appoint a successor Depositary with respect to such Junior
Subordinated Debentures. If a successor Depositary for the Junior Subordinated
Debentures is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of an Officers' Certificate for
authentication and delivery of Junior Subordinated Debentures, will authenticate
and deliver, Junior Subordinated Debentures in definitive form, in an aggregate
principal amount equal to the principal amount of the Global Debentures, in
exchange for such Global Debentures.
Definitive Junior Subordinated Debentures issued in exchange for all or
a part of a Global Debenture pursuant to this section 2.04(e) shall be
registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. Upon execution and authentication, the Trustee shall
deliver such definitive Junior Subordinated Debentures to the person in whose
names such definitive Junior Subordinated Debentures are so registered.
At such time as all interests in a Global Debenture have been redeemed,
exchanged, repurchased or canceled, such Global Debenture shall be, upon receipt
thereof, canceled by the Trustee in accordance with standing procedures and
instructions of the Depositary. At any time prior to such cancellation, if any
interest in a Global Debenture is exchanged for definitive Junior Subordinated
Debentures, redeemed by the Company pursuant to Article 3 or canceled, or
transferred for part of a Global Debenture, the principal amount of such Global
Debenture shall, in accordance with the standing procedures and instructions of
the Depositary be reduced or increased, as the case may be, and an endorsement
shall be made on such Global Debenture by, or at the direction of, the Trustee
to reflect such reduction or increase.
(f) Any Private Debenture that, prior to the Transfer Restriction
Termination Date, is purchased or owned by the Company or any Affiliate thereof
may not be resold by the Company or such Affiliate unless registered under the
Securities Act or resold pursuant to an exemption from the registration
requirements of the Securities Act in a transaction which results in such
Private Debentures no longer being "restricted securities" (as defined under
Rule 144).
SECTION 2.05. Interest. (a) Each Junior Subordinated Debenture will
bear interest at the rate of 8.16% per annum (the "Coupon Rate") from December
15, 1996 until the principal thereof becomes due and payable, and will bear
interest
<PAGE>
on any overdue principal at the Coupon Rate and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the Coupon Rate, compounded semiannually, payable (subject to the
provisions of Article 4) semiannually in arrears on the fifteenth day of June
and December of each year (each, an "Interest Payment Date"), commencing on June
15, 1997, to the Person in whose name such Junior Subordinated Debenture is
registered at the close of business on the Record Date next preceding such
Interest Payment Date. The "Record Date" for payment of interest will be the
Business Day next preceding the Interest Payment Date, unless such Junior
Subordinated Debenture is registered to a holder other than the Property Trustee
or a nominee of The Depository Trust Company, in which case the Record Date for
payment of interest will be the first day of the calendar month in which the
applicable Interest Payment Date falls or, if such first day of the month is not
a Business Day, then the Business Day next preceding such day. Until
liquidation, if any, of the Trust, each Junior Subordinated Debenture will be
held in the name of the Property Trustee in trust for the benefit of the holders
of the Trust Securities.
(b) The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any date
on which interest is payable on the Junior Subordinated Debentures is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date such payment was originally payable.
(c) If the Company does not comply with certain of its obligations
under the Registration Rights Agreements, the Private Debentures shall, in
accordance with Section 2(c) of the Capital Securities Exchange and Registration
Rights Agreement and Section 2(c) of the Debenture Exchange and Registration
Rights Agreement, bear additional interest ("Special Interest") in addition to
the interest provided for in Section 2.05(a).
ARTICLE 3
REDEMPTION AND PREPAYMENT OF THE JUNIOR SUBORDINATED DEBENTURES
SECTION 3.01. Optional Prepayment by Company. (a) Subject to the
provisions of Section 3.01(b) and to the provisions of Article 3 of the Base
Indenture, except as otherwise may be specified in Section 3.01(b) or elsewhere
in this First Supplemental Indenture, the Company shall have the right to prepay
the Junior Subordinated Debentures, in whole or in part, from time to time, on
or after
<PAGE>
December 15, 2006, subject to the Company having received prior approval of the
Federal Reserve, if then required under applicable capital guidelines or
policies of the Federal Reserve, at a prepayment price (the "Optional Prepayment
Price") equal to the percentage of the outstanding principal amount of the
Junior Subordinated Debentures specified below, plus, in each case, accrued and
unpaid interest, including Compounded Interest, Additional Interest and Special
Interest thereon to the date of prepayment (the date of prepayment pursuant to
this Section 3.01 or Section 3.02, as the case may be, the "Prepayment Date");
if prepaid during the period:
December 15, 2006 to December 14, 2007: 104.080%
December 15, 2007 to December 14, 2008: 103.672%
December 15, 2008 to December 14, 2009: 103.264%
December 15, 2009 to December 14, 2010: 102.856%
December 15, 2010 to December 14, 2011: 102.448%
December 15, 2011 to December 14, 2012: 102.040%
December 15, 2012 to December 14, 2013: 101.632%
December 15, 2013 to December 14, 2014: 101.224%
December 15, 2014 to December 14, 2015: 100.816%
December 15, 2015 to December 14, 2016: 100.408%
On or after December 15, 2016: 100.000%
If the Junior Subordinated Debentures are only partially prepaid
pursuant to this Section 3.01, the Junior Subordinated Debentures will be
selected for prepayment by any method utilized by the Trustee. The Optional
Prepayment Price, together with any required interest payment, shall be paid
prior to 12:00 Noon, New York time, on the Prepayment Date provided that the
Company shall deposit with the Trustee an amount sufficient to pay the Optional
Prepayment Price, together with any required interest payment, by 10:00 A.M.,
New York City time, on the date such amounts are to be paid.
(b) If a partial prepayment of the Junior Subordinated Debentures
would result in the delisting of the Capital Securities issued by the Trust from
any national securities exchange or other organization on which the Capital
Securities are then listed, the Company shall not be permitted to effect such
partial prepayment and may only prepay the Junior Subordinated Debentures in
whole.
SECTION 3.02. Tax Event, Investment Company Event or Capital Treatment
Event Prepayment. If a Tax Event, Investment Company Event or Capital Treatment
Event shall occur and be continuing, the Company may, at its option and subject
to receipt of prior approval of the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve, prepay the
Junior Subordinated Debentures in whole (but not in part) at any time
<PAGE>
within 90 days of the occurrence of such Tax Event, Investment Company Event or
Capital Treatment Event, at a prepayment price (the "Event Prepayment Price")
equal to the greater of (i) 100% of the principal amount of such Junior
Subordinated Debentures or (ii) as determined by a Quotation Agent, an amount
equal to the sum of the present values of the Optional Prepayment Price that
would be payable pursuant to Section 3.01 with respect to an optional prepayment
of such Junior Subordinated Debentures on December 15, 2006, together with the
present values of scheduled payments of interest on each Interest Payment Date
from the Prepayment Date to December 15, 2006 (the "Remaining Life"), in each
case discounted to the Prepayment Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate,
plus, in each case, accrued interest thereon (including Compounded Interest,
Additional Interest and Special Interest) to but excluding the Prepayment Date,
provided that with respect to any prepayment under this Section 3.02 of Junior
Subordinated Debentures as a result of a Tax Event, Investment Company Event or
Capital Treatment Event that occurs on or after December 15, 2006, the Event
Prepayment Price shall be an amount equal to the Optional Prepayment Price that
would be payable pursuant to Section 3.01 with respect to an optional prepayment
of the Junior Subordinated Debentures on the Prepayment Date (including accrued
interest to the Prepayment Date).
The Company shall give the Trustee notice of the amount of the Event
Prepayment Price promptly after the calculation thereof.
SECTION 3.03. Notice of Prepayment. Subject to Article 3 of the Base
Indenture, notice of any prepayment pursuant to this Article 3 will be mailed at
least 30 days but not more than 60 days before the Prepayment Date to each
holder of Junior Subordinated Debentures to be prepaid at such holder's
registered address. Unless the Company defaults in payment of the Prepayment
Price, on and after the Prepayment Date interest shall cease to accrue on all
Junior Subordinated Debentures called for prepayment on such Prepayment Date.
ARTICLE 4
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.01. Extension of Interest Period. So long as an Event of
Default under Section 6.01 of the Base Indenture shall not have occurred and be
continuing, the Company shall have the right, subject to the provisions of
Section 2.10 of the Base Indenture, at any time and from time to time during the
term of the Junior Subordinated Debentures, to defer payments of interest by
extending the
<PAGE>
interest payment period of such Junior Subordinated Debentures for a period not
exceeding 10 consecutive semi-annual periods (an "Extension Period"), during
which Extension Period no interest shall be due and payable; provided that no
Extension Period may end on a date other than an Interest Payment Date or extend
beyond the Stated Maturity or any earlier Prepayment Date. To the extent
permitted by applicable law, interest, the payment of which has been deferred
because of an Extension Period imposed pursuant to this Section 4.01, will bear
interest thereon at the Coupon Rate compounded semi-annually ("Compounded
Interest"). At the end of the Extension Period, the Company shall pay all
interest accrued and unpaid on the Junior Subordinated Debentures, including any
Additional Interest, Special Interest and Compounded Interest (together,
"Deferred Interest") to the holders of the Junior Subordinated Debentures in
whose names the Junior Subordinated Debentures are registered in the Register on
the first Record Date preceding the end of the Extension Period. Before the
termination of any Extension Period, the Company may further extend such period,
provided that such period together with all such further extensions thereof
shall not exceed 10 consecutive semi-annual periods, or extend beyond the Stated
Maturity or any earlier Prepayment Date. Upon the termination of any Extension
Period and upon the payment of all Deferred Interest then due, the Company may
commence a new Extension Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extension Period, except at the end
thereof, but the Company may prepay at any time all or any portion of the
interest accrued during an Extension Period.
SECTION 4.02. Notice of Extension. (a) If the Property Trustee is the
only registered holder of the Junior Subordinated Debentures at the time the
Company selects an Extension Period, the Company shall give written notice to
the Administrators, the Property Trustee and the Trustee of its selection of
such Extension Period at least five Business Days before the earlier of (i) the
next succeeding date on which Distributions on the Trust Securities issued by
the Trust are payable, or (ii) the date the Trust is required to give notice of
the record date, or the date such Distributions are payable, to any applicable
self-regulatory organization or to holders of the Capital Securities issued by
the Trust, but in any event not less than five Business Days before such record
date. An Administrator shall give notice of the Company's election to begin or
extend a new Extension Period to the holders of the Capital Securities.
(b) If the Property Trustee is not the only holder of the Junior
Subordinated Debentures at the time the Company selects an Extension Period, the
Company shall give the holders of the Junior Subordinated Debentures and the
Trustee written notice of its selection of such Extension Period at least 10
Business Days before the earlier of (i) the next succeeding Interest Payment
Date or (ii) the date the Company is required to give notice of the record or
payment
<PAGE>
date of such interest payment to any applicable self-regulatory organization or
to holders of the Junior Subordinated Debentures.
(c) The semi-annual period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.02 shall be counted as one of the 10
consecutive semi-annual periods permitted in the maximum Extension Period
permitted under Section 4.01.
ARTICLE 5
EXPENSES
SECTION 5.01. Payment of Expenses. In connection with the offering,
sale and issuance of the Junior Subordinated Debentures to the Property Trustee
and in connection with the sale of the Trust Securities by the Trust, the
Company, in its capacity as borrower with respect to the Junior Subordinated
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Junior Subordinated Debentures, including commissions to the
Purchasers payable pursuant to the Purchase Agreement and compensation of the
Trustee under the Indenture in accordance with the provisions of Section 7.06 of
the Base Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
fees and expenses of the Property Trustee and the Delaware Trustee, the costs
and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets);
(c) pay all costs and expenses related to the enforcement by the
Property Trustee of the rights of the registered holders of the Capital
Securities;
(d) be primarily liable for any indemnification obligations arising
with respect to the Trust Agreement; and
<PAGE>
(e) pay any and all taxes and all liabilities, costs and expenses with
respect to such taxes of the Trust (but not including withholding taxes imposed
on holders of Preferred Securities or Common Securities of the Trust).
SECTION 5.02. Payment upon Resignation or Removal. Upon termination of
this First Supplemental Indenture or the Base Indenture or the removal or
resignation of the Trustee pursuant to Section 7.10 of the Base Indenture, the
Company shall pay to the Trustee all amounts owed to it under Section 7.06 of
the Base Indenture accrued to the date of such termination, removal or
resignation. Upon termination of the Trust Agreement or the removal or
resignation of the Delaware Trustee or the Property Trustee, as the case may be,
pursuant to Section 8.10 of the Trust Agreement, the Company shall pay to the
Delaware Trustee or the Property Trustee, and their respective counsel, as the
case may be, all amounts owed to them under Section 8.07 of the Trust Agreement
accrued to the date of such termination, removal or resignation.
ARTICLE 6
FORM OF JUNIOR SUBORDINATED DEBENTURE
SECTION 6.01. Form of Junior Subordinated Debenture. The Junior
Subordinated Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the form attached hereto as Exhibit
A.
ARTICLE 7
ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBENTURES
SECTION 7.01. Original Issue of Junior Subordinated Debentures. (a)
Junior Subordinated Debentures in the aggregate principal amount of up to
$206,200,000 may be executed by the Company and delivered to the Trustee for
authentication by it, and the Trustee shall thereupon authenticate and deliver
said Junior Subordinated Debentures to or upon the written order of the Company,
signed by its Chairman of the Board, or its President or any Vice Chairman or
any Vice President of the Company (whether or not designated by a number or word
or words added before or after the title Vice President) and by its Treasurer or
an Assistant Treasurer or its Secretary or an Assistant Secretary, without any
further corporate action by the Company as follows: (i) $206,200,000 aggregate
principal amount of Private Debentures to be originally issued on the Closing
Date (as defined in the Purchase Agreement) and (ii) $206,200,000 aggregate
principal
<PAGE>
amount of Exchange Debentures to be issued upon surrender of and in exchange for
the Private Debentures pursuant to Section 8.01.
(b) Each Exchange Debenture shall be issued only upon surrender of and
in exchange for a like aggregate principal amount of Private Debentures and any
Private Debentures surrendered in exchange for Exchange Debentures shall be
canceled. Accordingly, the aggregate principal amount of Private Debentures and
Exchange Debentures that may be Outstanding at any time shall not exceed
$206,200,000.
ARTICLE 8
EXCHANGE OF SECURITIES
SECTION 8.01. Mandatory Tender in Exchange Offer. The Junior
Subordinated Debentures will not be convertible into any other securities or
property of the Company. The Junior Subordinated Debentures may not be exchanged
for Securities of any other series, except that if the Company effects an
exchange offer pursuant to Section 2(a) of the Debenture Exchange and
Registration Rights Agreement and, if pursuant to such exchange offer, the
Company offers to exchange any Private Debentures for Exchange Debentures, then,
to the extent permitted by law, each holder of the Private Debentures shall be
obligated to tender all the Private Debentures held by such holder in exchange
for a like principal amount of the Exchange Debentures in accordance with the
Company's instructions.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Ratification of Indenture; First Supplemental Indenture
Controls. The Indenture, as supplemented by this First Supplemental Indenture,
is in all respects ratified and confirmed, and this First Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided. The provisions of this First Supplemental Indenture shall
supersede the provisions of the Indenture to the extent the Indenture is
inconsistent herewith.
SECTION 9.02. Trustee Not Responsible for Recitals. The recitals herein
contained are made by the Company and not by the Trustee, and the Trustee
<PAGE>
assumes no responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this First Supplemental
Indenture.
SECTION 9.03. Governing Law. This First Supplemental Indenture and each
Junior Subordinated Debenture shall be deemed to be a contract made under the
internal laws of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of the State of New York, except
that the rights and duties of the Trustee are governed by the laws of the State
of the Trustee's principal place of business.
SECTION 9.04. Separability. In case any one or more of the provisions
contained in this First Supplemental Indenture or in the Junior Subordinated
Debentures shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this First Supplemental Indenture or of the Junior
Subordinated Debentures, but this First Supplemental Indenture and the Junior
Subordinated Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 9.05. Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first above written.
CRESTAR FINANCIAL CORPORATION
By
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By
---------------------------------
Name:
Title:
<PAGE>
Exhibit A
[(FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE)]
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT THE FOLLOWING - -
THIS DEBENTURE IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS DEBENTURE IS EXCHANGEABLE FOR JUNIOR SUBORDINATED
DEBENTURES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDEN TURE, AND NO
TRANSFER OF THIS DEBENTURE (OTHER THAN A TRANSFER OF THIS DEBENTURE AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
DEBENTURE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANS FER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
A - 1
<PAGE>
No. CUSIP NO.
CRESTAR FINANCIAL CORPORATION
8.16% JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE DECEMBER 15, 2026
[Up To]* $206,200,000
[Prior to Transfer Restriction Termination Date, INSERT the following
in Private Debentures... THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE REGISTERED HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE
SECURITY EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL
NOT PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY
EXCEPT (A) TO CRESTAR FINANCIAL CORPORATION OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (D) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
CHASE MANHATTAN BANK, AS TRUSTEE, A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE
SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT OR (F) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL
- --------
* Insert in Global Debentures
A - 2
<PAGE>
DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THE SECURITY EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE CHASE MANHATTAN BANK, AS TRUSTEE. IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER
WHO IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE CHASE MANHATTAN BANK, AS TRUSTEE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS CRESTAR FINANCIAL CORPORATION MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THIS LEGEND WILL BE REMOVED AFTER THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.]
THIS DEBENTURE IS NOT A DEPOSIT OR OTHER OBLIGATION OF A BANK
AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION
OR ANY OTHER GOVERNMENTAL AGENCY
Registered Holder:
CRESTAR FINANCIAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein referred to as the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to the
registered Holder named above, the principal sum [of ________]** [specified in
the Schedule annexed hereto]***, on December 15, 2026, in such coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debt. The Company further promises to pay to
the registered Holder hereof
- --------
** Insert in all Junior Subordinated Debentures other than Global Debentures
*** Insert in Global Debentures
A - 3
<PAGE>
as hereinafter provided (a) interest on said principal sum (subject to deferral
as set forth herein) at the rate per annum specified in the title of this
debenture (the "Debenture"), in like coin or currency, semiannually in arrears
on the fifteenth day of June and December (each an "Interest Payment Date")
commencing June 15, 1997, from the Interest Payment Date next preceding the date
hereof to which interest has been paid or duly provided for (unless (i) no
interest has yet been paid or duly provided for on this Debenture, in which case
from December 15, 1996, or (ii) the date hereof is before an Interest Payment
Date but after the related Record Date (as defined below), in which case from
such following Interest Payment Date, provided, however, that if the Company
shall default in payment of the interest due on such following Interest Payment
Date, then from the next preceding Interest Payment Date to which interest has
been paid or duly provided for), until the principal hereof is paid or duly
provided for, plus (b) Additional Interest, as defined in the Indenture, to the
extent permitted by applicable law, on any interest payment that is not made on
the applicable Interest Payment Date, which shall accrue at the rate per annum
specified in the title of this Debenture, compounded semiannually.
The interest so payable will, subject to certain exceptions provided in
the Indenture hereinafter referred to, be paid to the person in whose name this
Debenture is registered at the close of business on the Record Date next
preceding such Interest Payment Date. The Record Date shall be the Business Day
next preceding the Interest Payment Date, unless this Certificate is registered
to a holder other than the Property Trustee or a nominee of The Depository Trust
Company, in which case the Record Date will be the first day of the calendar
month in which such Interest Payment Date falls or, if such first day of the
month is not a Business Day, then the Business Day next preceding such day. This
Debenture may be presented for payment of principal and interest at the offices
of The Chase Manhattan Bank, as agent for the Company, maintained for that
purpose in the Borough of Manhattan, The City of New York, State of New York;
provided, however, that payment of interest may be made at the option of the
Company (i) by check mailed to such address of the person entitled thereto as
the address shall appear on the Register of the Debentures or (ii) by transfer
to an account maintained by the Person entitled thereto as specified in the
Register, provided that proper transfer instructions have been received by the
Record Date. Interest on the Debenture will be computed on the basis of a
360-day year of twelve 30-day months.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right at any time during the term of this Debenture to
defer payment of interest on this Debenture, at any time or from time to time,
for up to ten consecutive semiannual interest payment periods with respect to
each deferral period (each an "Extension Period"), during which Extension
Periods the Company shall have the right to make partial payments of interest on
any Interest Payment Date; provided, however, that no Extension Period shall end
on a date other than an Interest Payment Date or extend beyond December 15, 2026
or any earlier Prepayment Date. At the end of each Extension Period, the Company
shall pay all interest then accrued and unpaid (together with any Additional
Interest, Compounded Interest and Special Interest thereon to the extent
permitted by applicable law). During any such Extension Period, the Company
shall not, and shall not permit any Subsidiary of the Company to, (i) declare or
pay any dividends or
A - 4
<PAGE>
distributions or redeem, purchase, acquire or make a liquidation payment with
respect to, any of the Company's capital stock or (ii) make any payment of
principal of, or interest or premium, if any, on or repay, repurchase or redeem
any debt security of the Company that ranks pari passu with or junior in
interest to this Debenture or make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any Subsidiaries of the
Company if such guarantee ranks pari passu with or junior in interest to this
Debenture (other than (a) dividends or distributions in Common Stock, (b) any
declaration of a dividend in connection with the implementation of a Rights
Plan, the issuance of any Common Stock or any class or series of preferred stock
of the Company under any Rights Plan or the redemption or repurchase of any
rights distributed pursuant to a Rights Plan, (c) payments under any Crestar
Guarantee, and (d) purchases of Common Stock related to the issuance of Common
Stock or rights under any of the Company's benefit plans for its directors,
officers or employees). Prior to the termination of any such Extension Period,
the Company may further extend the interest payment period, provided that no
Extension Period shall exceed ten consecutive semiannual periods or extend
beyond December 15, 2026 or any earlier Prepayment Date. At any time following
the termination of any Extension Period and the payment of all accrued and
unpaid interest (including Additional Interest, if any) then due, the Company
may elect to begin a new Extension Period, subject to the above requirements. No
interest shall be due and payable during an Extension Period except at the end
thereof. If the Debentures of this series have been issued to Crestar Capital
Trust I, the Company shall give the Trustee, the Property Trustee and the
Administrators notice of its election to begin or extend any Extension Period at
least one Business Day prior to the earlier of (i) the next succeeding date on
which Distributions on the Trust Securities issued by Crestar Capital Trust I
would be payable but for such election to begin or extend a new Extension Period
or (ii) the date the Administrators are required to give notice to any
securities exchange or other applicable self-regulatory organization or to
holders of such Trust Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business Day prior
to such record date.
This Debenture is issued pursuant to an Indenture, dated as of December
31, 1996, between the Company, as issuer, and The Chase Manhattan Bank, a
banking corporation duly organized and existing under the laws of the State of
New York, as trustee, as supplemented by a First Supplemental Indenture dated as
of December 31, 1996, (as may be further supplemented or amended from time to
time, the "Indenture"). Reference is made to the Indenture for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders (the word "Holder" or
"Holders" meaning the registered holder or registered holders) of the
Debentures. Capitalized terms used herein but not defined shall have the
respective meanings assigned thereto in the Indenture. By acceptance of this
Debenture, the Holder hereof agrees to be bound by the provisions of the
Indenture.
The Debentures are limited to the aggregate principal amount of Two
Hundred Six Million Two Hundred Thousand Dollars ($206,200,000.00)
A - 5
<PAGE>
The indebtedness of the Company evidenced by this Debenture, including
the principal thereof and interest thereon, is, to the extent and in the manner
set forth in the Indenture, subordinate and junior in right of payment to its
obligations to Holders of Senior Indebtedness of the Company and each Holder of
this Debenture, by acceptance hereof, agrees to and shall be bound by such
provisions of the Indenture and all other provisions of the Indenture.
This Debenture shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by or on
behalf of the Trustee under the Indenture.
IN WITNESS WHEREOF, CRESTAR FINANCIAL CORPORATION has caused this
instrument to be signed, manually or in facsimile, by its Chairman of the Board
or its President or a Vice President and by its Secretary or an Assistant
Secretary and a facsimile of its corporate seal to be affixed hereunto.
CRESTAR FINANCIAL CORPORATION
By
By
[Seal]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series designated herein, described in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK
By
Authorized Officer
Dated:
A - 6
<PAGE>
REVERSE OF DEBENTURE
As provided in and subject to the provisions of the Indenture, if an
Event of Default with respect to the payment of principal or interest on the
Debentures or with respect to compliance with certain covenants occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of the then-outstanding Debentures may declare the
principal amount of all the Debentures, together with any accrued interest
(including Additional Interest), to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee, if such notice is given by
Holders). If the Debentures have been issued to a Crestar Capital Trust, upon
such an Event of Default, if the Trustee or the Holders of not less than 25% in
principal amount of the outstanding Debentures fails to declare the principal of
all the Debentures to be immediately due and payable, the holders of at least
25% in aggregate liquidation amount of the corresponding Capital Securities of
such Crestar Capital Trust then outstanding shall have such right by a notice in
writing to the Company and the Trustee, and upon any such declaration the
principal amount of and the accrued interest (including any Additional Interest)
on all the Debentures shall become immediately due and payable, provided that
the payment of principal and interest on the Debentures shall remain
subordinated to the extent provided in the Indenture.
If an Event of Default with respect to certain covenants applicable to
all series of securities issued under the Indenture (collectively, the
"Securities"), or with respect to events of bankruptcy, insolvency or
reorganization of the Company or Crestar Bank, a Virginia banking corporation,
occurs and is continuing, then and in every such case the Trustee or the Holders
of not less than 25% in principal amount of all Securities outstanding under the
Indenture (voting as a single class) may declare the principal amount of all
such Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if such notice is given by Holders), provided that,
in the case of Securities of a series issued under the Indenture to a Crestar
Capital Trust, if upon such an Event of Default the Trustee and the Holders of
not less than 25% in principal amount of all outstanding Securities of that
series fail to declare the principal of all the Securities of that series to be
immediately due and payable, the holders of at least 25% in aggregate
liquidation amount of the corresponding Capital Securities of such Crestar
Capital Trust then outstanding shall have such right by a notice in writing to
the Company and the Trustee; and upon any such declaration the principal amount
of and the accrued interest (including any Additional Interest) on all the
Securities of that series shall become immediately due and payable, provided
that the payment of principal and interest shall remain subordinated to the
extent provided in the Indenture.
The Indenture provides that in certain events such declaration that
principal and accrued interest are due and payable, and the consequences of such
declaration, may be rescinded and annulled by the holders of a majority in
principal amount of the Securities then outstanding under the Indenture as to
which such an acceleration of the payment of principal has occurred, voting as
one class. In the case of Securities issued under the Indenture to one or more
Crestar Capital Trusts, should the Holders of such Securities fail to rescind
and annul such declaration and its consequences, the Holders of a majority in
aggregate liquidation amount of the corresponding Capital Securities or
Preferred Securities of such Crestar Capital Trusts shall have such right. The
Indenture also provides that the Holders of a majority in principal amount of
all of the Securities of all series then outstanding as to which an Event of
Default has occurred may, on behalf of all Holders of such Securities, waive any
past default under the Indenture other than (a) a default in the payment of the
principal of or interest on any of the Securities or (b) a default in respect of
a covenant or provision of the Indenture which under the terms of the Indenture
cannot be modified or amended without the consent of each Holder of Securities
so affected. In the case of Securities of one or more series issued to one or
more Crestar Capital Trusts, the Indenture provides that the Holders of a
majority in aggregate liquidation amount of the corresponding Capital Securities
or Preferred Securities issued by such Crestar Capital Trusts shall also have
the right to waive such defaults.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
principal amount of the outstanding Securities of all affected series (voting as
one class), to execute supplemental indentures adding any provisions to or
changing or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying the rights of the holders of the Securities
of each such series; provided, however, that no such supplemental indenture
shall (i) change the fixed maturity of any Securities, or reduce the rate or
extend the time of payment of interest thereon or on any overdue principal
amount, or reduce the principal
A - 7
<PAGE>
amount thereof, or reduce any amount payable upon any redemption thereof, or
make the principal thereof or any interest thereon or on any overdue principal
amount payable in any coin or currency other than that herein prescribed without
the consent of the Holder of each security so affected, (ii) reduce the
percentage of Securities, the consent of the Holders of which is required for
any such supplemental indenture, without the consent of all Holders of
Securities then outstanding, (iii) modify certain provisions of the Indenture
relating to waiver of compliance with covenants, waiver of defaults or
modification of the Indenture without the consent of all Holders of Securities
then outstanding, except to increase the percentage of Holders required for such
waiver or modification, or (iv) modify the provisions with respect to the
subordination of outstanding Securities of any series in a manner adverse to the
Holders thereof, without the consent of the Holder of each security so affected;
provided, further, that, in the case of the Securities of a series issued to a
Crestar Capital Trust, so long as any of the corresponding series of Capital
Securities or Preferred Securities issued by such Crestar Capital Trust remains
outstanding, (i) no such amendment shall be made that adversely affects the
holders of such Capital Securities or Preferred Securities in any material
respect, and no termination of this Indenture shall occur, and no waiver of any
Event of Default with respect to such series or compliance with any covenant
with respect to such series under this Indenture shall be effective, without the
prior consent of the holders of at least a majority of the aggregate liquidation
amount of such Capital Securities or Preferred Securities then outstanding,
unless and until the principal (and premium, if any) of the Securities of such
series and all accrued and unpaid interest (including any Additional Interest)
thereon shall have been paid in full and (ii) no amendment shall be made to
Section 6.05 of the Indenture (regarding the right of Holders of Preferred
Securities or Capital Securities to institute a suit directly against the
Company) that would impair the rights of the Holders of Preferred Securities or
Capital Securities provided therein without the prior consent of all Holders of
Preferred Securities and Capital Securities then outstanding, unless and until
the principal (and premium, if any) of the Securities of such series and all
accrued and unpaid interest (including any Additional Interest) thereon have
been paid in full.
This Debenture will be prepayable, in whole or in part, at the option
of the Company at any time on or after December 15, 2006, subject to the Company
having received prior approval of the Board of Governors of the Federal Reserve
System (the "Federal Reserve") if then required under applicable capital
guidelines or policies of the Federal Reserve, at a prepayment price (the
"Optional Prepayment Price") equal to the percentage of the outstanding
principal amount of this Debenture specified below, plus, in each case, accrued
and unpaid interest thereon to the date of prepayment, if prepaid during the
period:
December 15, 2006 to December 14, 2007: 104.080%
December 15, 2007 to December 14, 2008: 103.672%
December 15, 2008 to December 14, 2009: 103.264%
December 15, 2009 to December 14, 2010: 102.856%
December 15, 2010 to December 14, 2011: 102.448%
December 15, 2011 to December 14, 2012: 102.040%
December 15, 2012 to December 14, 2013: 101.632%
December 15, 2013 to December 14, 2014: 101.224%
December 15, 2014 to December 14, 2015: 100.816%
December 15, 2015 to December 14, 2016: 100.408%
On or after December 15, 2016: 100.000%
Upon the occurrence and during the continuation of a Tax Event,
Investment Company Event or Capital Treatment Event in respect of Crestar
Capital Trust I, the Company may, at its option, at any time within 90 days of
the occurrence of such Tax Event, Investment Company Event or Capital Treatment
Event prepay this Debenture, in whole but not in part, at a prepayment price
(the "Event Prepayment Price") equal to the greater of (i) 100% of the principal
amount thereof; or (ii) as determined by a Quotation Agent, an amount equal to
the sum of the present values of the principal amount and premium that would be
payable as part of the Optional Prepayment Price with respect to an optional
prepayment of such Debenture on December 15, 2006, together with the present
values of scheduled payments of interest from the prepayment date to December
15, 2006 (the "Remaining Life"), in each case discounted to the
A - 8
<PAGE>
prepayment date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus, in each case, accrued
and unpaid interest to but excluding the date of prepayment, provided that with
respect to any prepayment of this Debenture as a result of a Tax Event,
Investment Company Event or Capital Treatment Event that occurs on or after
December 15, 2006, the Event Prepayment Price shall be the Optional Prepayment
Price that would be payable on optional prepayment of the Debentures on the date
of such prepayment, which includes accrued and unpaid interest to the date of
prepayment.
"Adjusted Treasury Rate" means, with respect to any prepayment date,
the Treasury Rate plus (i) 1.00% if such prepayment date occurs on or before
December 15, 1997 or (ii) 0.50% if such prepayment date occurs after December
15, 1997. "Treasury Rate" means (i) the yield, under the heading which
represents the average for the immediately prior week, appearing in the most
recently published statistical release designated "H.R.(519)" or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities", for the
maturity corresponding to the Remaining Life (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such prepayment date. The Treasury Rate shall be calculated on the third
Business Day preceding the prepayment date.
"Comparable Treasury Issue" means with respect to any prepayment date
the United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the Remaining
Life. If no United States Treasury security has a maturity which is within a
period from three months before to three months after December 15, 2006, the two
most closely corresponding United States Treasury securities shall be used as
the Comparable Treasury Issue, and the Treasury Rate shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest month using such
securities. "Comparable Treasury Price" means (A) the average of five Reference
Treasury Dealer Quotations for such prepayment date, after excluding the highest
and lowest such Reference Treasury Dealer Quotations, or (B) if the Trustee
obtains fewer than three such Reference Treasury Dealer Quotations, the average
of all such Quotations.
"Quotation Agent" means Morgan Stanley & Co. Incorporated. "Reference
Treasury Dealer" means (i) Morgan Stanley & Co. Incorporated, Lehman Brothers
Inc. and UBS Securities LLC and their respective successors; provided, however,
that if any of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Company
shall substitute therefor another Primary Treasury Dealer; and (ii) any other
Primary Treasury Dealer selected by the Trustee after consultation with the
Company. "Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any prepayment date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such prepayment date.
Any consent or waiver by the Holder of this Debenture given as provided
in the Indenture (unless effectively revoked as provided in the Indenture) shall
be conclusive and binding upon such Holder and upon all future Holders of this
Debenture and of any Debenture issued in exchange, registration of transfer, or
otherwise in lieu hereof irrespective of whether any notation of such consent or
waiver is made upon this Debenture or such other Debentures. No reference herein
to the Indenture and no provision of this Debenture or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Debenture, at the
places, at the respective times, at the rate and in the coin or currency herein
prescribed.
A - 9
<PAGE>
If the Company does not comply with certain of its obligations under
the Registration Rights Agreements (as defined in the Indenture), this Debenture
shall bear additional interest ("Special Interest") in addition to the interest
provided for in Section 2.05(a) of the First Supplemental Indenture to the
Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Debenture may be registered on the Register of
the Debentures upon surrender of this Debenture for registration of transfer at
the offices maintained by the Company or its agent for such purpose, duly
endorsed by the Holder hereof or his attorney duly authorized in writing, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, but without payment of any charge other
than a sum sufficient to reimburse the Company for any tax or other governmental
charge incident thereto. Upon any such registration of transfer, a new Debenture
or Debentures of authorized denomination or denominations for the same aggregate
principal amount will be issued to the transferee in exchange herefor.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, and any agent of the Company or the Trustee
may deem and treat the person in whose name this Debenture shall be registered
upon the Register of the Debentures as the absolute owner of this Debenture
(whether or not this Debenture shall be overdue and notwithstanding any notation
of ownership or other writing hereon) for the purpose of receiving payment of or
on account of the principal hereof and, subject to the provisions on the face
hereof, interest due hereon and for all other purposes; and neither the Company
nor the Trustee nor any such agent shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or
interest on this Debenture, or for any claim based hereon or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any stockholder, officer, director or employee, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as a part of
the consideration for the issue hereof, expressly waived and released.
The Company and, by acceptance of this Debenture or a beneficial
interest in this Debenture, each holder hereof and any person acquiring a
beneficial interest herein, agree that for United States federal, state and
local tax purposes it is intended that this Debenture constitute indebtedness.
This Debenture shall be deemed to be a contract made under the laws of
the State of New York and for all purposes shall be governed by, and construed
in accordance with, the laws of said State.
A - 10
<PAGE>
[Prior to Transfer Restriction Termination Date, INSERT the following in Private
Debentures in Definitive form --]
[FORM OF CERTIFICATE OF TRANSFER]
For value received ________________ hereby sell(s), assign(s)
and transfer(s) unto _______________________________
(Please insert social security or other
taxpayer identification number of assignee.)
the within 8.16% Junior Subordinated Deferrable Interest Debenture (the
"Debenture") and hereby irrevocably constitutes and appoints ____________
attorney to transfer the said security on the books of the Company, with full
power of substitution in the premises.
In connection with any transfer of the within Debenture occurring prior to such
date as restrictions on the transfer of such security imposed by the Securities
Act of 1933, as amended, and the rules and regulations thereunder shall be
terminated in accordance with the Indenture, the undersigned confirms that such
security is being transferred:
o To Crestar Financial Corporation or a subsidiary thereof; or
o Pursuant to and in compliance with Rule 144A under the Securities Act
of 1933, as amended; or o To an Institutional Accredited Investor
pursuant to and in compliance with the Securities Act of 1933,
as amended; or
o Pursuant to and in compliance with Regulation S under the Securities
Act of 1933, as amended; or o Pursuant to and in compliance with Rule
144 under the Securities Act of 1933, as amended;
and unless the box below is checked, the undersigned confirms that such
Debenture is not being transferred to an "affiliate" of the Company as defined
in Rule 144 under the Securities Act of 1933, as amended (an "Affiliate"):
o The transferee is an Affiliate of the Company.
Dated: ___________________
-------------------
-------------------
Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or a member
firm of a major stock exchange.
---------------------------
Signature Guarantee
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Security in every particular without
alteration or enlargement or any change whatever.
A - 11
<PAGE>
[Following Transfer Restriction Termination Date, INSERT the following--]
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
Please insert Social Security or other identifying number of assignee:
(Name and Address of Assignee, including Zip Code,
must be printed or typewritten)
the within Junior Subordinated Deferrable Interest Debenture (the "Debenture"),
and all rights thereunder, hereby irrevocably constituting and appointing
Attorney to transfer said Debenture
on the Register of the Debentures, with full power of substitution in the
premises.
Date: __________________________
-------------------------------
-------------------------------
Signature(s)
Signature(s) must be
guaranteed by a commercial
bank or trust company or a
member firm of a major
stock exchange. NOTICE: The
signature to this
assignment must correspond
with the name as it appears
upon the face of the within
Junior Subordinated
Deferrable Interest
Debenture in every
particular, without
alteration or enlargement
or any change whatever.
A - 12
<PAGE>
[For Global Debentures, INSERT the following--]
[FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL DEBENTURE
TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
The initial principal amount evidenced by this Global Debenture is
$____________.
Changes to Principal Amount of Global Debenture
<TABLE>
<CAPTION>
<S> <C>
Principal Amount by which this
Global Debenture is to be Reduced Remaining Principal Amount
or Increased, and Reason for Reduction of this Global Debenture Notation
Date or Increase Made by
- ------- ---------------------- ----------------- -----------
- ------- ---------------------- ----------------- -----------
- ------- ---------------------- ----------------- -----------
- ------- ---------------------- ----------------- -----------
- ------- ---------------------- ----------------- -----------
- ------- ---------------------- ----------------- -----------
- ------- ---------------------- ----------------- -----------
- ------- ---------------------- ----------------- -----------
</TABLE>
A - 13
<PAGE>
EXHIBIT B
FORM OF TRANSFER CERTIFICATE --
FOR INSTITUTIONAL ACCREDITED INVESTORS
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trust Department
Re: Crestar Financial Corporation (the "Company") 8.16% Junior
Subordinated Deferrable Interest Debentures due December 15,
2026 (the "Debentures")
Ladies and Gentlemen:
We represent, warrant and agree with you as follows with regard to the
Debentures purchased by us and described in the confidential Offering Memorandum
dated December 20, 1996 (the "Offering Memorandum").
1. We are an "institutional investor" that is an "accredited
investor" within the meaning of subparagraph (a)(1), (2), (3)
or (7) of Rule 501 under the Securities Act of 1933, as
amended (the "Securities Act"). In addition, if we are buying
for one or more accounts for which we are acting as fiduciary
or agent and we are not a bank (as defined in Section 3(a)(2)
of the Securities Act of 1933, as amended (the "Securities
Act"), or a savings and loan association or other institution
(as defined in Section 3(a)(5)(A) of the Securities Act), each
such account is an institutional investor and an accredited
investor on a like basis.
2. We are acquiring the Debentures for our own account or for an
account for which we are acting as fiduciary or agent in a
minimum amount of not less than $100,000 principal amount for
each such account. We acknowledge and agree that the
Debentures purchased by us will be issued in certificated form
bearing a legend to the effect of paragraph 5 and may not be
exchanged for Debentures in book-entry form. We further
acknowledge and agree that the provisions of this paragraph 2
and those of paragraph 3 below will apply to each Debenture
purchased by us until such times such Debenture is transferred
in compliance with the provisions of paragraph 3.
B - 1
<PAGE>
3. We understand that the Debentures have not been registered
under the Securities Act and we agree that the Debentures
purchased by us may be reoffered, resold, pledged or otherwise
transferred only:
(i) (a) to a person who the seller reasonably believes is a
"qualified institutional buyer" within the meaning of Rule
144A under the Securities Act, purchasing for its own account
or the account of a qualified institutional buyer in a
transaction meeting the requirement of Rule 144A;
(b) in an offshore transaction complying with Rule 903 or 904
of Regulation S under the Securities Act;
(c) to an institutional accreditor investor (who delivers a
letter in the form hereof) in a transaction exempt from the
registration requirements of Securities Act;
(d) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 thereunder (if available);
or
(e) pursuant to an effective registration statement under the
Securities Act; and
(ii) in accordance with all applicable securities laws of the
United States and other jurisdictions.
4. We have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits
and risk of an investment in the Debentures, we, and any
accounts for which we are acting are able to bear the economic
risk of purchasing such Debentures and we have received a copy
of the Offering Memorandum.
5. We acknowledge that the Debentures will bear a legend to the
following effect unless the Company determines otherwise
consistently with applicable law:
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT)
("INSTITUTIONAL ACCREDITED INVESTOR") OR (C)
B - 2
<PAGE>
IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY
EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT
IT WILL NOT PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER
RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION) RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED
HEREBY EXCEPT (A) TO CRESTAR FINANCIAL CORPORATION OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (D) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO THE CHASE MANHATTAN BANK, AS
TRUSTEE, A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE
SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM SUCH TRUSTEE OR TRANSFER AGENT), (E) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT OR (F) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE
SECURITY EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY PRIOR TO THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE CHASE MANHATTAN BANK, AS TRUSTEE. IF THE
PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR
A PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR
TO SUCH TRANSFER, FURNISH TO THE CHASE MANHATTAN BANK, AS
TRUSTEE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM
THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE
REMOVED AFTER THE EXPIRATION OF THE HOLDING PERIOD
B - 3
<PAGE>
APPLICABLE TO THE SALES OF THE SECURITY EVIDENCED HEREBY
UNDER RULE 144(K) UNDER THE SECURITIES ACT. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
6. We acknowledge that Crestar Financial Corporation, you and
others will rely upon our confirmations, acknowledgments and
agreements set forth herein, and we hereby irrevocably
authorize such parties to produce this letter or a copy hereof
to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters
covered hereby.
7. If we are acquiring any Debentures as a fiduciary or agent for
one or more accounts, we represent that we have sole
investment discretion with respect to each such account and
that we have full power to make the foregoing acknowledgments,
representations and agreements with respect to each such
account and as set forth in the Notice to Investors contained
in the Offering Memorandum.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
You, Crestar Financial Corporation and the Purchasers (the
"Purchasers") named in Schedule I to the Purchase Agreement dated December 20,
1996 among the Crestar Capital Trust I, Crestar Financial Corporation and the
Purchasers are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Dated:
[Insert Name of Transferee]
By:
--------------------------------
Name:
Title:
(If the registered owner is a
corporation, partnership or
fiduciary, the title of the Person
signing on behalf of such registered
owner must be stated.)
B - 4
<PAGE>
EXHIBIT C
FORM OF TRANSFER CERTIFICATE
REGULATION S GLOBAL SECURITY TO 144A GLOBAL SECURITY
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trust Department
Re: Crestar Financial Corporation (the "Company") 8.16% Junior
Subordinated Deferrable Interest Debentures due December 15,
2026 (the "Debentures")
Reference is hereby made to the Indenture (the "Base Indenture") dated
as of December 31, 1996 between the Company and The Chase Manhattan Bank, as
Trustee (as supplemented by the First Supplemental Indenture (the "Supplemental
Indenture") dated December 31, 1996, the "Indenture") Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to _________________ Private Debentures which are
evidenced by a Regulation S Global Debenture (CUSIP No. ______) and held with
the Depositary indirectly in the name of [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Private Debentures to a Person that will take delivery thereof
in a transaction effected pursuant to and in accordance with Rule 144A under the
United States Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor does hereby certify that the (i) the Transferor's
interest in the Private Debentures is being transferred in accordance with the
transfer restrictions set forth in the Indenture and in the Private Debenture;
and (ii) the transferee is a person who the Transferor reasonably believes is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act, purchasing for its own account or the account of a qualified
institutional buyer in a transaction meeting the requirements of Rule 144A, in
accordance with all applicable securities laws of the states of the United
States and other jurisdictions.
You, the Company and the Purchasers are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
C-1
<PAGE>
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
Dated:
[Insert Name of Transferor]
By:
-----------------------------
Name:
Title:
(If the registered owner is a
corporation, partnership or
fiduciary, the title of the Person
signing on behalf of such registered
owner must be stated.)
C-2
<PAGE>
EXHIBIT D
FORM OF TRANSFER CERTIFICATE--
144A GLOBAL TO REGULATION S GLOBAL
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trust Department
Re: Crestar Financial Corporation (the "Company") 8.16% Junior
Subordinated Deferrable Interest Debentures due December
15, 2026 (the "Debentures")
Reference is hereby made to the Indenture (the "Base Indenture") dated
as of December 31, 1996 between the Company and The Chase Manhattan Bank, as
Trustee (as supplemented by the First Supplemental Indenture (the "Supplemental
Indenture") dated December 31, 1996, the "Indenture") Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to _________________ Private Debentures which are
evidenced by a 144A Global Debenture (CUSIP No. ______) and held with the
Depositary in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the Private
Debentures to a Person that will take delivery thereof in a transaction effected
pursuant to and in accordance with Rule 904 under the United States Securities
Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor
does hereby further certify that:
The offer of the Private Debentures was not made to a person in the
United States;
(A) either:
(i) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting
on its behalf reasonably believed that the transferee was outside
the United States, or
(ii) the transaction was executed in, or through the facilities of a
designated offshore securities market and neither the Transferor
nor any person acting on its behalf knows that the transaction was
pre-arranged with a buyer in the United States;
(B) no directed selling efforts have been made in contravention of the
requirements of 904(b) of Regulation S, as applicable;
D-1
<PAGE>
(C) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(D) we have advised the transferee of the transfer restrictions
applicable to the Private Debentures.
You, the Company and the Purchasers are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
Dated:
[Insert Name of Transferor]
By:
---------------------------------
Name:
Title:
(If the registered owner is a
corporation, partnership or
fiduciary, the title of the Person
signing on behalf of such registered
owner must be stated.)
D-2
<PAGE>
EXHIBIT E
[Form of Trust Agreement]
E - 1
<PAGE>
EXHIBIT F
[Form of Capital Securities Guarantee Agreement]
F - 1
EXHIBIT 4.4
CERTIFICATE OF TRUST
OF
CRESTAR CAPITAL TRUST I
THIS Certificate of Trust of Crestar Capital Trust I (the "Trust"),
dated as of December 19, 1996, has been duly executed and is being filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. ss. 3801, et seq.).
1. Name. The name of the business trust formed hereby is Crestar
Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are Chase
Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned trustee of the Trust has executed
this Certificate of Trust as of the date first-above written.
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity
but solely as trustee of the Trust
By: /s/ John H. Cashin
------------------
Name: John H. Cashin
Title: Senior Trust Officer
AMENDED AND RESTATED
TRUST AGREEMENT
among
CRESTAR FINANCIAL CORPORATION, as Depositor,
THE CHASE MANHATTAN BANK,
as Property Trustee,
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee,
and
THE ADMINISTRATORS NAMED HEREIN
Dated as of December 31, 1996
CRESTAR CAPITAL TRUST I
<PAGE>
CRESTAR CAPITAL TRUST I
Certain Sections of this Trust Agreement relating to Sections 310 through 318 of
the Trust Indenture Act of 1939:
Trust Indenture Trust
Act Section Agreement
Section
(ss) 310 (a)(1) 8.7
(a)(2) 8.7
(a)(3) 8.9
(a)(4) 2.7(a)(ii)
(b) 8.8
(ss) 311 (a) 8.13
(b) 8.13
(ss) 312 (a) 5.7
(b) 5.7(c)5.7
(ss) 313 (a) 8.14(a)
(a)(4) 8.14(b)
(b) 8.14(b)
(c) 10.8
(d) 8.14(c)
(ss) 314 (a) 8.15
(b) Not
(c)(1) 8.16
(c)(2) 8.16
(c)(3) Not
(d) Not
(e) 1.1, 8.16
(ss) 315 (a) 8.1(a),
(b) 8.2, 10.8
(c) 8.1(a)
(d) 8.1, 8.3
(e) Not
(ss) 316 (a) Not
(a)(1)(A) Not(a)(1)(B)Not
(a)(2) Not
(b) 5.14
(c) 6.7
(ss) 317 (a)(1) Not
(a)(2) Not
(b) 5.9
(ss) 318 (a) 10.10
Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
<PAGE>
PAGE
TABLE OF CONTENTS
PAGE
ARTICLE 1DEFINED TERMS
SECTION 1.01. Definitions 2
ARTICLE 2CONTINUATION OF THE TRUST
SECTION 2.01. Name 14
SECTION 2.02. Office of the Delaware Trustee; Principal Place of
Business14
SECTION 2.03. Initial Contribution of Trust Property; Organization
Expenses 14
SECTION 2.04. Issuance of the Capital Securities 15
SECTION 2.05. Issuance of the Common Securities; Subscription and Purchase
of Debentures 15
SECTION 2.06. Declaration of Trust 15
SECTION 2.07. Authorization to Enter into Certain Transactions 16
SECTION 2.08. Assets of Trust 20
SECTION 2.09. Title to Trust Property 20
ARTICLE 3PAYMENT ACCOUNT
SECTION 3.01. Payment Account 20
ARTICLE 4DISTRIBUTIONS; REDEMPTION
SECTION 4.01. Distributions 21
SECTION 4.02. Redemption 22
SECTION 4.03. Subordination of Common Securities 24
SECTION 4.04. Payment Procedures 25
SECTION 4.05. Tax Returns and Reports 25
SECTION 4.06. Payment of Taxes, Duties, Etc. of the Trust 25
SECTION 4.07. Reduction for Payments under Indenture or Pursuant to Direct
Actions 25
ARTICLE 5TRUST SECURITIES CERTIFICATES
SECTION 5.01. Initial Ownership 26
SECTION 5.02. The Trust Securities Certificates; Execution and Delivery
Thereof 26
SECTION 5.03. Execution and Delivery of Trust Securities Certificates
26
SECTION 5.04. Registration of Transfer and Exchange of Capital Securities
Certificates 26
SECTION 5.05. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates 28
SECTION 5.06. Persons Deemed Securityholders 29
SECTION 5.07. Access to List of Securityholders Names and Addresses 29
<PAGE>
PAGE
SECTION 5.08. Maintenance of Office or Agency for Transfers 29
SECTION 5.09. Appointment of Paying Agent 30
SECTION 5.10. Ownership of Common Securities by Depositor 30
SECTION 5.11. Book-entry Interests 31
SECTION 5.12. Notices to Clearing Agency 34
SECTION 5.13. Procedures for Issuance of Definitive Capital Securities
Certificates 34
SECTION 5.14. Rights of Securityholders 35
ARTICLE 6ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.01. Limitations on Voting Rights 37
SECTION 6.02. Notice of Meetings 38
SECTION 6.03. Meetings of Capital Securityholders 38
SECTION 6.04. Voting Rights 39
SECTION 6.05. Proxies, Etc 39
SECTION 6.06. Securityholder Action by Written Consent 39
SECTION 6.07. Record Date for Voting and Other Purposes 39
SECTION 6.08. Acts of Securityholders 40
SECTION 6.09. Inspection of Records 41
ARTICLE 7REPRESENTATIONS AND WARRANTIES
SECTION 7.01. Representations and Warranties of the Bank, the Property
Trustee and the Delaware Trustee 41
SECTION 7.02. Representations and Warranties of Depositor 42
ARTICLE 8THE TRUSTEES
SECTION 8.01. Corporate Property Trustee Required; Eligibility of
Trustees43
SECTION 8.02. Certain Duties and Responsibilities 44
SECTION 8.03. Certain Notices 45
SECTION 8.04. Certain Rights of Property Trustee 46
SECTION 8.05. Not Responsible for Recitals or Issuance of Securities 48
SECTION 8.06. May Hold Securities 48
SECTION 8.07. Compensation; Indemnity; Fees 48
SECTION 8.08. Conflicting Interests 50
SECTION 8.09. Co-trustees and Separate Trustee 50
SECTION 8.10. Resignation and Removal; Appointment of Successor 51
SECTION 8.11. Acceptance of Appointment by Successor 53
SECTION 8.12. Merger, Conversion, Consolidation or Succession to Business
54
SECTION 8.13. Preferential Collection of Claims Against Depositor or
Trust54
SECTION 8.14. Reports by Property Trustee 55
SECTION 8.15. Reports to the Property Trustee 56
SECTION 8.16. Evidence of Compliance with Conditions Precedent 56
SECTION 8.17. Number of Trustees 56
SECTION 8.18. Delegation of Power 57
<PAGE>
PAGE
ARTICLE 9TERMINATION, LIQUIDATION AND MERGER
SECTION 9.01. Termination upon Expiration Date 57
SECTION 9.02. Early Termination 57
SECTION 9.03. Termination 58
SECTION 9.04. Liquidation 58
SECTION 9.05. Mergers, Consolidations, Amalgamations or Replacements of
the Trust 60
ARTICLE 10MISCELLANEOUS PROVISIONS
SECTION 10.01. Limitation of Rights of Securityholders to Terminate
Trust61
SECTION 10.02. Amendment 62
SECTION 10.03. Separability 63
SECTION 10.04. Governing Law 63
SECTION 10.05. Payments Due on Non-business Day 63
SECTION 10.06. Successors 63
SECTION 10.07. Headings 64
SECTION 10.08. Reports, Notices and Demands 64
SECTION 10.09. Agreement Not to Petition 64
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture Act
65
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture 65
SECTION 10.12. Counterparts 66
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of December 31, 1996, among (i)
Crestar Financial Corporation, a Virginia banking corporation (including any
successors or assigns, the "Depositor"), (ii) The Chase Manhattan Bank, a
banking corporation duly organized and existing under the laws of the State of
New York, as property trustee, (in such capacity, the "Property Trustee" and, in
its separate corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) Chase Manhattan Bank Delaware, a Delaware banking corporation
that maintains its principal place of business in Delaware, as Delaware trustee
(the "Delaware Trustee"), (iv) Eugene S. Putnam, Jr., an individual, Eileen G.
Sadowski, an individual, and Mark Smith, an individual, each of whose address is
c/o Crestar Financial Corporation, P.O. Box 26665, 919 East Main Street,
Richmond Virginia 23261-6665 (each an "Administrator" and collectively the
"Administrators") (the Property Trustee, the Delaware Trustee and the
Administrators referred to collectively as the "Trustees") and (v) the several
Holders, as hereinafter defined.
WITNESSETH
WHEREAS, the Depositor and the Delaware Trustee have heretofore duly
declared and created a business trust pursuant to the Delaware Business Trust
Act by entering into that certain Trust Agreement, dated as of December 19, 1996
(the "Original Trust Agreement"), and by the execution and filing with the
Secretary of State of the State of Delaware of a Certificate of Trust, filed on
December 20, 1996, (the "Certificate of Trust") attached as Exhibit A;
WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Capital Securities by the Trust
pursuant to the Purchase Agreement, (iii) the acquisition by the Trust from the
Depositor of all of the right, title and interest in the Debentures, (iv) the
appointment of the Administrators and (v) the mandatory exchange by the Property
Trustee with the Depositor of the Private Debentures for the Exchange
Debentures, and the exchange by the Trust with the Securityholders of the
Private Capital Securities for the Exchange Capital Securities, each such
exchange registered under the Securities Act;
NOW THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, each party, for the benefit of the other parties and for
the benefit of the Securityholders, hereby amends and restates the Original
Trust Agreement in its entirety and agrees as follows:
<PAGE>
I. ARTICLE
DEFINED TERMS
A. SECTION . Definitions. For all purposes of this Trust Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
1 the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
2 all other terms used herein that are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them
therein;
3 unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Trust Agreement; and
4 the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.08.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Additional Distributions" means, with respect to Trust Securities of a
given Liquidation Amount and/or a given period, the amount of Special Interest
(as defined in the Capital Securities Exchange and Registration Rights
Agreement) paid by the Depositor on a Like Amount of Debentures of such period.
"Additional Sums" has the meaning specified in Section 4.08 of the
Indenture.
"Administrator" means a Person satisfying the eligibility requirements set
forth in Section 8.01(b) and initially means each of Eugene S. Putnam, Jr.,
Eileen G. Sadowski and Mark Smith, solely in such Person's capacity as
Administrator of the Trust heretofore created and continued hereunder and not in
such Person's individual capacity, or such Administrator's successor in interest
in such capacity, or any successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
<PAGE>
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.09.
"Book-Entry Capital Securities Certificates" has the meaning specified
in Section 5.11.
"Business Day" means any day which is not a Saturday or Sunday and which is
neither a legal holiday nor a day on which banking institutions in the City of
New York are authorized or required by law or regulation to close or a day on
which the corporate trust office of the Property Trustee or the Debenture
Trustee is closed for business.
"Capital Securities Certificate" means a certificate evidencing ownership
of Capital Securities, substantially in the form attached as Exhibit B.
"Capital Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Capital Securities Exchange and Registration Rights Agreement" means an
agreement dated December 31, 1996 among the Depositor, the Trust and the
<PAGE>
Initial Purchasers named in Schedule I of the Purchase Agreement.
"Capital Treatment Event" means the reasonable determination by the
Depositor that, as a result of the occurrence of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or which pronouncement, action or
decision is announced on or after the date of issuance of the Capital Securities
under this Trust Agreement, there is more than an insubstantial risk that the
Depositor will not be entitled to treat an amount equal to the aggregate
Liquidation Amount of the Capital Securities as "Tier 1 Capital" (or the then
equivalent thereof) for purposes of the capital adequacy guidelines of the Board
of Governors of the Federal Reserve System, as then in effect and applicable to
the Depositor.
"Certificate Depository Agreement" means the agreement among the Trust, the
Property Trustee and The Depository Trust Company, as the initial Clearing
Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, substantially in the form attached as Exhibit C, as the same may
be amended and supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. DTC will be the initial Clearing
Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" means December 31, 1996, which is the date of execution and
delivery of this Trust Agreement, or such other date as may be designated the
Closing Date pursuant to the Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $1,000 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit D.
"Corporate Trust Office" means (i) when used with respect to the
<PAGE>
Property Trustee, the principal corporate trust office of the Property Trustee
located in New York, New York, and (ii) when used with respect to the Debenture
Trustee, the principal corporate trust office of the Debenture Trustee located
in New York, New York.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Exchange and Registration Rights Agreement" means an agreement
dated December 31, 1996 among the Depositor, the Trust and the Initial
Purchasers named in the Purchase Agreement.
"Debenture Prepayment Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture Trustee" means The Chase Manhattan Bank, in its capacity as
debenture trustee under the Indenture, and any successor thereto under the
Indenture.
"Debentures" means the aggregate principal amount of the Depositor's 8.16%
Junior Subordinated Deferrable Interest Debentures due December 15, 2026, issued
pursuant to the Indenture.
"Definitive Capital Securities Certificates" means Capital Securities
Certificates issued in certificated, fully registered form as provided in
Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (ss) 3801, et seq., as it may be amended from time
to time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust heretofore created and continued hereunder and not
in its individual capacity, or its successor in interest in such capacity, or
any Delaware Trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in 4.01.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.02.
<PAGE>
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Property Trustee in the payment of any Distribution when
it becomes due and payable, and continuation of such default for a period of 30
days; or
(c) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance or breach of which is dealt
with in clause (b) or (c) above) and continuation of such default or breach for
a period of 60 days after there has been given, by registered or certified mail,
to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate liquidation preference of the Outstanding Capital Securities a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure to appoint a successor Property Trustee within 60 days
thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Capital Securities" means Capital Securities representing
undivided beneficial interests in the assets of the Trust, issued by the Trust
in an exchange offer for the Private Capital Securities, such exchange offer
being registered under the Securities Act, all pursuant to the Capital
Securities Exchange and Registration Rights Agreement; provided however that the
aggregate Liquidation Amount of the Private Capital Securities and the Exchange
Capital Securities at any one time outstanding shall not exceed $200,000,000.
"Exchange Debentures" means a new series of junior subordinated debentures
issued by the Depositor in a mandatory exchange offer for the Private
Debentures, such exchange offer being registered under the Securities Act, all
pursuant to the Debenture Exchange and Registration Rights Agreement.
"Exchange Guarantee" means the Exchange Guarantee extended by the Depositor
for the benefit of the Holders of Capital Securities pursuant to the Exchange
Guarantee Agreement, and registered under the Securities Act pursuant to the
Guarantee Exchange and Registration Rights Agreement.
<PAGE>
"Exchange Guarantee Agreement" means the Guarantee Agreement to be entered
into by the Depositor, as Guarantor and The Chase Manhattan Bank, as Guarantee
Trustee, pursuant to the Guarantee Exchange and Registration Rights Agreement.
"Exchange Offer" means an exchange offer of the Exchange Capital Securities
for the Private Capital Securities, which is registered under the Securities Act
pursuant to the Capital Securities Exchange and Registration Rights Agreement.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit E, as amended from time to time.
"Expiration Date" has the meaning specified in Section 9.01.
"Guarantee" means (i) prior to the exchange in connection with the Exchange
Offer, the Private Guarantee and (ii) following the exchange in connection with
the Exchange Offer, the Exchange Guarantee.
"Guarantee Agreement" means the Capital Securities Guarantee Agreement
dated as of December 31, 1996 between the Depositor, as Guarantor, and The Chase
Manhattan Bank, as Guarantee Trustee.
"Guarantee Exchange and Registration Rights Agreement" means an agreement
dated December 31, 1996 among the Depositor, the Trust and the Initial
Purchasers named in Schedule I of the Purchase Agreement.
"Holder" means a Person in whose name a Trust Security or Trust Securities
is registered in the Securities Register; any such Person shall be deemed to be
a beneficial owner within the meaning of the Delaware Business Trust Act.
"Indenture" means the Indenture, dated as of December 31, 1996, between the
Depositor and the Debenture Trustee, as trustee, as supplemented by the First
Supplemental Indenture dated as of December 31, 1996, as amended or supplemented
from time to time.
"Initial Purchasers" means the Purchasers named in Schedule I to the
Purchase Agreement.
"Institutional Accredited Investor" means an institutional investor that is
an "accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Investment Company Event" means the receipt by the Trust of an Opinion of
Counsel to the effect that, as a result of the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law"), the Trust is or will be considered an "investment
company" that is required to be registered under the 1940 Act, which Change in
1940 Act Law becomes effective on or after
<PAGE>
the date of original issuance of the Capital Securities under this Trust
Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (b) with respect to a distribution of Debentures to Holders of
Trust Securities in connection with a dissolution or liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
"Liquidation Date" means the date on which Debentures are to be distributed
to Holders of Trust Securities in connection with a termination and liquidation
of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in Section
9.04(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers Certificate" means a certificate signed by the Chairman of the
Board or any Vice Chairman of the Board or the President or any Vice Chairman or
any Vice President of the Depositor (whether or not designated by a number or a
word or words added before or after the title Vice President) and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary
of the Depositor and delivered to the appropriate Trustee. Any Officers
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers
Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
<PAGE>
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Trust, the Property Trustee or the Depositor (including counsel who is
an employee of the Depositor), who is experienced in matters related to the
substance of the opinion.
"Original Trust Agreement" has the meaning specified in the recitals
to this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Trust Agreement, except:
(a) Trust Securities theretofore canceled by the Securities Registrar
or delivered to the Securities Registrar for cancellation;
(b) Trust Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any Paying
Agent for the Holders of such Trust Securities; provided that, if such Trust
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in lieu of
which other Trust Securities have been executed and delivered pursuant to 5.04,
5.05, 5.11 and 5.13; provided, however, that in determining whether the Holders
of the requisite Liquidation Amount of the Outstanding Capital Securities have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Capital Securities owned by the Depositor, any Trustee or any
Affiliate of the Depositor or any Trustee shall be disregarded and deemed not to
be Outstanding, except that (a) in determining whether any Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Capital Securities that such Trustee knows to be
so owned shall be so disregarded and (b) the foregoing shall not apply at any
time when all of the outstanding Capital Securities are owned by the Depositor,
one or more of the Trustees and/or any such Affiliate. Capital Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Administrators the pledgee s
right so to act with respect to such Capital Securities and that the pledgee is
not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Capital Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed
<PAGE>
pursuant to Section 5.09 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its corporate trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debentures will be held and from which the Property Trustee,
through the Paying Agent, shall make payments to the Securityholders in
accordance with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"PORTAL Market" means the Private Offerings, Resales and Trading
through Automated Linkages Market operated by the National Association of
Securities Dealers, Inc. (or any successor thereto).
"Private Capital Securities" means the $200,000,000 aggregate Liquidation
Amount of the Trust's 8.16% Capital Securities representing undivided beneficial
interests in the assets of the Trust, having a Liquidation Amount of $1,000 per
Capital Security and having the rights provided therefor in this Trust
Agreement, and the certificates of which initially shall bear legends indicating
that they have not been registered under the Securities Act and restricting
transfers thereof.
"Private Debentures" means the $206,200,000 aggregate principal amount of
the Depositor's 8.16% Junior Subordinated Deferrable Interest Debentures due
December 15, 2026, issued pursuant to the Indenture on the Closing
Date.
"Private Guarantee" means the Guarantee extended by the Depositor for the
benefit of the Holders of Private Capital Securities pursuant to the Guarantee
Agreement.
"Property Trustee" means the commercial bank or trust company identified as
the "Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust heretofore created and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided.
"Purchase Agreement" means the Purchase Agreement, dated as of December 20,
1996, among the Trust, the Depositor and the Purchasers named in Schedule I
thereto.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debenture Prepayment Date and the stated maturity of the
Debentures shall be a Redemption Date for a Like Amount of Trust Securities.
<PAGE>
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures, allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
"Registration Rights Agreements" means the Capital Securities Exchange
and Registration Rights Agreement, the Debenture Exchange and Registration
Rights Agreement and the Guarantee Exchange and Registration Rights
Agreement, collectively.
"Regulation S" means Regulation S under the Securities Act or any successor
provision.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Rule 144" means Rule 144 as promulgated under the Securities Act, or any
successor rule.
"Rule 144A" means Rule 144A as promulgated under the Securities Act, or any
successor rule.
"Rule 144(k)" means Rule 144(k) as promulgated under the Securities Act, or
any successor rule.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.04.
"Securityholder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person shall be a
beneficial owner within the meaning of the Delaware Business Trust Act.
"Tax Event" means the receipt by the Depositor and the Trust of an Opinion
of Counsel to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the Capital Securities
under this Trust Agreement, there is more than an insubstantial risk that (i)
the Trust is, or will be within 90 days after the date of such Opinion of
Counsel, subject to United States Federal income tax with respect to income
received or accrued on the Debentures, (ii) interest payable by the Depositor on
the Debentures is not, or within 90 days after the date of such Opinion of
Counsel, will not be, deductible by the Depositor, in whole or in part, for
United States Federal income tax purposes or (iii) the Trust is, or will be
within 90 days after the date of
<PAGE>
such Opinion of Counsel, subject to more than a de minimis amount of other
taxes, duties, assessments or other governmental charges.
"Trust" means the Delaware business trust created under the Original Trust
Agreement and continued hereby and identified on the cover page to this Trust
Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits hereto, and (ii) for all purposes
of this Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) the rights of the Property
Trustee under the Guarantee, (c) any cash on deposit in, or owing to, the
Payment Account and (d) all proceeds and rights in respect of the foregoing and
any other property and assets for the time being held or deemed to be held by
the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Capital
Securities. The Trust Securities represent undivided beneficial interests in the
Trust Property.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrators.
I. ARTICLE
CONTINUATION OF THE TRUST
A. SECTION . Name. The Trust continued hereby shall be known as "Crestar
Capital Trust I," as such name may be modified from time to time by the
Administrators following written notice to the Securityholders and the other
Trustees, in which name the Trustees may conduct the business of the Trust, make
and execute contracts and other instruments on behalf of the Trust and sue and
be sued.
<PAGE>
B. SECTION . Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is Chase Manhattan
Bank Delaware, 1201 Market Street, Wilmington, Delaware 19801, Attention:
Corporate Trustee Administration Department, or such other address in the State
of Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is c/o Crestar Financial Corporation, P.O. Box 26665, 919 East Main Street,
Richmond, Virginia 23261-6665.
C. SECTION . Initial Contribution of Trust Property; Organization Expenses.
The Delaware Trustee acknowledges receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
D. SECTION . Issuance of the Capital Securities. The Depositor, on behalf
of the Trust and pursuant to the Original Trust Agreement, executed and
delivered the Purchase Agreement. Contemporaneously with the execution and
delivery of this Trust Agreement, an Administrator, on behalf of the Trust,
shall execute in accordance with Section 5.02 and deliver to the Initial
Purchasers Capital Securities Certificates, registered in the name of the
nominee of the initial Clearing Agency, in an aggregate amount of 200,000
Capital Securities having an aggregate Liquidation Amount of $200,000,000,
against receipt of such aggregate purchase price of such Capital Securities of
$200,000,000, which amount the Administrator shall promptly deliver to the
Trust.
E. SECTION . Issuance of the Common Securities; Subscription and Purchase
of Debentures. Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrator, on behalf of the Trust, shall execute in accordance
with Section 5.02 and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of 6,200 Common
Securities having an aggregate Liquidation Amount of $6,200,000 against payment
by the Depositor of such amount, which amount such Administrator shall promptly
deliver to the Trust. Contemporaneously therewith, an Administrator, on behalf
of the Trust, shall subscribe to and purchase from the Depositor Debentures,
registered in the name of the Trust and having an aggregate principal amount
equal to $206,200,000, and, in satisfaction of the purchase price for such
Debentures, the Trust, shall deliver to the Depositor the sum of $206,200,000
(such sum being the sum of the amounts delivered to the Trust pursuant to (i)
the second sentence of Section 2.04 and (ii) the first sentence of this Section
2.05).
F. SECTION . Declaration of Trust. The exclusive purposes and
functions of the Trust are (a) to issue and sell Trust Securities
(including the Exchange Capital Securities pursuant to the Exchange Offer),
(b) to use the proceeds from the sale of Trust Securities to acquire the
<PAGE>
Private Debentures, (c) to exchange the Private Debentures for the Exchange
Debentures pursuant to the Indenture and (d) to engage in those activities
necessary, convenient or incidental thereto. The Depositor hereby appoints the
Property Trustee and the Delaware Trustee as trustees of the Trust, to have all
the rights, powers and duties to the extent set forth herein, and the Property
Trustee and the Delaware Trustee hereby accept such appointment. The Property
Trustee hereby declares that it will hold the Trust Property in trust upon and
subject to the conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrators shall have only those ministerial duties set
forth herein with respect to accomplishing the purposes of the Trust and shall
not be trustees of the Trust or, to the fullest extent permitted by law,
fiduciaries with respect to the Trust or the Securityholders. The Delaware
Trustee shall not be entitled to exercise any powers, nor shall the Delaware
Trustee have any of the duties and responsibilities, of the Property Trustee or
the Administrators set forth herein. The Delaware Trustee shall be one of the
Trustees of the Trust for the sole and limited purposes of fulfilling the
requirements of Section 3807 of the Delaware Business Trust Act and accepting
service of process on the Trust in the State of Delaware.
A. SECTION . Authorization to Enter into Certain Transactions. The Trustees
shall conduct the affairs of the Trust in accordance with the terms of this
Trust Agreement. Subject to the limitations set forth in paragraph (b) of this
Section and in accordance with the following provisions (i) and (ii), the
Trustees shall have the authority to enter into all transactions and agreements
determined by the Trustees to be appropriate in exercising the authority,
express or implied, otherwise granted to the Trustees under this Trust
Agreement, and to perform all acts in furtherance thereof, including without
limitation, the following:
a) As among the Trustees, each Administrator shall have the power and
authority to act on behalf of the Trust with respect to the following matters:
1 the issuance and sale of the Trust Securities including any
agreements necessary with respect to such issuance and sale;
2 to cause the Trust to enter into, and to execute, deliver and perform on
behalf of the Trust, the Registration Rights Agreements, the Expense Agreement
and the Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function of the
Trust;
3 assisting in the registration of the Exchange Offer and the Exchange
Capital Securities under the Securities Act, and under the state securities or
blue sky laws, and the qualification of this Trust Agreement as a trust
indenture under the Trust Indenture Act, all in accordance with the Capital
Securities Exchange and Registration Rights Agreement;
4 assisting in any listing of the Exchange Capital Securities upon such
securities exchange or exchanges as shall be determined by the Depositor and the
registration of the Exchange Capital Securities under the Exchange Act and the
preparation and filing of all periodic and other reports and other documents
pursuant to the foregoing, all in accordance with the Capital Securities
Exchange and Registration Rights Agreement;
5 the sending of notices (other than notices of default) and
<PAGE>
other information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
6 the appointment of a Paying Agent and Securities Registrar
in accordance with this Trust Agreement;
7 executing the Trust Securities in accordance with this Trust
Agreement;
8 to the extent provided in this Trust Agreement, the winding up of the
affairs of and liquidation of the Trust and the preparation, execution and
filing of the certificate of cancellation with the Secretary of State of the
State of Delaware;
9 unless otherwise determined by the Depositor, the Property Trustee or the
Administrators, or as otherwise required by the Delaware Business Trust Act or
the Trust Indenture Act, to execute on behalf of the Trust (either acting alone
or together with any or all of the Administrators) any documents that the
Administrators have the power to execute pursuant to this Trust Agreement; and
10 the taking of any action incidental to the foregoing as the
Administrators may from time to time determine is necessary or advisable to give
effect to the terms of this Trust Agreement for the benefit of the
Securityholders (without consideration of the effect of any such action on any
particular Securityholder).
b) As among the Trustees, the Property Trustee shall have the power, duty
and authority to act on behalf of the Trust with respect to the following
matters:
1 the establishment of the Payment Account;
2 the receipt of the Debentures;
3 the collection of interest, principal and any other payments
made in respect of the Debentures in the Payment Account;
4 the distribution through the Paying Agent of amounts owed to
the Securityholders in respect of the Trust Securities;
5 the exercise of all of the rights, powers and privileges of
a holder of the Debentures in accordance with the terms of this Trust
Agreement;
6 the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the Securityholders in
accordance with this Trust Agreement;
7 the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
8 to the extent provided in this Trust Agreement, the winding up of the
affairs of and liquidation of the Trust and the preparation, execution and
filing of the certificate of cancellation with the Secretary of State of the
State of Delaware;
9 to exchange the Private Guarantee for the Exchange Guarantee pursuant to
the Guarantee Exchange and Registration Rights Agreement in the exchange in
connection with the Exchange Offer;
10 to exchange the Private Debentures for the Exchange Debentures in an
exchange in connection with the Exchange Offer pursuant to the Debenture
Exchange and Registration Rights Agreement;
11 after an Event of Default (other than under paragraph (b), (c), (d) or
(e) of the definition of such term if such Event of Default is by or with
respect to the Property Trustee) the taking of any action incidental to the
foregoing as the Property Trustee may from time to time
<PAGE>
determine is necessary or advisable to give effect to the terms of this Trust
Agreement and protect and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any such action on any
particular Securityholder) and, within 90 days after the occurrence of any Event
of Default actually known to an officer of the Property Trustee assigned to its
Corporate Trust Office, to give notice thereof to the Securityholders; and
12 except as otherwise provided in this Section 2.07(a)(ii), or in the
Trust Indenture Act (regardless of whether applicable or not), the Property
Trustee shall have none of the duties, liabilities, powers or the authority of
the Administrators set forth in Section 2.07(a)(i).
2. So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees on behalf of the Trust shall not (i) acquire
any investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or
otherwise dispose of any of the Trust Property or interests therein, including
to Securityholders, except as expressly provided herein, (iii) take any action
that would cause the Trust to fail or cease to qualify as a "grantor trust" for
United States Federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The
Administrators shall defend all claims and demands of all Persons at any time
claiming any Lien on any of the Trust Property adverse to the interest of the
Trust or the Securityholders in their capacity as Securityholders.
3. In connection with the issuance and sale of the Capital Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
a) negotiation of the terms of, and the execution and delivery
of, the Purchase Agreement providing for the sale of the Capital
Securities; and
b) preparation of an application for designation of the Private
Capital Securities for trading in the PORTAL Market at the time of issuance
thereof; and
c) the preparation of an offering memorandum and the preparation and
filing by the Trust with the Commission and the execution on behalf of the Trust
of a registration statement on the appropriate form in relation to the Exchange
Offer, including any amendments thereto and/or a "shelf" registration statement
to register the Private Capital Securities, the Private Guarantee and the
Private Debentures, in each case in accordance with the provisions of the
Registration Rights Agreements;
d) the determination of the states, if any, in which to take appropriate
action to qualify or register for sale all or part of the Capital Securities and
the Guarantee and the determination of any and all such acts, other than actions
which must be taken by or on behalf of the Trust, and the advice to the Trustees
of actions they must take on behalf of the Trust, and the preparation for
execution and filing of any documents
<PAGE>
to be executed and filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply with the applicable
laws of any such state; and
e) any other actions necessary or desirable to carry out any of
the foregoing activities.
4 Notwithstanding anything herein to the contrary, the Administrators are
authorized and directed to conduct the affairs of the Trust and to operate the
Trust so that the Trust will not be deemed to be an "investment company"
required to be registered under the 1940 Act or fail or cease to be classified
as a grantor trust for United States Federal income tax purposes and so that the
Debentures will be treated as indebtedness of the Depositor for United States
Federal income tax purposes. In this connection, the Depositor and the
Administrators are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that each of
the Depositor and any Administrator determines in its discretion to be necessary
or desirable for such purposes, as long as such action does not adversely affect
in any material respect the interests of the Holders of the Capital Securities.
G. SECTION . Assets of Trust. The assets of the Trust shall consist of
the Trust Property.
H. SECTION . Title to Trust Property. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and administered by the Property Trustee for the benefit of
the Trust and the Securityholders in accordance with this Trust Agreement.
I. ARTICLE
PAYMENT ACCOUNT
A. SECTION . Payment Account. On or prior to the Closing Date, the Property
Trustee shall establish the Payment Account. The Property Trustee and any agent
of the Property Trustee shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose of making
deposits in and withdrawals from the Payment Account in accordance with this
Trust Agreement. All monies and other property deposited or held from time to
time in the Payment Account shall be held by the Property Trustee in the Payment
Account for the exclusive benefit of the Securityholders and for distribution as
herein provided, including (and subject to) any priority of payments provided
for herein.
2 The Property Trustee shall deposit in the Payment Account, promptly upon
receipt, all payments of principal of or interest on, and any other payments or
proceeds with respect to, the Debentures. Amounts held in the Payment Account
shall not be invested by the Property Trustee pending distribution thereof.
<PAGE>
I. ARTICLE
DISTRIBUTIONS; REDEMPTION
1. SECTION . Distributions. Distributions (including Distributions of
Additional Amounts) will be made on the Trust Securities at the rate and on the
dates that payments of interest (including of Additional Interest, as defined in
the Indenture and of Special Interest, as defined in the Capital Securities
Exchange and Registration Rights Agreement) are made on the Debentures.
Distributions on the Trust Securities shall be cumulative, and will accumulate
whether or not there are funds of the Trust available for the payment of
Distributions. Distributions shall accumulate from December 15, 1996 and, except
in the event (and to the extent) that the Depositor exercises its right to defer
the payment of interest on the Debentures pursuant to the Indenture, shall be
payable semiannually in arrears on June 15 and December 15 of each year,
commencing on June 15, 1997. If any date on which a Distribution is otherwise
payable on the Trust Securities is not a Business Day, then the payment of such
Distribution shall be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of any such delay) (each
date on which Distributions are payable in accordance with this Section 4.01(a),
a "Distribution Date").
2 Assuming payments of interest on the Debentures are made when due and
assuming compliance by the Depositor and the Trust with their obligations under
the Capital Securities Exchange and Registration Rights Agreement (and before
giving effect to any Additional Amounts, if applicable, or to Additional
Distributions, if applicable), Distributions on the Trust Securities shall be
payable at a rate of 8.16% per annum of the Liquidation Amount of the Trust
Securities. The amount of Distributions payable for any full period shall be
computed on the basis of a 360-day year of twelve 30-day months. The amount of
Distributions for any partial period shall be computed on the basis of the
number of days elapsed in a 360-day year of twelve 30-day months. The amount of
Distributions payable for any period shall include the Additional Amounts, if
any, and the Additional Distribution, if any.
3 Distributions on the Trust Securities shall be made by the Property
Trustee from the Payment Account and shall be payable on each Distribution Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Distributions.
4 Distributions on the Trust Securities with respect to a Distribution Date
shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be
the first day of the month in which the relevant Distribution Date occurs.
5. SECTION . Redemption. On each Debenture Prepayment Date and on the
stated maturity of the Debentures, the Trust will be required to redeem a
Like Amount of Trust Securities at the Redemption Price.
6 Notice of redemption shall be given by the Property Trustee
<PAGE>
by first-class mail, postage prepaid, mailed not less than 15 nor more than 60
days prior to the Redemption Date to each Holder of Trust Securities to be
redeemed, at such Holder's address appearing in the Security Register.
All notices of redemption shall state:
a the Redemption Date;
b the Redemption Price, or if the Redemption Price cannot be
calculated prior to the time the notice of redemption is required to be
sent, the manner of calculation thereof;
c the CUSIP number;
d if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
e that on the Redemption Date the Redemption Price will become due and
payable upon each such Trust Security to be redeemed and that Distributions
thereon will cease to accumulate on and after said date.
7. The Trust Securities redeemed on each Redemption Date shall be redeemed
at the Redemption Price with the proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall be made and the Redemption
Price shall be payable on each Redemption Date only to the extent that the Trust
has funds then on hand and available in the Payment Account for the payment of
such Redemption Price.
8 If the Property Trustee gives a notice of redemption in respect of any
Capital Securities, then, by 10:00 a.m., New York City time, on the Redemption
Date, the Depositor shall deposit sufficient funds with the Property Trustee to
pay the Redemption Price. If such deposit has been made, then, by 12:00 noon,
New York City time, on the Redemption Date, subject to Section 4.02(c), the
Property Trustee will, so long as the Capital Securities are in book-entry-only
form, irrevocably deposit with the Clearing Agency for the Capital Securities
funds sufficient to pay the applicable Redemption Price and will give such
Clearing Agency irrevocable instructions and authority to pay the Redemption
Price to the Holders thereof. If Capital Securities are no longer in
book-entry-only form, the Property Trustee, subject to Section 4.02(c), will
irrevocably deposit with the Paying Agent funds sufficient to pay the applicable
Redemption Price and will give the Paying Agent irrevocable instructions and
authority to pay the Redemption Price with respect to such Capital Securities to
the Holders thereof upon surrender of their Capital Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Securityholders to receive the Redemption Price and any
Distribution payable on or prior to the Redemption Date, but without interest,
and such Trust Securities will cease to be outstanding. In the event that any
date on which any Redemption Price is payable is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any
<PAGE>
such delay), except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the Trust or
by the Depositor pursuant to the Guarantee, Distributions on such Trust
Securities will continue to accumulate, at the then applicable rate, from the
Redemption Date originally established by the Trust for such Trust Securities to
the date such Redemption Price is actually paid, in which case the actual
payment date will be the date fixed for redemption for purposes of calculating
the Redemption Price.
9 Payment of the Redemption Price on the Trust Securities shall be made to
the Holders thereof as they appear on the Securities Register for the Trust
Securities on a date to be established as the record date for the distribution
by the Administrators, which date shall be not more than 45 days nor less than
15 days prior to the relevant Redemption Date.
10 Subject to Section 4.03(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Capital Securities. The particular Capital Securities to be redeemed shall
be selected not less than 15 nor more than 60 days prior to the Redemption Date
by the Property Trustee from the Outstanding Capital Securities not previously
called for redemption, by such method (including, without limitation, on a pro
rata basis or by lot) as the Property Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to
$1,000 or an integral multiple of $1,000 in excess thereof) of the Liquidation
Amount of Capital Securities of a denomination larger than $1,000; provided
however that redemption must be pro rata on the basis of the Outstanding Capital
Securities held by each Holder unless the Property Trustee advised by Opinion of
Counsel determines that non-pro rata redemption will not cause the Trust to fail
or cease to be classified as a grantor trust for United States Federal income
tax purposes or, if the Trust might fail or cease to be classified as a grantor
trust, will not cause the Trust to be classified as an association taxable as a
corporation for United States Federal income tax purposes. In any such proration
the Property Trustee may make such adjustments so that any Capital Security to
be redeemed shall, after such redemption, be in an authorized denomination,
subject to the last paragraph of Section 5.04(a). The Property Trustee shall
promptly notify the Securities Registrar in writing of the Capital Securities
selected for redemption and, in the case of any Capital Securities selected for
partial redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Capital Securities shall relate, in the
case of any Capital Securities redeemed or to be redeemed only in part, to the
portion of the Liquidation Amount of Capital Securities that has been or is to
be redeemed.
1A. SECTION . Subordination of Common Securities. Payment of
Distributions (including Additional Amounts, if applicable, and Additional
Distributions, if applicable) on, and the Redemption Price of, the Trust
<PAGE>
Securities, as applicable, shall be made, subject to Section 4.02(f), pro rata
among the Common Securities and the Capital Securities based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any Distribution
Date or Redemption Date any Event of Default resulting from a Debenture Event of
Default shall have occurred and be continuing, no payment of any Distribution
(including Additional Amounts, if applicable, and Additional Distributions, if
applicable) on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including Additional Amounts, if applicable) on all
Outstanding Capital Securities for all Distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all Outstanding Capital Securities, shall have been
made or provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts, if applicable, and Additional
Distributions, if applicable) on, or the Redemption Price of, Capital Securities
then due and payable.
12 In the case of the occurrence of any Event of Default resulting from any
Debenture Event of Default, the Holder of Common Securities will be deemed to
have waived any right to act with respect to any such Event of Default under
this Trust Agreement until the effect of all such Events of Default with respect
to the Capital Securities have been cured, waived or otherwise eliminated. Until
any such Event of Default under this Trust Agreement with respect to the Capital
Securities has been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the Holders of the Capital Securities and
not the Holder of the Common Securities, and only the Holders of the Capital
Securities will have the right to direct the Property Trustee to act on their
behalf.
A. SECTION . Payment Procedures. Payments of Distributions (including
Additional Amounts, if applicable, and Additional Distributions, if applicable)
in respect of the Capital Securities shall be made by check mailed to the
address of the Person entitled thereto as such address shall appear on the
Securities Register or, if the Capital Securities are held by a Clearing Agency,
such Distributions shall be made to the Clearing Agency in immediately available
funds, which shall credit the relevant Persons accounts at such Clearing Agency
on the applicable Distribution Dates. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually agreed between the
Property Trustee and the Common Securityholder.
B. SECTION . Tax Returns and Reports. The Administrators shall prepare (or
cause to be prepared), at the Depositor's expense, and file all United States
Federal, state and local tax and information returns and reports required to be
filed by or in respect of the Trust. In this regard, the Administrators shall
(a) prepare and file (or cause to be prepared and filed) the appropriate
Internal Revenue Service Form required to be filed in respect of the Trust in
each taxable year of the Trust and (b) prepare and furnish (or cause to be
prepared and furnished) to each Securityholder
<PAGE>
the appropriate Internal Revenue Service form required to be provided on such
form. The Administrators shall provide the Depositor and the Property Trustee
with a copy of all such returns and reports promptly after such filing or
furnishing. The Trustees shall comply with United States Federal withholding and
backup withholding tax laws and information reporting requirements with respect
to any payments to Securityholders under the Trust Securities.
C. SECTION . Payment of Taxes, Duties, Etc. of the Trust. Upon receipt
under the Debentures of Additional Sums and the written direction of any of the
Administrators, the Property Trustee shall promptly pay, solely out of monies on
deposit pursuant to this Trust Agreement, any taxes, duties or governmental
charges of whatsoever nature (other than withholding taxes) imposed on the Trust
by the United States or any other taxing authority.
D. SECTION . Reduction for Payments under Indenture or Pursuant to Direct
Actions. Any amount payable hereunder to any Holder of Capital Securities shall
be reduced by the amount of any corresponding payment such Holder (or an Owner
with respect to the Holder's Capital Securities) has directly received pursuant
to Section 6.05 of the Indenture or Section 5.14 of this Trust Agreement.
Notwithstanding any such payments, the Depositor shall remain obligated to pay
the principal of or interest on the Debentures and the Depositor shall be
subrogated to the rights of the Holder (and Owner) of such Capital Securities
with respect to payments on the Capital Securities to the extent of any payments
made by the Depositor to such Holder (and Owner) pursuant to either of such
Sections.
I. ARTICLE
TRUST SECURITIES CERTIFICATES
A. SECTION . Initial Ownership. Upon the creation of the Trust and the
contribution by the Depositor referred to in Section 2.03 and until the issuance
of the Trust Securities, and at any time during which no Trust Securities are
outstanding, the Depositor shall be the sole beneficial owner of the Trust.
A. SECTION . The Trust Securities Certificates; Execution and Delivery
Thereof. The Capital Securities Certificates shall be issued in denominations of
$1,000 Liquidation Amount and integral multiples thereof, and the Common
Securities Certificates shall be issued in denominations of $1,000 Liquidation
Amount and integral multiples thereof. The Trust Securities Certificates shall
be executed on behalf of the Trust by manual signature of at least one
Administrator. Trust Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefits of this Trust Agreement, notwithstanding that such individuals
or any of them shall have ceased to be so authorized prior to the delivery of
such Trust Securities Certificates or did not hold such offices at the date of
<PAGE>
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee's name
pursuant to Sections 5.04, 5.11 and 5.13.
B. SECTION . Execution and Delivery of Trust Securities Certificates. At
the Closing Date, the Administrators, or any of them, shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.04 and 2.05, to be executed on behalf of the Trust and delivered to
or upon the written order of the Depositor, signed by its Chairman of the Board,
any Vice Chairman of the Board, its President, any Vice President, its Treasurer
or any Assistant Treasurer or its Controller, without further corporate action
by the Depositor, in authorized denominations.
C. SECTION . Registration of Transfer and Exchange of Capital
Securities Certificates.
1 The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.08, a register for the purpose of registering
Trust Securities Certificates and transfers and exchanges of Capital Securities
Certificates (the "Securities Register") in which the registrar designated by
the Depositor (the "Securities Registrar"), subject to such reasonable
regulations as it may prescribe, shall provide for the registration of Capital
Securities Certificates and Common Securities Certificates (subject to Section
5.04(a) in the case of Capital Securities and Section 5.04(b) in the case of
Private Capital Securities and subject to Section 5.10 in the case of the Common
Securities Certificates) and registration of transfers and exchanges of Capital
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar. The Securities Registrar shall not be required to register
the transfer or exchange of any Capital Securities (i) during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of
redemption of Capital Securities and ending at the close of business on the day
of such mailing or (ii) that have been selected for redemption in whole or in
part, except the unredeemed portion of any Capital Security redeemed in part..
Upon surrender for registration of transfer of any Capital Securities
Certificate at the office or agency maintained pursuant to Section 5.08 and
subject to compliance with Section 5.04(a) in the case of Capital Securities and
5.04(b) in the case of Private Capital Securities, the Administrators or any one
of them shall execute and deliver, in the name of the designated transferee or
transferees, one or more new Capital Securities Certificates in authorized
denominations of a like aggregate Liquidation Amount dated the date of execution
by such Administrator or Administrators. Subject to Section 5.11, at the option
of a Holder, Capital Securities Certificates may be exchanged for other Capital
Securities Certificates in authorized denominations of the same class and of a
like aggregate Liquidation Amount upon surrender of the Capital Securities
Certificates to be exchanged at the office or agency maintained
<PAGE>
pursuant to Section 5.08.
Every Capital Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrator and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Capital Securities Certificate surrendered for registration of
transfer or exchange shall be canceled and subsequently disposed of by the
Securities Registrar in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of Capital Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Capital Securities
Certificates.
All Trust Securities shall be dated their date of execution.
The Capital Securities will be issued, and may be transferred, only in
blocks having a Liquidation Amount of not less than $100,000 (100 Capital
Securities). Any transfer, sale or other disposition of Capital Securities in a
block having a Liquidation Amount of less than $100,000 shall be deemed to be
void and of no legal effect whatsoever. Any such transferee shall be deemed not
to be the holder of such Capital Securities for any purpose, including but not
limited to the receipt of Distributions on such Capital Securities, and such
transferee shall be deemed to have no interest whatsoever in such Capital
Securities.
a In addition to the restrictions on transfer set forth in Section 5.04(a)
and 5.04(b)(ii), beneficial ownership of every Private Capital Security is
subject to the restrictions on transfer imposed by the Securities Act and rules
and regulations promulgated by the Commission thereunder and each certificate
representing Private Capital Securities shall bear restrictive legends (the
"Securities Act Legends") substantially in the form attached as Exhibit I
hereto, unless such restrictions on transfer shall be terminated in accordance
with paragraph (ii) below. The Holder of each Private Capital Security, by such
Holder's acceptance thereto, agrees to be bound by such restrictions on
transfer.
b The restrictions imposed by the Securities Act and this paragraph (b)(ii)
upon the transferability of any particular Private Capital Security shall cease
and terminate upon delivery by at least one Administrator on behalf of the Trust
to the Property Trustee of an Officers Certificate and Opinion of Counsel
stating that such Private Capital Security has been sold pursuant to an
effective registration statement under the Securities Act, exchanged for a
corresponding Liquidation Amount of Exchange Capital Securities pursuant to an
effective registration statement under the Securities Act, or transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto). Any Private Capital Security as to which such Administrator has
delivered to the Property Trustee an Officers Certificate and Opinion of Counsel
that such restrictions on transfer shall have expired in accordance with their
terms
<PAGE>
or shall have terminated may, upon surrender of such Private Capital Security
for exchange to the Security Registrar or any transfer agent in accordance with
the provisions of this paragraph (b)(ii) be exchanged for a new Capital
Security, of like tenor and aggregate Liquidation Amount, which shall not bear
the Securities Act Legends. The Administrator shall inform the Property Trustee
in writing of the effective date of any registration statement registering the
Private Capital Securities or the Exchange Capital Securities under the
Securities Act. The Property Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the aforementioned
registration statement.
As used in the last paragraph of paragraph (a) of this Section 5.04 and in
paragraphs (i) and (ii) of this paragraph (b), the term "transfer" encompasses
any sale, pledge, transfer or other disposition of any Private Capital Security.
1 SECTION . Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If any mutilated Trust Securities Certificate shall be surrendered
to the Securities Registrar, or if the Securities Registrar shall receive
evidence to its satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and there shall be delivered to the Securities Registrar
and the Administrators such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide purchaser, the
Administrators, or any one of them, on behalf of the Trust shall execute and
make available for delivery, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Securities Certificate, a new Trust Securities
Certificate of like class, tenor and denomination. In connection with the
issuance of any new Trust Securities Certificate under this Section, the
Administrators or the Securities Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Trust Securities Certificate issued pursuant
to this Section shall constitute conclusive evidence of an undivided beneficial
interest in the Trust Property, as if originally issued, whether or not the
lost, stolen or destroyed Trust Securities Certificate shall be found at any
time.
The provisions of this Section 5.05 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
of mutilated, destroyed, lost or stolen Trust Securities.
A. SECTION . Persons Deemed Securityholders. The Trustees or the Securities
Registrar shall treat the Person in whose name any Trust Securities Certificate
shall be registered in the Securities Register as the owner of such Trust
Securities Certificate for the purpose of receiving Distributions and for all
other purposes whatsoever (subject to the record date provisions hereof), and
neither the Trustees nor the Securities Registrar shall be bound by any notice
to the contrary.
B. SECTION . Access to List of Securityholders Names and Addresses.
At any time when the Property Trustee is not also acting as the Securities
<PAGE>
Registrar, the Depositor shall furnish or cause to be furnished to the Property
Trustee, semiannually not more than 5 days after December 1 and June 1 of each
year beginning with June 1997, and at such other times as the Property Trustee
may request in writing within 30 days after receipt by the Depositor of any such
request, a list, in such form as the Property Trustee may reasonably require
containing all information in the possession or control of the Depositor, or any
Paying Agent or any registrar of the Trust Securities other than the Property
Trustee, as to the names and addresses of the Securityholders obtained (in the
case of each list other than the first list) since the date as of which the next
previous list was furnished. Any such list may be dated as of a date not more
than fifteen days prior to the time such information is furnished or caused to
be furnished, and need not include information received after such date. The
rights of Securityholders to communicate with other Securityholders with respect
to their rights under this Trust Agreement or under the Trust Securities, and
the corresponding obligations and rights of the Property Trustee, shall be as
provided in the Trust Indenture Act. Each Holder, by receiving and holding a
Trust Securities Certificate, and each Owner shall be deemed to have agreed not
to hold the Depositor, the Property Trustee or the Administrators accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
C. SECTION . Maintenance of Office or Agency for Transfers. The
Administrators shall maintain an office or offices or agency or agencies where
Capital Securities Certificates may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Trustees in respect of
the Trust Securities Certificates may be served. The Administrators initially
designate The Chase Manhattan Bank, 450 West 33rd Street, New York, New York,
10001, Attn: Corporate Trustee Administration Department, as their office or
agency for such purposes. The Administrators shall give prompt written notice to
the Depositor and to the Securityholders of any change in the location of the
Securities Register or any such office or agency.
D. SECTION . Appointment of Paying Agent. The Paying Agent shall make
Distributions to Securityholders from the Payment Account and shall report the
amounts of such Distributions to the Property Trustee and the Administrators.
Any Paying Agent shall have the revocable power to withdraw funds from the
Payment Account for the purpose of making the Distributions referred to above.
The Administrators may revoke such power and remove the Paying Agent if such
Trustees determine in their sole discretion that the Paying Agent shall have
failed to perform its obligations under this Trust Agreement in any material
respect. The Paying Agent shall initially be the Bank, and any co-paying agent
chosen by the Bank, and acceptable to the Administrators and the Depositor. Any
Person acting as Paying Agent shall be permitted to resign as Paying Agent upon
30 days written notice to the Administrators, the Property Trustee and the
Depositor. In the event that the Bank shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked, the
Administrators shall appoint a successor that is acceptable to the Property
Trustee and the Depositor to act as Paying Agent (which shall be a bank or trust
company). The Administrators shall cause such successor Paying Agent or any
<PAGE>
additional Paying Agent appointed by the Administrators to execute and deliver
to the Trustees an instrument in which such successor Paying Agent or additional
Paying Agent shall agree with the Trustees that as Paying Agent, such successor
Paying Agent or additional Paying Agent will hold all sums, if any, held by it
for payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
Sections 8.02, 8.04 and 8.06 herein shall apply to the Bank also in its role as
Paying Agent, for so long as the Bank shall act as Paying Agent and, to the
extent applicable, to any other paying agent appointed hereunder. Any reference
in this Agreement to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
E. SECTION . Ownership of Common Securities by Depositor. At the Closing
Date, the Depositor shall acquire and retain beneficial and record ownership of
the Common Securities. To the fullest extent permitted by law, other than a
transfer in connection with a consolidation or merger of the Depositor into
another Person, or any conveyance, transfer or lease by the Depositor of its
properties and assets substantially as an entirety to any Person, pursuant to
Article Eleven of the Indenture, any attempted transfer of the Common Securities
shall be void. The Administrators shall cause each Common Securities Certificate
issued to the Depositor to contain a legend stating "THIS CERTIFICATE IS NOT
TRANSFERABLE."
1. SECTION . Book-entry Interests. So long as Capital Securities are
eligible for book-entry settlement with the Clearing Agency or unless otherwise
required by law, all Capital Securities that are so eligible may be represented
by one or more fully registered Capital Securities Certificates (each a "Book
Entry Capital Securities Certificate") in global form to be delivered to the
Clearing Agency, by, or on behalf of, the Trust. Such Book Entry Capital
Securities Certificates shall initially be registered on the Securities Register
in the name of Cede & Co., the nominee of DTC. The transfer and exchange of
beneficial interests in any Capital Security held in global form shall be
effected through the Clearing Agency in accordance with this Trust Agreement and
the procedures of the Clearing Agency therefor. No Owner of an interest in a
Private Capital Security held in a Book Entry Capital Securities Certificate
will receive a Definitive Capital Securities Certificate representing such
Owner's interests in such Book Entry Capital Securities Certificate, except as
provided in Section 5.11(c) or Section 5.11(f) below.
2 Private Capital Securities that upon initial issuance are beneficially
owned by QIBs may, at the option of the Trust, be represented by a Book Entry
Capital Securities Certificate (a "144A Global Security"), and Private Capital
Securities that upon initial issuance are beneficially owned by non-U.S. Persons
may, at the option of the Trust, be represented by another Book Entry Capital
Securities Certificate (a "Regulation S Global Security"). Transfers of
interests in the Private Capital Securities between any 144A Global Security and
any Regulation S Global
<PAGE>
Security will be made in accordance with the standing instructions and
procedures of the Clearing Agency and its participants and in accordance with
Section 5.11(d)(ii) and (iii), as applicable. The Property Trustee shall make
appropriate endorsements to reflect increases or decreases in the amount of such
Private Capital Securities in global form to reflect any such transfers.
3 So long as the Private Capital Securities are eligible for book-entry
settlement and to the extent Private Capital Securities held by QIBs or non-U.S.
Persons, as the case may be, are held in global form, or unless otherwise
required by law, upon any transfer of a definitive Private Capital Security to a
QIB in accordance with Rule 144A or to a non-U.S. Person in accordance with
Regulation S, and upon receipt of the definitive Private Capital Security or
Capital Securities being so transferred, subject to Section 5.11(d), the
Property Trustee on behalf of the Trust shall make an endorsement on any 144A
Global Security or any Regulation S Global Security, as the case may be, to
reflect an increase in the number of Private Capital Securities represented by
such Book-Entry Capital Securities Certificate and the Property Trustee on
behalf of the Trust shall cancel such definitive Private Capital Securities in
accordance with the standing instructions and procedures of the Clearing Agency,
the number of Private Capital Securities represented by such Book Entry Capital
Securities Certificate to be increased accordingly; provided that no definitive
Private Capital Security, or portion thereof, in respect of which the Trust or
an Affiliate of the Trust held any beneficial interest shall be included in such
Book Entry Capital Securities Certificate until such definitive Private Capital
Security is freely tradable in accordance with Rule 144(k); provided further
that the Trust shall issue Capital Securities in definitive form upon any
transfer of a beneficial interest in the Capital Security in global form to the
Company or any Affiliate of the Company.
4 Prior to such time as the restrictions on transfer of Private Capital
Securities imposed by the Securities Act and the rules and regulations
promulgated by the Commission thereunder shall be terminated as provided in
Section 5.04(b)(ii),
a any transfer of a definitive Private Capital Security shall be registered
upon the Securities Register only upon receipt by the Property Trustee of such
Private Capital Security accompanied by a duly completed and executed
certificate of transfer in the form attached to Exhibit B and, in the case of a
transfer to an institutional accredited investor (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Act) in a transaction exempt from the registration
requirements of the Securities Act, upon receipt by the Property Trustee of a
written certificate in the form of Exhibit F (or other certifications, legal
opinions or other information as the Depositor may reasonably request to confirm
that such transfer is exempt from the registration requirements of the
Securities Act);
b any transfer in accordance with Rule 904 of Regulation S of a beneficial
interest in a Rule 144A Global Security shall be reflected by an increase in the
Regulation S Global Security and a corresponding decrease in the Rule 144A
Global Security (in accordance with Section 5.11(b)) only upon receipt by the
Trustee of a written certificate in the form of Exhibit G (or such other
certifications, legal opinions or other
<PAGE>
information as the Depositor may reasonably require to confirm that such
transfer is being made pursuant to Rule 904); and
c any transfer pursuant to Rule 144A under the Securities Act of a
beneficial interest in a Regulation S Global Security shall be reflected by an
increase in the Rule 144A Global Security and a corresponding decrease in the
Regulation S Global Security (in accordance with Section 5.11(b)) only upon
receipt by the Property Trustee of a written certificate in the form of Exhibit
H (or such other certifications, legal opinions or other information as the
Depositor may reasonably require to confirm that such transfer is being made
pursuant to Rule 144A).
5 Any Book Entry Capital Securities Certificate may be endorsed with or
have incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Trust Agreement as may be required by
the Clearing Agency, by any national securities exchange or by the National
Association of Securities Dealers, Inc. in order for the Private Capital
Securities to be tradeable on the PORTAL Market or as may be required for the
Private Capital Securities to be tradeable on any other market developed for
trading of securities pursuant to Rule 144A or required to comply with any
applicable law or any regulation thereunder or with the rules and regulations of
any securities exchange upon which the Capital Securities may be listed or
traded or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Capital Securities
are subject.
6 Notwithstanding any other provisions of this Trust Agreement (other than
the provisions set forth in this Section 5.11(f)), a Private Capital Security in
global form may not be exchanged in whole or in part for Private Capital
Securities registered, and no transfer of a Private Capital Security in global
form may be registered, in the name of any person other than the Clearing Agency
or a nominee thereof unless (i) such Clearing Agency (A) has notified the
Property Trustee and the Depositor that it is unwilling or unable to continue as
Clearing Agency for such global Private Capital Security or (B) has ceased to be
a clearing agency registered as such under the Exchange Act and no successor
Clearing Agency has been appointed by the Depositor within 90 days after its
receipt of such notice or its becoming aware of such cessation of registration,
(ii) the Depositor in its sole discretion elects to cause the issuance of the
Private Capital Securities in certificated form, or (iii) there shall have
occurred and be continuing an Event of Default, or any event which after notice
or lapse of time or both would be an Event of Default under the Trust Agreement,
with respect to such global Private Capital Security. Following exchange of a
global Private Capital Security, or a portion thereof, for a definitive Private
Capital Security, no such definitive Private Capital Security, or portion
thereof, shall be included in any Book Entry Capital Securities Certificate
except pursuant to Section 5.11(c).
7 Unless and until Definitive Capital Securities Certificates have been
issued to Owners pursuant to Section 5.13:
a the provisions of this Section 5.11(g) shall be in full
force and effect;
b the Securities Registrar and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Trust Agreement relating to the
Book-Entry Capital Securities Certificates (including the
<PAGE>
payment of the Liquidation Amount of and Distributions on the Capital Securities
evidenced by Book-Entry Capital Securities and the giving of instructions or
directions to Owners of Capital Securities evidenced by Book-Entry Capital
Securities) as the sole Holder of Capital Securities evidenced by Book-Entry
Capital Securities and shall have no obligations to the Owners thereof;
c to the extent that the provisions of this Section 5.11 conflict with any
other provisions of this Trust Agreement, the provisions of this Section 5.11
shall control; and
d the rights of the Owners of the Book-Entry Capital Securities
Certificates shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such Owners and the
Clearing Agency and/or the Clearing Agency Participants. Pursuant to the
Certificate Depository Agreement, unless and until Definitive Capital Securities
Certificates are issued pursuant to this Section 5.11 or Section 5.13, the
initial Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the Capital Securities to such
Clearing Agency Participants.
8 Private Capital Securities initially purchased by Institutional
Accredited Investors will be issued only in certificated form.
9 A single Common Securities Certificate representing the Common Securities
shall be issued to the Depositor in the form of a definitive Common Securities
Certificate.
F. SECTION . Notices to Clearing Agency. To the extent that a notice or
other communication to the Owners is required under this Trust Agreement, unless
and until Definitive Capital Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to the Owners.
G. SECTION . Procedures for Issuance of Definitive Capital Securities
Certificates. Upon surrender to the Securities Registrar of the typewritten
Capital Securities Certificate or Certificates representing the Book Entry
Capital Securities Certificates by the Clearing Agency upon occurrence of any of
the events described in Section 5.11(f), accompanied by registration
instructions, the Administrators, or any one of them, shall execute and the
Securities Registrar shall register the Definitive Capital Securities
Certificates in accordance with the instructions of the Clearing Agency. Neither
the Securities Registrar nor the Trustees shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Capital Securities Certificates, the Trustees shall recognize the Holders of the
Definitive Capital Securities Certificates as Securityholders. The Definitive
Capital Securities Certificates shall be printed, lithographed or engraved or
may be produced in any other manner as is reasonably acceptable to the
Administrators, as evidenced by the execution thereof by the Administrators or
any one of them.
1. SECTION . Rights of Securityholders. The legal title to the Trust
<PAGE>
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.09, and the Securityholders shall not have any
right or title therein other than the undivided beneficial interest in the
assets of the Trust conferred by their Trust Securities and they shall have no
right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Trust Securities shall be personal
property giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or similar rights. When
issued and delivered to Securityholders against payment of the purchase price
therefor, the Capital Securities will be fully paid and nonassessable undivided
beneficial interests in the Trust Property. The Holders of the Capital
Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
2 For so long as any Capital Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Capital Securities then
Outstanding shall have such right by a notice in writing to the Depositor and
the Debenture Trustee; and upon any such declaration such principal amount of
and the accrued interest on all of the Debentures shall become immediately due
and payable, provided that the payment of principal and interest on such
Debentures shall remain subordinated to the extent provided in the Indenture.
At any time after such a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as provided in the
Indenture, the Holders of a majority in Liquidation Amount of the Capital
Securities, by written notice to the Property Trustee, the Depositor and the
Debenture Trustee, may rescind and annul such declaration and its consequences
if:
a the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay
1 all overdue installments of interest (including any
Additional Interest (as defined in the Indenture)) on all of the
Debentures,
2 the principal of (and premium, if any, on) any Debentures which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Debentures, and
3 all sums paid or advanced by the Debenture Trustee under the Indenture
and the reasonable compensation, expenses, disbursements and advances of the
Debenture Trustee and the Property Trustee, their agents and counsel and all
amounts payable to the Debenture Trustee under Section 7.06 of the Indenture;
and
b all Debenture Events of Default, other than the non-payment of the
principal of the Debentures which has become due solely by such acceleration,
have been cured or waived as provided in Article Six of the Indenture.
<PAGE>
The holders of a majority in aggregate liquidation preference of the
Capital Securities may, on behalf of the Holders of all the Capital Securities,
waive any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Debenture. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Capital
Securities all or part of which is represented by Book-Entry Capital Securities
Certificates, a record date shall be established for determining Holders of
Outstanding Capital Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Property Trustee receives
such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided, that, unless such
declaration of acceleration, or rescission and annulment, as the case may be,
shall have become effective by virtue of the requisite percentage having joined
in such notice prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment, as the case
may be, shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, after expiration of such 90-day period, a new
written notice of declaration of acceleration, or rescission and annulment
thereof, as the case may be, that is identical to a written notice which has
been canceled pursuant to the proviso to the preceding sentence, in which event
a new record date shall be established pursuant to the provisions of this
Section 5.14(b).
1 For so long as any Capital Securities remain Outstanding, to the fullest
extent permitted by law and subject to the terms of this Trust Agreement and the
Indenture, upon a Debenture Event of Default specified in Section 6.01(a) or
6.01(b) of the Indenture, any Holder of Capital Securities shall have the right
to institute a proceeding directly against the Depositor, pursuant to Article
Six of the Indenture, for enforcement of payment to such Holder of the principal
amount of or interest on Debentures having a principal amount equal to the
Liquidation Amount of the Capital Securities of such Holder (a "Direct Action").
Except as set forth in Section 5.14(b) and this Section 5.14(c), the Holders of
Capital Securities shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of, the Debentures.
<PAGE>
The holders of a majority in Liquidation Amount of the Capital Securities
at the time Outstanding shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred on the Property Trustee with
respect to such Capital Securities; provided, however, that, the Property
Trustee shall have the right to decline to follow any such direction if the
Property Trustee being advised by Opinion of Counsel determines that the action
so directed may not lawfully be taken, or if the Property Trustee in good faith
shall determine that the proceedings so directed would be illegal or involve it
in personal liability or be unduly prejudicial to the rights of Holders of
Capital Securities not parties to such direction, and provided further that
nothing in the Trust Agreement shall impair the right of the Property Trustee to
take any action deemed proper by the Property Trustee and which is not
inconsistent with such direction by such Securityholders.
I. ARTICLE
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
1. SECTION . Limitations on Voting Rights. Except as provided in this
Section, in Sections 5.14, 8.10 and 10.02 and in the Indenture and as otherwise
required by law, no Holder of Capital Securities shall have any right to vote or
in any manner otherwise control the administration, operation and management of
the Trust or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Securityholders from time to time as partners
or members of an association.
2 So long as any Debentures are held by the Property Trustee, the Trustees
shall not (i) direct the time, method and place of conducting any proceeding for
any remedy available to the Debenture Trustee, or executing any trust or power
conferred on the Debenture Trustee with respect to such Debentures, (ii) waive
any past default which is waivable under the Indenture, (iii) exercise any right
to rescind or annul a declaration that the principal of all the Debentures shall
be due and payable or (iv) consent to any amendment, modification or termination
of the Indenture or the Debentures, where the consent of Debentureholders shall
be required, without, in each case, obtaining the prior approval of the Holders
of at least a majority in Liquidation Amount of all Outstanding Capital
Securities, provided, however, that where a consent under the Indenture would
require the consent of each holder of Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior written consent
of each Holder of Capital Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of Capital
Securities, except by a subsequent vote of the Holders of Capital Securities.
Subject to Section 8.03, the Property Trustee shall notify all Holders of the
Capital Securities of any notice of default received from the Debenture Trustee
with respect to the Debentures. In addition to obtaining the foregoing approvals
of the Holders of the Capital Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of
<PAGE>
Counsel to the effect that such action shall not cause the Trust to be
classified as an association taxable as a corporation for United States Federal
income tax purposes.
3 If any proposed amendment to the Trust Agreement provides for, or the
Trustees otherwise propose to effect, (i) any action that would adversely affect
in any material respect the powers, preferences or special rights of the Capital
Securities, whether by way of amendment to the Trust Agreement or otherwise, or
(ii) the dissolution, winding-up or termination of the Trust, other than
pursuant to the terms of this Trust Agreement, then the Holders of Outstanding
Capital Securities as a class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of the Holders of at least a majority in Liquidation Amount of the
Outstanding Capital Securities, except as otherwise provided in Section
10.02(c). Notwithstanding any other provision of this Trust Agreement, no
amendment to this Trust Agreement may be made if, as a result of such amendment,
it would cause the Trust to fail or cease to be classified as a grantor trust
for United States Federal income tax purposes.
A. SECTION . Notice of Meetings. Notice of all meetings of the Capital
Securityholders, stating the time, place and purpose of the meeting, shall be
given by the Property Trustee pursuant to Section 10.08 to each Capital
Securityholder of record, at his registered address, at least 15 days and not
more than 90 days before the meeting. At any such meeting, any business properly
before the meeting may be so considered whether or not stated in the notice of
the meeting. Any adjourned meeting may be held as adjourned without further
notice.
B. SECTION . Meetings of Capital Securityholders. No annual meeting of
Securityholders is required to be held. The Administrators, however, shall call
a meeting of Capital Securityholders to vote on any matter upon the written
request of the Capital Securityholders of record of 25% of the Capital
Securities (based upon their Liquidation Amount) and the Administrators or the
Property Trustee may, at any time in their discretion, call a meeting of Capital
Securityholders to vote on any matters as to which Capital Securityholders are
entitled to vote.
Capital Securityholders of record of 50% of the Outstanding Capital
Securities (based upon their Liquidation Amount), present in person or by proxy,
shall constitute a quorum at any meeting of Capital Securityholders.
If a quorum is present at a meeting, an affirmative vote by the Capital
Securityholders of record present, in person or by proxy, holding more than a
majority of the Capital Securities (based upon their Liquidation Amount) held by
the Capital Securityholders of record present, either in person or by proxy, at
such meeting shall constitute the action of the Capital Securityholders, unless
this Trust Agreement requires a greater number of affirmative votes.
A. SECTION . Voting Rights. Securityholders shall be entitled to one
vote for each $1,000 of Liquidation Amount represented by their Trust
Securities in respect of any matter as to which such Securityholders are
entitled to vote.
<PAGE>
B. SECTION . Proxies, Etc. At any meeting of Securityholders, any
Securityholder entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrators, or with such other officer or agent of the Trust as the
Administrators may direct, for verification prior to the time at which such vote
shall be taken. Pursuant to a resolution of the Property Trustee, proxies may be
solicited in the name of the Property Trustee or one or more officers of the
Property Trustee. Only Securityholders of record shall be entitled to vote. When
Trust Securities are held jointly by several Persons, any one of them may vote
at any meeting in person or by proxy in respect of such Trust Securities, but if
more than one of them shall be present at such meeting in person or by proxy,
and such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
C. SECTION . Securityholder Action by Written Consent. Any action which may
be taken by Securityholders at a meeting may be taken without a meeting if
Securityholders holding more than a majority of all Outstanding Trust Securities
(based upon their Liquidation Amount) entitled to vote in respect of such action
(or such larger proportion thereof as shall be required by any express provision
of this Trust Agreement) shall consent to the action in writing.
D. SECTION . Record Date for Voting and Other Purposes. For the purposes of
determining the Securityholders who are entitled to notice of and to vote at any
meeting or by written consent, or to participate in any Distribution on the
Trust Securities in respect of which a record date is not otherwise provided for
in this Trust Agreement, or for the purpose of any other action, the
Administrators may from time to time fix a date, not more than 90 days prior to
the date of any meeting of Securityholders or the payment of a Distribution or
other action, as the case may be, as a record date for the determination of the
identity of the Securityholders of record for such purposes.
E. SECTION . Acts of Securityholders. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this
Trust Agreement to be given, made or taken by Securityholders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Securityholders in person or by an agent duly appointed in writing; and,
except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to an Administrator.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.02) conclusive in
favor of the Trustees, if made in the manner provided in this Section.
<PAGE>
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Trustee receiving the same deems sufficient.
The ownership of Capital Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to take
any action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrators or among such Securityholders or Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Securityholder or Trustee under
this Article 6, then the determination of such matter by the Property Trustee
shall be conclusive with respect to such matter.
A. SECTION . Inspection of Records. Upon reasonable notice to the
Administrators and the Property Trustee, the records of the Trust shall be open
to inspection by Securityholders during normal business hours for any purpose
reasonably related to such Securityholder's interest as a Securityholder.
<PAGE>
I. ARTICLE
REPRESENTATIONS AND WARRANTIES
A. SECTION . Representations and Warranties of the Bank, the Property
Trustee and the Delaware Trustee. The initial Property Trustee and the initial
Delaware Trustee, each severally on behalf of and as to itself, hereby
represents and warrants for the benefit of the Depositor and the Securityholders
that:
1 the Property Trustee is a corporation duly organized, validly existing
and in good standing under the laws of the State of New York; 2 the Property
Trustee has full corporate power, authority and legal right to execute, deliver
and perform its obligations under this Trust Agreement and has taken all
necessary action to authorize the execution, delivery and performance by it of
this Trust Agreement; 3 the Delaware Trustee is a Delaware banking corporation
duly organized, validly existing and in good standing with its principal place
of business in the State of Delaware; 4 the Delaware Trustee has full corporate
power, authority and legal right to execute, deliver and perform its obligations
under this Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement; 5 this Trust
Agreement has been duly authorized, executed and delivered by the Property
Trustee and the Delaware Trustee and constitutes the valid and legally binding
agreement of each of the Property Trustee and the Delaware Trustee enforceable
against each of them in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors rights and to general
equity principles; 6 the execution, delivery and performance of this Trust
Agreement has been duly authorized by all necessary corporate or other action on
the part of the Property Trustee and the Delaware Trustee and does not require
any approval of stockholders of the Property Trustee and the Delaware Trustee
and such execution, delivery and performance will not (i) violate the Charter or
By-laws of the Property Trustee or the Delaware Trustee or (ii) violate any law,
governmental rule or regulation of the State of New York or the State of
Delaware, as the case may be, governing the banking or trust powers of the
Property Trustee or the Delaware Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Property Trustee or the Delaware
Trustee; and 7 neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) contemplated herein or therein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency under any
existing State of New York or
<PAGE>
State of Delaware law governing the banking or trust powers of the Property
Trustee or the Delaware Trustee, as the case may be.
Any successor Property Trustee and Delaware Trustee shall make similar
representations and warranties as contained in this Section 7.01 for the benefit
of the Depositor and the Securityholders.
A. SECTION . Representations and Warranties of Depositor. The
Depositor hereby represents and warrants for the benefit of the
Securityholders that:
1 the Trust Securities Certificates issued at the Closing Date on behalf of
the Trust have been duly authorized and will have been duly and validly
executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders will be, as of each such date, entitled to the benefits
of this Trust Agreement; and
2 there are no taxes, fees or other governmental charges payable by the
Trust (or the Trustees on behalf of the Trust) under the laws of the State of
Delaware or any political subdivision thereof in connection with the execution,
delivery and performance by the Property Trustee or the Delaware Trustee, as the
case may be, of this Trust Agreement.
I. ARTICLE
THE TRUSTEES
A. SECTION . Corporate Property Trustee Required; Eligibility of
Trustees.
1 There shall at all times be a Property Trustee hereunder with respect to
the Trust Securities. The Property Trustee shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section
8.01(a), the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
2 There shall at all times be one or more Administrators hereunder with
respect to the Trust Securities. Each Administrator shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more persons authorized to bind that entity. No person shall be eligible
to act as an Administrator hereunder unless such person is an officer of the
Depositor.
<PAGE>
3 There shall at all times be a Delaware Trustee with respect to the Trust
Securities. The Delaware Trustee shall either be (i) a natural person who is at
least 21 years of age and a resident of the State of Delaware or (ii) a legal
entity with its principal place of business in the State of Delaware and that
otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
B. SECTION . Certain Duties and Responsibilities.
1 The duties and responsibilities of the Trustees shall be as provided by
this Trust Agreement and, in the case of the Property Trustee, by the Trust
Indenture Act, and no implied covenants or obligations shall be read into this
Trust Agreement against the Property Trustee. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require the Trustees to expend or risk
their own funds or otherwise incur any financial liability in the performance of
any of their duties hereunder, or in the exercise of any of their rights or
powers, if they shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. In the absence of bad faith on its part, the Property
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Property Trustee and conforming to the requirements of this
Trust Agreement. Whether or not therein expressly so provided, every provision
of this Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section. Nothing in this Trust Agreement shall be construed to release an
Administrator or the Delaware Trustee from liability for its own gross
negligence or willful misconduct. To the extent that, at law or in equity, an
Administrator or the Delaware Trustee has duties (including fiduciary duties)
and liabilities relating thereto to the Trust, any other Trustee or to the
Securityholders, such Administrator or the Delaware Trustee shall not be liable
to the Trust, any other Trustee or to any Securityholder for such Administrator
s or the Delaware Trustee's good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent that they
restrict the duties and liabilities of the Administrator or the Delaware Trustee
otherwise existing at law or in equity, are agreed by the Depositor, the
Trustees and the Securityholders to replace such other duties and liabilities of
the Administrators and the Delaware Trustee.
2 All payments made by the Property Trustee or a Paying Agent in respect of
the Trust Securities shall be made only from the revenue and proceeds from the
Trust Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Securityholder,
by its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees are not personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This 8.02(b) does not
limit the liability of the Trustees expressly set forth elsewhere in this Trust
<PAGE>
Agreement or, in the case of the Property Trustee, in the Trust Indenture Act.
3 No provision of this Trust Agreement shall be construed to relieve the
Property Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
a the Property Trustee shall not be liable for any error of judgment made
in good faith by an authorized officer of the Property Trustee, unless it shall
be proved that the Property Trustee was negligent in ascertaining the pertinent
facts;
b the Property Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the Holders of not less than a majority in Liquidation Amount of the Trust
Securities relating to the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee, or exercising any trust or
power conferred upon the Property Trustee under this Trust Agreement;
c the Property Trustee's sole duty with respect to the custody, safe
keeping and physical preservation of the Debentures and the Payment Account
shall be to deal with such property in a similar manner as the Property Trustee
deals with similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this Trust
Agreement and the Trust Indenture Act;
e the Property Trustee shall not be liable for any interest on any money
received by it except as it may otherwise agree with the Depositor; and money
held by the Property Trustee need not be segregated from other funds held by it
except in relation to the Payment Account maintained by the Property Trustee
pursuant to Section 3.01 and except to the extent otherwise required by law; and
5 the Property Trustee shall not be responsible for monitoring the
compliance by the Administrators or the Depositor with their respective duties
under this Trust Agreement, nor shall the Property Trustee be liable for the
default or misconduct of the Administrators or the Depositor.
C. SECTION . Certain Notices. Within 90 days after the occurrence of any
Event of Default actually known to an officer of the Property Trustee assigned
to its Corporate Trust Office, the Property Trustee shall transmit, in the
manner and to the extent provided in Section 10.08, notice of such Event of
Default to the Securityholders, the Administrators and the Depositor, unless
such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the Depositor s
exercise of its right to defer the payment of interest on the Debentures
pursuant to the Indenture, an Administrator shall transmit, in the manner and to
the extent provided in Section 10.08, notice of such exercise to the
Securityholders and the Property Trustee, unless such exercise shall have been
revoked.
A. SECTION . Certain Rights of Property Trustee. Subject to the
provisions of Section 8.02:
1 the Property Trustee may rely and shall be protected in
acting or refraining from acting in good faith upon any resolution, Opinion
<PAGE>
of Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
2 if (i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions of this Trust Agreement the Property Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which the
Capital Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
3 any direction or act of the Depositor or the Administrators
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers Certificate;
4 whenever in the administration of this Trust Agreement, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
suffering or omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officers Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor or the
Administrators;
5 the Property Trustee shall have no duty to see to any recording, filing
or registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
6 the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of the Trust or interpretation of
this Trust Agreement from any court of competent jurisdiction;
7 the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust Agreement
<PAGE>
at the request or direction of any of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have offered to the Property
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
8 the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Securityholders, but the
Property Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit;
9 the Property Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through its agents or
attorneys, provided that the Property Trustee shall not be responsible for any
misconduct or negligence on the part of, or for the supervision of, any such
agent or attorney appointed with due care by it hereunder;
10 whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions;
11 except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement; and
(l) the Property Trustee shall not be charged with knowledge of an Event of
Default unless an officer of the Property Trustee assigned to its Corporate
Trust Office obtains actual knowledge of such event or the Property Trustee
receives written notice of such event from the Depositor, any other Trustee or
Securityholders holding a majority or more of Capital Securities (based upon
Liquidation Amount).
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
A. SECTION . Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
<PAGE>
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
B. SECTION . May Hold Securities. Any Trustee or any other agent of any
Trustee or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and, subject to Sections 8.08 and 8.13 and
except as provided in the definition of the term "Outstanding" in Article 1, may
otherwise deal with the Trust with the same rights it would have if it were not
a Trustee or such other agent.
C. SECTION . Compensation; Indemnity; Fees.
1 The Depositor agrees:
a to pay to the Trustees from time to time reasonable compensation for all
services rendered by them hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
b except as otherwise expressly provided herein, to reimburse the Trustees
upon request for all reasonable expenses, disbursements and advances incurred or
made by the Trustees in accordance with any provision of this Trust Agreement
(including the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
c to the fullest extent permitted by applicable law, to indemnify and hold
harmless (w) each Trustee, (x) any Affiliate of any Trustee, (y) any officer,
director, shareholder, employee, representative or agent of any Trustee, and (z)
any employee or agent of the Trust or its Affiliates, (referred to herein as an
"Indemnified Person") from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred without
gross negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
d to the fullest extent permitted by applicable law, to advance expenses
(including legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding which shall be advanced, from time to time,
prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Depositor of (x) a written affirmation by or on behalf of
the Indemnified Person of its or his good faith belief that it or he has met the
standard of conduct set forth in this Section 8.07 and (y) an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in the preceding subsection.
The provisions of this Section 8.07 shall survive the termination of this
Trust Agreement and the resignation or removal of any Trustee.
No Trustee may claim any lien or charge on any Trust Property as a
<PAGE>
result of any amount due pursuant to this Section 8.07.
The Depositor and any Trustee (in the case of the Property Trustee, subject
to Section 8.08 hereof) may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of Trust
Securities shall have no rights by virtue of this Trust Agreement in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. Neither the Depositor, nor any Trustee,
shall be obligated to present any particular investment or other opportunity to
the Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and the Depositor or any Trustee shall have
the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Trustee may engage or be interested in any financial or other
transaction with the Depositor or any Affiliate of the Depositor, or may act as
depository for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Depositor or its Affiliates.
A. SECTION . Conflicting Interests. If the Property Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.
B. SECTION . Co-trustees and Separate Trustee. At any time or times, for
the purpose of conforming to the legal requirements of the Trust Indenture Act
or of any jurisdiction in which any part of the Trust Property may at the time
be located, the Depositor and the Administrators, except in such instances as
set forth in the following sentence, by agreed action of the majority of such
Administrators, shall have power to appoint, and upon the written request of the
Administrators, the Depositor shall for such purpose join with the
Administrators in the execution, delivery, and performance of all instruments
and agreements necessary or proper to appoint, one or more Persons approved by
the Property Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to the extent required by
law to act as separate trustee of any such property, in either case with such
powers as may be provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this Section.
If the Depositor does not join in such appointment within 15 days after the
receipt by it of a request so to do, or in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee alone shall have power to make
such appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age and
a resident of the United States or (ii) a legal entity with its principal place
of business in the United States that shall act through one or more persons
authorized to bind such entity.
<PAGE>
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor, provided, that, if a Debenture Event of Default shall have
occurred and be continuing the Property Trustee may execute any such instrument
on behalf of the Depositor as its agent and attorney-in-fact therefor.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms, namely:
1 The Trust Securities shall be executed and delivered and all rights,
powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be exercised,
solely by such Trustees and not by such co-trustee or separate trustee.
2 The rights, powers, duties, and obligations hereby conferred or imposed
upon the Property Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
co-trustee or separate trustee.
3 The Property Trustee at any time, by an instrument in writing executed by
it, with the written concurrence of the Depositor, may accept the resignation of
or remove any co-trustee or separate trustee appointed under this Section, and,
in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal, provided, that, if a Debenture Event of Default shall have occurred and
be continuing, the Property Trustee may execute any such instruments or
agreements on behalf of the Depositor as its agent and attorney-in-fact
therefor. A successor to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in this Section.
4 No co-trustee or separate trustee hereunder shall be personally liable by
reason of any act or omission of the Property Trustee or any other trustee
hereunder.
5 The Property Trustee shall not be liable by reason of any
act of a co-trustee or separate trustee.
6 Any Act of Holders delivered to the Property Trustee shall
be deemed to have been delivered to each such co-trustee and separate
<PAGE>
trustee.
B. SECTION . Resignation and Removal; Appointment of Successor. No
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee may
resign at any time by giving written notice thereof to the Securityholders and
the Depositor. Upon giving such notice, a successor Relevant Trustee shall be
appointed in accordance with the second succeeding paragraph. If a successor is
not so appointed within a reasonable time not to exceed thirty days from the
date of the Relevant Trustee's notice of resignation, or if for any reason the
instrument of acceptance by the successor Trustee required by Section 8.11 shall
not have been delivered to the Relevant Trustee within thirty days after giving
of such notice of resignation, the Relevant Trustee may petition, at the expense
of the Trust, a court of competent jurisdiction in the State of Delaware to
appoint a successor.
Unless a Debenture Event of Default shall have occurred and be continuing,
any Trustee may be removed for cause at any time by the Holder of the Common
Securities. If a Debenture Event of Default has occurred and is continuing, the
Property Trustee and the Delaware Trustee may be removed at such time by the
holders of a majority in Liquidation Amount of the Outstanding Capital
Securities. In no event will the holders of the Capital Securities have the
right to vote to appoint, remove or replace the Administrators, which voting
rights are vested exclusively in the Depositor, as holder of the Common
Securities. After removal by the Holders of a majority in Liquidation Amount of
the Capital Securities, the successor to the Relevant Trustee may be appointed
in accordance with the next paragraph. If a successor is not so appointed within
a reasonable time not to exceed thirty days from the date of the Relevant
Trustee's removal, or if for any reason the instrument of acceptance by the
successor Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within thirty days of such removal, the Relevant Trustee may
petition, at the expense of the Trust, a court of competent jurisdiction in the
State of Delaware to appoint a successor.
If any Trustee shall resign, be removed or become incapable of acting as
Trustee, or if a vacancy shall occur in the office of any Trustee for any cause,
at a time when no Debenture Event of Default shall have occurred and be
continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees, and the retiring Trustee shall comply with the applicable requirements
of Section 8.11. If the Property Trustee or the Delaware Trustee shall resign,
be removed or become incapable of continuing to act as the Property Trustee or
the Delaware Trustee, as the case may be, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Capital Securityholders, by
Act of the Securityholders of a majority in Liquidation Amount of the Capital
Securities then Outstanding delivered to the retiring Relevant Trustee,
<PAGE>
shall promptly appoint a successor Relevant Trustee or Trustees, and such
successor Trustee shall comply with the applicable requirements of Section 8.11.
If an Administrator shall resign, be removed or become incapable of acting as
Administrator, the Common Securityholder by Act of the Common Securityholder
delivered to the Administrator shall promptly appoint a successor Administrator
or Administrators and such successor Administrator or Administrators shall
comply with the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed by the Common Securityholder or
the Capital Securityholders and accepted appointment in the manner required by
Section 8.11, any Securityholder who has been a Securityholder of Trust
Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each removal
of a Trustee and each appointment of a successor Trustee to all Securityholders
in the manner provided in Section 10.8 and shall give notice to the Depositor.
Each notice shall include the name of the successor Relevant Trustee and the
address of its Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrator or a Delaware Trustee who is a natural
person dies or becomes, in the opinion of the Depositor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (a) the unanimous act of remaining Administrators if there are at
least two of them or (b) otherwise by the Depositor (with the successor in each
case being a Person who satisfies the eligibility requirement for Administrators
or Delaware Trustee, as the case may be, set forth in Section 8.01).
A. SECTION . Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, the retiring Relevant
Trustee and each successor Relevant Trustee shall execute and deliver an
amendment hereto wherein each successor Relevant Trustee shall accept such
appointment and which shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring Relevant
Trustee with respect to the Trust Securities and the Trust. Upon the execution
and delivery of such amendment the resignation or removal of the retiring
Relevant Trustee shall become effective to the extent provided therein and each
such successor Relevant Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Relevant Trustee; but, on request of the Trust or any successor
Relevant Trustee such retiring Relevant Trustee shall, upon payment of its
charges, duly assign, transfer and deliver to such successor Relevant Trustee
all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
<PAGE>
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
A. SECTION . Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee may be merged
or converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which such Relevant Trustee shall be
a party, or any Person succeeding to all or substantially all the corporate
trust business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, provided such Person shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
B. SECTION . Property Trustee May File Proofs of Claims. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Trust or any other obligor upon the Trust Securities
or the property of the Trust or of such other obligor or their creditors, the
Property Trustee (irrespective of whether any Distributions or other amounts due
on the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distribution
or such other amounts) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:
1 to file and prove a claim for the whole amount of any Distributions and
other amounts owing and unpaid in respect of the Trust Securities and to file
such other papers or documents as may be necessary or advisable in order to have
the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding, and
2 to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Property Trustee and, in the event the Property Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Property Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel, and
any other amounts due the Property Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the Property
<PAGE>
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or composition affecting the
Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
A. SECTION . Reports by Property Trustee.
1 Not later than November 15 of each year commencing with November 15,
1997, the Property Trustee shall transmit to all Securityholders in accordance
with Section 10.08, and to the Depositor, a brief report dated as of the
immediately preceding September 15 concerning the Property Trustee and its
actions under this Trust Agreement if and as may be required pursuant to Section
313(a) of the Trust Indenture Act.
2 In addition the Property Trustee shall transmit to Securityholders such
other reports concerning the Property Trustee and its actions under this Trust
Agreement as would be required pursuant to the Trust Indenture Act were this
Trust Agreement to be qualified under the Trust Indenture Act at the times and
in the manner provided pursuant thereto.
3 A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with any interdealer quotation system
or self-regulatory organization upon which the Trust Securities are designated
for trading, with the Commission and with the Depositor.
B. SECTION . Reports to the Property Trustee. The Depositor and the
Administrators on behalf of the Trust shall provide to the Property Trustee such
documents, reports and information as required by Section 314 of the Trust
Indenture Act (if any) and the compliance certificate required by Section
314(a)(4) of the Trust Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act, such compliance certificate
to be delivered annually on or before September 15 of each year beginning in
1997.
C. SECTION . Evidence of Compliance with Conditions Precedent. Each of the
Depositor and the Administrators on behalf of the Trust shall provide to the
Property Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Trust Agreement that relate to any of the matters set
forth in Section 314 (c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) of the Trust
Indenture Act shall be given in the form of an Officers Certificate.
D. SECTION . Number of Trustees.
1 The number of Trustees shall be five, provided that the
Holder of all of the Common Securities by written instrument may increase
or decrease the number of Administrators. The Property Trustee and the
Delaware Trustee may be the same Person.
2 If a Trustee ceases to hold office for any reason and the number of
Administrators is not reduced pursuant to Section 8.17(a), or if the number of
Trustees is increased pursuant to Section 8.17(a), a vacancy
<PAGE>
shall occur. The vacancy shall be filled with a Trustee appointed in accordance
with the provisions of Section 8.10 relating to appointment of a successor
Trustee upon resignation of a Trustee.
3 The death, resignation, retirement, removal, bankruptcy, incompetence or
incapacity to perform the duties of a Trustee shall not operate to dissolve,
terminate or annul the Trust. Whenever a vacancy in the number of Administrators
shall occur, until such vacancy is filled by the appointment of an Administrator
in accordance with Section 8.10, the Administrators in office, regardless of
their number (and notwithstanding any other provision of this Agreement), shall
have all the powers granted to the Administrators and shall discharge all the
duties imposed upon the Administrators by this Trust Agreement.
E. SECTION . Delegation of Power.
1 Any Administrator may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purpose of executing any documents contemplated in Section 2.07(a) or
making any other governmental filing; and
2 The Administrators shall have power to delegate from time to time to such
of their number or to the Depositor the doing of such things and the execution
of such instruments either in the name of the Trust or the names of the
Administrators or otherwise as the Administrators may deem expedient, to the
extent such delegation is not prohibited by applicable law or contrary to the
provisions of this Trust Agreement, as set forth herein.
I. ARTICLE
TERMINATION, LIQUIDATION AND MERGER
A. SECTION . Termination upon Expiration Date. Unless earlier terminated,
the Trust shall automatically terminate on December 1, 2027 (the "Expiration
Date"), following the distribution of the Trust Property in accordance with
Section 9.04.
B. SECTION . Early Termination. The first to occur of any of the
following events is an "Early Termination Event":
1 the commencement by the Depositor of a voluntary case under Chapter 7 or
Chapter 11 of the federal Bankruptcy Code or any other similar state or federal
law now or hereafter in effect, or the consent by the Depositor to the entry of
a decree or order for relief in an involuntary case under any such law, or the
consent by Crestar Bank, a Virginia banking corporation ("Crestar Bank") to the
appointment of a liquidating agent or committee, conservator or receiver under
Title 6.1 Sections 100-110 or Sections 110.1-110.13 of the Code of Virginia or
12 U.S.C. ss 1821 (other than a conservator appointed as a result of
circumstances described in 12 U.S.C. ss 1821(c)(5)(D), (E) or (M)) or other
similar state or federal law now or hereafter in effect;
2 the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Depositor in an involuntary
<PAGE>
case under Chapter 7 or Chapter 11 of the federal Bankruptcy Code or any other
similar state or federal law now or hereafter in effect, and the continuance of
any such decree or order unstayed and in effect for a period of 90 days, or the
appointment of a liquidating agent or committee, conservator or receiver for
Crestar Bank under Title 6.1 Sections 100-10 or Sections 110.1-110.13 of the
Code of Virginia or 12 U.S.C. ss 1821 (other than a conservator appointed as a
result of circumstances described in 12 U.S.C. ss 1821(c)(5)(D), (E) or (M)) or
other similar state or federal law now or hereafter in effect, and the
continuance of any such appointment unstayed and in effect for a period of 90
days.
3 the dissolution or liquidation of the Depositor;
4 the written direction to the Property Trustee from the
Depositor upon the occurrence of a Tax Event, Investment Company Event or
Capital Treatment Event to terminate the Trust and, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, distribute
Debentures to Securityholders in exchange for the Capital Securities, subject to
the Depositor having received an Opinion of Counsel to the effect that such
distribution will not be a taxable event to holders of Capital Securities.
5 the redemption of all of the Capital Securities in
connection with the redemption of all the Debentures; and
6 the entry of an order for dissolution of the Trust by a
court of competent jurisdiction.
C. SECTION . Termination. The respective obligations and responsibilities
of the Trustees and the Trust created and continued hereby shall terminate upon
the latest to occur of the following: (a) the distribution by the Property
Trustee to Securityholders upon the liquidation of the Trust pursuant to Section
9.04, or upon the redemption of all of the Trust Securities pursuant to Section
4.02, of all amounts required to be distributed hereunder upon the final payment
of the Trust Securities; (b) the payment of any expenses owed by the Trust; and
(c) the discharge of all administrative duties of the Administrators, including
the performance of any tax reporting obligations with respect to the Trust or
the Securityholders.
D. SECTION . Liquidation.
1 If an Early Termination Event specified in clause (a), (b), (c), (d) or
(f) of Section 9.02 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each Securityholder a Like Amount of
Debentures, subject to Section 9.04(d). Notice of liquidation shall be given by
the Property Trustee by first-class mail, postage prepaid mailed not later than
15 nor more than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities Register. All
notices of liquidation shall:
a state the Liquidation Date;
b state that from and after the Liquidation Date, the Trust Securities will
no longer be deemed to be Outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to
<PAGE>
represent a Like Amount of Debentures; and
c provide such information with respect to the mechanics by which Holders
may exchange Trust Securities Certificates for Debentures, or if Section 9.04(d)
applies receive a Liquidation Distribution, as the Administrators or the
Property Trustee shall deem appropriate.
2 Except where Section 9.02(c) or 9.04(d) applies, in order to effect the
liquidation of the Trust and distribution of the Debentures to Securityholders,
the Property Trustee shall establish a record date for such distribution (which
shall be not more than 45 days nor less than 15 days prior to the Liquidation
Date) and, either itself acting as exchange agent or through the appointment of
a separate exchange agent, shall establish such procedures as it shall deem
appropriate to effect the distribution of Debentures in exchange for the
Outstanding Trust Securities Certificates.
3 Except where Section 9.02(c) or 9.04(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Debentures will be issued to Holders
of Trust Securities Certificates, upon surrender of such certificates to the
Property Trustee or their agent for exchange, (iii) the Depositor shall use its
reasonable efforts to have the Debentures listed on the New York Stock Exchange
or on such other exchange, interdealer quotation system or self-regulatory
organization as the Capital Securities are then listed, including PORTAL, (iv)
any Trust Securities Certificates not so surrendered for exchange will be deemed
to represent a Like Amount of Debentures, accruing interest at the rate provided
for in the Debentures from the last Distribution Date on which a Distribution
was made on such Trust Securities Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no payments of
interest or principal will be made to Holders of Trust Securities Certificates
with respect to such Debentures) and (v) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
the Like Amount of Debentures upon surrender of Trust Securities Certificates.
4 In the event that, notwithstanding the other provisions of this Section
9.04, whether because of an order for dissolution entered by a court of
competent jurisdiction or otherwise, distribution of the Debentures in the
manner provided herein is determined by the Property Trustee not to be
practical, the Trust Property shall be liquidated, and the Trust shall be
dissolved, wound-up or terminated, by the Property Trustee in such manner as the
Property Trustee determines. In such event, on the date of the dissolution,
winding-up or other termination of the Trust, Securityholders will be entitled
to receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accumulated and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"). If, upon any such
dissolution, winding up or termination, the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then, subject to the next succeeding
sentence, the amounts payable by the Trust on the Trust Securities shall be paid
on a pro rata basis (based upon Liquidation Amounts). The Holder of
<PAGE>
the Common Securities will be entitled to receive Liquidation Distributions upon
any such dissolution, winding-up or termination pro rata (determined as
aforesaid) with Holders of Capital Securities, except that, if a Debenture Event
of Default has occurred and is continuing, the Capital Securities shall have a
priority over the Common Securities.
E. SECTION . Mergers, Consolidations, Amalgamations or Replacements of the
Trust. The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except pursuant to this Article 9.
At the request of the Depositor, with the consent of the Administrators and
without the consent of the Holders of the Capital Securities, the Property
Trustee or the Delaware Trustee, the Trust may merge with or into, consolidate,
amalgamate, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to a trust organized as such under the laws
of any State; provided, that (i) such successor entity either (a) expressly
assumes all of the obligations of the Trust with respect to the Capital
Securities or (b) substitutes for the Capital Securities other securities having
substantially the same terms as the Capital Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the Capital
Securities rank in priority with respect to distributions and payments upon
liquidation, redemption and otherwise, (ii) the Depositor expressly appoints a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee as the holder of the Debentures, (iii) the Successor Securities
are listed or traded, or any successor Securities will be listed upon
notification of issuance, on any national securities exchange or other
organization on which the Capital Securities are then listed or traded, if any,
(iv) such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not cause the Capital Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Capital Securities (including any Successor
Securities) in any material respect, (vi) such successor entity has a purpose
substantially identical to that of the Trust, (vii) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an opinion of counsel from independent counsel to the
Trust experienced in such matters to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Capital Securities (including any Successor Securities) in any material respect,
and (b) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Trust nor such successor entity will
be required to register as an investment company under the 1940 Act and (viii)
the Depositor owns all of the common securities of such successor entity and
guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of Holders of 100% in
Liquidation Amount of the Capital Securities, consolidate, amalgamate, merge
with or into, or be replaced by or convey, transfer or lease its properties and
assets substantially as an
<PAGE>
entirety to any other Person or permit any other Person to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Trust or the successor entity to be classified as other than a grantor trust for
United States Federal income tax purposes.
I. ARTICLE
MISCELLANEOUS PROVISIONS
A. SECTION . Limitation of Rights of Securityholders to Terminate Trust.
Subject to Section 9.02, the death, incapacity, dissolution, liquidation,
termination or bankruptcy of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such Person or any
Securityholder for such Person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
B. SECTION . Amendment.
1 This Trust Agreement may be amended from time to time by the Property
Trustee, the Delaware Trustee, the Administrators and the Depositor, without the
consent of any Securityholders, (i) to cure any ambiguity, correct or supplement
any provision herein which may be inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Trust Agreement, which shall not be inconsistent with the other
provisions of this Trust Agreement, (ii) to modify, eliminate or add to any
provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust will be classified for United States Federal income tax
purposes as a grantor trust at all times that any Trust Securities are
outstanding or to ensure that the Trust will not be required to register as an
investment company under the 1940 Act; provided, however, that in the case of
clause (i), such action shall not adversely affect in any material respect the
interests of any Securityholder, and any amendments of this Trust Agreement
shall become effective when notice thereof is given to the Securityholders; or
(iii) to provide the Property Trustee with the authority to execute on behalf of
the Administrators Definitive Capital Securities Certificates.
2 Except as provided in Section 10.02(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Trust Securityholders representing not less than a majority (based
upon Liquidation Amounts) of the Trust Securities then Outstanding and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
United States Federal income tax purposes or
<PAGE>
the Trust's exemption from status of an investment company under the 1940
Act.
3 In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder (such consent
being obtained in accordance with Section 6.03 or 6.06 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with 6.03 or 6.06 hereof), this
paragraph (c) of this Section 10.02 may not be amended.
4 Notwithstanding any other provisions of this Trust Agreement, no Trustee
shall enter into or consent to any amendment to this Trust Agreement which would
cause the Trust to fail or cease to qualify for the exemption from status of an
investment company under the 1940 Act or fail or cease to be classified as a
grantor trust for United States Federal income tax purposes.
5 Notwithstanding anything in this Trust Agreement to the contrary, without
the consent of the Depositor, this Trust Agreement may not be amended in a
manner which imposes any additional obligation on the Depositor.
6 In the event that any amendment to this Trust Agreement is made, the
Administrators shall promptly provide to the Depositor a copy of such amendment.
7 Neither the Property Trustee nor the Delaware Trustee shall be required
to enter into any amendment to this Trust Agreement which affects its own
rights, duties or immunities under this Trust Agreement. The Property Trustee
shall be entitled to receive an Opinion of Counsel and an Officers Certificate
stating that any amendment to this Trust Agreement is in compliance with this
Trust Agreement.
C. SECTION . Separability. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
D. SECTION . Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES), PROVIDED THAT THE IMMUNITIES AND STANDARD OF CARE OF THE PROPERTY
TRUSTEE IN CONNECTION WITH THE ADMINISTRATION OF ITS TRUSTS AND DUTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK.
A. SECTION . Payments Due on Non-business Day. If the date fixed for
any payment on any Trust Security shall be a day that is not a Business
Day, then such payment need not be made on such date but may be made on the
<PAGE>
next succeeding day that is a Business Day (except as otherwise provided in
Section 4.02(d)), with the same force and effect as though made on the date
fixed for such payment, and no interest shall accrue thereon for the period
after such date.
B. SECTION . Successors. This Trust Agreement shall be binding upon and
shall inure to the benefit of any successor to the Depositor, the Trust or the
Relevant Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article Eleven of the Indenture and pursuant to which the
assignee agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
C. SECTION . Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust
Agreement.
D. SECTION . Reports, Notices and Demands. Any report, notice, demand or
other communication which by any provision of this Trust Agreement is required
or permitted to be given or served to or upon any Securityholder or the
Depositor may be given or served in writing by deposit thereof, first-class
postage prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (a) in the case of a Capital
Securityholder, to such Capital Securityholder as such Securityholder's name and
address may appear on the Securities Register; and (b) in the case of the Common
Securityholder or the Depositor, to Crestar Financial Corporation, 919 East Main
Street, Richmond, Virginia 23219, Attention: Treasurer, facsimile no.: (804)
782-7155 (until another address is designated by notice to the Trustees). Such
notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Trust, the Property Trustee, the Delaware Trustee or the Administrators shall be
given in writing addressed (until another address is designated by notice to the
other parties hereto) as follows: (a) with respect to the Trust, to Crestar
Capital Trust I, c/o Crestar Financial Corporation, P.O. Box 26665, 919 East
Main Street, Richmond, Virginia 23261-6665; (b) with respect to the Property
Trustee, to The Chase Manhattan Bank, 450 West 33rd Street, New York, New York
10001 Attention: Corporate Trustee Administration Department; (c) with respect
to the Delaware Trustee, to Chase Manhattan Bank Delaware, 1201 Market Street,
Wilmington, Delaware 19801, Attention: Corporate Trustee Administration
Department; and (d) with respect to the Administrators, to them at the address
above for notices to the Depositor, marked "Attention: Administrators of Crestar
Capital Trust I." Such notice, demand or other communication to or upon the
Trust, the Property Trustee or the Delaware Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the Trust,
the Property Trustee or the
<PAGE>
Delaware Trustee, as the case may be.
A. SECTION . Agreement Not to Petition. Each of the Trustees and the
Depositor agree for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been terminated in accordance with Article
9, they shall not file, or join in the filing of, a petition against the Trust
under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Law. In the event the
Depositor takes action in violation of this Section 10.09, the Property Trustee
agrees, for the benefit of Securityholders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustees or the
Trust may assert. The provisions of this Section 10.09 shall survive the
termination of this Trust Agreement.
B. SECTION . Trust Indenture Act; Conflict with Trust Indenture Act.
1 This Trust Agreement is intended to be in conformity with the provisions
of the Trust Indenture Act that would be required to be part of this Trust
Agreement were this Trust Agreement to be qualified under the Trust Indenture
Act and shall, to the extent applicable, be governed by such provisions.
2 The Property Trustee shall be the only Trustee which is a trustee for the
purposes of the Trust Indenture Act.
3 If any provision hereof limits, qualifies or conflicts with the duties
imposed under Sections 310 through 317 of the Trust Indenture Act were this
Trust Agreement to be qualified under the Trust Indenture Act, such duties shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or excluded, as the case may be.
4 The application of the Trust Indenture Act to this Trust Agreement shall
not affect the nature of the Trust Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
C. SECTION . Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS
<PAGE>
AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE
AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
A. SECTION . Counterparts. This Trust Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original; but all such counterparts shall together constitute but one and the
same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Amended and Restated Trust
Agreement of Crestar Capital Trust I as of the date first above written.
CRESTAR FINANCIAL CORPORATION
By:
Name:
Title:
THE CHASE MANHATTAN BANK, as Property Trustee
By:
Name:
Title:
CHASE MANHATTAN BANK DELAWARE, as Delaware
Trustee
By:
Name:
Title:
Eugene S. Putnam, Jr.
as Administrator
Eileen G. Sadowski
as Administrator
Mark Smith
as Administrator
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
Crestar Capital Trust I
THIS CERTIFICATE OF TRUST of Crestar Capital Trust I (the "Trust"), dated
December 19, 1996, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. (ss) 3801 et seq.).
1. Name. The name of the business trust being formed hereby is
Crestar Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are
Chase Manhattan Bank Delaware, 1201 Market Street, Wilmington, Delaware
19801.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
executed this Certificate of Trust as of the date first above written.
Chase Manhattan Bank Delaware, as Trustee
By:
Name:
Title:
<PAGE>
EXHIBIT B
FORM OF CAPITAL SECURITY CERTIFICATE
[IF THE CAPITAL SECURITY IS TO BE A BOOK-ENTRY CAPITAL SECURITIES
CERTIFICATE, INSERT This Capital Security is a Book-Entry Capital Securities
Certificate within the meaning of the Trust Agreement hereinafter referred to
and is registered in the name of The Depository Trust Company (the "Depository")
or a nominee of the Depository. This Capital Security is exchangeable for
Capital Securities registered in the name of a person other than the Depository
or its nominee only in the limited circumstances described in the Trust
Agreement and no transfer of this Capital Security (other than a transfer of
this Capital Security as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository) may be registered except in limited circumstances.
Unless this Capital Security is presented by an authorized representative
of The Depository Trust Company ("DTC") (55 Water Street, New York) to Crestar
Capital Trust I or its agent for registration of transfer, exchange or payment,
and any Capital Security issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of DTC and any payment
hereon is made to Cede & Co. or such other entity as is requested by an
authorized representative of DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
[IF THE CAPITAL SECURITY IS TO BE A PRIVATE CAPITAL SECURITY, INSERT
THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT
BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (i) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING THE
CAPITAL SECURITIES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(ii) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (iii) TO AN INSTITUTIONAL ACCREDITED
INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, (iv) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (v)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.]
THE CAPITAL SECURITIES EVIDENCED HEREBY WILL BE ISSUED, AND MAY BE
TRANSFERRED, ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT OF NOT LESS THAN
$100,000 (100 CAPITAL SECURITIES). ANY TRANSFER, SALE OR OTHER DISPOSITION
OF SUCH CAPITAL SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS
<PAGE>
THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER, ANY
SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH CAPITAL SECURITIES
FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF DISTRIBUTIONS ON
SUCH CAPITAL SECURITIES, AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN SUCH CAPITAL SECURITIES.
<PAGE>
Certificate Number
Number of Capital Securities
[Up To]*
CUSIP NO.
Certificate Evidencing Capital Securities
of
CRESTAR CAPITAL TRUST I
8.16% Capital Securities,
(liquidation amount $1,000 per Capital Security)
Crestar Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that
(the "Holder") is the registered owner of [ ( ) Capital Securities
of the Trust]**[the number of Capital Securities of the Trust specified in
Schedule I hereto]* representing an undivided beneficial interest in the assets
of the Trust and designated the Crestar Capital Trust I 8.16% Capital Securities
(liquidation amount $1,000 per Capital Security) (the "Capital Securities"). The
Capital Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer as provided in Section 5.04 of the
Trust Agreement (as defined below). The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Capital
Securities are set forth in, and this certificate and the Capital Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of December 31, 1996, as the same may be amended from time to time (the
"Trust Agreement") including the designation of the terms of Capital Securities
as set forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by Crestar Financial Corporation, a Virginia corporation,
and The Chase Manhattan Bank, as guarantee trustee, dated as of December 31,
1996 (the "Guarantee"), to the extent provided therein. The Trust will furnish a
copy of the Trust Agreement and the Guarantee to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
- ---------
* Insert in Book-Entry Capital Securities Certificates.
**Insert in Definitive Capital Securities Certificates.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
<PAGE>
IN WITNESS WHEREOF, one of the Administrators of the Trust has executed
this certificate this _______________, ____.
CRESTAR CAPITAL TRUST I
By:
Name:
Administrator
<PAGE>
[IF CAPITAL SECURITY IS AN EXCHANGE CAPITAL SECURITY, INSERT -
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security to:
___________________ (Insert assignee's social security or tax
identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Capital Security Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date:
Signature(s):
(Sign exactly as your name appears on the other side of this Capital
Security Certificate)
NOTICE: The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion
program), pursuant to S.E.C. Rule 17Ad-15.]
<PAGE>
[IF CAPITAL SECURITY IS A PRIVATE DEFINITIVE CAPITAL SECURITY, INSERT -
[FORM OF ASSIGNMENT]
For value received ________________ hereby sell(s), assign(s)
and transfer(s) unto _______________________________
(Please insert social security or other taxpayer
identification number of assignee.)
the within security and hereby irrevocably constitutes and appoints ____________
attorney to transfer the said security on the books of the Trust, with full
power of substitution in the premises.
In connection with any transfer of the within security occurring prior to such
date as restrictions on the transfer of such security imposed by the Securities
Act of 1933, as amended, and the rules and regulations thereunder shall be
terminated in accordance with the Trust Agreement, the undersigned confirms that
such security is being transferred:
To Crestar Financial Corporation or a subsidiary thereof; or
Pursuant to and in compliance with Rule 144A under the Securities
Act of 1933, as amended; or
To an Institutional Accredited Investor pursuant to and in
compliance with the Securities Act of 1933, as amended; or
Pursuant to and in compliance with Regulation S under the
Securities Act of 1933, as amended; or
Pursuant to and in compliance with Rule 144 under the Securities
Act of 1933, as amended;
<PAGE>
and unless the box below is checked, the undersigned confirms that such security
is not being transferred to an "affiliate" of the Trust as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
The transferee is an Affiliate of the Trust.
Dated: ___________________
-------------------
-------------------
Signature(s)
Signature(s) must be guaranteed by a commercial bank or
trust company or a member firm of a major stock exchange.
---------------------------
Signature Guarantee
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Security in every particular without
alteration or enlargement or any change whatever.
<PAGE>
SCHEDULE I
[IF CAPITAL SECURITY IS A BOOK-ENTRY CAPITAL SECURITIES CERTIFICATE, INSERT
- -
The initial number of Capital Securities evidenced by this Book-Entry Capital
Securities Certificate is ____________.
Changes to Number of Capital Securities
Evidenced by Book-Entry Capital Securities Certificate
Date Number of Capital Remaining Capital Notation
Securities by which this Securities Represented Made by
Book-Entry Capital by this Book-Entry
Securities Certificate Is Capital Securities
To Be Reduced or Certificate
Increased, and Reason
for Reduction or
Increase
<PAGE>
EXHIBIT C
[INSERT DTC LETTER OF REPRESENTATIONS]
<PAGE>
EXHIBIT D
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number C-1 Number of Common Securities 6,200
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
CRESTAR CAPITAL TRUST I
(liquidation amount $1,000 per Common Security)
Crestar Capital Trust I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Crestar Financial
Corporation (the "Holder") is the registered owner of Six Thousand Two Hundred
(6,200) Common Securities of the Trust representing beneficial interests of the
Trust and designated the Common Securities (liquidation amount $1,000 per Common
Security) (the "Common Securities"). In accordance with Section 5.10 of the
Trust Agreement (as defined below) the Common Securities are not transferable
and any attempted transfer hereof shall be void. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of December 31, 1996, as the same may be amended from time to
time (the "Trust Agreement"), including the designation of the terms of the
Common Securities as set forth therein. The Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrators of the Trust has executed
this certificate this 31st day of December, 1996.
CRESTAR CAPITAL TRUST I
By:
Name:
Administrator
<PAGE>
EXHIBIT E
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of December 31, 1996, between Crestar Financial
Corporation, a Virginia corporation ("Crestar Financial"), and Crestar Capital
Trust I, a Delaware business trust (the "Trust").
WHEREAS, the Trust intends to issue its 8.16% Common Securities (the
"Common Securities") to, and receive 8.16% Junior Subordinated Deferrable
Interest Debentures due December 15, 2026 (the "Debentures") from, Crestar
Financial, and to issue and sell 8.16% Capital Securities (the "Capital
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the Trust dated
as of December 31, 1996, as the same may be amended from time to time (the
"Trust Agreement");
WHEREAS, Crestar Financial will directly or indirectly own all of the
Common Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Capital Securities, which purchase Crestar Financial hereby agrees shall benefit
Crestar Financial and which purchase Crestar Financial acknowledges will be made
in reliance upon the execution and delivery of this Agreement, Crestar Financial
and Trust hereby agree as follows:
ARTICLE I
SECTION 1.1. Guarantee by Crestar Financial Corporation.
Subject to the terms and conditions hereof, Crestar Financial hereby
irrevocably and unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the "Beneficiaries") the
full payment, when and as due, of any and all Obligations (as hereinafter
defined) to such Beneficiaries. As used herein, "Obligations" means any costs,
expenses or liabilities of the Trust, other than obligations of the Trust to pay
to holders of any Capital Securities or other similar interests in the Trust the
amounts due such holders pursuant to the terms of the Capital Securities or such
other similar interests, as the case may be. This Agreement is intended to be
for the benefit of, and to be enforceable by, all such Beneficiaries, whether or
not such Beneficiaries have received notice hereof.
<PAGE>
SECTION 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force and effect upon
the later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Capital Securities (whether upon redemption,
liquidation, exchange or otherwise) and (b) the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
holder of Capital Securities or any Beneficiary must restore payment of any sums
paid under the Capital Securities, under any Obligation, under the Capital
Securities Guarantee Agreement dated the date hereof by Crestar Financial and
The Chase Manhattan Bank, as guarantee trustee or under this Agreement for any
reason whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
SECTION 1.3. Waiver of Notice.
Crestar Financial hereby waives notice of acceptance of this Agreement and
of any Obligation to which it applies or may apply, and Crestar Financial hereby
waives presentment, demand for payment, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 1.4. No Impairment.
The obligations, covenants, agreements and duties of Crestar Financial
under this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
<PAGE>
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Crestar Financial with respect to the happening of any of the
foregoing.
SECTION 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against Crestar
Financial, and Crestar Financial waives any right or remedy to require that any
action be brought against the Trust or any other person or entity before
proceeding against Crestar Financial.
SECTION 1.6. Subrogation.
Crestar Financial shall be subrogated to all rights (if any) of the Trust
in respect of any amounts paid to the Beneficiaries by Crestar Financial under
this Agreement; provided, however, that Crestar Financial shall not (except to
the extent required by mandatory provisions of law) be entitled to enforce or
exercise any rights which it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under this
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Agreement.
ARTICLE II
SECTION 2.1. Binding Effect.
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of Crestar
Financial and shall inure to the benefit of the Beneficiaries.
SECTION 2.2. Amendment.
So long as there remains any Beneficiary or any Capital Securities of any
series are outstanding, this Agreement shall not be modified or amended in any
manner adverse to such Beneficiary or to the holders of the Capital Securities.
SECTION 2.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or by registered
or certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
Crestar Capital Trust I
c/o Crestar Financial Corporation
P.O. Box 26665
919 East Main Street
Richmond, Virginia 23261-6665
Attention: Treasurer
<PAGE>
Facsimile No.: (804) 782-7155
Crestar Financial Corporation
919 East Main Street
Richmond, Virginia 23261-6665
Attention: Treasurer
Facsimile No.: (804) 782-7155
SECTION 2.4. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York (without regard
to conflict of laws principles).
THIS AGREEMENT is executed as of the day and year first above written.
CRESTAR FINANCIAL CORPORATION
By:
Name:
Title:
CRESTAR CAPITAL TRUST I
By:
Name:
Administrator
<PAGE>
EXHIBIT F
FORM OF TRANSFER CERTIFICATE
FOR INSTITUTIONAL ACCREDITED INVESTORS
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee Administration Department
Re: Crestar Capital Trust I (the "Trust") 8.16% Capital Securities (the
"Capital Securities")
Ladies and Gentlemen:
We represent, warrant and agree with you as follows with regard to the
Capital Securities purchased by us and described in the confidential Offering
Memorandum dated December 20, 1996 (the "Offering Memorandum").
I We are an "institutional investor" that is an "accredited investor"
within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the
Securities Act of 1933, as amended (the "Securities Act"). In addition, if we
are buying for one or more accounts for which we are acting as fiduciary or
agent and we are not a bank (as defined in Section 3(a)(2) of the Securities Act
or a savings and loan association or other institution (as defined in Section
3(a)(5)(A) of the Securities Act), each such account is an institutional
investor and an accredited investor on a like basis.
II We are acquiring the Capital Securities for our own account or for an
account for which we are acting as fiduciary or agent in a minimum amount of not
less than $100,000 Liquidation Amount for each such account. We acknowledge and
agree that the Capital Securities purchased by us will be issued in certificated
form bearing a legend to the effect of paragraph 5 and may not be exchanged for
Capital Securities in book-entry form. We further acknowledge and agree that the
provisions of this paragraph 2 and those of paragraph 3 below will apply to each
Capital Security purchased by us until such times such Capital Security is
transferred in compliance with the provisions of paragraph 3.
III We understand that the Capital Securities have not been registered
under the Securities Act and we agree that the Capital Securities purchased by
us may be reoffered, resold, pledged or otherwise transferred only:
1 to a person who the seller reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities
Act, purchasing for its own account or the account of a qualified
institutional buyer in a transaction meeting the requirement of Rule 144A;
<PAGE>
2 in an offshore transaction complying with Rule 903 or 904
of Regulation S under the Securities Act;
3 to an institutional accredited investor (who delivers a
letter in the form hereof) in a transaction exempt from the
registration requirements of Securities Act;
4 pursuant to an exemption from registration under the
Securities Act provided by Rule 144 thereunder (if available); or
5 pursuant to an effective registration statement under the
Securities Act; and
B in accordance with all applicable securities laws of the
United States and other jurisdictions.
IV We have such knowledge and experience in financial and business matters
that we are capable of evaluating the merits and risk of an investment in the
Capital Securities, we, and any accounts for which we are acting are able to
bear the economic risk of purchasing such Capital Securities and we have
received a copy of the Offering Memorandum.
V We acknowledge that the Capital Securities will bear a legend to the
following effect unless the Property Trustee determines otherwise consistently
with applicable law:
THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (i) TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING
THE CAPITAL SECURITIES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (ii) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE
904 OF REGULATION S UNDER THE SECURITIES ACT, (iii) TO AN INSTITUTIONAL
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, (iv) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (v) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
I We acknowledge that Crestar Financial Corporation, the Trust, the
Property Trustee, you and others will rely upon our confirmations,
acknowledgments and agreements set forth herein, and we hereby irrevocably
authorize such parties to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
<PAGE>
II If we are acquiring any Capital Securities as a fiduciary or agent for
one or more accounts, we represent that we have sole investment discretion with
respect to each such account and that we have full power to make the foregoing
acknowledgments, representations and agreements with respect to each such
account and as set forth in the Notice to Investors contained in the Offering
Memorandum.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
You, the Trust and the Purchasers (the "Purchasers") named in Schedule I to
the Purchase Agreement dated December 20, 1996 among the Trust, Crestar
Financial and the Purchasers are entitled to rely upon this letter and
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Dated:
[Insert Name of Transferee]
By:
Name:
Title:
(If the registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
<PAGE>
EXHIBIT G
FORM OF TRANSFER CERTIFICATE
144A GLOBAL TO REGULATION S GLOBAL
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee Administration Department
Re: Crestar Capital Trust I
Private Capital Securities
Reference is hereby made to the Amended and Restated Trust Agreement, dated
as of December 31, 1996 (the "Trust Agreement"), between Crestar Financial
Corporation, The Chase Manhattan Bank, as Property Trustee, and Chase Manhattan
Bank Delaware, as Delaware Trustee, and the Administrators named therein.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Trust Agreement.
This letter relates to _________________ Private Capital Securities which
are evidenced by a 144A Global Security (CUSIP No. 22609AAA4) and held with the
Clearing Agency in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Private Capital Securities to a Person that will take delivery thereof in a
transaction effected pursuant to and in accordance with Rule 904 under the
United States Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor does hereby further certify that:
The offer of the Private Capital Securities was not made to a person
in the United States;
(A) either:
A at the time the buy order was originated, the transferee was outside the
United States or the Transferor and any person acting on its behalf
reasonably believed that the transferee was outside the United States, or
B the transaction was executed in, or through the facilities of a
designated offshore securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction was pre-arranged
with a buyer in the United States;
(B) no directed selling efforts have been made in contravention of the
requirements of 904(b) of Regulation S, as applicable;
(C) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
<PAGE>
(D) we have advised the transferee of the transfer restrictions
applicable to the Private Capital Securities.
You, the Trust and the Initial Purchasers are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate and not otherwise defined in the Trust Agreement have the meanings
set forth in Regulation S under the Securities Act.
Dated:
[Insert Name of Transferor]
By:
Name:
Title:
(If the registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
<PAGE>
EXHIBIT H
FORM OF TRANSFER CERTIFICATE
REGULATION S GLOBAL SECURITY TO 144A GLOBAL SECURITY
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee Administration Department
Re: Crestar Capital Trust I
Private Capital Securities
Reference is hereby made to the Amended and Restated Trust Agreement, dated
as of December 31, 1996 (the "Trust Agreement"), between Crestar Financial
Corporation, The Chase Manhattan Bank, as Property Trustee, and Chase Manhattan
Bank Delaware, as Delaware Trustee, and the Administrators named therein.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Trust Agreement.
This letter relates to _________________ Private Capital Securities which
are evidenced by a Regulation S Global Security (CUSIP No. U12759AA1) and held
with the Clearing Agency indirectly in the name of [insert name of transferor]
(the "Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Private Capital Securities to a Person that will take delivery
thereof in a transaction effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and accordingly the Transferor does hereby certify that (i) the
Transferor's interest in the Private Capital Securities is being transferred in
accordance with the transfer restrictions set forth in the Trust Agreement; and
(ii) the transferee is a person who the Transferor reasonably believes is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act, purchasing for its own account or the account of a qualified
institutional buyer in a transaction meeting the requirements of Rule 144A, in
accordance with all applicable securities laws of the states of the United
States and other jurisdictions.
You, the Trust and the Initial Purchasers are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
<PAGE>
Dated:
[Insert Name of Transferor]
By:
Name:
Title:
(If the registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
<PAGE>
EXHIBIT I
SECURITIES ACT LEGENDS
THE CAPITAL SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (i) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING THE CAPITAL SECURITIES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (ii) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (iii) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (iv) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (v) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
EXHIBIT 4.7
CAPITAL SECURITIES GUARANTEE AGREEMENT
This CAPITAL SECURITIES GUARANTEE AGREEMENT, dated as of December 31,
1996 (the "Guarantee Agreement"), is executed and delivered by Crestar Financial
Corporation, a Virginia corporation (the "Guarantor"), and The Chase Manhattan
Bank, a New York banking corporation, as trustee (the "Guarantee Trustee"), for
the benefit of the Holders (as defined herein) from time to time of the Capital
Securities (as defined herein) of Crestar Capital Trust I, a Delaware statutory
business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of December 31, 1996 (the "Trust Agreement") among
the Guarantor, as Depositor, the Property Trustee, the Delaware Trustee and the
Administrators named therein and the Holders from time to time of undivided
beneficial interests in the assets of the Issuer, the Issuer is issuing
$200,000,000 in aggregate Liquidation Amount (as that term is defined in the
Trust Agreement) of its 8.16% Capital Securities (the "Capital Securities")
representing preferred undivided beneficial interests in the assets of the
Issuer and having the terms set forth in the Trust Agreement;
WHEREAS, the Capital Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined below), will be used to purchase the Debentures
(as defined in the Trust Agreement) of the Guarantor which will be deposited
with The Chase Manhattan Bank, as Property Trustee under the Trust Agreement, as
trust assets; and
WHEREAS, as incentive for the Holders to purchase Capital Securities
the Guarantor desires irrevocably and unconditionally to agree, to the extent
set forth herein, to pay to the Holders of the Capital Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Capital Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time of the Capital Securities.
ARTICLE I.
DEFINITIONS
SECTION 1.1. DEFINITIONS.
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings. Capitalized
or otherwise defined terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Trust Agreement as in effect on the date
hereof.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person, PROVIDED, HOWEVER, that an Affiliate of the
Guarantor shall not be deemed to be an Affiliate of the Issuer. For the purposes
of this definition, "CONTROL" when used with respect to any specified Parson
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contact or
otherwise; and the terms "CONTROLLING" and "CONTROLLED" have meanings
correlative to the foregoing.
"BOARD OF DIRECTORS" means either the board of directors of the
Guarantor or any committee of that board duly authorized to act hereunder.
1.
<PAGE>
"COMMON SECURITIES" means the 8.16% Common Securities (Liquidation
Amount $1,000 per Common Security) of the Issuer.
"EVENT OF DEFAULT" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement; PROVIDED, HOWEVER,
that, except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default from the Guarantee Trustee or
any Holder (with a copy to the Guarantee Trustee) and shall not have cured such
default within 60 days after receipt of such notice.
"GUARANTEE PAYMENTS" means the following payments or distributions,
without duplication, with respect to the Capital Securities, to the extent not
paid or made by or on behalf of the Issuer: (i) any accrued and unpaid
Distributions (as defined in the Trust Agreement) required to be paid on the
Capital Securities, to the extent the Issuer shall have funds on hand available
therefor at such time, (ii) the redemption price, including all accrued and
unpaid Distributions to the date of redemption (the "Redemption Price"), with
respect to any Capital Securities called for redemption by the Issuer to the
extent the Issuer shall have funds on hand available therefor at such time, and
(iii) upon a voluntary or involuntary termination, dissolution, winding-up or
liquidation of the Issuer, unless Debentures are distributed to the Holders, the
lesser of (a) the aggregate of the Liquidation Amount of $1,000 per Capital
Security plus accrued and unpaid Distributions on the Capital Securities to the
date of payment, and (b) the amount of assets of the Issuer remaining available
for distribution to Holders in liquidation of the Issuer (in either case, the
"Liquidation Distribution").
"GUARANTEE TRUSTEE" means The Chase Manhattan Bank, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"HOLDER" means any holder, as registered on the books and records of
the Issuer, of any Capital Securities; PROVIDED, HOWEVER, that in determining
whether the holders of the requisite percentage of Capital Securities have given
any request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee.
"INDENTURE" means the Indenture dated as of December 31, 1996, between
the Guarantor and The Chase Manhattan Bank, as trustee, and any further
supplements or amendments.
"LIST OF HOLDERS" has the meaning specified in Section 2.2(a).
"MAJORITY IN LIQUIDATION AMOUNT OF THE SECURITIES" means, except as
provided by the Trust Indenture Act, a vote by the Holder(s), voting separately
as a class, of more than 50% of the Liquidation Amount of all then outstanding
Capital Securities issued by the Issuer.
"OFFICERS' CERTIFICATE" means, with respect to the Guarantor, a
certificate signed by the Chairman of the Board, any Vice Chairman of the Board,
the Chief Executive Officer, the President, any Vice Chairman or any Vice
President, and by the Treasurer, Associate Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Assistant Secretary of such Person, and
delivered to the Guarantee Trustee. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Guarantee Agreement (other than pursuant to Section 2.4) shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
2.
<PAGE>
(c) a statement that each officer has made such examination or
investigation as, in such officer' s opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each officer, such
condition or covenant has been complied with.
"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"RESPONSIBLE OFFICER" means with respect to the Guarantee Trustee, any
Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any
Senior Trust Officer, any Trust Officer or Assistant Trust Officer or any other
officer of the Corporate Trust Department of the Guarantee Trustee and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"SUCCESSOR GUARANTEE TRUSTEE" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II.
TRUST INDENTURE ACT
SECTION 2.1. TRUST INDENTURE ACT; APPLICATION.
This Guarantee Agreement is not subject to the provisions of the Trust
Indenture Act, but the Guarantee Agreement is intended to comply with the
requirements of Sections 310 to 317, inclusive, of the Trust Indenture Act. If
and to the extent that any provision of this Guarantee Agreement limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2. LIST OF HOLDERS.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) semiannually, not more than five days after December 1 and
June 1 of each year, beginning with June 1997, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and addresses of the
Holders ("List of Holders") as of a date not more than 15 days prior to the
delivery thereof, and (b) at such other times as the Guarantee Trustee may
request in writing, within 30 days after the receipt by the Guarantor of any
such request, a List of Holders as of a date not more than 15 days prior to the
time such list is furnished, in each case to the extent such information is in
the possession or control of the Guarantor and is not identical to a previously
supplied list of Holders or has not otherwise been received by the Guarantee
Trustee in its capacity as such. The Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with the obligations imposed
under Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture
Act as if it were subject to the Trust Indenture Act.
3.
<PAGE>
SECTION 2.3. REPORTS BY THE GUARANTEE TRUSTEE.
Not later than 60 days after September 15 of each year, commencing
September 15, 1997, the Guarantee Trustee shall provide to the Holders such
reports dated as of such September 15 as are required by Section 313(a) of the
Trust Indenture Act, if any, in the form and in the manner provided by Section
313 of the Trust Indenture Act. The Guarantee Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4. PERIODIC REPORTS TO THE GUARANTEE TRUSTEE.
The Guarantor shall provide to the Guarantee Trustee, the Securities
and Exchange Commission and the Holders such documents, reports and information,
if any, as requited by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314(a)(4) of the Trust Indenture Act, in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act, such compliance certificate to be delivered annually on or before
September 15 of each year beginning in 1997.
SECTION 2.5. EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.6. EVENTS OF DEFAULT; WAIVER.
The Holder of a Majority in Liquidation Amount of the Capital
Securities may, by vote, on behalf of the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent therefrom.
SECTION 2.7. EVENT OF DEFAULT; NOTICE.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default, transmit by mail, first class postage prepaid, to the
Holders, notices of all Events of Default known to the Guarantee Trustee, unless
such defaults have been cured before the giving of such notice, provided, that,
except in the case of a default in the payment of a Guarantee Payment, the
Guarantee Trustee shall be protected in withholding such notice if and so long
as the Board of Directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written notice
from the Guarantor or a Holder, or a Responsible Officer charged with the
administration of this Guarantee Agreement shall have obtained written notice
from the Guarantor or a Holder, of such Event of Default.
SECTION 2.8. CONFLICTING INTERESTS.
The Trust Agreement shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
4.
<PAGE>
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. POWERS AND DUTIES OF THE GUARANTEE TRUSTEE.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions
of this Guarantee Agreement, and the Guarantee Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee
Agreement; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming to
the requirements of this Guarantee Agreement; but in the case
of any such certificates or opinions that by any provision
hereof or of the Trust Indenture Act (were it applicable
hereto) are specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be under a duty
to examine the same to determine whether or not they conform
to the requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee Trustee
was negligent in ascertaining the pertinent facts upon which such
judgment was made;
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(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Capital Securities relating to
the time, method and place of conducting any proceeding for any remedy
available for the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee Agreement;
and
(iv) no provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if the
Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it
under the terms of this Guarantee Agreement or adequate indemnity
against such risk or liability is not reasonably assured to it.
SECTION 3.2. CERTAIN RIGHTS OF GUARANTEE TRUSTEE.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by it to be
genuine and to have been signed, sent or presented by the proper party
or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting to take
any action hereunder, the Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its
part, request and rely upon an Officers' Certificate which, upon
receipt of such request from the Guarantee Trustee, shall be promptly
delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel of
its own selection, and the written advice or opinion of such legal
counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith and in accordance
with such advice or opinion. Such legal counsel may be legal counsel to
the Guarantor or any of its Affiliates and may be one of its employees.
The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee Agreement
from any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such adequate security and
indemnity as would satisfy a reasonable person in the position of the
Guarantee Trustee, against the costs, expenses (including attorneys'
fees and expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Guarantee Trustee; provided that,
nothing contained in this Section 3.2(a)(v) shall be taken to relieve
the Guarantee Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this
Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the
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Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such fact or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, and the Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (A) may request
instructions from the Holders, (B) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received, and (C) shall be protected in acting in accordance with such
instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
SECTION 3.3. COMPENSATION.
The Guarantor agrees to pay to the Guarantee Trustee from time to time
reasonable compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and to reimburse the Guarantee
Trustee upon request for all reasonable expenses, disbursements and advances
incurred or made by the Guarantee Trustee in accordance with any provision of
this Guarantee Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith.
SECTION 3.4. INDEMNITY.
The Guarantor agrees to indemnify the Guarantee Trustee for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Guarantee Trustee, arising out of or
in connection with the acceptance or administration of this Guarantee Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. The Guarantee Trustee will not claim or exact any lien or
charge on any Guarantee Payments as a result of any amount due to it under this
Guarantee Agreement.
ARTICLE IV.
GUARANTEE TRUSTEE
SECTION 4.1. GUARANTEE TRUSTEE: ELIGIBILITY.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
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(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of
at least $50,000,000, and shall be a corporation meeting the
requirements of Section 310(a) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining
authority, then, for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act, subject to the penultimate
paragraph thereof.
SECTION 4.2. APPOINTMENT, REMOVAL AND RESIGNATION OF THE GUARANTEE
TRUSTEE.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Guarantee Trustee and delivered to
the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
ARTICLE V.
GUARANTEE
SECTION 5.1. GUARANTEE.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by or on behalf of the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
8.
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SECTION 5.2. WAIVER OF NOTICE AND DEMAND.
The Guarantor hereby waives notice of acceptance of the Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor, notice of
redemption and all other notices and demands.
SECTION 5.3. OBLIGATIONS NOT AFFECTED.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Capital Securities to be performed
or observed by the Issuer,
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Debentures as so provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Capital Securities
or the extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Capital Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Capital Securities, or any
action on the part of the Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Capital
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4. RIGHTS OF HOLDERS.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Capital Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee Agreement or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee Agreement,
PROVIDED, HOWEVER, that, subject to Section 3.1, the Guarantee Trustee shall
have the right to decline to follow any such direction if the Guarantee Trustee
being advised by counsel determines that the action so directed may not lawfully
be taken, or if the Guarantee Trustee in good
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faith shall, by a Responsible Officer or Officers of the Guarantee Trustee,
determine that the proceedings so directed would be illegal or involve it in
personal liability or be unduly prejudicial to the rights of the Holders not
party to such direction, and PROVIDED FURTHER that nothing in this Guarantee
Agreement shall impair the right of the Guarantee Trustee to take any action
deemed proper by the Guarantee Trustee and which is not inconsistent with such
direction; and (iv) to the fullest extent permitted by law, any Holder may
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Issuer or any other Person. The
Guarantor waives any right to require that any action be brought first against
the Issuer or any other Person or entity before proceeding directly against the
Guarantor.
SECTION 5.5. GUARANTEE OF PAYMENT.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer) or upon distribution of Debentures to Holders as provided in the
Trust Agreement.
SECTION 5.6. SUBROGATION.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement and shall have the right to waive
payment by the Issuer pursuant to Section 5.1; PROVIDED, HOWEVER, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee Agreement, if, at the time of any
such payment, any amounts are due and unpaid under this Guarantee Agreement. If
any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
SECTION 5.7. INDEPENDENT OBLIGATIONS.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Capital
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
SECTION 5.8. MERGER OR CONSOLIDATION OF GUARANTOR.
The Guarantor covenants that it will not consolidate with or merge into
any other Person, or transfer, convey or lease all or substantially all of its
assets or properties to any other Person, and no other Person shall consolidate
with or merge into the Guarantor, or transfer, convey or lease all or
substantially all of its assets to the Guarantor, unless (i) either the
Guarantor shall be the continuing corporation, or the successor shall be a
Person organized and existing under the laws of the United States of America or
a State thereof or the District of Columbia and such successor shall expressly
assume the Guarantor's obligations under this Guarantee Agreement by written
instrument in form satisfactory to the Trustee, executed and delivered to the
Trustee by such successor, (ii) immediately after such merger or consolidation,
or such transfer, conveyance or lease, no Event of Default hereunder, and no
event which, after notice or lapse of time or both would become an Event of
Default, shall have happened and be continuing, (iii) such consolidation,
merger, transfer, conveyance or lease is permitted under the Trust Agreement and
Indenture and does not give rise to any breach or violation of the Trust
Agreement or Indenture and (iv) the Guarantee Trustee shall have received an
opinion of counsel of the Guarantor or such successor person, as the case may
be, to the effect that such consolidation, merger, transfer, conveyance or lease
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and any such assumption complies with the provisions of this Section and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
ARTICLE VI.
SUBORDINATION
SECTION 6.1. SUBORDINATION.
The obligations of the Guarantor under this Guarantee Agreement
constitute unsecured obligations of the Guarantor and rank subordinate and
junior in right of payment to all other liabilities of the Guarantor (including
obligations under the Debentures) except (a) those liabilities which expressly
by their terms are made PARI PASSU or subordinate to the obligations of the
Guarantor under this Guarantee Agreement, and (b) liabilities arising under
similar guarantee agreements as described in Section 6.2 hereof
SECTION 6.2. PARI PASSU TO SIMILAR GUARANTEES.
The obligations of the Guarantor under this Guarantee Agreement shall
rank PARI PASSU with the obligations of the Guarantor under any similar
guarantee agreements issued by the Guarantor on behalf of the holders of
preferred securities or capital securities issued by any Crestar Capital Trust
(as defined in the Indenture).
ARTICLE VII.
TERMINATION
SECTION 7.1. TERMINATION.
This Guarantee Agreement shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price of all Capital Securities,
(ii) the distribution of Debentures to the Holders in exchange for all of the
Capital Securities or (iii) full payment of the amounts payable in accordance
with the Trust Agreement upon liquidation of the Issuer. Notwithstanding the
foregoing, this Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid with respect to Capital Securities or this Guarantee Agreement.
Sections 3.3 and 3.4 shall survive the termination of this Guarantee Agreement.
ARTICLE VIII.
MISCELLANEOUS
SECTION 8.1. SUCCESSORS AND ASSIGNS.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Capital
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Section 5.8 of this
Guarantee Agreement, the Guarantor shall not assign its obligations hereunder.
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SECTION 8.2. AMENDMENTS.
Except with respect to any changes which do not adversely affect the
rights of the Holders in any material respect (in which case no consent of the
Holders will be required), this Guarantee Agreement may only be amended with the
prior approval of the Holders of not less than a Majority in Liquidation Amount
of all the outstanding Capital Securities. The provisions of the Trust Agreement
concerning meetings or consents of the Holders shall apply to the giving of such
approval.
SECTION 8.3. NOTICES.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address, facsimile number or to the attention of such other Person as the
Guarantor may give notice to the Holders:
Crestar Financial Corporation
919 East Main Street
P.O. Box 26665
Richmond, Virginia 23261-6665
Facsimile No.: 804-782-7244
Attention: John C. Clark, III
(b) if given to the Issuer, at the Issuer's (and the Guarantee
Trustee's) address set forth below or such other address as the Issuer may give
notice to the Holders and the Guarantee Trustee:
Crestar Capital Trust I
Crestar Financial Corporation
919 East Main Street
P.O. Box 26665
Richmond, Virginia 23261-6665
Facsimile No.: 804-782-7244
Attention: John C. Clark, III
with a copy to:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Facsimile No.: 212-946-8160
Attention: Corporate Trustee Administration
(c) if given to the Guarantee Trustee, to the address set forth below
or such other address, facsimile number or to the attention of such other Person
as the Guarantee Trustee may give notice to the Holders:
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
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Facsimile No.: (212) 946-8160
Attention: Corporate Trustee Administration
(d) if given to any Holder, at the address set forth on the books and
records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4. BENEFIT.
This Guarantee Agreement is solely for the benefit of the Holders and
is not separately transferable from the Capital Securities.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined
in the preamble hereto have the respective meanings assigned to them in Section
1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include
the masculine, feminine and neuter genders.
SECTION 8.6. GOVERNING LAW.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PRINCIPLES THEREOF; PROVIDED, HOWEVER, THAT THE RIGHTS
AND DUTIES OF THE GUARANTEE TRUSTEE HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF THE GUARANTEE TRUSTEE'S PRINCIPAL PLACE OF
BUSINESS.
This instrument may be executed in any number of counterparts each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
CRESTAR FINANCIAL CORPORATION
By:
-------------------------
Name: Eugene S. Putnam, Jr.
Title: Senior Vice President
THE CHASE MANHATTAN BANK
as Guarantee Trustee
By:
-------------------
Name: Anne G. Brenner
Title: Vice President
14.
CAPITAL SECURITIES EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
CAPITAL SECURITIES EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated December
31, 1996, by and among Crestar Capital Trust I, a Delaware business trust (the
"Trust"), Crestar Financial Corporation, a Virginia corporation registered as a
bank holding company under the Bank Holding Company Act of 1956, as amended
("Crestar") and Morgan Stanley & Co. Incorporated, Lehman Brothers Inc. and UBS
Securities LLC (collectively, the "Purchasers"), purchasers of the 8.16% Capital
Securities of the Trust.
1. CERTAIN DEFINITIONS. For purposes of this Exchange and Registration
Rights Agreement, the following terms shall have the following respective
meanings:
(a) "COMMISSION" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(b) "DEBENTURE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" means the
Debenture Exchange and Registration Rights Agreement in respect of the
Debentures dated December 31, 1996 among Crestar, the Trust and the Purchasers.
(c) "DEBENTURES" means the 8.16% Junior Subordinated Deferrable Interest
Debentures due December 15, 2026 of Crestar, to be issued pursuant to the
Indenture.
(d) "EFFECTIVE TIME", in the case of (i) an Exchange Offer, means the
date on which the Commission declares the Exchange Offer registration statement
effective or on which such registration statement otherwise becomes effective
and (ii) a Shelf Registration, means the date on which the Commission declares
the Shelf Registration effective or on which the Shelf Registration otherwise
becomes effective.
(e) "EXCHANGE ACT" means the Securities Exchange Act of 1934, or any
successor thereto, as amended from time to time.
(f) "EXCHANGE DEBENTURES" has the meaning set forth in Section 2(a)
hereof.
(g) "EXCHANGE GUARANTEE" has the meaning set forth in Section 2(a)
hereof.
(h) "EXCHANGE OFFER" has the meaning set forth in Section 2(a) hereof.
(i) "EXCHANGE REGISTRATION" has the meaning set forth in Section 3(c)
hereof.
(j) "EXCHANGE SECURITIES" has the meaning set forth in Section 2(a)
hereof.
(k) "GUARANTEE" means the Guarantee of Crestar with respect to the
Securities, to the extent set forth in the Guarantee Agreement.
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(l) "GUARANTEE AGREEMENT" means the Guarantee Agreement dated December
31, 1996 between Crestar and The Chase Manhattan Bank, as Guarantee Trustee
(together with its successors and assigns "Guarantee Trustee"), for the benefit
of the holders of the Securities.
(m) "GUARANTEE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" means the
Guarantee Exchange and Registration Rights Agreement in respect of the Guarantee
dated December 31, 1996 among Crestar, the Trust and the Purchasers.
(n) The term "HOLDER" means each of the Purchasers for so long as it owns
any Registrable Securities, and its respective successors and assigns who
acquire Registrable Securities from time to time, directly or indirectly, from
such person or from any successor or assign of such person, in each case for so
long as such person owns any Registrable Securities.
(o) "INDENTURE" means the Indenture dated as of December 31, 1996,
between Crestar and The Chase Manhattan Bank, as Debenture Trustee, as
supplemented by the First Supplemental Indenture dated as of December 31, 1996
and as further amended or supplemented from time to time.
(p) "ISSUE DATE" means December 31, 1996.
(q) "LIQUIDATION AMOUNT" means the stated liquidation preference of the
Securities.
(r) "NEW GUARANTEE AGREEMENT" has the meaning set forth in the Guarantee
Exchange and Registration Rights Agreement.
(s) The term "PERSON" means a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
(t) "PURCHASE AGREEMENT" means the Purchase Agreement dated December 20,
1996, among Crestar, the Trust and the Purchasers.
(u) "REGISTRABLE SECURITIES" means the Securities; PROVIDED, HOWEVER,
that such Securities shall cease to be Registrable Securities when
(i) the Exchange Offer is conducted as contemplated in Section
2(a); PROVIDED THAT, prior to the consummation of the Exchange Offer,
existing Commission interpretations have not been changed such that the
Exchange Securities received by holders in the Exchange Offer for
Registrable Securities are not or would not be, upon receipt,
transferable by each such holder (other than a Restricted Holder) without
restriction under the Securities Act in the circumstances contemplated by
Section 2(a); and PROVIDED FURTHER, that any Exchange Security received
by a broker-dealer in an Exchange Offer exchange for a Registrable
Security that was not acquired by the broker-dealer directly from the
Trust will also be a Registrable Security through and including the
earlier of the 90th day after the Exchange Offer is completed or such
time as such broker-dealer
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no longer owns such Security; and PROVIDED FURTHER, HOWEVER, that any
such Securities that, pursuant to the last two sentences of Section 2(a)
hereof, are included in a prospectus for use in connection with resales
by broker-dealers shall be deemed to be Registrable Securities with
respect to Sections 5, 6 and 9 until resale of such Exchange Securities
has been effected within the 90-day period referred to in Section 2(a)
hereof;
(ii) in the circumstances contemplated by Section 2(b), a
registration statement registering such Securities (and, in the
circumstances contemplated by Section 2(b), other than a registration
statement filed in addition to the Exchange Offer, also registering the
underlying Debentures and the related Guarantee) under the Securities Act
has been declared or becomes effective and such Securities have been sold
or otherwise transferred by the holder thereof pursuant to such effective
registration statement;
(iii) such Securities are sold pursuant to Rule 144 (or any
successor provision) promulgated under the Securities Act under
circumstances in which any legend borne by such Securities relating to
restrictions on transferability thereof, under the Securities Act, is
removed by the Trust or pursuant to the Trust Agreement or such
Securities are eligible to be sold pursuant to paragraph (k) of Rule 144;
or
(iv) such Securities shall cease to be outstanding.
(v) "REGISTRATION DEFAULT" has the meaning set forth in Section 2(c)
hereof.
(w) "REGISTRATION EXPENSES" has the meaning set forth in Section 4
hereof.
(x) "RESTRICTED HOLDER" means (i) a holder that is an affiliate of the
Trust or of Crestar within the meaning of Rule 405 under the Securities Act,
(ii) a holder who acquires Exchange Securities outside the ordinary course of
such holder's business, (iii) a holder who has arrangements or understandings
with any person to participate in the Exchange Offer for the purpose of
distributing Exchange Securities or (iv) a broker-dealer who receives Securities
for its own account but did not acquire the Securities as a result of
market-making activities or other trading activities.
(y) "RESALE PERIOD" has the meaning set forth in Section 2(a) hereof.
(z) "SECURITIES" means, collectively, the $200,000,000 aggregate
Liquidation Amount of the 8.16% Capital Securities, Liquidation Amount $1,000
per Capital Security, of the Trust to be issued and sold to the Purchasers, and
any securities issued in exchange therefor or in lieu thereof pursuant to the
Trust Agreement.
(aa) "SECURITIES ACT" means the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
(bb) "SHELF REGISTRATION" has the meaning set forth in Section 2(b)
hereof.
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(cc) "SPECIAL DISTRIBUTIONS" has the meaning set forth in Section 2(c)
hereof.
(dd) "SPECIAL INTEREST" has the meaning set forth in Section 2(c) hereof.
(ee) "TRUST AGREEMENT" means the Amended and Restated Trust Agreement
dated as of December 31, 1996 among Crestar, as Depositor, The Chase Manhattan
Bank, as Property Trustee (together with its successors and assigns, the
"Property Trustee"), Chase Manhattan Bank Delaware, as Delaware Trustee and the
Administrators named therein.
(ff) "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) Except as set forth in Section 2(b) below, Crestar and the Trust
agree, jointly and severally, to use their reasonable best efforts to file under
the Securities Act, as soon as practicable, but no later than 150 days after the
Issue Date, a registration statement relating to an offer to exchange (the
"Exchange Offer") any and all of the Securities for a like aggregate Liquidation
Amount of capital securities of the Trust which are substantially identical to
the Securities (and which are entitled to the benefits of the Trust Agreement
which will be qualified under the Trust Indenture Act) except that they have
been registered pursuant to an effective registration statement under the
Securities Act and such new capital securities will not contain provisions for
Special Distributions or provisions restricting transfer in the absence of
registration under the Securities Act (such new capital securities hereinafter
called "Exchange Securities") for any or all of the Registrable Securities. Such
registration statement shall also relate to, and the consummation of the
Exchange Offer shall be conditioned upon the consummation of, an offer to
exchange the Debentures for substantially identical debentures of Crestar
pursuant to the Debenture Exchange and Registration Rights Agreement (the
"Exchange Debentures") and an offer to exchange the Guarantee for a
substantially identical guarantee of Crestar pursuant to the Guarantee Exchange
and Registration Rights Agreement (the "Exchange Guarantee"). Crestar and the
Trust agree, jointly and severally, to use their reasonable best efforts to
cause such registration statement to become effective under the Securities Act
as soon as practicable after the filing thereof. The Exchange Offer will be
registered under the Act on the appropriate form and will comply in all material
respects with all applicable tender offer rules and regulations under the
Exchange Act. Crestar and the Trust further agree, jointly and severally, to
commence the Exchange Offer promptly after such registration statement has
become effective, hold the Exchange Offer open for at least 30 days and the
Trust agrees to
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issue Exchange Securities for all Registrable Securities that have been tendered
and not withdrawn on or prior to the expiration of the Exchange Offer. The
Exchange Offer will be deemed to have been completed only if the Exchange
Securities received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are, upon receipt, transferable by each such
holder without restriction under the Securities Act and the Exchange Act, it
being understood that broker-dealers receiving Securities will be subject to
certain prospectus delivery requirements with respect to resale of the
Securities. The Exchange Offer shall be deemed to have been completed upon the
earlier to occur of (i) the Trust having exchanged the Exchange Securities for
all outstanding Registrable Securities pursuant to the Exchange Offer and (ii)
the Trust having exchanged, pursuant to the Exchange Offer, Exchange Securities
for all Registrable Securities that have been validly tendered and not withdrawn
before the expiration of the Exchange Offer, which shall be on a date that is at
least 30 days following the commencement of the Exchange Offer. Crestar and the
Trust agree, jointly and severally, (x) to include in the registration statement
a prospectus for use in connection with any resales of Exchange Securities by a
broker-dealer, other than resales of Exchange Securities received by a
broker-dealer pursuant to the Exchange Offer in exchange for Registrable
Securities acquired by the broker-dealer directly from the Trust, and (y) to the
extent any broker-dealer participates in the Exchange Offer and notifies Crestar
or causes Crestar to be notified in writing that it is a participating
broker-dealer, to use their reasonable efforts to keep such registration
statement effective for a period (the "Resale Period") beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon the earlier of
the expiration of the 90th day after the Exchange Offer has been completed or
such shorter period if all Exchange Securities received by such broker-dealer in
exchange for Registrable Securities acquired for their own account as a result
of market-making or other trading activities have been disposed of by such
broker-dealer; and no broker-dealers shall be authorized by Crestar to, and
shall not, deliver such Prospectus after such period in connection with resales
contemplated by this Section 2(a) or otherwise; it being understood that,
notwithstanding anything in this Exchange and Registration Rights Agreement to
the contrary, Crestar shall not be required to comply with any provision of this
Section 2(a) or any other provision of this Exchange and Registration Rights
Agreement relating to the distribution of Exchange Securities by broker-dealers,
to the extent that Crestar reasonably concludes that compliance with such
provision is no longer required by applicable law or interpretation of the Staff
of the SEC. With respect to such registration statement, each broker-dealer that
holds Exchange Securities received in an Exchange Offer in exchange for
Registrable Securities not acquired by it directly from the Trust shall have the
benefit of the rights of indemnification and contribution set forth in Section 6
hereof.
(b) If (i) on or prior to the consummation of the Exchange Offer existing
Commission interpretations are changed such that the Exchange Securities
received by holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are not or would not be, upon receipt, transferable by
each such holder without restriction under the Securities Act, (ii) the Exchange
Offer has not been consummated within 210 days following the Issue Date or (iii)
the Purchasers so request (but only with respect to the Securities) within 60
days after the consummation of the Exchange Offer with respect to any Securities
held by them which are not freely transferable following consummation of the
Exchange Offer, in lieu of (or, in the case of
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<PAGE>
clause (iii), in addition to) conducting the Exchange Offer contemplated by
Section 2(a), Crestar and the Trust shall file under the Securities Act, as soon
as practicable, a "shelf" registration statement providing for the registration
of, and the sale on a continuous or delayed basis by the holders of, all of the
Registrable Securities (or, in the case of clause (iii), of the Securities held
by the Purchasers for resale by the Purchasers), pursuant to Rule 415 under the
Securities Act and/or any similar rule that may be adopted by the Commission
(the "Shelf Registration"). Unless the Shelf Registration has been filed in
addition to conducting the Exchange Offer contemplated by Section 2(a), the
Shelf Registration shall also provide for the registration of the Debentures
pursuant to the Debenture Exchange and Registration Rights Agreement and for the
registration of the Guarantee pursuant to the Guarantee Exchange and
Registration Rights Agreement. Crestar and the Trust agree, jointly and
severally, to use their reasonable best efforts to cause the Shelf Registration
to become or be declared effective and to keep such Shelf Registration
continuously effective for a period ending on the earlier of (A) the third
anniversary of the Issue Date (or, in the case of clause (iii), the first
anniversary) or (B) the later of (i) such time as there are no longer any
Registrable Securities outstanding or (ii) as required under the Debenture
Exchange and Registration Rights Agreement. Crestar and the Trust further agree,
jointly and severally, to supplement or make amendments to the Shelf
Registration, as and when required by the rules, regulations or instructions
applicable to the registration form used by Crestar and the Trust for such Shelf
Registration or by the Securities Act or rules and regulations thereunder for
shelf registration, and Crestar and the Trust agree, jointly and severally, to
furnish to the holders of the Registrable Securities copies of any such
supplement or amendment prior to its being used and/or filed with the
Commission.
(c) In the event that (i) Crestar and the Trust have not filed the
registration statement relating to the Exchange Offer (or, if applicable, the
Shelf Registration) on or before the 150th day after the Issue Date, or (ii)
such registration statement (or, if applicable, the Shelf Registration) has not
become effective or been declared effective by the Commission on or before the
180th day after the Issue Date, or (iii) any of the Exchange Offer, the exchange
offer contemplated by the Guarantee Exchange and Registration Rights Agreement
and the exchange offer contemplated by the Debenture Exchange and Registration
Rights Agreement has not been completed within 210 days after the Issue Date (if
the Exchange Offer is then required to be made) or (iv) any registration
statement required by Section 2(a) or 2(b) is filed and declared effective but
shall thereafter cease to be effective (except as specifically permitted herein)
without being succeeded immediately by an additional registration statement
filed and declared effective (each such event referred to in clauses (i) through
(iv), a "Registration Default"), then interest will accrue (in addition to the
stated interest rate on the Debentures) at the rate of 0.25% per annum on the
principal amount of the Debentures, and the distributions will accrue (in
addition to the stated distribution rate on the Securities) at the rate of 0.25%
per annum on the Liquidation Amount of the Securities, for the period from the
occurrence of the Registration Default until such time as no Registration
Default is in effect. Such additional interest (the "Special Interest") and such
additional distributions (the "Special Distributions") will be payable in cash
semi-annually in arrears on each June 15 and December 15 in accordance with, and
subject to the deferral provisions of, the Indenture and the Trust Agreement,
respectively.
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Special Interest, if any, and Special Distributions, if any, will be computed on
the basis of a 365 or 366 day year, as the case may be, and the number of days
actually elapsed.
(d) Any reference herein to a registration statement shall be deemed to
include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein to any post effective amendment to a
registration statement shall be deemed to include any document incorporated
therein by reference as of a time after such Effective Time.
3. REGISTRATION PROCEDURES.
If Crestar and the Trust file a registration statement pursuant to
Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, Crestar shall qualify the Indenture, the New
Guarantee Agreement and the Trust Agreement under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of
a new trustee under any of the Indenture, the New Guarantee Agreement or the
Trust Agreement, such new trustee shall be appointed thereunder pursuant to the
applicable provisions thereof.
(c) In connection with the joint and several obligations of Crestar and
the Trust with respect to the registration of the Exchange Securities, the
Exchange Guarantee and the Exchange Debentures, as contemplated by Section 2(a)
(the "Exchange Registration"), if applicable, Crestar and the Trust shall, as
soon as reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable
but no later than 150 days after the Issue Date, a registration statement
with respect to the Exchange Registration on any form which may be
utilized by Crestar and the Trust and which shall permit the Exchange
Offer and resales of Exchange Securities by broker-dealers during the
Resale Period to be effected as contemplated by Section 2(a) hereof, and
use its reasonable best efforts to cause such registration statement to
become effective as soon as practicable thereafter;
(ii) as soon as practicable prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and maintain
the effectiveness of such registration statement for the periods and
purposes contemplated in Section 2(a) hereof and as may be required by
the applicable rules and regulations of the Commission and the
instructions applicable to the form of such registration statement, and
promptly provide each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder, as such
broker-dealer reasonably may request prior
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<PAGE>
to the expiration of the Resale Period, for use in connection with
resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration
statement, and confirm such advice in writing, (A) when such registration
statement or the prospectus included therein or any prospectus amendment
or supplement or post effective amendment has been filed, and, with
respect to such registration statement or any post effective amendment,
when the same has become effective, (B) of the receipt of any comments by
the Commission and by the Blue Sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration statement
or prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the joint and several
representations and warranties of Crestar and the Trust contemplated by
Section 5 cease to be true and correct in all material respects, (E) of
the receipt by either Crestar or the Trust of any notification with
respect to the suspension of the qualification of the Exchange Securities
and the Exchange Guarantee for sale in any United States jurisdiction or
the initiation or threatening of any proceeding for such purpose, or (F)
at any time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such registration statement,
prospectus, prospectus amendment or supplement or post effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder or
contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(iv) in the event that Crestar and the Trust would be required,
pursuant to Section 3(c)(iii)(F) above, to notify any broker-dealers
holding Exchange Securities, without delay prepare and furnish to each
such holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission promulgated thereunder and shall not 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 in light of the circumstances then existing;
(v) use their best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any post
effective amendment thereto at the earliest practicable date;
(vi) use their reasonable best efforts to (A) register or qualify
the Exchange Securities and the Exchange Guarantee under the securities
laws or blue sky laws of such
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jurisdiction as are contemplated by Section 2(a) no later than the
commencement of the Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
until the expiration of the Resale Period and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to consummate the disposition
thereof in such jurisdictions; PROVIDED, HOWEVER, that neither Crestar
nor the Trust shall be required for any such purpose to (1) qualify to do
business in any jurisdiction wherein it would not otherwise be required
to qualify but for the requirements of this Section 3(g)(vi), (2) consent
to general service of process in any such jurisdiction or (3) in the case
of Crestar, make any changes to its charter or by-laws or any agreement
between it and its stockholders or in the case of the Trust, make any
changes to the Trust Agreement;
(vii) use their reasonable best efforts to obtain the consent or
approval of each United States governmental agency or authority, whether
federal, state or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of Exchange
Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to all holders of Securities as
soon as practicable but no later than eighteen months after the Effective
Time, an earnings statement of Crestar and its subsidiaries complying
with Section 11(a) of the Securities Act (including, at the option of
Crestar, Rule 158 thereunder).
(d) In connection with the joint and several obligations of Crestar and
the Trust with respect to the Shelf Registration, if applicable, Crestar and the
Trust shall use their reasonable best efforts to cause the Shelf Registration to
become effective to permit the sale of the Registrable Securities by the holders
thereof in accordance with the intended method or methods of distribution
thereof described in the Shelf Registration. In connection therewith, Crestar
and the Trust shall as soon as reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable,
a registration statement with respect to the Shelf Registration on any
form which may be utilized by Crestar and the Trust and which shall
permit the disposition of the Registrable Securities in accordance with
the intended method or methods thereof, as specified in writing to
Crestar and the Trust by the holders of the Registrable Securities and
use their reasonable best efforts to cause such registration statement to
become effective as soon as practicable thereafter;
(ii) as soon as practicable, prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included
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therein as may be necessary to effect and maintain the effectiveness of
such registration statement for the period specified in Section 2(b)
hereof and as may be required by the applicable rules and regulations of
the Commission and the instructions applicable to the form of such
registration statement and furnish to the holders of the Registrable
Securities copies of any such supplement or amendment simultaneously with
or prior to its being used or filed with the Commission;
(iii) comply with the provisions of the Securities Act applicable
to Crestar or the Trust in connection with the disposition of all of the
Registrable Securities covered by such registration statement in
accordance with the intended methods of disposition by the holders
thereof, set forth in such registration statement;
(iv) provide (A) the holders of the Registrable Securities to be
included in such registration statement and not more than one counsel for
all the holders of such Registrable Securities, (B) the underwriters
(which term, for purposes of this Exchange and Registration Rights
Agreement, shall include a person deemed to be an underwriter within the
meaning of Section 2(11) of the Securities Act), if any, thereof, (C) the
sales or placement agent, if any, therefor and (D) one counsel for such
underwriters or agents, if any, reasonable opportunity to participate in
the preparation of such registration statement, each prospectus included
therein or filed with the Commission, and each amendment or supplement
thereto;
(v) for a reasonable period prior to the filing of such
registration statement, and throughout the period specified in Section
2(b), make available at reasonable times at Crestar's principal place of
business or such other reasonable place for inspection by the persons
referred to in Section 3(d)(iv) who shall certify to Crestar and the
Trust that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration such financial and other
information and books and records of Crestar and the Trust, and cause the
officers, employees, counsel and independent certified public accountants
of Crestar and the Trust to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel referred
to in such Section, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; PROVIDED, HOWEVER, that each
such party shall be required to maintain in confidence and not to
disclose to any other person any information or records reasonably
designated by Crestar as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of its
inclusion in such registration statement or otherwise, except by
disclosure by such party in breach of this Agreement), or (B) such person
shall be required so to disclose such information pursuant to the
subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to, and only to the extent
required by, the requirements of such order, and only after such person
shall have given Crestar prompt prior written notice of such
requirement);
(vi) promptly notify the selling holders of Registrable
Securities, the sales or placement agent, if any, therefor and the
managing underwriter or underwriters, if any,
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thereof and confirm such advice in writing, (A) when such registration
statement or the prospectus included therein or any prospectus amendment
or supplement or post-effective amendment has been filed, and, with
respect to such registration statement or any post-effective amendment,
when the same has become effective, (B) of any comments by the Commission
and by the Blue Sky or securities commissioner or regulator of any state
with respect thereto or any request by the Commission for amendments or
supplements to such registration statement or prospectus or for
additional information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such registration statement or the
initiation or threatening of any proceedings for that purpose, (D) if at
any time the joint and several representations and warranties of Crestar
and the Trust contemplated by Section 3(d)(xv) or Section 5 cease to be
true and correct in all material respects, (E) of the receipt by either
Crestar or the Trust of any notification with respect to the suspension
of the qualification of the Registrable Securities and the Guarantee for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) at any time when a prospectus is
required to be delivered under the Securities Act, that such registration
statement, prospectus, prospectus amendment or supplement or
post-effective amendment, or any document incorporated by reference in
any of the foregoing, does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder or
contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(vii) use their best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or underwriters,
any placement or sales agent or any holder or counsel for the holders of
Registrable Securities, promptly incorporate in a prospectus supplement
or post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such managing
underwriter or underwriters, such agent or such holder specifies should
be included therein relating to the terms of the sale of such Registrable
Securities, including, without limitation, information with respect to
the Liquidation Amount or the principal amount, as the case may be, of
Registrable Securities being sold by any holder or agent or to any
underwriters, the name and description of such holder, agent or
underwriter, the offering price of such Registrable Securities and any
discount, commission or other compensation payable in respect thereof,
the purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable Securities,
to be sold by such holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be incorporated
in such prospectus supplement or post-effective amendment;
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<PAGE>
(ix) furnish to each holder of Registrable Securities, each
placement or sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section 3(d)(iv) an
executed copy of such registration statement, each such amendment and
supplement thereto (in each case including all exhibits thereto and
documents incorporated by reference therein) and such number of copies of
such registration statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by
such holder, agent or underwriter, as the case may be) and of the
prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity with
the requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission promulgated thereunder, and
such other documents, as such holder, agent, if any, and underwriter, if
any, may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such holder, offered
or sold by such agent or underwritten by such underwriter and to permit
such holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and each of Crestar and the Trust
hereby consents to the use of such prospectus (including such preliminary
and summary prospectus) and any amendment or supplement thereto by each
such holder and by any such agent and underwriter, in each case in the
form most recently provided to such party by Crestar and the Trust, in
connection with the offering and sale of the Registrable Securities
covered by the prospectus (including such preliminary and summary
prospectus) or any supplement or amendment thereto;
(x) use their reasonable best efforts to (A) register or qualify
the Registrable Securities to be included in such registration statement
and the Guarantee under such securities laws or blue sky laws of such
jurisdictions as any holder of such Registrable Securities and each
placement or sales agent, if any, therefor and underwriter, if any,
thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
during the period the Shelf Registration is required to remain effective
under Section 2(b) above and for so long as may be necessary to enable
any such holder, agent or underwriter to complete its distribution of
Securities pursuant to such registration statement and (C) take any and
all other actions as may be reasonably necessary or advisable to enable
each such holder, agent, if any, and underwriter, if any, to consummate
the disposition in such jurisdictions of Registrable Securities;
PROVIDED, HOWEVER, that neither Crestar nor the Trust shall be required
for any such purpose to (1) qualify to do business in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(d)(x), (2) consent to general service of
process in any such jurisdiction, (3) in the case of Crestar, make any
changes to its charter or by-laws or any agreement between it and its
shareholders or, in the case of the Trust, make any changes to the Trust
Agreement;
(xi) use their reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal, state
or local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable
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the selling holder or holders to offer, or to consummate the disposition
of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold, which certificates shall be printed, lithographed or engraved, or
produced by any combination of such methods, and which shall not bear any
restrictive legends; and, in the case of an underwritten offering, enable
such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may request at least two business
days prior to any sale of the Registrable Securities;
(xiii) provide a CUSIP number for all Registrable Securities, not
later than the applicable Effective Time;
(xiv) enter into not more than one underwriting agreement,
engagement letter, agency agreement, "best efforts" underwriting
agreement or similar agreement, as appropriate, including (without
limitation) provisions relating to indemnification and contribution
substantially the same as those set forth in Section 6 hereof, and take
such other actions in connection therewith as any holders of Registrable
Securities aggregating at least 25% in aggregate Liquidation Amount, or
in aggregate principal amount, as the case may be, of the Registrable
Securities at the time outstanding shall reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;
PROVIDED, that Crestar and the Trust shall not be required to (i) enter
into any such agreement more than once with respect to all of the
Registrable Securities and may delay entering into such agreement until
the consummation of any underwritten public offering which Crestar and
the Trust shall have then undertaken or (ii) enter into any engagement
letter, agency agreement, "best effort" underwriting agreement or similar
agreement whatsoever with respect to the Registrable Securities, and
PROVIDED, FURTHER that Crestar and the Trust shall not be obligated to
enter into any such agreement with a broker-dealer which results in the
need for a "qualified independent underwriter" (within the meaning of the
Rules of Fair Practice and the By-Laws of the National Association of
Securities Dealers, Inc. ("NASD") or any successor thereto, as amended
from time to time (the "Rules and ByLaws of NASD"));
(xv) whether or not an agreement of the type referred to in
Section (3)(d)(xiv) hereof is entered into and whether or not any portion
of the offering contemplated by such registration statement is an
underwritten offering or is made through a placement or sales agent or
any other entity, (A) make such representations and warranties to the
holders of such Registrable Securities and the placement or sales agent,
if any, therefor and the underwriters, if any, thereof substantially the
same as those set forth in Section 1 of the Purchase Agreement and such
other representations and warranties as are customarily made with respect
to the offering of debt securities pursuant to any appropriate agreement
or to a registration statement on the applicable form under the
Securities Act; (B) obtain an
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opinion or opinions of counsel to Crestar and the Trust substantially the
same as the opinions provided for in Section 5 of the Purchase Agreement
with such additions, substitutions or deletions of such matters as are
customarily covered in opinions for an underwritten offering, addressed
to such holder or holders and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof and dated the effective
date of such registration statement (and if such registration statement
contemplates an underwritten offering of a part or all of the Registrable
Securities, dated the date of the closing under the underwriting
agreement relating thereto) (it being agreed that the matters to be
covered by such opinion shall also include, without limitation, the
absence of governmental approvals required to be obtained in connection
with the Shelf Registration, the offering and sale of the Registrable
Securities, this Exchange and Registration Rights Agreement or any
agreement of the type referred to in Section (3)(c)(xiv) hereof, except
such approvals as may be required under state securities or blue sky
laws; and the compliance as to form of such registration statement and
any documents incorporated by reference therein and of the Indenture, the
Guarantee Agreement and the Trust Agreement with the requirements of the
Securities Act and the Trust Indenture Act and the rules and regulations
of the Commission promulgated thereunder, respectively); and, such
opinion shall also state that such counsel has no reason to believe that,
as of the date of the opinion and of the registration statement or most
recent post-effective amendment thereto, as the case may be, such
registration statement and the prospectus included therein, as then
amended or supplemented, and the documents incorporated by reference
therein (in each case other than the financial statements and other
financial information contained therein) contains or contained an untrue
statement of a material fact or omits or omitted to state therein a
material fact necessary to make the statements therein not misleading (in
the case of such documents, in the light of the circumstances existing at
the time that such documents were filed with the Commission under the
Exchange Act)); (C) obtain a "cold comfort" letter or letters from the
independent certified public accountants of Crestar and the Trust
addressed to the selling holders of Registrable Securities, the placement
or sales agent, if any, therefor and the underwriters, if any, thereof,
dated (i) the effective date of such registration statement and (ii) the
effective date of any prospectus supplement to the prospectus included in
such registration statement or post-effective amendment to such
registration statement; (D) deliver such other documents and
certificates, including officers' certificates, as may be reasonably
requested by any holders of at least 25 % in aggregate Liquidation
Amount, or in aggregate principal amount, as the case may be, of the
Registrable Securities at the time outstanding or the placement or sales
agent, if any, therefor and the managing underwriters, if any, thereof to
evidence the accuracy of the representations and warranties made pursuant
to clause (A) above or those contained in Section 5(a) hereof and the
compliance with or satisfaction of any agreements or conditions contained
in the underwriting agreement or other agreement entered into by Crestar
and the Trust; and (E) undertake such obligations relating to expense
reimbursement, indemnification and contribution as are provided in
Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities of
any proposal by Crestar and the Trust to amend or waive any provision of
this Exchange and Registration
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Rights Agreement pursuant to Section 9(h) hereof and of any amendment or
waiver effected pursuant thereto, each of which notices shall contain the
text of the amendment or waiver proposed or effected, as the case may be;
(xvii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate
as a member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Rules and By-Laws of NASD)
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Rules and By-Laws, including, without limitation, by
(A) if such Rules or By-Laws, including Schedule E thereto (or any
successor thereto), shall so require, engaging a "qualified independent
underwriter" (as defined in such Schedule (or any successor thereto)) to
participate in the preparation of the registration statement relating to
such Registrable Securities, to exercise usual standards of due diligence
in respect thereto and, if any portion of the offering contemplated by
such registration statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Registrable Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters provided
in Section 6 hereof (or to such other customary extent as may be required
by such underwriter), and (C) providing such information to such
broker-dealer as may be required in order for such broker-dealer to
comply with the requirements of the Rules and By-Laws of NASD; and
(xviii) comply with all applicable rules and regulations of the
Commission, and make generally available to its holders of the Securities
as soon as practicable but in any event not later than eighteen months
after the effective date of such registration statement, an earnings
statement of Crestar and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of Crestar, Rule 158
thereunder).
(e) In the event that Crestar and the Trust would be required, pursuant
to Section 3(d)(vi)(F) above, to notify the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, Crestar and the Trust shall without delay prepare
and furnish to each such holder, to each placement or sales agent, if any, and
to each underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall conform in all material respects
to the applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder and shall
not 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 in light of the circumstances then existing. Each holder of
Registrable Securities agrees that upon receipt of any notice from Crestar and
the Trust pursuant to Section 3(d)(vi)(F) hereof, such holder shall forthwith
discontinue the disposition of Registrable Securities, pursuant to the
registration statement applicable to such Registrable Securities until such
holder shall have received copies of such amended or supplemented prospectus,
and if so directed by Crestar and
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the Trust, such holder shall deliver to Crestar (at Crestar's expense) all
copies, other than permanent file copies, then in such holder's possession of
the prospectus covering such Registrable Securities at the time of receipt of
such notice.
(f) Crestar and the Trust may require each holder of Registrable
Securities as to which any registration is being effected to furnish in writing
to Crestar and the Trust such information regarding such holder and such
holder's intended method of distribution of such Registrable Securities as
Crestar and the Trust may from time to time reasonably request in writing, but
only to the extent that such information is required in order to comply with the
Securities Act. Each such holder agrees to notify Crestar and the Trust as
promptly as practicable of any inaccuracy or change in information previously
furnished by such holder to Crestar and the Trust or of the occurrence of any
event in either case as a result of which any prospectus relating to such
registration contains or would contain an untrue statement of a material fact
regarding such holder or such holder's intended method of distribution of such
Registrable Securities or omits to state any material fact regarding such holder
or such holder's intended method of distribution of such Registrable Securities
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly to furnish
to Crestar and the Trust any additional information required to correct and
update any previously furnished information or required so that such prospectus
shall not contain, with respect to such holder or the distribution of such
Registrable Securities, 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 in light of the circumstances then existing.
Each such holder shall comply with the provisions of the Securities Act
applicable to such holder with respect to the disposition by such holder of
Registrable Securities covered by such registration statement in accordance with
the intended methods of disposition by such holder set forth in such
registration statement.
(g) Until the expiration three years after the Issue Date, Crestar will
not, and will not permit any of its "affiliates" (as defined in Rule 144 under
the Act) to, resell any of the Securities which constitute "restricted
securities" under Rule 144 that have been reacquired by any of them except
pursuant to an effective registration statement under the Act or any exemption
therefrom; PROVIDED, HOWEVER, that, for purposes of this paragraph, "affiliates"
shall not include the Purchasers or any of their affiliates other than Crestar
and its subsidiaries, officers, managers and directors.
(h) If Crestar and the Trust file with the Commission a registration
statement in respect of the Exchange Offer pursuant to Section 2(a), then
Crestar and the Trust shall also file with the Commission a registration
statement under Section 12 of the Exchange Act and the rules and regulations
promulgated thereunder related to the Exchange Securities (and the Securities
and the Registrable Securities, if any). Crestar and the Trust shall use their
reasonable best efforts to cause such registration statement to become effective
prior to the 120th day of the fiscal year of the Trust next succeeding the
fiscal year in which the Exchange Offer has been consummated.
(i) Crestar and the Trust may require each holder of Registrable
Securities as to which a registration statement is being effected pursuant to
Section 2(a), as a condition to such
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holder's eligibility to exchange the Registrable Securities for the Exchange
Securities, that such holder furnish to Crestar and the Trust (or an agent
thereof) in writing information as to the number of "beneficial owners" (within
the meaning of Rule 13d-3 under the Exchange Act) on behalf of whom such holder
holds the Registrable Securities that such holder desires to exchange for the
Exchange Securities.
4. REGISTRATION EXPENSES.
If Crestar and the Trust file a registration statement pursuant to
Section 2(a) or Section 2(b), the following provisions shall apply:
Crestar agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the performance by Crestar
and the Trust or compliance with this Exchange and Registration Rights
Agreement, including, without limitation, (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Securities and the Guarantee for
offering and sale under the state securities and blue sky laws referred to in
Section 3(d)(x) hereof, including reasonable fees and disbursements of counsel
in connection with such qualifications, (c) all expenses relating to the
preparation, printing, distribution and reproduction of each registration
statement required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, and the certificates representing the Securities and all documents
relating hereto, (d) messenger and delivery expenses, (e) fees and expenses of
the Debenture Trustee under the Indenture, the Issuer Trustees under the Trust
Agreement and the Guarantee Trustee under the Guarantee Agreement and of any
escrow agent or custodian, (f) internal expenses (including, without limitation,
all salaries and expenses of Crestar's officers and employees performing legal
or accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of Crestar and the Trust (including the
expenses of any opinions or "cold comfort" letters required by or incident to
such performance and compliance), (h) fees, disbursements and expenses of any
"qualified independent underwriter" engaged pursuant to Section 3(d)(xvii)
hereof, (i) fees, disbursements and expenses of one counsel for the holders of
Registrable Securities retained in connection with a Shelf Registration, as
selected by the holders of at least a majority in aggregate Liquidation Amount,
or the aggregate principal amount, as the case may be, of the Registrable
Securities being registered, and fees, expenses and disbursements of any other
persons, including special experts, retained by Crestar or the Trust in
connection with such registration (collectively, the "Registration Expenses").
To the extent that any Registration Expenses are incurred, assumed or paid by
any holder of Registrable Securities or any placement or sales agent therefor or
underwriter thereof, Crestar shall reimburse such person for the full amount of
the Registration Expenses so incurred, assumed or paid promptly after receipt of
a written request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency or brokerage fees
and commissions and underwriting discounts and commissions attributable to the
sale of such Registrable Securities and the fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above,
transfer taxes on
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resale of any of the Securities by such holders and any advertising or
solicitation expenses other than expenses specifically referred to above
incurred by or on behalf of such holders in connection with any offers they may
make.
5. REPRESENTATIONS AND WARRANTIES.
Crestar and the Trust, jointly and severally, represent and warrant to,
and agree with, each Purchaser and each of the holders from time to time of
Registrable Securities that:
(a) Each registration statement covering Registrable Securities, the
Guarantee, if applicable, and the Debentures and each prospectus (including any
preliminary or summary prospectus) contained therein or furnished pursuant to
Section 3(d)(ix) hereof and any further amendments or supplements to any such
registration statement or prospectus, when it becomes effective or is filed with
the Commission, as the case may be, and, in the case of an underwritten offering
of Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act, the
rules and regulations of the Commission promulgated thereunder and any such
registration statement and any amendment thereto will not 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
any such prospectus or any amendment or supplement thereto will not 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 in
light of the circumstances then existing; and at all times subsequent to the
Effective Time of any such registration statement when a prospectus would be
required to be delivered under the Securities Act, other than from (i) such time
as a notice has been given to holders of Registrable Securities pursuant to
Section 3(c)(iii)(F) or Section 3(d)(vi)(F) hereof until (ii) such time as
Crestar and the Trust furnish an amended or supplemented prospectus pursuant to
Section 3(c)(iv) or Section 3(e) hereof, as the case may be, each such
registration statement, and each prospectus (including any summary prospectus)
contained therein or furnished pursuant to Section 3(c) or Section 3(d)(ix)
hereof, as then amended or supplemented, will conform in all material respects
to the applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder and will
not 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 in the light of the circumstances then existing; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to Crestar and the Trust by a holder of Registrable Securities or any
placement or sales agent therefor or underwriter thereof expressly for use
therein.
(b) Any documents incorporated by reference in any prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such
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<PAGE>
documents will contain or contained an untrue statement of a material fact or
will omit or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
Crestar and the Trust by a holder of Registrable Securities expressly for use
therein.
(c) The representations and warranties of the Trust and Crestar contained
in Section V of the Purchase Agreement are true and correct with the same force
and effect as though expressly made at and as of the date hereof.
6. INDEMNIFICATION.
(a) Upon the registration of the Registrable Securities pursuant to
Section 2 hereof, and in consideration of the agreements of the Purchasers
contained herein, and as an inducement to the Purchasers to purchase the
Securities, the Trust and Crestar, jointly and severally, agree to indemnify and
hold harmless each of the holders of Registrable Securities to be included in
such registration, and each person who participates as a placement or sales
agent or as an underwriter in any offering or sale of such Registrable
Securities and each person, if any, who controls such holder, or such placement
or sales agent, if any, or such underwriter, if any, within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act (each an "Indemnified
Person") as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue
statement of a material fact contained in any registration statement
under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein as furnished by the Trust or Crestar to any such holder, agent or
underwriter (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in such registration statement or such
preliminary, final or summary prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, unless such
untrue statement or omission was made in reliance upon and in conformity
with written information relating to such Indemnified Person furnished to
the Trust and Crestar by, or on behalf of, such Indemnified Person
expressly for use in such registration statement or such preliminary,
final or summary prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged
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untrue statement or omission (except as made in reliance upon and in
conformity with information relating to such Indemnified Person furnished
by, or on behalf of, such Indemnified Person as aforesaid), if such
settlement is effected with the written consent of the Trust and Crestar;
and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by such Indemnified Person),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission (except as made in reliance upon and in conformity with
information relating to such Indemnified Person furnished by, or on
behalf of, such Indemnified Person as aforesaid) to the extent that any
such expense is not paid under (i) or (ii) above.
provided, however, that indemnification with respect to any prospectus
shall not inure to the benefit of any holder of Registrable Securities or
Exchange Securities from whom the Person asserting any loss, claim, liability,
damage or expense purchased such Securities, if a copy of the Prospectus (as
then amended or supplemented and furnished by Crestar to such holder) was not
sent or given by or on behalf of such holder to such person if such is required
by law at or prior to the sale of such Registrable Securities or Exchange
Securities, as the case may be, and if the prospectus (as so amended and
supplemented) would have cured the defect giving rise to such loss, claim,
liability, damage or expense.
(b) Crestar may require, as a condition to including any Registrable
Securities in any registration statement filed pursuant to Section 2 hereof and
to entering into any placement or underwriting agreement with respect thereto,
that Crestar shall have received an undertaking reasonably satisfactory to them
from the holder of such Registrable Securities and from each placement agent or
underwriter named in any such placement agreement or underwriting agreement,
severally and not jointly, to indemnify and hold harmless the Trust and Crestar
and each person, if any, who controls the Trust or Crestar within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in any
registration statement under which such Registrable Securities were registered
under the Securities Act, or any preliminary, final or summary prospectus
contained therein as furnished by the Trust or Crestar to any such holder, agent
or underwriter (or any amendment or supplement thereto), in reliance upon and in
conformity with written information relating to such holder, or such placement
or sales agent, if any, or such underwriter, if any, furnished to the Trust and
Crestar by or on behalf of such holder, or such placement or sales agent, if
any, or such underwriter, if any, expressly for use in such registration
statement or such preliminary, final or summary prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder but failure
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to so notify an indemnifying party shall not relieve it from any liability which
it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. In no event shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances; provided, however, that when more than one of such
holders, such placement or sales agents, if any, or such underwriters, if any,
is an indemnified party each such holder, placement or sales agent or such
underwriter, as the case may be, shall be entitled to separate counsel (in
addition to any local counsel) in each such jurisdiction to the extent such
holder, placement or sales agent or such underwriter, as the case may be, may
have interests conflicting with those of the other holder, placement or sales
agent or such underwriter, as the case may be. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
In order to provide for just and equitable contribution in circumstances
in which the indemnity agreement provided for in this Section 6 is for any
reason held to be unavailable to such holders, such placement or sales agents,
if any, or such underwriters, if any, in accordance with its terms, the Trust,
Crestar and such holders, such placement and sales agents, if any, and such
underwriters, if any, shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Trust, Crestar and such holders, such placement and
sales agents, if any, and such underwriters, if any, in such proportions as is
appropriate to reflect the relative benefits received by the Trust and Crestar
on the one hand and such holders, such placement and sales agents, if any, and
such underwriters, if any, on the other. The relative benefits received by the
Trust and Crestar on the one hand and such holders, such placement and sales
agents, if any, and such underwriters, if any, on the other shall be deemed to
be in such proportion represented by the percentage that the total commissions
and underwriting discounts received by such holders, such placement and sales
agents, if any, and such underwriters, if any, to the date of such liability
bears to the total sales price (before deducting expenses) received by the Trust
and such holders, such placement and sales agents, if any, and such
underwriters, if any, from the sale of such Securities made to the date of such
liability, and the Trust and Crestar are jointly and severally responsible for
the balance. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if such holders, such placement
and sales agents, if any, and such underwriters, if any, failed to give the
notice required under this subsection (c), then the Trust, Crestar and such
holders, such placement and sales agents, if any, and such underwriters, if any,
shall contribute to such aggregate losses, liabilities, claims, damages and
expenses in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Trust and Crestar on the one hand
and such holders, such placement and sales agents, if any, and such
underwriters, if any, on the other in connection with the statements or
omissions which resulted in such liabilities, claims, damages and expenses, as
well as any other relevant
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equitable considerations. The relative fault 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 Trust and Crestar on the one hand or is
supplied by, or on behalf of, such holders, such placement or sales agents, if
any, and such underwriters, if any, on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Trust, Crestar and such holders, such placement
or sales agents, if any, and such underwriters, if any, agree that it would not
be just and equitable if contributions pursuant to this paragraph were
determined pro rata (even if such holders, such placement or sales agents, if
any, and such underwriters, if any, 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 this paragraph. Notwithstanding the
provisions of this paragraph, such holders, such placement or sales agents, if
any, and such underwriters, if any, shall not be required to contribute any
amount in excess of the amount by which the total price at which the Securities
referred to in the second sentence of this paragraph that were offered and sold
to the public through such holders, such placement or sales agents, if any, and
such underwriters, if any, exceeds the amount of any damages that such holders,
such placement or sales agents, if any, and such underwriters, if any, have
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 under this paragraph to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section, each person,
if any, who controls any such holders, such placement or sales agents, if any,
and such underwriters, if any, within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
such holders, such placement or sales agents, if any, and such underwriters, if
any, and each person, if any, who controls the Trust or Crestar within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Trust or Crestar.
7. UNDERWRITTEN OFFERINGS.
(a) SELECTION OF UNDERWRITERS. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by the holders of at least a majority in aggregate Liquidation Amount of the
Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Trust and Crestar.
(b) PARTICIPATION BY HOLDERS. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
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attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(c) CONSOLIDATED EARNINGS STATEMENTS. In the event of an underwritten
offering, Crestar agrees to make generally available to holders of Securities as
soon as practicable, but in any event not later than eighteen months after the
effective date of the applicable registration statement (as defined in Rule
158(c) under the Securities Act), a consolidated earnings statement of Crestar
(which need not be audited) complying with Section 11 (a) of the Act and the
rules and regulations of the Commission thereunder (including, at the option of
Crestar, Rule 158 under the Securities Act)
8. RULE 144.
Crestar covenants to the holders of Registrable Securities that to the
extent it shall be required to do so under the Exchange Act, Crestar shall
timely file the reports required to be filed by it under the Exchange Act or the
Securities Act (including, but not limited to, the reports under Section 13 and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted
by the Commission under the Securities Act) and the rules and regulations
adopted by the Commission thereunder, and shall take such further action as any
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to make Rule 144 available to such holder for the
sale of Registrable Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar or
successor rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Registrable Securities in connection with that holder's
sale pursuant to Rule 144, Crestar shall deliver to such holder a written
statement as to whether it has complied with such requirements.
9. MISCELLANEOUS.
(a) NO INCONSISTENT Agreements. Each of the Trust and Crestar represents,
warrants, covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities or any other
securities which would be inconsistent with the terms contained in this Exchange
and Registration Rights Agreement and that the Debenture Exchange and
Registration Rights Agreement and the Guarantee Exchange and Registration Rights
Agreement should be construed to be consistent with the terms hereof.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Exchange
and Registration Rights Agreement in accordance with the terms and conditions of
this Exchange and Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.
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(c) NOTICES. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: First Bank System, Inc.,
First Bank Place, 601 Second Avenue South, Minneapolis, Minnesota 55402 and if
to a holder, to the address of such holder set forth in the security register or
other records of the Trust, or to such other address as any party may have
furnished to the others in writing in accordance herewith, except that notices
of change of address shall be effective only upon receipt.
(d) PARTIES IN INTEREST. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the respective successors and assigns of
the parties hereto. In the event that any transferee of any holder of
Registrable Securities shall become a holder of Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed a
party hereto for all purposes and such Registrable Securities shall be held
subject to all of the terms of this Exchange and Registration Rights Agreement,
and by taking and holding such Registrable Securities such transferee shall be
entitled to receive the benefits of and be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Exchange and
Registration Rights Agreement. If Crestar shall so request, any such successor,
assign or transferee shall agree in writing to acquire and hold the Registrable
Securities subject to all of the terms hereof.
(e) SURVIVAL. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer. In addition, the
respective indemnities, representations and warranties set forth herein shall
survive the termination hereof.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
(g) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
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(h) ENTIRE AGREEMENT; AMENDMENTS. This Exchange and Registration Rights
Agreement and the other agreements referred to herein or delivered pursuant
hereto which form a part hereof contain the entire understanding of the parties
with respect to its subject matter. This Exchange and Registration Rights
Agreement and such other agreements referred to herein supersede all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by Crestar, the Trust
and the holders of at least 66-2/3 percent in aggregate principal amount of the
Registrable Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any amendment
or waiver effected pursuant to this Section 9(h), whether or not any notice,
writing or marking indicating such amendment or waiver appears on such
Registrable Securities or is delivered to such holder.
(i) INSPECTION. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the registered holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities at the offices of Crestar
at the address thereof set forth in Section 9(c) above.
(j) COUNTERPARTS. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
(k) TERMINATION. Except for the respective indemnities, representations
and warranties set forth herein, this Agreement shall terminate when all the
Securities, Exchange Securities and Registrable Securities cease to be
outstanding.
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This Agreement is hereby executed as of the day and year first above written.
CRESTAR FINANCIAL CORPORATION
By:_____________________________
Name:
Title:
CRESTAR CAPITAL TRUST I
By:_____________________________
Administrator
MORGAN STANLEY & CO.
As Representative of the Purchaser
Named in Schedule I to the Purchase
Agreement
By:_____________________________
(Morgan Stanley & Co.)
Acting severally, and not jointly and
severally, on behalf of themselves and
each of the Purchasers named in
Schedule I to the Purchase Agreement
26
EXHIBIT 4.9
DEBENTURE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
DEBENTURE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated December 31, 1996,
by and among Crestar Capital Trust I, a Delaware business trust (the "Trust"),
Crestar Financial Corporation, a Virginia corporation registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended
("Crestar") and Morgan Stanley & Co. Incorporated, Lehman Brothers Inc. and UBS
Securities LLC (collectively, the "Purchasers"), purchasers of the 8.16% Capital
Securities of the Trust.
1. CERTAIN DEFINITIONS. For purposes of this Exchange and Registration
Rights Agreement, the following terms shall have the following respective
meanings:
(a) "COMMISSION" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(b) "CAPITAL SECURITIES EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" means
the Capital Securities Exchange and Registration Rights Agreement in respect of
the Capital Securities dated December 31, 1996 among Crestar, the Trust and the
Purchasers.
(c) "DEBENTURES" means the 8.16% Junior Subordinated Deferrable Interest
Debentures due December 15, 2026 of Crestar, to be issued pursuant to the
Indenture.
(d) "EFFECTIVE TIME", in the case of (i) an Exchange Offer, means the
date on which the Commission declares the Exchange Offer registration statement
effective or on which such registration statement otherwise becomes effective
and (ii) a Shelf Registration, means the date on which the Commission declares
the Shelf Registration effective or on which the Shelf Registration otherwise
becomes effective.
(e) "EXCHANGE ACT" means the Securities Exchange Act of 1934, or any
successor thereto, as amended from time to time.
(f) "EXCHANGE DEBENTURES" has the meaning set forth in Section 2(a)
hereof.
(g) "EXCHANGE GUARANTEE" has the meaning set forth in Section 2(a)
hereof.
(h) "EXCHANGE OFFER" has the meaning set forth in Section 2(a) hereof.
(i) "EXCHANGE REGISTRATION" has the meaning set forth in Section 3(c)
hereof.
(j) "EXCHANGE SECURITIES" has the meaning set forth in Section 2(a)
hereof.
(k) "GUARANTEE" means the Guarantee of Crestar with respect to the
Securities, to the extent set forth in the Guarantee Agreement.
<PAGE>
(l) "GUARANTEE AGREEMENT" means the Guarantee Agreement dated December
31, 1996 between Crestar and The Chase Manhattan Bank, as Guarantee Trustee
(together with its successors and assigns "Guarantee Trustee"), for the benefit
of the holders of the Securities.
(m) "GUARANTEE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" means the
Guarantee Exchange and Registration Rights Agreement in respect of the Guarantee
dated December 31, 1996 among Crestar, the Trust and the Purchasers.
(n) The term "HOLDER" has the meaning set forth in the Capital Securities
Exchange and Registration Rights Agreement; PROVIDED HOWEVER that if all the
Registrable Securities and all the Securities cease to be outstanding, then it
shall mean the Debentures.
(o) "INDENTURE" means the Indenture dated as of December 31, 1996,
between Crestar and The Chase Manhattan Bank, as Debenture Trustee, as
supplemented by the First Supplemental Indenture dated as of December 31, 1996
and as further amended or supplemented from time to time.
(p) "ISSUE DATE" means December 31, 1996.
(q) "LIQUIDATION AMOUNT" means the stated liquidation preference of the
Securities.
(r) "NEW GUARANTEE AGREEMENT" has the meaning set forth in the Guarantee
Exchange and Registration Rights Agreement.
(s) The term "PERSON" means a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
(t) "PURCHASE AGREEMENT" means the Purchase Agreement dated December 20,
1996, among Crestar, the Trust and the Purchasers.
(u) "REGISTRABLE SECURITIES" has the meaning set forth in the Capital
Securities Exchange and Registration Rights Agreement; PROVIDED HOWEVER that if
all the Registrable Securities and all the Securities cease to be outstanding,
then it shall mean the Debentures which have not been sold, directly or
indirectly, pursuant to an effective registration statement under the Securities
Act.
(v) "REGISTRATION DEFAULT" has the meaning set forth in Section 2(c)
hereof.
(w) "REGISTRATION EXPENSES" has the meaning set forth in Section 4
hereof.
(x) "RESALE PERIOD" has the meaning set forth in the Capital Securities
Exchange and Registration Rights Agreement.
(y) "SECURITIES" means, collectively, the $200,000,000 aggregate
Liquidation Amount of the 8.16% Capital Securities, Liquidation Amount $1,000
per Capital Security, of the Trust to
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be issued and sold to the Purchasers, and any securities issued in exchange
therefor or in lieu thereof pursuant to the Trust Agreement; PROVIDED HOWEVER
that if all the Registrable Securities and all the Securities cease to be
outstanding, then it shall mean the Debentures which have been registered under
the Securities Act.
(z) "SECURITIES ACT" means the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
(aa) "SHELF REGISTRATION" has the meaning set forth in Section 2(b)
hereof.
(bb) "SPECIAL INTEREST" has the meaning set forth in Section 2(c)
hereof.
(cc) "TRUST AGREEMENT" means the Amended and Restated Trust Agreement
dated as of December 31, 1996 among Crestar, as Depositor, The Chase Manhattan
Bank, as Property Trustee (together with its successors and assigns, the
"Property Trustee"), Chase Manhattan Bank Delaware, as Delaware Trustee, and the
Administrators named therein.
(dd) "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) If Crestar and the Trust file a registration statement pursuant to
Section 2(a) of the Capital Securities Exchange and Registration Rights
Agreement, then Crestar and the Trust agree, jointly and severally, to include
in such registration statement an offer to exchange (the "Exchange Offer") all
of the Debentures for a like aggregate principal amount of a new series of
junior subordinated deferrable interest debentures of Crestar which are
substantially identical to the Debentures (and which are entitled to the
benefits of the Indenture which will be qualified under the Trust Indenture Act)
except that they have been registered pursuant to an effective registration
statement under the Securities Act and such new debentures will not contain
provisions for Special Interest or provisions restricting transfer in the
absence of registration under the Securities Act (such new debentures
hereinafter called "Exchange Debentures"). Such registration statement shall
also relate to, and the consummation of the Exchange Offer shall be conditioned
upon the consummation of, an offer to exchange the Securities for substantially
identical capital securities of the Trust pursuant to the Capital Securities
Exchange and Registration Rights Agreement (the "Exchange Securities") and to an
offer to exchange the Guarantee for a substantially identical guarantee of
Crestar pursuant to the Guarantee Exchange and Registration Rights Agreement
(the "Exchange Guarantee"). Crestar and the Trust agree,
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<PAGE>
jointly and severally, to use their reasonable best efforts to cause such
registration statement to become effective under the Securities Act as soon as
practicable after the filing thereof. The Exchange Offer will be registered
under the Act on the appropriate form. The Exchange Offer shall be deemed to
have been completed upon the completion of the exchange of the Exchange
Debentures for all the Debentures pursuant to the Exchange Offer.
(b) If (i) Crestar and the Trust file a "shelf" registration statement
pursuant to Section 2(b) of the Capital Securities Exchange and Registration
Rights Agreement without also filing a registration statement pursuant to
Section 2(a) thereof or (ii) none of the Securities or the Registrable
Securities is outstanding and the Exchange Offer has not been effected, then in
the case of clause (i), such "shelf" registration statement shall provide for
the registration of the Debentures and, in the case of clause (ii) if none of
the Securities or the Registrable Securities is outstanding and the Exchange
Offer has not been effected, Crestar shall file under the Securities Act, as
soon as practicable, a "shelf" registration statement providing for the
registration of, and the sale on a continuous or delayed basis by the holders
of, all of the Registrable Securities, pursuant to Rule 415 under the Securities
Act and/or any similar rule that may be adopted by the Commission (in each case,
the "Shelf Registration"). In the case of clause (i) only, the Shelf
Registration shall also provide for the registration of the Securities pursuant
to the Capital Securities Exchange and Registration Rights Agreement and for the
registration of the Guarantee pursuant to the Guarantee Exchange and
Registration Rights Agreement. Crestar and, if applicable, the Trust agree,
jointly and severally, to use their reasonable best efforts to cause the Shelf
Registration to become or be declared effective and to keep such Shelf
Registration continuously effective for a period ending on the earlier of (A)
the third anniversary of the Issue Date or (B) such time as there are no longer
any Registrable Securities outstanding. Crestar and, if applicable, the Trust
further agree, jointly and severally, to supplement or make amendments to the
Shelf Registration, as and when required by the rules, regulations or
instructions applicable to the registration form used by Crestar and, if
applicable, the Trust for such Shelf Registration or by the Securities Act or
rules and regulations thereunder for shelf registration, and Crestar and, if
applicable, the Trust agree, jointly and severally, to furnish to the holders of
the Registrable Securities copies of any such supplement or amendment prior to
its being used and/or filed with the Commission.
(c) In the event that (i) Crestar and, if applicable, the Trust have not
filed the registration statement relating to the Exchange Offer (or, if
applicable, the Shelf Registration) on or before the 150th day after the Issue
Date, or (ii) such registration statement (or, if applicable, the Shelf
Registration) has not become effective or been declared effective by the
Commission on or before the 180th day after the Issue Date, or (iii) any of the
Exchange Offer, the exchange offers contemplated by the Capital Securities
Exchange and Registration Rights Agreement and the exchange offer contemplated
by the Guarantee Exchange and Registration Rights Agreement has not been
completed within 210 days after the Issue Date (if the Exchange Offer is then
required to be made) or (iv) any registration statement required by Section 2(a)
or 2(b) is filed and declared effective but shall thereafter cease to be
effective (except as specifically permitted herein) without being succeeded
immediately by an additional registration statement filed and declared effective
(each such event referred to in clauses (i) through (iv), a "Registration
Default"), then interest will accrue (in addition to the stated interest rate on
the Debentures) at
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the rate of 0.25% per annum on the principal amount of the Debentures for the
period from the occurrence of the Registration Default until such time as no
Registration Default is in effect. Such additional interest (the "Special
Interest") will be payable in cash semi-annually in arrears on each June 15 and
December 15 in accordance with, and subject to the deferral provisions of, the
Indenture. Special Interest, if any, will be computed on the basis of a 365 or
366 day year, as the case may be, and the number of days actually elapsed.
(d) Any reference herein to a registration statement shall be deemed to
include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein to any post effective amendment to a
registration statement shall be deemed to include any document incorporated
therein by reference as of a time after such Effective Time.
3. REGISTRATION PROCEDURES.
If Crestar and, if applicable, the Trust file a registration statement
pursuant to Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, Crestar shall qualify the Indenture, the New
Guarantee Agreement, if applicable, and the Trust Agreement, if applicable,
under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of
a new trustee under any of the Indenture, the New Guarantee Agreement or the
Trust Agreement, such new trustee shall be appointed thereunder pursuant to the
applicable provisions thereof.
(c) In connection with the joint and several obligations of Crestar and
the Trust with respect to the registration of the Exchange Securities, the
Exchange Guarantee and the Exchange Debentures, as contemplated by Section 2(a)
(the "Exchange Registration"), if applicable, Crestar and the Trust shall, as
soon as reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable
but no later than 150 days after the Issue Date, a registration statement
with respect to the Exchange Registration on any form which may be
utilized by Crestar and the Trust and which shall permit the Exchange
Offer and resales of Exchange Securities by broker-dealers during the
Resale Period to be effected as contemplated by Section 2(a) hereof, and
use its reasonable best efforts to cause such registration statement to
become effective as soon as practicable thereafter;
(ii) as soon as practicable prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and maintain
the effectiveness of such registration statement for the periods and
purposes contemplated in Section 2(a) hereof and as may be required by
the applicable rules and regulations of the Commission and the
instructions applicable to the form of such registration statement, and
promptly provide each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then
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amended or supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder, as such
broker-dealer reasonably may request prior to the expiration of the
Resale Period, for use in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration
statement, and confirm such advice in writing, (A) when such registration
statement or the prospectus included therein or any prospectus amendment
or supplement or post effective amendment has been filed, and, with
respect to such registration statement or any post effective amendment,
when the same has become effective, (B) of the receipt of any comments by
the Commission and by the Blue Sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration statement
or prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the joint and several
representations and warranties of Crestar and the Trust contemplated by
Section 5 cease to be true and correct in all material respects, (E) of
the receipt by either Crestar or the Trust of any notification with
respect to the suspension of the qualification of the Exchange Securities
and the Exchange Guarantee for sale in any United States jurisdiction or
the initiation or threatening of any proceeding for such purpose, or (F)
at any time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such registration statement,
prospectus, prospectus amendment or supplement or post effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder or
contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(iv) in the event that Crestar and the Trust would be required,
pursuant to Section 3(c)(iii)(F) above, to notify any broker-dealers
holding Exchange Securities, without delay prepare and furnish to each
such holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission promulgated thereunder and shall not 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 in light of the circumstances then existing;
(v) use their best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any post
effective amendment thereto at the earliest practicable date;
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(vi) use their reasonable best efforts to (A) register or qualify
the Exchange Securities and the Exchange Guarantee under the securities
laws or blue sky laws of such jurisdiction as are contemplated by Section
2(a) no later than the commencement of the Exchange Offer, (B) keep such
registrations or qualifications in effect and comply with such laws so as
to permit the continuance of offers, sales and dealings therein in such
jurisdictions until the expiration of the Resale Period and (C) take any
and all other actions as may be reasonably necessary or advisable to
enable each broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; PROVIDED, HOWEVER, that
neither Crestar nor the Trust shall be required for any such purpose to
(1) qualify to do business in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
3(g)(vi), (2) consent to general service of process in any such
jurisdiction or (3) in the case of Crestar, make any changes to its
charter or by-laws or any agreement between it and its stockholders or in
the case of the Trust, make any changes to the Trust Agreement;
(vii) use their reasonable best efforts to obtain the consent or
approval of each United States governmental agency or authority, whether
federal, state or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of Exchange
Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to all holders of Securities as
soon as practicable but no later than eighteen months after the Effective
Time, an earnings statement of Crestar and its subsidiaries complying
with Section 11 (a) of the Securities Act (including, at the option of
Crestar, Rule 158 thereunder).
(d) In connection with the joint and several obligations of Crestar and
the Trust with respect to the Shelf Registration, if applicable, Crestar and, if
applicable, the Trust shall use their reasonable best efforts to cause the Shelf
Registration to become effective to permit the sale of the Registrable
Securities by the holders thereof in accordance with the intended method or
methods of distribution thereof described in the Shelf Registration. In
connection therewith, Crestar and, if applicable, the Trust shall as soon as
reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable,
a registration statement with respect to the Shelf Registration on any
form which may be utilized by Crestar and, if applicable, the Trust and
which shall permit the disposition of the Registrable Securities in
accordance with the intended method or methods thereof, as specified in
writing to Crestar and, if applicable, the Trust by the holders of the
Registrable Securities and use their reasonable best efforts to cause
such registration statement to become effective as soon as practicable
thereafter;
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(ii) as soon as practicable, prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and maintain
the effectiveness of such registration statement for the period specified
in Section 2(b) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the form
of such registration statement and furnish to the holders of the
Registrable Securities copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the
Commission;
(iii) comply with the provisions of the Securities Act applicable
to Crestar or, if applicable, the Trust in connection with the
disposition of all of the Registrable Securities covered by such
registration statement in accordance with the intended methods of
disposition by the holders thereof, set forth in such registration
statement;
(iv) provide (A) the holders of the Registrable Securities to be
included in such registration statement and not more than one counsel for
all the holders of such Registrable Securities, (B) the underwriters
(which term, for purposes of this Exchange and Registration Rights
Agreement, shall include a person deemed to be an underwriter within the
meaning of Section 2(11) of the Securities Act), if any, thereof, (C) the
sales or placement agent, if any, therefor and (D) one counsel for such
underwriters or agents, if any, reasonable opportunity to participate in
the preparation of such registration statement, each prospectus included
therein or filed with the Commission, and each amendment or supplement
thereto;
(v) for a reasonable period prior to the filing of such
registration statement, and throughout the period specified in Section
2(b), make available at reasonable times at Crestar's principal place of
business or such other reasonable place for inspection by the persons
referred to in Section 3(d)(iv) who shall certify to Crestar and, if
applicable, the Trust that they have a current intention to sell the
Registrable Securities pursuant to the Shelf Registration such financial
and other information and books and records of Crestar and, if
applicable, the Trust, and cause the officers, employees, counsel and
independent certified public accountants of Crestar and, if applicable,
the Trust to respond to such inquiries, as shall be reasonably necessary,
in the judgment of the respective counsel referred to in such Section, to
conduct a reasonable investigation within the meaning of Section 11 of
the Securities Act; PROVIDED, HOWEVER, that each such party shall be
required to maintain in confidence and not to disclose to any other
person any information or records reasonably designated by Crestar as
being confidential, until such time as (A) such information becomes a
matter of public record (whether by virtue of its inclusion in such
registration statement or otherwise, except by disclosure by such party
in breach of this Agreement), or (B) such person shall be required so to
disclose such information pursuant to the subpoena or order of any court
or other governmental agency or body having jurisdiction over the matter
(subject to, and only to the extent required by, the requirements of such
order, and only after such person shall have given Crestar prompt prior
written notice of such requirement);
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(vi) promptly notify the selling holders of Registrable
Securities, the sales or placement agent, if any, therefor and the
managing underwriter or underwriters, if any, thereof and confirm such
advice in writing, (A) when such registration statement or the prospectus
included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same has
become effective, (B) of any comments by the Commission and by the Blue
Sky or securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or supplements to
such registration statement or prospectus or for additional information,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any time the
joint and several representations and warranties of Crestar and, if
applicable, the Trust contemplated by Section 3(d)(xv) or Section 5 cease
to be true and correct in all material respects, (E) of the receipt by
either Crestar or the Trust of any notification with respect to the
suspension of the qualification of the Registrable Securities and, if
applicable, the Guarantee, for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose, or (F) at any time
when a prospectus is required to be delivered under the Securities Act,
that such registration statement, prospectus, prospectus amendment or
supplement or post-effective amendment, or any document incorporated by
reference in any of the foregoing, does not conform in all material
respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
promulgated thereunder or contains an untrue statement of a material fact
or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(vii) use their best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or underwriters,
any placement or sales agent or any holder or counsel for the holders of
Registrable Securities, promptly incorporate in a prospectus supplement
or post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such managing
underwriter or underwriters, such agent or such holder specifies should
be included therein relating to the terms of the sale of such Registrable
Securities, including, without limitation, information with respect to
the Liquidation Amount or the principal amount, as the case may be, of
Registrable Securities being sold by any holder or agent or to any
underwriters, the name and description of such holder, agent or
underwriter, the offering price of such Registrable Securities and any
discount, commission or other compensation payable in respect thereof,
the purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable Securities,
to be sold by such holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be incorporated
in such prospectus supplement or post-effective amendment;
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(ix) furnish to each holder of Registrable Securities, each
placement or sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section 3(d)(iv) an
executed copy of such registration statement, each such amendment and
supplement thereto (in each case including all exhibits thereto and
documents incorporated by reference therein) and such number of copies of
such registration statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by
such holder, agent or underwriter, as the case may be) and of the
prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity with
the requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission promulgated thereunder, and
such other documents, as such holder, agent, if any, and underwriter, if
any, may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such holder, offered
or sold by such agent or underwritten by such underwriter and to permit
such holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and each of Crestar and, if
applicable, the Trust hereby consents to the use of such prospectus
(including such preliminary and summary prospectus) and any amendment or
supplement thereto by each such holder and by any such agent and
underwriter, in each case in the form most recently provided to such
party by Crestar and the Trust, in connection with the offering and sale
of the Registrable Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or amendment
thereto;
(x) use their reasonable best efforts to (A) register or qualify
the Registrable Securities to be included in such registration statement
and, if applicable, the Guarantee under such securities laws or blue sky
laws of such jurisdictions as any holder of such Registrable Securities
and each placement or sales agent, if any, therefor and underwriter, if
any, thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
during the period the Shelf Registration is required to remain effective
under Section 2(b) above and for so long as may be necessary to enable
any such holder, agent or underwriter to complete its distribution of
Securities pursuant to such registration statement and (C) take any and
all other actions as may be reasonably necessary or advisable to enable
each such holder, agent, if any, and underwriter, if any, to consummate
the disposition in such jurisdictions of Registrable Securities;
PROVIDED, HOWEVER, that neither Crestar nor, if applicable, the Trust
shall be required for any such purpose to (1) qualify to do business in
any jurisdiction wherein it would not otherwise be required to qualify
but for the requirements of this Section 3(d)(x), (2) consent to general
service of process in any such jurisdiction, (3) in the case of Crestar,
make any changes to its charter or by-laws or any agreement between it
and its shareholders or, if applicable, in the case of the Trust, make
any changes to the Trust Agreement;
(xi) use their reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal, state
or local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable
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<PAGE>
the selling holder or holders to offer, or to consummate the disposition
of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold, which certificates shall be printed, lithographed or engraved, or
produced by any combination of such methods, and which shall not bear any
restrictive legends; and, in the case of an underwritten offering, enable
such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may request at least two business
days prior to any sale of the Registrable Securities;
(xiii) provide a CUSIP number for all Registrable Securities, not
later than the applicable Effective Time;
(xiv) enter into not more than one underwriting agreement,
engagement letter, agency agreement, "best efforts" underwriting
agreement or similar agreement, as appropriate, including (without
limitation) provisions relating to indemnification and contribution
substantially the same as those set forth in Section 6 hereof, and take
such other actions in connection therewith as any holders of Registrable
Securities aggregating at least 25% in aggregate Liquidation Amount, or
in aggregate principal amount, as the case may be, of the Registrable
Securities at the time outstanding shall reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;
PROVIDED, that Crestar and, if applicable, the Trust shall not be
required to (i) enter into any such agreement more than once with respect
to all of the Registrable Securities and may delay entering into such
agreement until the consummation of any underwritten public offering
which Crestar and, if applicable, the Trust shall have then undertaken or
(ii) enter into any engagement letter, agency agreement, "best effort"
underwriting agreement or similar agreements whatsoever with respect to
the Registrable Securities, and PROVIDED, FURTHER that Crestar and, if
applicable, the Trust shall not be obligated to enter into any such
agreement with a broker-dealer which results in the need for a "qualified
independent underwriter" (within the meaning of the Rules of Fair
Practice and the By-Laws of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended from time to
time (the "Rules and By-Laws of NASD"));
(xv) whether or not an agreement of the type referred to in
Section (3)(d)(xiv) hereof is entered into and whether or not any portion
of the offering contemplated by such registration statement is an
underwritten offering or is made through a placement or sales agent or
any other entity, (A) make such representations and warranties to the
holders of such Registrable Securities and the placement or sales agent,
if any, therefor and the underwriters, if any, thereof substantially the
same as those set forth in Section 1 of the Purchase Agreement and such
other representations and warranties as are customarily made with respect
to the offering of debt securities pursuant to any appropriate agreement
or to a registration statement on the applicable form under the
Securities Act; (B) obtain an opinion or opinions of counsel to Crestar
and, if applicable, the Trust substantially the
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same as the opinions provided for in Section 5 of the Purchase Agreement
with such additions, substitutions or deletions of such matters as are
customarily covered in opinions for an underwritten offering, addressed
to such holder or holders and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof and dated the effective
date of such registration statement (and if such registration statement
contemplates an underwritten offering of a part or all of the Registrable
Securities, dated the date of the closing under the underwriting
agreement relating thereto) (it being agreed that the matters to be
covered by such opinion shall also include, without limitation, the
absence of governmental approvals required to be obtained in connection
with the Shelf Registration, the offering and sale of the Registrable
Securities, this Exchange and Registration Rights Agreement or any
agreement of the type referred to in Section (3)(c)(xiv) hereof, except
such approvals as may be required under state securities or blue sky
laws; and the compliance as to form of such registration statement and
any documents incorporated by reference therein and of the Indenture, the
Guarantee Agreement, if applicable, and the Trust Agreement, if
applicable, with the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission promulgated
thereunder, respectively); and, such opinion shall also state that such
counsel has no reason to believe that, as of the date of the opinion and
of the registration statement or most recent post-effective amendment
thereto, as the case may be, such registration statement and the
prospectus included therein, as then amended or supplemented, and the
documents incorporated by reference therein (in each case other than the
financial statements and other financial information contained therein)
contains or contained an untrue statement of a material fact or omits or
omitted to state therein a material fact necessary to make the statements
therein not misleading (in the case of such documents, in the light of
the circumstances existing at the time that such documents were filed
with the Commission under the Exchange Act)); (C) obtain a "cold comfort"
letter or letters from the independent certified public accountants of
Crestar and, if applicable, the Trust addressed to the selling holders of
Registrable Securities, the placement or sales agent, if any, therefor
and the underwriters, if any, thereof, dated (i) the effective date of
such registration statement and (ii) the effective date of any prospectus
supplement to the prospectus included in such registration statement or
post-effective amendment to such registration statement; (D) deliver such
other documents and certificates, including officers' certificates, as
may be reasonably requested by any holders of at least 25 % in aggregate
Liquidation Amount, or in aggregate principal amount, as the case may be,
of the Registrable Securities at the time outstanding or the placement or
sales agent, if any, therefor and the managing underwriters, if any,
thereof to evidence the accuracy of the representations and warranties
made pursuant to clause (A) above or those contained in Section 5(a)
hereof and the compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other agreement
entered into by Crestar and, if applicable, the Trust; and (E) undertake
such obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities of
any proposal by Crestar and the Trust to amend or waive any provision of
this Exchange and Registration Rights Agreement pursuant to Section 9(h)
hereof and of any amendment or waiver
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<PAGE>
effected pursuant thereto, each of which notices shall contain the text
of the amendment or waiver proposed or effected, as the case may be;
(xvii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate
as a member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Rules and By-Laws of NASD)
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Rules and By-Laws, including, without limitation, by
(A) if such Rules or By-Laws, including Schedule E thereto (or any
successor thereto), shall so require, engaging a "qualified independent
underwriter" (as defined in such Schedule (or any successor thereto)) to
participate in the preparation of the registration statement relating to
such Registrable Securities, to exercise usual standards of due diligence
in respect thereto and, if any portion of the offering contemplated by
such registration statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Registrable Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters provided
in Section 6 hereof (or to such other customary extent as may be required
by such underwriter), and (C) providing such information to such
broker-dealer as may be required in order for such broker-dealer to
comply with the requirements of the Rules and By-Laws of NASD; and
(xviii) comply with all applicable rules and regulations of the
Commission, and make generally available to its holders of the Securities
as soon as practicable but in any event not later than eighteen months
after the effective date of such registration statement, an earnings
statement of Crestar and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of Crestar, Rule 158
thereunder).
(e) In the event that Crestar and, if applicable, the Trust would be
required, pursuant to Section 3(d)(vi)(F) above, to notify the selling holders
of Registrable Securities, the placement or sales agent, if any, therefor and
the managing underwriters, if any, thereof, Crestar and, if applicable, the
Trust shall without delay prepare and furnish to each such holder, to each
placement or sales agent, if any, and to each underwriter, if any, a reasonable
number of copies of a prospectus supplemented or amended so that, as thereafter
delivered to purchasers of Registrable Securities, such prospectus shall conform
in all material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the Commission
promulgated thereunder and shall not 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 in light of the circumstances then
existing. Each holder of Registrable Securities agrees that upon receipt of any
notice from Crestar and, if applicable, the Trust pursuant to Section
3(d)(vi)(F) hereof, such holder shall forthwith discontinue the disposition of
Registrable Securities, pursuant to the registration statement applicable to
such Registrable Securities until such holder shall have received copies of such
amended or supplemented prospectus, and if so directed by Crestar and, if
applicable, the Trust, such holder shall deliver to Crestar (at Crestar's
expense) all copies, other than permanent file copies, then
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<PAGE>
in such holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice.
(f) Crestar and, if applicable, the Trust may require each holder of
Registrable Securities as to which any registration is being effected to furnish
in writing to Crestar and, if applicable, the Trust such information regarding
such holder and such holder's intended method of distribution of such
Registrable Securities as Crestar and the Trust may from time to time reasonably
request in writing, but only to the extent that such information is required in
order to comply with the Securities Act. Each such holder agrees to notify
Crestar and, if applicable, the Trust as promptly as practicable of any
inaccuracy or change in information previously furnished by such holder to
Crestar and, if applicable, the Trust or of the occurrence of any event in
either case as a result of which any prospectus relating to such registration
contains or would contain an untrue statement of a material fact regarding such
holder or such holder's intended method of distribution of such Registrable
Securities or omits to state any material fact regarding such holder or such
holder's intended method of distribution of such Registrable Securities required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing, and promptly to furnish to Crestar
and, if applicable, the Trust any additional information required to correct and
update any previously furnished information or required so that such prospectus
shall not contain, with respect to such holder or the distribution of such
Registrable Securities, 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 in light of the circumstances then existing.
Each such holder shall comply with the provisions of the Securities Act
applicable to such holder with respect to the disposition by such holder of
Registrable Securities covered by such registration statement in accordance with
the intended methods of disposition by such holder set forth in such
registration statement.
(g) Until the expiration three years after the Issue Date, Crestar will
not, and will not permit any of its "affiliates" (as defined in Rule 144 under
the Act) to, resell any of the Securities which constitute "restricted
securities" under Rule 144 that have been reacquired by any of them except
pursuant to an effective registration statement under the Act or any exemption
therefrom; PROVIDED, HOWEVER, that, for purposes of this paragraph, "affiliates"
shall not include the Purchasers or any of their affiliates other than Crestar
and its subsidiaries, officers, managers and directors.
4. REGISTRATION EXPENSES.
If Crestar and, if applicable, the Trust file a registration statement
pursuant to Section 2(a) or Section 2(b), the following provisions shall apply:
Crestar agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the performance by Crestar
and, if applicable, the Trust or compliance with this Exchange and Registration
Rights Agreement, including, without limitation, (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Securities and, if applicable, the
Guarantee for offering and sale under the state securities and blue sky laws
referred to in Section 3(d)(x)
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<PAGE>
hereof, including reasonable fees and disbursements of counsel in connection
with such qualifications, (c) all expenses relating to the preparation,
printing, distribution and reproduction of each registration statement required
to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, and
the certificates representing the Securities and all documents relating hereto,
(d) messenger and delivery expenses, (e) fees and expenses of the Debenture
Trustee under the Indenture, the Issuer Trustees under the Trust Agreement and,
if applicable, the Guarantee Trustee under the Guarantee Agreement, if
applicable, and of any escrow agent or custodian, (f) internal expenses
(including, without limitation, all salaries and expenses of Crestar's officers
and employees performing legal or accounting duties), (g) fees, disbursements
and expenses of counsel and independent certified public accountants of Crestar
and, if applicable, the Trust (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance and compliance),
(h) fees, disbursements and expenses of any "qualified independent underwriter"
engaged pursuant to Section 3(d)(xvii) hereof, (i) fees, disbursements and
expenses of one counsel for the holders of Registrable Securities retained in
connection with a Shelf Registration, as selected by the holders of at least a
majority in aggregate Liquidation Amount, or the aggregate principal amount, as
the case may be, of the Registrable Securities being registered, and fees,
expenses and disbursements of any other persons, including special experts,
retained by Crestar or, if applicable, the Trust in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof,
Crestar shall reimburse such person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after receipt of a written
request therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency or brokerage fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above, transfer taxes on
resale of any of the Securities by such holders and any advertising or
solicitation expenses other than expenses specifically referred to above
incurred by or on behalf of such holders in connection with any offers they may
make.
5. REPRESENTATIONS AND WARRANTIES.
Crestar and, if applicable, the Trust, jointly and severally, represent
and warrant to, and agree with, each Purchaser and each of the holders from time
to time of Registrable Securities that:
(a) Each registration statement covering Registrable Securities, the
Guarantee, if applicable, and the Debentures and each prospectus (including any
preliminary or summary prospectus) contained therein or furnished pursuant to
Section 3(d)(ix) hereof and any further amendments or supplements to any such
registration statement or prospectus, when it becomes effective or is filed with
the Commission, as the case may be, and, in the case of an underwritten offering
of Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
applicable requirements
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<PAGE>
of the Securities Act and the Trust Indenture Act, the rules and regulations of
the Commission promulgated thereunder and any such registration statement and
any amendment thereto will not 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 any such prospectus or any amendment
or supplement thereto will not 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 in light of the circumstances then
existing; and at all times subsequent to the Effective Time of any such
registration statement when a prospectus would be required to be delivered under
the Securities Act, other than from (i) such time as a notice has been given to
holders of Registrable Securities pursuant to Section 3(c)(iii)(F) or Section
3(d)(vi)(F) hereof until (ii) such time as Crestar and, if applicable, the Trust
furnish an amended or supplemented prospectus pursuant to Section 3(c)(iv) or
Section 3(e) hereof, as the case may be, each such registration statement, and
each prospectus (including any summary prospectus) contained therein or
furnished pursuant to Section 3(c) or Section 3(d)(ix) hereof, as then amended
or supplemented, will conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission promulgated thereunder and will not 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 in
the light of the circumstances then existing; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to
Crestar and, if applicable, the Trust by a holder of Registrable Securities or
any placement or sales agent therefor or underwriter thereof expressly for use
therein.
(b) Any documents incorporated by reference in any prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to Crestar and the Trust, if applicable,
by a holder of Registrable Securities expressly for use therein.
(c) The representations and warranties of the Trust, if applicable, and
Crestar contained in Section 1 of the Purchase Agreement are true and correct
with the same force and effect as though expressly made at and as of the date
hereof.
6. INDEMNIFICATION.
(a) Upon the registration of the Registrable Securities pursuant to
Section 2 hereof, and in consideration of the agreements of the Purchasers
contained herein, and as an inducement to the Purchasers to purchase the
Securities, the Trust and Crestar, jointly and severally, agree to indemnify and
hold harmless each of the holders of Registrable Securities to be included in
such
16
<PAGE>
registration, and each person who participates as a placement or sales agent or
as an underwriter in any offering or sale of such Registrable Securities and
each person, if any, who controls such holder, or such placement or sales agent,
if any, or such underwriter, if any, within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act (each an "Indemnified Person") as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue
statement of a material fact contained in any registration statement
under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein as furnished by the Trust or Crestar to any such holder, agent or
underwriter (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in such registration statement or such
preliminary, final or summary prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, unless such
untrue statement or omission was made in reliance upon and in conformity
with written information relating to such Indemnified Person furnished to
the Trust and Crestar by, or on behalf of, such Indemnified Person
expressly for use in such registration statement or such preliminary,
final or summary prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission (except as made in reliance upon and
in conformity with information relating to such Indemnified Person
furnished by, or on behalf of, such Indemnified Person as aforesaid), if
such settlement is effected with the written consent of the Trust and
Crestar; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by such Indemnified Person),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission (except as made in reliance upon and in conformity with
information relating to such Indemnified Person furnished by, or on
behalf of, such Indemnified Person as aforesaid) to the extent that any
such expense is not paid under (i) or (ii) above.
provided, however, that indemnification with respect to any prospectus shall not
inure to the benefit of any holder of Registrable Securities or Exchange
Securities from whom the Person asserting any loss, claim, liability, damage or
expense purchased such Securities, if a copy of the Prospectus (as then amended
or supplemented and furnished by Crestar to such holder) was
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<PAGE>
not sent or given by or on behalf of such holder or to such person if such is
required by law at or prior to the sale of such Registrable Securities or
Exchange Securities, as the case may be, and if the prospectus (as so amended
and supplemented) would have cured the defect giving rise to such loss, claim,
liability, damage or expense.
(b) Crestar may require, as a condition to including any Registrable
Securities in any registration statement filed pursuant to Section 2 hereof and
to entering into any placement or underwriting agreement with respect thereto,
that Crestar shall have received an undertaking reasonably satisfactory to them
from the holder of such Registrable Securities and from each placement agent or
underwriter named in any such placement agreement or underwriting agreement,
severally and not jointly, to indemnify and hold harmless the Trust and Crestar
and each person, if any, who controls the Trust or Crestar within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in any
registration statement under which such Registrable Securities were registered
under the Securities Act, or any preliminary, final or summary prospectus
contained therein as furnished by the Trust or Crestar to any such holder, agent
or underwriter (or any amendment or supplement thereto), in reliance upon and in
conformity with written information relating to such holder, or such placement
or sales agent, if any, or such underwriter, if any, furnished to the Trust and
Crestar by or on behalf of such holder, or such placement or sales agent, if
any, or such underwriter, if any, expressly for use in such registration
statement or such preliminary, final or summary prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances;
provided, however, that when more than one of such holders, such placement or
sales agents, if any, or such underwriters, if any, is an indemnified party each
such holder, placement or sales agent or such underwriter, as the case may be,
shall be entitled to separate counsel (in addition to any local counsel) in each
such jurisdiction to the extent such holder, placement or sales agent or such
underwriter, as the case may be, may have interests conflicting with those of
the other holder, placement or sales agent or such underwriter, as the case may
be. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
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In order to provide for just and equitable contribution in circumstances
in which the indemnity agreement provided for in this Section 6 is for any
reason held to be unavailable to such holders, such placement or sales agents,
if any, or such underwriters, if any, in accordance with its terms, the Trust,
Crestar and such holders, such placement and sales agents, if any, and such
underwriters, if any, shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Trust, Crestar and such holders, such placement and
sales agents, if any, and such underwriters, if any, in such proportions as is
appropriate to reflect the relative benefits received by the Trust and Crestar
on the one hand and such holders, such placement and sales agents, if any, and
such underwriters, if any, on the other. The relative benefits received by the
Trust and Crestar on the one hand and such holders, such placement and sales
agents, if any, and such underwriters, if any, on the other shall be deemed to
be in such proportion represented by the percentage that the total commissions
and underwriting discounts received by such holders, such placement and sales
agents, if any, and such underwriters, if any, to the date of such liability
bears to the total sales price (before deducting expenses) received by the Trust
and such holders, such placement and sales agents, if any, and such
underwriters, if any, from the sale of such Securities made to the date of such
liability, and the Trust and Crestar are jointly and severally responsible for
the balance. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if such holders, such placement
and sales agents, if any, and such underwriters, if any, failed to give the
notice required under this subsection (c), then the Trust, Crestar and such
holders, such placement and sales agents, if any, and such underwriters, if any,
shall contribute to such aggregate losses, liabilities, claims, damages and
expenses in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Trust and Crestar on the one hand
and such holders, such placement and sales agents, if any, and such
underwriters, if any, on the other in connection with the statements or
omissions which resulted in such liabilities, claims, damages and expenses, as
well as any other relevant equitable considerations. The relative fault 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 Trust and Crestar on the
one hand or is supplied by, or on behalf of, such holders, such placement or
sales agents, if any, and such underwriters, if any, on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Trust, Crestar and such
holders, such placement or sales agents, if any, and such underwriters, if any,
agree that it would not be just and equitable if contributions pursuant to this
paragraph were determined pro rata (even if such holders, such placement or
sales agents, if any, and such underwriters, if any, 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 this paragraph.
Notwithstanding the provisions of this paragraph, such holders, such placement
or sales agents, if any, and such underwriters, if any, shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities referred to in the second sentence of this paragraph that were
offered and sold to the public through such holders, such placement or sales
agents, if any, and such underwriters, if any, exceeds the amount of any damages
that such holders, such placement or sales agents, if any, and such
underwriters, if any, have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent
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misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled under this paragraph to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section, each person,
if any, who controls any such holders, such placement or sales agents, if any,
and such underwriters, if any, within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
such holders, such placement or sales agents, if any, and such underwriters, if
any, and each person, if any, who controls the Trust or Crestar within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Trust or Crestar.
7. UNDERWRITTEN OFFERINGS.
(a) SELECTION OF UNDERWRITERS. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by the holders of at least a majority in aggregate Liquidation Amount, or
aggregate principal amount, as the case may be, of the Registrable Securities to
be included in such offering, provided that such designated managing underwriter
or underwriters is or are reasonably acceptable to the Trust, if applicable, and
Crestar.
(b) PARTICIPATION BY HOLDERS. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(c) CONSOLIDATED EARNINGS STATEMENTS. In the event of an underwritten
offering, Crestar agrees to make generally available to holders of Securities as
soon as practicable, but in any event not later than eighteen months after the
effective date of the applicable registration statement (as defined in Rule
158(c) under the Securities Act), a consolidated earnings statement of Crestar
(which need not be audited) complying with Section 11 (a) of the Act and the
rules and regulations of the Commission thereunder (including, at the option of
Crestar, Rule 158 under the Securities Act)
8. RULE 144.
Crestar covenants to the holders of Registrable Securities that to the
extent it shall be required to do so under the Exchange Act, Crestar shall
timely file the reports required to be filed by it under the Exchange Act or the
Securities Act (including, but not limited to, the reports under Section 13 and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted
by the Commission under the Securities Act) and the rules and regulations
adopted by the Commission thereunder, and shall take such further action as any
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to make Rule 144 available to such holder for the
sale of Registrable Securities without registration
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under the Securities Act within the limitations of the exemption provided by
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar or successor rule or regulation hereafter adopted by the
Commission. Upon the request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, Crestar shall deliver
to such holder a written statement as to whether it has complied with such
requirements.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. Each of the Trust and Crestar represents,
warrants, covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities or any other
securities which would be inconsistent with the terms contained in this Exchange
and Registration Rights Agreement, the Capital Securities Exchange and
Registration Rights Agreement and the Guarantee Exchange and Registration Rights
Agreement should be construed to be consistent with the terms hereof.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Exchange
and Registration Rights Agreement in accordance with the terms and conditions of
this Exchange and Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.
(c) NOTICES. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: if to the Trust or to
Crestar, then to Crestar Financial Corporation, Crestar Center, 919 East Main
Street, Richmond, Virginia, 23219, and if to a holder, to the address of such
holder set forth in the security register or other records of the Trust or of
the Debenture Trustee under the Indenture, as the case may be, or to such other
address as any party may have furnished to the others in writing in accordance
herewith, except that notices of change of address shall be effective only upon
receipt.
(d) PARTIES IN INTEREST. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the respective successors and assigns of
the parties hereto. In the event that any transferee of any holder of
Registrable Securities shall become a holder of Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed a
party hereto for all purposes and such Registrable Securities shall be held
subject to all of the terms of this Exchange and Registration Rights Agreement,
and by taking and holding such Registrable Securities such transferee shall be
entitled to receive the benefits of and be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Exchange and
Registration
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Rights Agreement. If Crestar shall so request, any such successor, assign or
transferee shall agree in writing to acquire and hold the Registrable Securities
subject to all of the terms hereof.
(e) SURVIVAL. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities and the transfer
and registration of Registrable Securities by such holder and/or the
consummation of an Exchange Offer.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
(g) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(h) ENTIRE AGREEMENT; AMENDMENTS. This Exchange and Registration Rights
Agreement and the other agreements referred to herein or delivered pursuant
hereto which form a part hereof contain the entire understanding of the parties
with respect to its subject matter. This Exchange and Registration Rights
Agreement and such other agreements referred to herein supersede all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by Crestar, the Trust
and the holders of at least 66-2/3 percent in aggregate Liquidation Amount or
principal amount, as the case may be, of the Registrable Securities at the time
outstanding. Each holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by any amendment or waiver effected pursuant to this
Section 9(h), whether or not any notice, writing or marking indicating such
amendment or waiver appears on such Registrable Securities or is delivered to
such holder.
(i) INSPECTION. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the registered holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities at the offices of Crestar
at the address thereof set forth in Section 9(c) above.
(j) COUNTERPARTS. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
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(k) TERMINATION. Except for the respective indemnities, representations
and warranties set forth herein, this Agreement shall terminate when all the
Securities, Exchange Securities and Registrable Securities cease to be
outstanding.
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This Agreement is executed as of the day and year first above written.
CRESTAR FINANCIAL CORPORATION
By: _____________________________
Name:
Title:
CRESTAR CAPITAL TRUST I
By: ______________________________
Administrator
MORGAN STANLEY & CO.
As Representative of the Purchasers
Named in Schedule I to the Purchase
Agreement
By: ______________________________
(Morgan Stanley & Co.)
Acting severally, and not jointly and
severally, on behalf of themselves and
each of the Purchasers named in
Schedule I to the Purchase Agreement
24
GUARANTEE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
GUARANTEE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated December 31, 1996,
by and among Crestar Capital Trust I, a Delaware business trust (the "Trust"),
Crestar Financial Corporation, a Virginia corporation registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended
("Crestar") and Morgan Stanley & Co. Incorporated, Lehman Brothers Inc. and UBS
Securities LLC (collectively, the "Purchasers"), purchasers of the 8.16% Capital
Securities of the Trust.
1. CERTAIN DEFINITIONS. For purposes of this Exchange and
Registration Rights Agreement, the following terms shall have the following
respective meanings:
(a) "COMMISSION" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(b) "DEBENTURE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" means the
Debenture Exchange and Registration Rights Agreement in respect of the
Debentures dated December 31, 1996 among Crestar, the Trust and the Purchasers.
(c) "DEBENTURES" means the 8.16% Junior Subordinated Deferrable Interest
Debentures due December 15, 2026 of Crestar, to be issued pursuant to the
Indenture.
(d) "Effective Time", in the case of (i) an Exchange Offer, means the
date on which the Commission declares the Exchange Offer registration statement
effective or on which such registration statement otherwise becomes effective
and (ii) a Shelf Registration, means the date on which the Commission declares
the Shelf Registration effective or on which the Shelf Registration otherwise
becomes effective.
(e) "EXCHANGE ACT" means the Securities Exchange Act of 1934, or any
successor thereto, as amended from time to time.
(f) "EXCHANGE DEBENTURES" has the meaning set forth in Section 2(a)
hereof.
(g) "EXCHANGE GUARANTEE" has the meaning set forth in Section 2(a)
hereof.
(h) "EXCHANGE OFFER" has the meaning set forth in Section 2(a) hereof.
(i) "EXCHANGE SECURITIES" has the meaning set forth in Section 2(a)
hereof.
(j) "GUARANTEE" means the Guarantee of Crestar with respect to the
Securities, to the extent set forth in the Guarantee Agreement.
<PAGE>
(k) "GUARANTEE AGREEMENT" means the Guarantee Agreement dated December
31, 1996 between Crestar and The Chase Manhattan Bank, as Guarantee Trustee
(together with its successors and assigns, the "Guarantee Trustee"), for the
benefit of the holders of the Securities.
(l) "CAPITAL SECURITIES EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" means
the Capital Exchange and Registration Rights Agreement in respect of the
Securities dated December 31, 1996 among Crestar, the Trust and the Purchasers.
(m) The term "HOLDER" has the meaning set forth in the Capital Securities
Exchange and Registration Rights Agreement.
(n) "INDENTURE" means the Indenture dated as of December 31, 1996,
between Crestar and The Chase Manhattan Bank, as Debenture Trustee, as
supplemented by the First Supplemental Indenture dated as of December 31, 1996,
and as further amended or supplemented from time to time.
(o) "ISSUE DATE" means December 31, 1996.
(p) "LIQUIDATION AMOUNT" means the stated liquidation preference of the
Securities.
(q) "NEW GUARANTEE AGREEMENT" has the meaning set forth in Section 2(a)
hereof.
(r) The term "PERSON" means a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
(s) "PURCHASE AGREEMENT" means the Purchase Agreement dated December 20,
1996, among Crestar, the Trust and the Purchasers.
(t) "REGISTRABLE SECURITIES" has the meaning set forth in the Capital
Securities Exchange and Registration Rights Agreement.
(u) "REGISTRATION EXPENSES" has the meaning set forth in Section 4
hereof.
(v) "RESALE PERIOD" has the meaning set forth in the Capital Securities
Exchange and Registration Rights Agreement.
(w) "SECURITIES" means, collectively, the $200,000,000 aggregate
Liquidation Amount of the 8.16% Capital Securities, Liquidation Amount $1,000
per Capital Security, of the Trust to be issued and sold to the Purchasers, and
any securities issued in exchange therefor or in lieu thereof pursuant to the
Trust Agreement.
(x) "SECURITIES ACT" means the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
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(y) "SHELF REGISTRATION" has the meaning set forth in Section 2(b)
hereof.
(z) "TRUST AGREEMENT" means the Amended and Restated Trust Agreement
dated as of December 31, 1996 among Crestar, as Depositor, The Chase Manhattan
Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee
and the Administrators named therein.
(aa) "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) If Crestar and the Trust file a registration statement pursuant to
Section 2(a) of the Capital Securities Exchange and Registration Rights
Agreement, then Crestar and the Trust agree, jointly and severally, to include
in such registration statement an offer to exchange (the "Exchange Offer") the
Guarantee for a new guarantee of Crestar to be extended pursuant to a new
guarantee agreement to be entered into by Crestar and the Guarantee Trustee for
the benefit of holders of the Exchange Securities (as defined below), the
Registrable Securities, if any, and the Securities, if any (the "New Guarantee
Agreement"), which will be qualified under the Trust Indenture Act, such new
guarantee to be substantially identical to the Guarantee except that it will
relate to the Exchange Securities, the Registrable Securities, if any, and the
Securities, if any, and it will be registered pursuant to an effective
registration statement under the Securities Act and such new guarantee will not
contain provisions restricting transfer in the absence of registration under the
Securities Act (such new guarantee hereinafter called "Exchange Guarantee").
Such registration statement shall also relate to, and the consummation of the
Exchange Offer shall be conditioned upon the consummation of, an offer to
exchange the Debentures for substantially identical debentures of Crestar
pursuant to the Debenture Exchange and Registration Rights Agreement (the
"Exchange Debentures") and to an offer to exchange the Securities for
substantially identical capital securities of the Trust pursuant to the Capital
Securities Exchange and Registration Rights Agreement (the "Exchange
Securities"). Crestar and the Trust agree, jointly and severally, to use their
reasonable best efforts to cause such registration statement to become effective
under the Securities Act as soon as practicable after the filing thereof. The
Exchange Offer will be registered under the Act on the appropriate form. The
Exchange Offer shall be deemed to have been completed upon the completion of the
exchange of the Exchange Guarantee for the Guarantee pursuant to the Exchange
Offer.
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<PAGE>
(b) If Crestar and the Trust file a "shelf" registration statement
pursuant to section 2(b) of the Capital Securities Exchange and Registration
Rights Agreement without also filing a registration statement pursuant to
Section 2(a) thereof, then such "shelf" registration statement shall provide for
the registration of the Guarantee (the "Shelf Registration"). The Shelf
Registration shall also provide for the registration of the Debentures pursuant
to the Debenture Exchange and Registration Rights Agreement and for the
registration of and the sale on a continuous or delayed basis by the holders of,
all of the Securities pursuant to Rule 415 under the Securities Act and/or any
similar rule that may be adopted by the Commission pursuant to the Capital
Securities Exchange and Registration Rights Agreement. Crestar and the Trust
agree, jointly and severally, to use their reasonable best efforts to cause the
Shelf Registration to become or be declared effective and to keep such Shelf
Registration continuously effective for a period ending on the earlier of (A)
the third anniversary of the Issue Date or (B) the later of (i) such time as
there are no longer any Securities outstanding or (ii) as required under the
Debenture Exchange and Registration Rights Agreement. Crestar and the Trust
further agree, jointly and severally, to supplement or make amendments to the
Shelf Registration, as and when required by the rules, regulations or
instructions applicable to the registration form used by Crestar and the Trust
for such Shelf Registration or by the Securities Act or rules and regulations
thereunder for shelf registration.
(c) Any reference herein to a registration statement shall be deemed to
include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein to any post effective amendment to a
registration statement shall be deemed to include any document incorporated
therein by reference as of a time after such Effective Time.
3. REGISTRATION PROCEDURES.
If Crestar and the Trust file a registration statement pursuant to
Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, Crestar shall qualify the Indenture, the New
Guarantee Agreement and the Trust Agreement under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of
a new trustee under any of the Indenture, the New Guarantee Agreement or the
Trust Agreement, such new trustee shall be appointed thereunder pursuant to the
applicable provisions thereof.
(c) In connection with the joint and several obligations of Crestar and
the Trust with respect to the registration of the Exchange Securities, the
Exchange Guarantee and the Exchange Debentures, as contemplated by Section 2(a)
(the "Exchange Registration"), if applicable, Crestar and the Trust shall, as
soon as reasonably possible (or as otherwise specified):
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<PAGE>
(i) prepare and file with the Commission, as soon as practicable
but no later than 150 days after the Issue Date, a registration statement
with respect to the Exchange Registration on any form which may be
utilized by Crestar and the Trust and which shall permit the Exchange
Offer and resales of Exchange Securities by broker-dealers during the
Resale Period to be effected as contemplated by Section 2(a) hereof, and
use its reasonable best efforts to cause such registration statement to
become effective as soon as practicable thereafter;
(ii) as soon as practicable prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and maintain
the effectiveness of such registration statement for the periods and
purposes contemplated in Section 2(a) hereof and as may be required by
the applicable rules and regulations of the Commission and the
instructions applicable to the form of such registration statement, and
promptly provide each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder, as such
broker-dealer reasonably may request prior to the expiration of the
Resale Period, for use in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration
statement, and confirm such advice in writing, (A) when such registration
statement or the prospectus included therein or any prospectus amendment
or supplement or post effective amendment has been filed, and, with
respect to such registration statement or any post effective amendment,
when the same has become effective, (B) of the receipt of any comments by
the Commission and by the Blue Sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration statement
or prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the joint and several
representations and warranties of Crestar and the Trust contemplated by
Section 5 cease to be true and correct in all material respects, (E) of
the receipt by either Crestar or the Trust of any notification with
respect to the suspension of the qualification of the Exchange Securities
and the Exchange Guarantee for sale in any United States jurisdiction or
the initiation or threatening of any proceeding for such purpose, or (F)
at any time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such registration statement,
prospectus, prospectus amendment or supplement or post effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder or
contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
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<PAGE>
statements therein not misleading in light of the circumstances then
existing;
(iv) in the event that Crestar and the Trust would be required,
pursuant to Section 3(c)(iii)(F) above, to notify any broker-dealers
holding Exchange Securities, without delay prepare and furnish to each
such holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission promulgated thereunder and shall not 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 in light of the circumstances then existing;
(v) use their best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any post
effective amendment thereto at the earliest practicable date;
(vi) use their reasonable best efforts to (A) register or qualify
the Exchange Securities and the Exchange Guarantee under the securities
laws or blue sky laws of such jurisdiction as are contemplated by Section
2(a) no later than the commencement of the Exchange Offer, (B) keep such
registrations or qualifications in effect and comply with such laws so as
to permit the continuance of offers, sales and dealings therein in such
jurisdictions until the expiration of the Resale Period and (C) take any
and all other actions as may be reasonably necessary or advisable to
enable each broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; PROVIDED, HOWEVER, that
neither Crestar nor the Trust shall be required for any such purpose to
(1) qualify to do business in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
3(g)(vi), (2) consent to general service of process in any such
jurisdiction or (3) in the case of Crestar, make any changes to its
charter or by-laws or any agreement between it and its stockholders or in
the case of the Trust, make any changes to the Trust Agreement;
(vii) use their reasonable best efforts to obtain the consent or
approval of each United States governmental agency or authority, whether
federal, state or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of Exchange
Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to all holders of Securities as
soon as practicable but no later than eighteen months after the Effective
Time, an earnings statement of Crestar and its
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<PAGE>
subsidiaries complying with Section 11 (a) of the Securities Act
(including, at the option of Crestar, Rule 158 thereunder).
(d) In connection with the joint and several obligations of Crestar and
the Trust with respect to the Shelf Registration, if applicable, Crestar and the
Trust shall use their reasonable best efforts to cause the Shelf Registration to
become effective to permit the sale of the Registrable Securities by the holders
thereof in accordance with the intended method or methods of distribution
thereof described in the Shelf Registration. In connection therewith, Crestar
and the Trust shall as soon as reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable,
a registration statement with respect to the Shelf Registration on any
form which may be utilized by Crestar and the Trust and which shall
permit the disposition of the Registrable Securities in accordance with
the intended method or methods thereof, as specified in writing to
Crestar and the Trust by the holders of the Registrable Securities and
use their reasonable best efforts to cause such registration statement to
become effective as soon as practicable thereafter;
(ii) as soon as practicable, prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and maintain
the effectiveness of such registration statement for the period specified
in Section 2(b) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the form
of such registration statement and furnish to the holders of the
Registrable Securities copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the
Commission;
(iii) comply with the provisions of the Securities Act applicable
to Crestar or the Trust in connection with the disposition of all of the
Registrable Securities covered by such registration statement in
accordance with the intended methods of disposition by the holders
thereof, set forth in such registration statement;
(iv) provide (A) the holders of the Registrable Securities to be
included in such registration statement and not more than one counsel for
all the holders of such Registrable Securities, (B) the underwriters
(which term, for purposes of this Exchange and Registration Rights
Agreement, shall include a person deemed to be an underwriter within the
meaning of Section 2(11) of the Securities Act), if any, thereof, (C) the
sales or placement agent, if any, therefor and (D) one counsel for such
underwriters or agents, if any, reasonable opportunity to participate in
the preparation of such registration statement, each prospectus included
therein or filed with the Commission, and each amendment or supplement
thereto;
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(v) for a reasonable period prior to the filing of such
registration statement, and throughout the period specified in Section
2(b), make available at reasonable times at Crestar's principal place of
business or such other reasonable place for inspection by the persons
referred to in Section 3(d)(iv) who shall certify to Crestar and the
Trust that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration such financial and other
information and books and records of Crestar and the Trust, and cause the
officers, employees, counsel and independent certified public accountants
of Crestar and the Trust to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel referred
to in such Section, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; PROVIDED, HOWEVER, that each
such party shall be required to maintain in confidence and not to
disclose to any other person any information or records reasonably
designated by Crestar as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of its
inclusion in such registration statement or otherwise, except by
disclosure by such party in breach of this Agreement), or (B) such person
shall be required so to disclose such information pursuant to the
subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to, and only to the extent
required by, the requirements of such order, and only after such person
shall have given Crestar prompt prior written notice of such
requirement);
(vi) promptly notify the selling holders of Registrable
Securities, the sales or placement agent, if any, therefor and the
managing underwriter or underwriters, if any, thereof and confirm such
advice in writing, (A) when such registration statement or the prospectus
included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same has
become effective, (B) of any comments by the Commission and by the Blue
Sky or securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or supplements to
such registration statement or prospectus or for additional information,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any time the
joint and several representations and warranties of Crestar and the Trust
contemplated by Section 3(d)(xv) or Section 5 cease to be true and
correct in all material respects, (E) of the receipt by either Crestar or
the Trust of any notification with respect to the suspension of the
qualification of the Registrable Securities and the Guarantee for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose, or (F) at any time when a prospectus is required to be
delivered under the Securities Act, that such registration statement,
prospectus, prospectus amendment or supplement or post-effective
amendment, or any document incorporated by reference in any of the
foregoing, does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder or
contains an untrue statement of a material fact
8
<PAGE>
or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(vii) use their best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or underwriters,
any placement or sales agent or any holder or counsel for the holders of
Registrable Securities, promptly incorporate in a prospectus supplement
or post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such managing
underwriter or underwriters, such agent or such holder specifies should
be included therein relating to the terms of the sale of such Registrable
Securities, including, without limitation, information with respect to
the Liquidation Amount or the principal amount, as the case may be, of
Registrable Securities being sold by any holder or agent or to any
underwriters, the name and description of such holder, agent or
underwriter, the offering price of such Registrable Securities and any
discount, commission or other compensation payable in respect thereof,
the purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable Securities,
to be sold by such holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be incorporated
in such prospectus supplement or post-effective amendment;
(ix) furnish to each holder of Registrable Securities, each
placement or sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section 3(d)(iv) an
executed copy of such registration statement, each such amendment and
supplement thereto (in each case including all exhibits thereto and
documents incorporated by reference therein) and such number of copies of
such registration statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by
such holder, agent or underwriter, as the case may be) and of the
prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity with
the requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission promulgated thereunder, and
such other documents, as such holder, agent, if any, and underwriter, if
any, may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such holder, offered
or sold by such agent or underwritten by such underwriter and to permit
such holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and each of Crestar and the Trust
hereby consents to the use of such prospectus (including such preliminary
and summary prospectus) and any amendment or supplement thereto by each
such holder and by any such agent and underwriter, in each case in the
form most recently provided to such party by Crestar and the Trust, in
connection with the offering and sale of the Registrable Securities
covered by the
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<PAGE>
prospectus (including such preliminary and summary prospectus) or any
supplement or amendment thereto;
(x) use their reasonable best efforts to (A) register or qualify
the Registrable Securities to be included in such registration statement
and the Guarantee under such securities laws or blue sky laws of such
jurisdictions as any holder of such Registrable Securities and each
placement or sales agent, if any, therefor and underwriter, if any,
thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
during the period the Shelf Registration is required to remain effective
under Section 2(b) above and for so long as may be necessary to enable
any such holder, agent or underwriter to complete its distribution of
Securities pursuant to such registration statement and (C) take any and
all other actions as may be reasonably necessary or advisable to enable
each such holder, agent, if any, and underwriter, if any, to consummate
the disposition in such jurisdictions of Registrable Securities;
PROVIDED, HOWEVER, that neither Crestar nor the Trust shall be required
for any such purpose to (1) qualify to do business in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(d)(x), (2) consent to general service of
process in any such jurisdiction, (3) in the case of Crestar, make any
changes to its charter or by-laws or any agreement between it and its
shareholders or, in the case of the Trust, make any changes to the Trust
Agreement;
(xi) use their reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal, state
or local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable the selling holder
or holders to offer, or to consummate the disposition of, their
Registrable Securities;
(xii) cooperate with the holders of the Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold, which certificates shall be printed, lithographed or engraved, or
produced by any combination of such methods, and which shall not bear any
restrictive legends; and, in the case of an underwritten offering, enable
such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may request at least two business
days prior to any sale of the Registrable Securities;
(xiii) provide a CUSIP number for all Registrable Securities, not
later than the applicable Effective Time;
(xiv) enter into not more than one underwriting agreement,
engagement letter, agency agreement, "best efforts" underwriting
agreement or similar agreement, as appropriate, including (without
limitation) provisions relating to indemnification and contribution
substantially the same as those set forth in Section 6 hereof, and take
such
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<PAGE>
other actions in connection therewith as any holders of Registrable
Securities aggregating at least 25% in aggregate Liquidation Amount, or
in the aggregate principal amount, as the case may be, of the Registrable
Securities at the time outstanding shall reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;
PROVIDED, that Crestar and the Trust shall not be required to (i) enter
into any such agreement more than once with respect to all of the
Registrable Securities and may delay entering into such agreement until
the consummation of any underwritten public offering which Crestar and
the Trust shall have then undertaken or (ii) enter into any engagement
letter, agency agreement, "best effort" underwriting agreement or similar
agreements whatsoever with respect to the Registrable Securities, and
PROVIDED, FURTHER that Crestar and the Trust shall not be obligated to
enter into any such agreement with a broker-dealer which results in the
need for a "qualified independent underwriter" (within the meaning of the
Rules of Fair Practice and the By-Laws of the National Association of
Securities Dealers, Inc. ("NASD") or any successor thereto, as amended
from time to time (the "Rules and By-Laws of NASD"));
(xv) whether or not an agreement of the type referred to in
Section (3)(d)(xiv) hereof is entered into and whether or not any portion
of the offering contemplated by such registration statement is an
underwritten offering or is made through a placement or sales agent or
any other entity, (A) make such representations and warranties to the
holders of such Registrable Securities and the placement or sales agent,
if any, therefor and the underwriters, if any, thereof substantially the
same as those set forth in Section 1 of the Purchase Agreement and such
other representations and warranties as are customarily made with respect
to the offering of debt securities pursuant to any appropriate agreement
or to a registration statement on the applicable form under the
Securities Act; (B) obtain an opinion or opinions of counsel to Crestar
and the Trust substantially the same as the opinions provided for in
Section 5 of the Purchase Agreement with such additions, substitutions or
deletions of such matters as are customarily covered in opinions for an
underwritten offering, addressed to such holder or holders and the
placement or sales agent, if any, therefor and the underwriters, if any,
thereof and dated the effective date of such registration statement (and
if such registration statement contemplates an underwritten offering of a
part or all of the Registrable Securities, dated the date of the closing
under the underwriting agreement relating thereto) (it being agreed that
the matters to be covered by such opinion shall also include, without
limitation, the absence of governmental approvals required to be obtained
in connection with the Shelf Registration, the offering and sale of the
Registrable Securities, this Exchange and Registration Rights Agreement
or any agreement of the type referred to in Section (3)(c)(xiv) hereof,
except such approvals as may be required under state securities or blue
sky laws; and the compliance as to form of such registration statement
and any documents incorporated by reference therein and of the Indenture,
the Guarantee Agreement and the Trust Agreement with the requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission promulgated thereunder, respectively); and,
such opinion shall also state that such counsel has no reason to believe
that, as of the date of the
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<PAGE>
opinion and of the registration statement or most recent post-effective
amendment thereto, as the case may be, such registration statement and
the prospectus included therein, as then amended or supplemented, and the
documents incorporated by reference therein (in each case other than the
financial statements and other financial information contained therein)
contains or contained an untrue statement of a material fact or omits or
omitted to state therein a material fact necessary to make the statements
therein not misleading (in the case of such documents, in the light of
the circumstances existing at the time that such documents were filed
with the Commission under the Exchange Act)); (C) obtain a "cold comfort"
letter or letters from the independent certified public accountants of
Crestar and the Trust addressed to the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor and the
underwriters, if any, thereof, dated (i) the effective date of such
registration statement and (ii) the effective date of any prospectus
supplement to the prospectus included in such registration statement or
post-effective amendment to such registration statement; (D) deliver such
other documents and certificates, including officers' certificates, as
may be reasonably requested by any holders of at least 25 % in aggregate
Liquidation Amount, or in the aggregate principal amount, as the case may
be, of the Registrable Securities at the time outstanding or the
placement or sales agent, if any, therefor and the managing underwriters,
if any, thereof to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above or those contained in
Section 5(a) hereof and the compliance with or satisfaction of any
agreements or conditions contained in the underwriting agreement or other
agreement entered into by Crestar and the Trust; and (E) undertake such
obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities of
any proposal by Crestar and the Trust to amend or waive any provision of
this Exchange and Registration Rights Agreement pursuant to Section 9(h)
hereof and of any amendment or waiver effected pursuant thereto, each of
which notices shall contain the text of the amendment or waiver proposed
or effected, as the case may be;
(xvii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate
as a member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Rules and By-Laws of NASD)
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Rules and By-Laws, including, without limitation, by
(A) if such Rules or By-Laws, including Schedule E thereto (or any
successor thereto), shall so require, engaging a "qualified independent
underwriter" (as defined in such Schedule (or any successor thereto)) to
participate in the preparation of the registration statement relating to
such Registrable Securities, to exercise usual standards of due diligence
in respect thereto and, if any portion of the offering contemplated by
such registration statement is an underwritten offering or is made
through a placement or sales agent, to
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<PAGE>
recommend the yield of such Registrable Securities, (B) indemnifying any
such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof (or to such
other customary extent as may be required by such underwriter), and (C)
providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the Rules
and By-Laws of NASD; and
(xviii) comply with all applicable rules and regulations of the
Commission, and make generally available to its holders of the Securities
as soon as practicable but in any event not later than eighteen months
after the effective date of such registration statement, an earnings
statement of Crestar and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of Crestar, Rule 158
thereunder).
(e) In the event that Crestar and the Trust would be required, pursuant
to Section 3(d)(vi)(F) above, to notify the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, Crestar and the Trust shall without delay prepare
and furnish to each such holder, to each placement or sales agent, if any, and
to each underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall conform in all material respects
to the applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder and shall
not 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 in light of the circumstances then existing. Each holder of
Registrable Securities agrees that upon receipt of any notice from Crestar and
the Trust pursuant to Section 3(d)(vi)(F) hereof, such holder shall forthwith
discontinue the disposition of Registrable Securities, pursuant to the
registration statement applicable to such Registrable Securities until such
holder shall have received copies of such amended or supplemented prospectus,
and if so directed by Crestar and the Trust, such holder shall deliver to
Crestar (at Crestar's expense) all copies, other than permanent file copies,
then in such holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice.
(f) Crestar and the Trust may require each holder of Registrable
Securities as to which any registration is being effected to furnish in writing
to Crestar and the Trust such information regarding such holder and such
holder's intended method of distribution of such Registrable Securities as
Crestar and the Trust may from time to time reasonably request in writing, but
only to the extent that such information is required in order to comply with the
Securities Act. Each such holder agrees to notify Crestar and the Trust as
promptly as practicable of any inaccuracy or change in information previously
furnished by such holder to Crestar and the Trust or of the occurrence of any
event in either case as a result of which any prospectus relating to such
registration contains or would contain an untrue statement of a material fact
regarding such holder or such holder's intended method of distribution of such
Registrable Securities or omits to state any material fact regarding such holder
or such
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<PAGE>
holder's intended method of distribution of such Registrable Securities required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing, and promptly to furnish to Crestar
and the Trust any additional information required to correct and update any
previously furnished information or required so that such prospectus shall not
contain, with respect to such holder or the distribution of such Registrable
Securities, 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 in light of the circumstances then existing. Each such holder
shall comply with the provisions of the Securities Act applicable to such holder
with respect to the disposition by such holder of Registrable Securities covered
by such registration statement in accordance with the intended methods of
disposition by such holder set forth in such registration statement.
(g) Until the expiration three years after the Issue Date, Crestar will
not, and will not permit any of its "affiliates" (as defined in Rule 144 under
the Act) to, resell any of the Securities which constitute "restricted
securities" under Rule 144 that have been reacquired by any of them except
pursuant to an effective registration statement under the Act or any exemption
therefrom; PROVIDED, HOWEVER, that, for purposes of this paragraph, "affiliates"
shall not include the Purchasers or any of their affiliates other than Crestar
and its subsidiaries, officers, managers and directors.
4. REGISTRATION EXPENSES.
If Crestar and the Trust file a registration statement pursuant to
Section 2(a) or Section 2(b), the following provisions shall apply:
Crestar agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the performance by Crestar
and the Trust or compliance with this Exchange and Registration Rights
Agreement, including, without limitation, (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Securities and the Guarantee for
offering and sale under the state securities and blue sky laws referred to in
Section 3(d)(x) hereof, including reasonable fees and disbursements of counsel
in connection with such qualifications, (c) all expenses relating to the
preparation, printing, distribution and reproduction of each registration
statement required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, and the certificates representing the Securities and all documents
relating hereto, (d) messenger and delivery expenses, (e) fees and expenses of
the Debenture Trustee under the Indenture, the Issuer Trustees under the Trust
Agreement and the Guarantee Trustee under the Guarantee Agreement, and of any
escrow agent or custodian, (f) internal expenses (including, without limitation,
all salaries and expenses of Crestar's officers and employees performing legal
or accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of Crestar and the Trust (including the
expenses of any opinions or "cold comfort" letters required by or incident to
such performance and compliance), (h) fees, disbursements and expenses of any
"qualified
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independent underwriter" engaged pursuant to Section 3(d)(xvii) hereof, (i)
fees, disbursements and expenses of one counsel for the holders of Registrable
Securities retained in connection with a Shelf Registration, as selected by the
holders of at least a majority in aggregate Liquidation Amount, or the aggregate
principal amount, as the case may be, of the Registrable Securities being
registered, and fees, expenses and disbursements of any other persons, including
special experts, retained by Crestar or the Trust in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof,
Crestar shall reimburse such person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after receipt of a written
request therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency or brokerage fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above, transfer taxes on
resale of any of the Securities by such holders and any advertising or
solicitation expenses other than expenses specifically referred to above
incurred by or on behalf of such holders in connection with any offers they may
make.
5. REPRESENTATIONS AND WARRANTIES.
Crestar and the Trust, jointly and severally, represent and warrant to,
and agree with, each Purchaser and each of the holders from time to time of
Registrable Securities that:
(a) Each registration statement covering the Exchange Securities, the
Exchange Guarantee and the Exchange Debentures or the Registrable Securities,
the Guarantee and the Debentures and each prospectus (including any preliminary
or summary prospectus) contained therein or furnished pursuant to Section
3(d)(ix) hereof and any further amendments or supplements to any such
registration statement or prospectus, when it becomes effective or is filed with
the Commission, as the case may be, and, in the case of an underwritten offering
of Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act, the
rules and regulations of the Commission promulgated thereunder and any such
registration statement and any amendment thereto will not 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
any such prospectus or any amendment or supplement thereto will not 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 in
light of the circumstances then existing; and at all times subsequent to the
Effective Time of any such registration statement when a prospectus would be
required to be delivered under the Securities Act, other than from (i) such time
as a notice has been given to holders of Registrable Securities pursuant to
Section 3(c)(iii)(F) or Section 3(d)(vi)(F) hereof until (ii)
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<PAGE>
such time as Crestar and the Trust furnish an amended or supplemented prospectus
pursuant to Section 3(c)(iv) or Section 3(e) hereof, as the case may be, each
such registration statement, and each prospectus (including any summary
prospectus) contained therein or furnished pursuant to Section 3(c) or Section
3(d)(ix) hereof, as then amended or supplemented, will conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission promulgated
thereunder and will not 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 in the light of the circumstances then
existing; PROVIDED, HOWEVER, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to Crestar and the Trust by a holder of
Registrable Securities or any placement or sales agent therefor or underwriter
thereof expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to Crestar and the Trust by a holder of
Registrable Securities expressly for use therein.
(c) The representations and warranties of the Trust and Crestar contained
in Section 1 of the Purchase Agreement are true and correct with the same force
and effect as though expressly made at and as of the date hereof.
6. INDEMNIFICATION.
(a) Upon the registration of the Exchange Guarantee or the Guarantee, as
the case may be, pursuant to Section 2 hereof, and in consideration of the
agreements of the Purchasers contained herein, and as an inducement to the
Purchasers to purchase the Securities, the Trust and Crestar, jointly and
severally, agree to indemnify and hold harmless, each of the holders of
Registrable Securities to which the Exchange Guarantee or the Guarantee relates,
and each person who participates as a placement or sales agent or as an
underwriter in any offering or sale of such Registrable Securities and each
person, if any, who controls, such holder, or such placement or sales agent, if
any, or such underwriter, if any, within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act (each an "Indemnified Person") as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever arising out of any untrue statement or
alleged untrue statement of a
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material fact contained in any registration statement under which
the Exchange Guarantee or the Guarantee were registered under the
Securities Act, or any preliminary, final or summary prospectus
contained therein as furnished by the Trust or Crestar to any such
holder, agent or underwriter (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained
in such registration statement or such preliminary, final or
summary prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, unless
such untrue statement or omission was made in reliance upon and in
conformity with written information relating to such Indemnified
Person furnished to the Trust and Crestar by, or on behalf of,
such Indemnified Person expressly for use in such registration
statement or such preliminary, final or summary prospectus (or any
amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage
and expense whatsoever to the extent of the aggregate amount paid
in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission (except
as made in reliance upon and in conformity with information
relating to such Indemnified Person furnished by, or on behalf of,
such Indemnified Person as aforesaid), if such settlement is
effected with the written consent of the Trust and Crestar; and
(iii) against any and all expense whatsoever (including
the fees and disbursements of counsel chosen by such Indemnified
Person), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission (except
as made in reliance upon and in conformity with information
relating to such Indemnified Person furnished by, or on behalf of,
such Indemnified Person as aforesaid) to the extent that any such
expense is not paid under (i) or (ii) above.
PROVIDED, HOWEVER, that indemnification with respect to any prospectus shall not
inure to the benefit of any holder of Registrable Securities or Exchange
Securities from whom the Person asserting any loss, claim, liability, damage or
expense purchased such Securities, if a copy of the Prospectus (as then amended
or supplemented and furnished by Crestar to such holder) was not sent or given
by or on behalf of such holder to such person if such is required by law at or
prior to the sale of such Registrable Securities or Exchange Securities, as the
case may be, and if the prospectus (as so amended and supplemented) would have
cured the defect
17
<PAGE>
giving rise to such loss, claim, liability, damage or expense.
(b) Crestar may require, as a condition to including any Registrable
Securities in any registration statement filed pursuant to Section 2 hereof and
to entering into any placement or underwriting agreement with respect thereto,
that Crestar shall have received an undertaking reasonably satisfactory to them
from the holder of such Registrable Securities and from each placement agent or
underwriter named in any such placement agreement or underwriting agreement,
severally and not jointly, to indemnify and hold harmless the Trust and Crestar
and each person, if any, who controls the Trust or Crestar within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in any
registration statement under which such Registrable Securities were registered
under the Securities Act, or any preliminary, final or summary prospectus
contained therein as furnished by the Trust or Crestar to any such holder, agent
or underwriter (or any amendment or supplement thereto), in reliance upon and in
conformity with written information relating to such holder, or such placement
or sales agent, if any, or such underwriter, if any, furnished to the Trust and
Crestar by or on behalf of such holder, or such placement or sales agent, if
any, or such underwriter, if any, expressly for use in such registration
statement or such preliminary, final or summary prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances;
PROVIDED, HOWEVER, that when more than one of such holders, such placement or
sales agents, if any, or such underwriters, if any, is an indemnified party each
such holder, placement or sales agent or such underwriter, as the case may be,
shall be entitled to separate counsel (in addition to any local counsel) in each
such jurisdiction to the extent such holder, placement or sales agent or such
underwriter, as the case may be, may have interests conflicting with those of
the other holder, placement or sales agent or such underwriter, as the case may
be. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
In order to provide for just and equitable contribution in circumstances
in which the
18
<PAGE>
indemnity agreement provided for in this Section 6 is for any reason held to be
unavailable to such holders, such placement or sales agents, if any, or such
underwriters, if any, in accordance with its terms, the Trust, Crestar and such
holders, such placement and sales agents, if any, and such underwriters, if any,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Trust, Crestar and such holders, such placement and sales agents, if any, and
such underwriters, if any, in such proportions as is appropriate to reflect the
relative benefits received by the Trust and Crestar on the one hand and such
holders, such placement and sales agents, if any, and such underwriters, if any,
on the other. The relative benefits received by the Trust and Crestar on the one
hand and such holders, such placement and sales agents, if any, and such
underwriters, if any, on the other shall be deemed to be in such proportion
represented by the percentage that the total commissions and underwriting
discounts received by such holders, such placement and sales agents, if any, and
such underwriters, if any, to the date of such liability bears to the total
sales price (before deducting expenses) received by the Trust and such holders,
such placement and sales agents, if any, and such underwriters, if any, from the
sale of such Securities made to the date of such liability, and the Trust and
Crestar are jointly and severally responsible for the balance. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if such holders, such placement and sales agents, if any, and
such underwriters, if any, failed to give the notice required under this
subsection (c), then the Trust, Crestar and such holders, such placement and
sales agents, if any, and such underwriters, if any, shall contribute to such
aggregate losses, liabilities, claims, damages and expenses in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Trust and Crestar on the one hand and such holders, such
placement and sales agents, if any, and such underwriters, if any, on the other
in connection with the statements or omissions which resulted in such
liabilities, claims, damages and expenses, as well as any other relevant
equitable considerations. The relative fault 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 Trust and Crestar on the one hand or is
supplied by, or on behalf of, such holders, such placement or sales agents, if
any, and such underwriters, if any, on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Trust, Crestar and such holders, such placement
or sales agents, if any, and such underwriters, if any, agree that it would not
be just and equitable if contributions pursuant to this paragraph were
determined pro rata (even if such holders, such placement or sales agents, if
any, and such underwriters, if any, 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 this paragraph. Notwithstanding the
provisions of this paragraph, such holders, such placement or sales agents, if
any, and such underwriters, if any, shall not be required to contribute any
amount in excess of the amount by which the total price at which the Securities
referred to in the second sentence of this paragraph that were offered and sold
to the public through such holders, such placement or sales agents, if any, and
such underwriters, if any, exceeds the amount of any damages that such holders,
such placement or sales agents, if any, and such
19
<PAGE>
underwriters, if any, have 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 Securities Act) shall be entitled under this paragraph to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section, each person, if any, who controls any such holders, such
placement or sales agents, if any, and such underwriters, if any, within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such holders, such placement or
sales agents, if any, and such underwriters, if any, and each person, if any,
who controls the Trust or Crestar within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Trust or Crestar.
7. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. Each of the Trust and Crestar represents,
warrants, covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to the Guarantee or any other securities which
would be inconsistent with the terms contained in this Exchange and Registration
Rights Agreement and that the Debenture Exchange and Registration Rights
Agreement and the Capital Securities Exchange and Registration Rights Agreement
should be construed to be consistent with the terms hereof.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Exchange
and Registration Rights Agreement in accordance with the terms and conditions of
this Exchange and Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.
(c) NOTICES. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows, if to Crestar or the
Trust, to: Crestar Financial Corporation, Crestar Center, 919 East Main Street,
Richmond, Virginia, 23219, and if to a holder, to the address of such holder set
forth in the security register or other records of the Trust, or to such other
address as any party may have furnished to the others in writing in accordance
herewith, except that notices of change of address shall be effective only upon
receipt.
(d) PARTIES IN INTEREST. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the respective successors and assigns of
the parties hereto. In the event that any transferee of any holder of
Registrable Securities shall become a holder of Registrable Securities, in any
20
<PAGE>
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed a
party hereto for all purposes and such Registrable Securities shall be held
subject to all of the terms of this Exchange and Registration Rights Agreement,
and by taking and holding such Registrable Securities such transferee shall be
entitled to receive the benefits of and be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Exchange and
Registration Rights Agreement. If Crestar shall so request, any such successor,
assign or transferee shall agree in writing to acquire and hold the Registrable
Securities subject to all of the terms hereof.
(e) SURVIVAL. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer. In addition, the
respective indemnities, representations and warranties set forth herein shall
survive the termination hereof.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
(g) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(h) ENTIRE AGREEMENT; AMENDMENTS. This Exchange and Registration Rights
Agreement and the other agreements referred to herein or delivered pursuant
hereto which form a part hereof contain the entire understanding of the parties
with respect to its subject matter. This Exchange and Registration Rights
Agreement and such other agreements referred to herein supersede all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by Crestar, the Trust,
and the holders of at least 66-2/3 percent in aggregate principal amount of the
Registrable Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any amendment
or waiver effected pursuant to this Section 7(h), whether or not any notice,
writing or marking indicating such amendment or waiver appears on such
Registrable Securities or is delivered to such holder.
21
<PAGE>
(i) INSPECTION. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the registered holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities at the offices of Crestar
at the address thereof set forth in Section 9(c) above.
(j) COUNTERPARTS. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
(k) TERMINATION. Except for the respective indemnities, representations
and warranties set forth herein, this Agreement shall terminate when all the
Securities, Exchange Securities and Registrable Securities cease to be
outstanding.
22
<PAGE>
This Agreement is hereby executed as of the day and year first above
written.
CRESTAR FINANCIAL CORPORATION
By:
---------------------------
Name:
Title:
CRESTAR CAPITAL TRUST I
By:
---------------------------
Administrator
MORGAN STANLEY & CO.
As Representative of the
Purchasers Named in Schedule I
to the Purchase Agreement
By:
---------------------------
(Morgan Stanley & Co.)
Acting severally, and not
jointly and severally, on behalf
of themselves and each of the
Purchasers named in Schedule I
to the Purchase Agreement
23
EXHIBIT 5.1
HUNTON & WILLIAMS
951 EAST BYRD STREET
RICHMOND, VA 23219
May 15, 1997
Board of Directors
Crestar Financial Corporation
919 East Main Street
Richmond, VA 23219
REGISTRATION STATEMENT ON FORM S-4
Ladies and Gentlemen:
We are acting as counsel for Crestar Financial Corporation (the
"Company") in connection with the registration under the Securities Act of 1933
of its 8.16% Junior Subordinated Deferrable Debentures Due December 15, 2026
(the "Exchange Debentures") and its Guarantee with respect to the Exchange
Debenture (the "Guarantee"). The transaction in which the Exchange Debentures
and the Guarantee will be issued is described in the Company's Registration
Statement on Form S-4 (the "Registration Statement"), expected to be filed with
the Securities and Exchange Commission on May 15, 1997. In connection with the
filing of the Registration Statement, you have requested our opinion concerning
certain corporate matters.
We are of the opinion that:
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the Commonwealth of
Virginia.
2. The Exchange Debentures and the Guarantee have been duly
authorized and, when issued as described in the Registration
Statement, will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and to the references to us in the Proxy
Statement/Prospectus included therein. In giving this consent, we do not admit
that we are within the category of persons whose consent is required by Section
7 of the Securities Act of 1933 or the rules and regulations promulgated
thereunder by the Securities and Exchange Commission.
Very truly yours,
HUNTON & WILLIAMS
EXHIBIT 5.2
[Letterhead of Richards, Layton & Finger]
May 15, 1997
Crestar Capital Trust I
c/o Crestar Financial Corporation
919 East Main Street
P.O. Box 26665
Richmond, Virginia 23261-6665
Re: Crestar Capital Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Crestar Financial
Corporation, a Virginia corporation (the "Company"), and Crestar Capital Trust
I, a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of December 19,
1996 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on December 20, 1996;
(b) The Trust Agreement of the Trust, dated December 19, 1996, by and
between the Company, as depositor, and Chase Manhattan Bank Delaware, a Delaware
banking corporation, as trustee of the Trust;
(c) The Amended and Restated Trust Agreement of the Trust, dated as of
December 31, 1996 (the "Trust Agreement"), among the Company, as depositor, the
trustees and administrators named therein and the several holders from time to
time of beneficial interests in the Trust;
(d) The registration statement on Form S-4, including a related
preliminary prospectus (the "Prospectus"), relating to the Capital Securities of
the Trust representing beneficial interests in the assets of the Trust (each, a
"Preferred Security" and collectively, the "Preferred Securities"), as proposed
to be filed by the Company and the Trust with the Securities and Exchange
Commission (the "SEC") on or about May 15, 1997 (the "Registration Statement");
and
<PAGE>
-2-
(e) A Certificate of Good Standing for the Trust, dated May 15, 1997,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed above, and we have assumed that there exists no
provision in any document that we have not reviewed that bears upon or is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to whom
a Preferred Security is to be issued by the Trust (collectively, the "Preferred
Security Holders") of a certificate evidencing the Preferred Security and the
payment for the Preferred Security acquired by it, in accordance with the Trust
Agreement and the Registration Statement, and (vii) that the Preferred
Securities are issued and sold to the Preferred Security Holders in accordance
with the Trust Agreement and the Registration Statement. We have not
participated in the preparation of the Registration Statement and assume no
responsibility for its contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal laws
and rules and regulations relating thereto. Our opinions are rendered only with
respect to Delaware laws and rules, regulations and orders thereunder which are
currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
<PAGE>
-3-
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act, 12 Del. C.
ss. 3801, et seq.
2. When issued and sold, the Preferred Securities will represent valid
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the SEC as an exhibit to
the Registration Statement. In addition, we hereby consent to the use of our
name under the heading "Validity of New Securities" in the Prospectus. In giving
the foregoing consents, we do not thereby admit that we come within the category
of persons whose consent is required under Section 7 of the Securities Act of
1933, as amended, or the rules and regulations of the SEC thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
Richards, Layton & Finger
EXHIBIT 8
HUNTON & WILLIAMS
951 EAST BYRD STREET
RICHMOND, VA 23219
May 15, 1997
Board of Directors
Crestar Financial Corporation
919 East Main Street
Richmond, VA 23219
CRESTAR CAPITAL TRUST I--EXCHANGE OFFER
CERTAIN FEDERAL INCOME TAX MATTERS
Ladies and Gentlemen:
We have acted as counsel to Crestar Financial Corporation (the
"Company") and Crestar Capital Trust I (the "Trust") in connection with the
preparation of a Registration Statement on Form S-4 (the "Registration
Statement") for the registration under the Securities Act of 1933, as amended
(the "Act"), of (1) up to $200 million aggregate liquidation amount of the
Trust's 8.16% Series B Capital Securities (the "Exchange Capital Securities"),
(2) the Company's 8.16% Series B Junior Subordinated Deferrable Interest
Debentures due December 15, 2026 (the "Debentures"), and (3) the Company's
related guarantee of certain payments (the "Guarantee"). The Exchange Capital
Securities, the Debentures, and the Guarantee are to be issued in order to
effect the exchange of Exchange Capital Securities for a like liquidation amount
of the Trust's outstanding 8.16% Capital Securirties.
We have reviewed copies of (1) the Registration Statement and the
prospectus included therein and (2) such other documents as we have deemed
necessary or appropriate as a basis for the opinion set forth below.
Based on the foregoing, we are of the opinion that the statements and
legal conclusions contained in the Registration Statement under the caption
"Certain Federal Income Tax Consequences" are correct and that the discussion
thereunder does not omit any material provision with respect to the matters
covered.
We consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to the reference to Hunton & Williams
under the caption "Certain Federal Income Tax Consequences" in the Registration
Statement. In giving this consent, we do not admit that we are in the category
of persons whose consent is required by Section 7 of the
<PAGE>
2
Act or the rules and regulations promulgated thereunder by the Securities and
Exchange Commission.
Very truly yours,
HUNTON & WILLIAMS
Exhibit 12
CRESTAR FINANCIAL CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
1996 1995 1994 1993 1992
<S> <C>
Income before income taxes $ 323,259 $ 350,459 $ 329,448 $ 264,751 $ 152,646
Add
Portion of rents represenative of the interest factor 9,167 8,537 8,317 7,842 8,032
Interest on deposits 502,773 493,301 404,995 383,648 502,628
Interest on short-term borrowings 144,797 133,709 79,192 51,893 42,012
Interest on long-term debt 49,499 50,038 38,756 33,056 27,034
Amortization of debt expense 339 280 261 171 128
---------- ---------- ---------- --------- ---------
Income as adjusted $1,029,834 $1,036,324 $ 860,969 $ 741,361 $ 732,480
========== ========== ========== ========= =========
Fixed charges
Portion of rents represenative of the interest factor $ 9,167 $ 8,537 $ 8,317 $ 7,482 $ 8,032
Interest on deposits 502,773 493,301 404,995 383,648 502,628
Interest on short-term borrowings 144,797 133,709 79,192 51,893 42,012
Interest on long-term debt 49,499 50,038 38,756 33,056 27,034
Amortization of debt expense 339 280 261 171 128
Interest capitalized 485 1,376 954 1,179 1,226
---------- ---------- ---------- --------- ---------
Fixed charges $ 707,060 $ 687,241 $ 532,475 $ 477,789 $ 581,060
========== ========== ========== ========= =========
Ratio of earnings to fixed charges
Excluding interest on deposits 2.6 2.8 3.6 3.8 2.9
Including interest on deposits 1.5 1.5 1.6 1.6 1.3
</TABLE>
CRESTAR FINANCIAL CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED DIVIDENDS
(Dollars in thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
1996 1995 1994 1993 1992
<S> <C>
Income before income taxes $ 323,259 $ 350,459 $ 329,448 $ 264,751 $ 152,646
Add
Portion of rents represenative
of the interest factor 9,167 8,537 8,317 7,842 8,032
Interest on deposits 502,773 493,301 404,995 383,648 502,628
Interest on short-term borrowings 144,797 133,709 79,192 51,893 42,012
Interest on long-term debt 49,499 50,038 38,756 33,056 27,034
Amortization of debt expense 339 280 261 171 128
------------- ------------- ------------- ------------- --------------
Income as adjusted $ 1,029,834 $ 1,036,324 $ 860,969 $ 741,361 $ 732,480
============= ============= ============= ============= ==============
Preferred dividend requirements $ - $ - $ - $ 2,221 $ 2,475
Effective income tax rate 32.5% 38.4% 34.7% 32.2% 23.2%
Preferred dividend
factor on pretax basis - - - 3,276 3,223
Fixed charges
Portion of rents represenative
of the interest factor 9,167 8,537 8,317 7,842 8,032
Interest on deposits 502,773 493,301 404,995 383,648 502,628
Interest on short-term borrowings 144,797 133,709 79,192 51,893 42,012
Interest on long-term debt 49,499 50,038 38,756 33,056 27,034
Amortization of debt expense 339 280 261 171 128
Interest capitalized 485 1,376 954 1,179 1,226
------------- ------------- ------------- ------------- --------------
Fixed charges 707,060 687,241 532,475 477,789 581,060
------------- ------------- ------------- ------------- --------------
Fixed changes and
preferred dividends $ 707,060 $ 687,241 $ 532,475 $ 481,065 $ 584,283
============= ============= ============= ============= ==============
Ratio of earnings to fixed
charges and preferred dividends
Excluding interest on deposits 2.6 2.8 3.6 3.7 2.8
Including interest on deposits 1.5 1.5 1.6 1.5 1.3
</TABLE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Crestar Financial Corporation:
We consent to the use of our report included in Crestar Financial Corporation's
Annual Report on Form 10-K for the year ended December 31, 1996 incorporated
herein by reference and to the reference to our firm under the heading "Experts"
in the Prospectus. Our report refers to our reliance on another auditors' report
with respect to amounts related to Citizens Bancorp included in the
aforementioned consolidated financial statements.
KPMG PEAT MARKWICK LLP
Richmond, Virginia
May 15, 1997
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Crestar Financial Corporation on Form S-4 of our report dated January 16, 1997
on Citizens Bancorp as and for the year ended December 31, 1996, which is
incorporated by reference in the Annual Report on Form 10-K of Crestar Financial
Corporation for the year ended December 31, 1996 and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
DELOITTE & TOUCHE LLP
Richmond, Virginia
May 15, 1997
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
CRESTAR CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
DELAWARE 54-1829502
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
919 EAST MAIN STREET
P.O. BOX 26665
RICHMOND, VIRGINIA 23261-6665
(Address of principal executive offices) (Zip Code)
CAPITAL SECURITIES
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee,
The Chase Manhattan Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 7TH day of MAY, 1997.
THE CHASE MANHATTAN BANK
By /s/ Anne G. Brenner
-------------------
Anne G. Brenner
Vice President
- 3 -
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee,
The Chase Manhattan Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 7TH day of MAY, 1997.
THE CHASE MANHATTAN BANK
By /s/ Anne G. Brenner
-------------------
Anne G. Brenner
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1996, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin .............................................$ 11,509
Interest-bearing balances ..................................... 8,457
Securities: .......................................................
Held to maturity securities......................................... 3,128
Available for sale securities....................................... 40,534
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold ............................................ 9,222
Securities purchased under agreements to resell ............... 422
Loans and lease financing receivables:
Loans and leases, net of unearned income $133,935
Less: Allowance for loan and lease losses 2,789
Less: Allocated transfer risk reserve ......................... 16
--------
Loans and leases, net of unearned income,
allowance, and reserve ........................................ 131,130
Trading Assets ..................................................... 49,876
Premises and fixed assets (including capitalized
leases)........................................................ 2,877
Other real estate owned ............................................ 290
Investments in unconsolidated subsidiaries and
associated companies........................................... 124
Customer's liability to this bank on acceptances
outstanding ................................................... 2,313
Intangible assets .................................................. 1,316
Other assets ....................................................... 11,231
--------
TOTAL ASSETS ....................................................... $272,429
========
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ........................................... $87,006
Noninterest-bearing ........................................... $35,783
Interest-bearing .............................................. 51,223
In foreign offices, Edge and Agreement subsidiaries, ---------
and IBF's ..................................................... 73,206
Noninterest-bearing ................................................ $ 4,347
Interest-bearing .............................................. 68,859
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased ....................................... 14,980
Securities sold under agreements to repurchase ................ 10,125
Demand notes issued to the U.S. Treasury ........................... 1,867
Trading liabilities ................................................ 34,783
Other Borrowed money:
With a remaining maturity of one year or less ................. 14,639
With a remaining maturity of more than one year ............... 425
Mortgage indebtedness and obligations under capitalized
leases ........................................................ 40
Bank's liability on acceptances executed and outstanding 2,267
Subordinated notes and debentures .................................. 5,471
Other liabilities .................................................. 11,343
TOTAL LIABILITIES .................................................. 256,152
--------
Limited-Life Preferred stock and related surplus 550
EQUITY CAPITAL
Common stock ....................................................... 1,251
Surplus ............................................................ 10,243
Undivided profits and capital reserves ............................. 4,526
Net unrealized holding gains (Losses)
on available-for-sale securities ................................... (309)
Cumulative foreign currency translation adjustments ................ 16
TOTAL EQUITY CAPITAL ............................................... 15,727
------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL ...................................... $272,429
========
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
THOMAS G. LABRECQUE )
- 5 -
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
CRESTAR FINANCIAL CORPORATION
(Exact name of obligor as specified in its charter)
VIRGINIA 54-0722175
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
919 EAST MAIN STREET
P.O. BOX 26665
RICHMOND, VIRGINIA 23261-6665
(Address of principal executive offices) (Zip Code)
JUNIOR SUBORDINATED DEBENTURES
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject. New York State Banking Department, State
House, Albany, New York 12110. Board of Governors of the Federal
Reserve System, Washington, D.C., 20551 Federal Reserve Bank of
New York, District No. 2, 33 Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee,
The Chase Manhattan Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 7TH day of MAY, 1997.
THE CHASE MANHATTAN BANK
By /s/ Anne G. Brenner
-------------------
Anne G. Brenner
Vice President
- 3 -
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee,
The Chase Manhattan Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 7TH day of MAY, 1997.
THE CHASE MANHATTAN BANK
By /s/ Anne G. Brenner
-------------------
Anne G. Brenner
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1996, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................ $ 11,509
Interest-bearing balances ................................ 8,457
Securities: ..................................................
Held to maturity securities.................................... 3,128
Available for sale securities.................................. 40,534
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold ....................................... 9,222
Securities purchased under agreements to resell .......... 422
Loans and lease financing receivables:
Loans and leases, net of unearned income $133,935
Less: Allowance for loan and lease losses 2,789
Less: Allocated transfer risk reserve .................... 16
--------
Loans and leases, net of unearned income,
allowance, and reserve ................................... 131,130
Trading Assets ................................................ 49,876
Premises and fixed assets (including capitalized
leases)................................................... 2,877
Other real estate owned ....................................... 290
Investments in unconsolidated subsidiaries and
associated companies...................................... 124
Customer's liability to this bank on acceptances
outstanding .............................................. 2,313
Intangible assets ............................................. 1,316
Other assets .................................................. 11,231
---------
TOTAL ASSETS .................................................. $272,429
========
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ....................................... $87,006
Noninterest-bearing ....................................... $35,783
Interest-bearing .......................................... 51,223
In foreign offices, Edge and Agreement subsidiaries, --------
and IBF's ................................................. 73,206
Noninterest-bearing ............................................ $ 4,347
Interest-bearing .......................................... 68,859
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased ................................... 14,980
Securities sold under agreements to repurchase ............ 10,125
Demand notes issued to the U.S. Treasury ....................... 1,867
Trading liabilities ............................................ 34,783
Other Borrowed money:
With a remaining maturity of one year or less ............. 14,639
With a remaining maturity of more than one year ........... 425
Mortgage indebtedness and obligations under capitalized
leases .................................................... 40
Bank's liability on acceptances executed and outstanding 2,267
Subordinated notes and debentures .............................. 5,471
Other liabilities .............................................. 11,343
TOTAL LIABILITIES .............................................. 256,152
-------
Limited-Life Preferred stock and related surplus 550
EQUITY CAPITAL
Common stock ................................................... 1,251
Surplus ........................................................ 10,243
Undivided profits and capital reserves ......................... 4,526
Net unrealized holding gains (Losses)
on available-for-sale securities ............................... (309)
Cumulative foreign currency translation adjustments ............ 16
TOTAL EQUITY CAPITAL ........................................... 15,727
------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL .................................. $272,429
========
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
THOMAS G. LABRECQUE )
- 5 -
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
CRESTAR FINANCIAL CORPORATION
(Exact name of obligor as specified in its charter)
VIRGINIA 54-0722175
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
919 EAST MAIN STREET
P.O. BOX 26665
RICHMOND, VIRGINIA 23261-6665
(Address of principal executive offices) (Zip Code)
CAPITAL SECURITIES GUARANTEE
(CRESTAR CAPITAL TRUST I)
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee,
The Chase Manhattan Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 7TH day of MAY, 1997.
THE CHASE MANHATTAN BANK
By /s/ Anne G. Brenner
-------------------
Anne G. Brenner
Vice President
- 3 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee,
The Chase Manhattan Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 7TH day of MAY, 1997.
THE CHASE MANHATTAN BANK
By /s/ Anne G. Brenner
-------------------
Anne G. Brenner
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1996, in accordance
with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ....................................... $ 11,509
Interest-bearing balances ............................... 8,457
Securities: .................................................
Held to maturity securities................................... 3,128
Available for sale securities................................. 40,534
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold ...................................... 9,222
Securities purchased under agreements to resell ......... 422
Loans and lease financing receivables:
Loans and leases, net of unearned income $133,935
Less: Allowance for loan and lease losses 2,789
Less: Allocated transfer risk reserve ................... 16
--------
Loans and leases, net of unearned income,
allowance, and reserve .................................. 131,130
Trading Assets ............................................... 49,876
Premises and fixed assets (including capitalized
leases).................................................. 2,877
Other real estate owned ...................................... 290
Investments in unconsolidated subsidiaries and
associated companies..................................... 124
Customer's liability to this bank on acceptances
outstanding ............................................. 2,313
Intangible assets ............................................ 1,316
Other assets ................................................. 11,231
TOTAL ASSETS ................................................. $272,429
========
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ..................................... $87,006
Noninterest-bearing ..................................... $35,783
Interest-bearing ........................................ 51,223
In foreign offices, Edge and Agreement subsidiaries,
and IBF's ............................................... 73,206
Noninterest-bearing .......................................... $ 4,347
Interest-bearing ........................................ 68,859
Federal funds purchased and securities sold under agreements to
repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased ................................. 14,980
Securities sold under agreements to repurchase .......... 10,125
Demand notes issued to the U.S. Treasury ..................... 1,867
Trading liabilities .......................................... 34,783
Other Borrowed money:
With a remaining maturity of one year or less ........... 14,639
With a remaining maturity of more than one year ......... 425
Mortgage indebtedness and obligations under capitalized
leases .................................................. 40
Bank's liability on acceptances executed and outstanding 2,267
Subordinated notes and debentures ............................ 5,471
Other liabilities ............................................ 11,343
TOTAL LIABILITIES ............................................ 256,152
Limited-Life Preferred stock and related surplus 550
EQUITY CAPITAL
Common stock ................................................. 1,251
Surplus ...................................................... 10,243
Undivided profits and capital reserves ....................... 4,526
Net unrealized holding gains (Losses)
on available-for-sale securities ............................. (309)
Cumulative foreign currency translation adjustments .......... 16
TOTAL EQUITY CAPITAL ......................................... 15,727
------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL ................................ $272,429
========
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
THOMAS G. LABRECQUE )
- 5 -
EXHIBIT 99.1
LETTER OF TRANSMITTAL
CRESTAR CAPITAL TRUST I
OFFER TO EXCHANGE ITS
8.16% CAPITAL SECURITIES
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING
8.16% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
PURSUANT TO THE PROSPECTUS
DATED MAY [ ], 1997
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON JUNE [ ], 1997 UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
The Chase Manhattan Bank
(the "Exchange Agent")
BY MAIL, HAND OR OVERNIGHT DELIVERY:
The Chase Manhattan Bank
55 Water Street
Room 234
North Building
New York, New York 10041
Attention: Carlos Esteves
BY FACSIMILE TRANSMISSION
(212) 638-7375
(212) 344-9367
CONFIRM BY TELEPHONE:
Carlos Esteves: (212) 638-0828
Delivery of this Letter of Transmittal to an address other than as set
forth above or transmission of this Letter of Transmittal via a facsimile number
other than the ones listed above will not constitute a valid delivery. The
instructions accompanying this Letter of Transmittal should be read carefully
before this Letter of Transmittal is completed.
<PAGE>
The undersigned hereby acknowledges receipt of the Prospectus dated May
[ ], 1997 (the "Prospectus") of Crestar Capital Trust I (the "Issuer") and this
Letter of Transmittal, which together constitute the Issuer's offer (the
"Exchange Offer") to exchange up to $200,000,000 aggregate liquidation amount of
its 8.16% Capital Securities (liquidation amount $1,000 per Capital Security)
(the "Exchange Capital Securities"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Registration Statement on Form S-4 of Crestar Financial Corporation and the
Issuer (File Nos. 333-[ ] and 333-[ ]), of which the Prospectus is a part, for a
like liquidation amount of its outstanding 8.16% Capital Securities (liquidation
amount $1,000 per Capital Security) (the "Old Capital Securities"), of which
$200,000,000 aggregate liquidation amount is outstanding. The term "Expiration
Date" shall mean 5:00 p.m., New York City time, on June [ ], 1997, unless the
Exchange Offer is extended, in which case the term "Expiration Date" means the
latest date and time to which the Exchange Offer is extended. Capitalized terms
used but not defined herein have the meaning given to them in the Prospectus.
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE
INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED.
QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS
AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.
Capitalized terms used but not defined herein shall have the same
meaning given them in the Prospectus.
This Letter of Transmittal is to be completed by holders of Old Capital
Securities either if (i) Old Capital Securities are to be forwarded herewith or
(ii) tenders of Old Capital Securities are to be made by book-entry transfer to
an account maintained by the Exchange Agent at The Depository Trust Company
("DTC") pursuant to the procedures set forth under "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the Prospectus and an
Agent's Message (as defined herein) is not delivered.
Holders of Old Capital Securities whose certificates (the
"Certificates") for such Old Capital Securities are not immediately available or
who cannot deliver their Certificates and all other required documents to the
Exchange Agent on or prior to the Expiration Date (as defined in the Prospectus)
or who cannot complete the procedures for book-entry transfer on or prior to the
Expiration Date, must tender their Old Capital Securities according to the
guaranteed delivery procedures set forth in "The Exchange Offer--Procedures for
Tendering Old Capital Securities" in the Prospectus.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE
EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
<PAGE>
<TABLE>
Caption>
- -----------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD CAPITAL SECURITIES TENDERED
- -----------------------------------------------------------------------------------------------------------------------------------
AGGREGATE
LIQUIDATION
NAME(S) AND CERTIFICATE AMOUNT OF
ADDRESS(ES) OF NUMBER(S)* OLD CAPITAL LIQUIDATION AMOUNT NUMBER OF
REGISTERED (ATTACH SECURITIES OF OLD CAPITAL BENEFICIAL HOLDERS
HOLDER ADDITIONAL TENDERED (ATTACH SECURITIES FOR WHOM OLD
(PLEASE FILL IN, IF LIST IF ADDITIONAL LIST IF TENDERED (IF LESS CAPITAL SECURITIES
BLANK) NECESSARY) NECESSARY) THAN ALL)** ARE HELD
<S> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
$ $
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
TOTAL AMOUNT
TENDERED: $ $
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed by book-entry holders. Such holders should check
the appropriate box below and provide the requested information.
** Need not be completed if tendering for exchange all Old Capital
Securities held. Old Capital Securities may be tendered in whole or in
part in denominations of $100,000 and integral multiples of $1,000 in
excess thereof, provided that if any Old Capital Securities are
tendered for exchange in part, the untendered Liquidation Amount
thereof must be $100,000 or any integral multiple of $1,000 in excess
thereof. All Old Capital Securities held shall be deemed tendered
unless a lesser number is specified in this column.
- --------------------------------------------------------------------------------
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS (defined in Instruction 1)
ONLY)
|_| CHECK HERE IF TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH
DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
-------------------------------------------------
DTC Account Number:
------------------------------------------------------------
Transaction Code Number:
-------------------------------------------------------
By crediting the Old Capital Securities to the Exchange Agent's Account at DTC
in accordance with DTC's Automated Tender Offer Program ("ATOP") and by
complying with applicable ATOP procedures with respect to the Exchange Offer,
including transmitting to the Exchange Agent a computer-generated message (an
"Agent's Message") in which the holder of the Old Capital Securities
acknowledges and agrees to be bound by the terms of the Letter of Transmittal,
the participant in DTC confirms on behalf of itself and the beneficial owners of
such Old Capital Securities all provisions of this Letter of Transmittal
applicable to it and such beneficial owner as fully as if it had completed the
information required herein and executed and transmitted this Letter of
Transmittal to the Exchange Agent.
|_| CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED DELIVERY IF
TENDERED OLD CAPITAL SECURITIES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING:
Name of
Registered Holder:
------------------------------------------------------------
Window Ticket Number (if any):
-------------------------------------------------
<PAGE>
Date of Execution of
Notice of Guaranteed Delivery:
-------------------------------------------------
Name of Institution which Guaranteed Delivery:
- -------------------------------------------------------------------------------
If Guaranteed Delivery is to be made By Book-Entry Transfer:
Name of Tendering
Institution:
-------------------------------------------------------------------
DTC Account Number:
------------------------------------------------------------
Transaction Code Number:
-------------------------------------------------------
|_| CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD CAPITAL
SECURITIES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH
ABOVE.
|_| CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD CAPITAL
SECURITIES FOR YOUR OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER TRADING
ACTIVITIES (A "PARTICIPATING BROKER-DEALER") AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
-------------------------------------------------------------------------
Address:
----------------------------------------------------------------------
Area Code and Telephone Number:
------------------------------------------------
Contact Person:
---------------------------------------------------------------
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Crestar Capital Trust I, a Delaware
statutory business trust (the "Issuer"), and Crestar Financial Corporation, a
Virginia corporation, as Depositor (the "Company"), the above-described
aggregate Liquidation Amount of the Issuer's 8.16% Capital Securities (the "Old
Capital Securities") in exchange for a like aggregate Liquidation Amount of the
Issuer's 8.16% Capital Securities (the "Exchange Capital Securities") which have
been registered under the Securities Act of 1933 (the "Securities Act"), upon
the terms and subject to the conditions set forth in the Prospectus dated May
[ ], 1997 (as the same may be amended or supplemented from time to time, the
"Prospectus"), receipt of which is acknowledged, and in this Letter of
Transmittal (which, together with the Prospectus, constitutes the "Exchange
Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Old Capital Securities tendered herewith in accordance with the
terms and conditions of the Exchange Offer (including, if the Exchange Offer is
extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Issuer all right, title and interest in and to such Old Capital
Securities as are being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of the
Company and the Issuer in connection with the Exchange Offer) with respect to
the tendered Old Capital Securities, with full power of substitution (such power
of attorney being deemed to be an irrevocable power coupled with an interest),
subject only to the right of withdrawal described in the Prospectus to (i)
deliver Certificates for Old Capital Securities to the Issuer together with all
accompanying evidences of transfer and authenticity to, or upon the order of,
the Issuer, upon receipt by the Exchange Agent, as the undersigned's agent, of
the Exchange Capital Securities to be issued in exchange for such Old Capital
Securities, (ii) present Certificates for such Old Capital Securities for
transfer, and to transfer the Old Capital Securities on the books of the Issuer,
and (iii) receive for the account of the Issuer all benefits and otherwise
exercise all rights of beneficial ownership of such Old Capital Securities, all
in accordance with the terms and conditions of the Exchange Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE UNDERSIGNED HAS
FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND TRANSFER THE OLD
CAPITAL SECURITIES TENDERED HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED FOR
EXCHANGE, THE ISSUER WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE
THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND ENCUMBRANCES,
AND THAT THE OLD CAPITAL SECURITIES TENDERED HEREBY ARE NOT SUBJECT TO ANY
ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE AND
DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY THE COMPANY, THE ISSUER OR THE
EXCHANGE AGENT TO BE NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT
AND TRANSFER OF THE OLD CAPITAL SECURITIES TENDERED HEREBY, AND THE UNDERSIGNED
WILL COMPLY WITH ITS OBLIGATIONS UNDER THE REGISTRATION RIGHTS AGREEMENT. THE
UNDERSIGNED HAS READ AND AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The name and address of the registered holder of the Old Capital
Securities tendered hereby should be printed above, if they are not already set
forth above, as they appear on the Certificates representing such Old Capital
Securities. The Certificate numbers and the Old Capital Securities that the
undersigned wishes to tender should be indicated in the appropriate boxes above.
If any tendered Old Capital Securities are not exchanged pursuant to
the Exchange Offer for any reason, or if Certificates are submitted for more Old
Capital Securities than are tendered or accepted for exchange, Certificates for
such nonexchanged or nontendered Old Capital Securities will be returned (or, in
the case of Old Capital Securities tendered by book-entry transfer, such Old
Capital Securities will be credited to an account maintained at DTC), without
expense to the tendering holder, promptly following the expiration or
termination of the Exchange Offer.
<PAGE>
The undersigned understands that tenders of Old Capital Securities
pursuant to any one of the procedures described under "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the Prospectus and in
the instructions herein will, upon the Company's and the Issuer's acceptance for
exchange of such tendered Old Capital Securities, constitute a binding agreement
between the undersigned, the Company and the Issuer upon the terms and subject
to the conditions of the Exchange Offer. The undersigned recognizes that, under
certain circumstances set forth in the Prospectus, the Company and the Issuer
may not be required to accept for exchange any of the Old Capital Securities
tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the Exchange Capital
Securities be issued in the name of the undersigned or, in the case of a
book-entry transfer of Old Capital Securities, that such Exchange Capital
Securities be credited to the account indicated above maintained at DTC. If
applicable, substitute Certificates representing Old Capital Securities not
exchanged or not accepted for exchange will be issued to the undersigned or, in
the case of a book-entry transfer of Old Capital Securities, will be credited to
the account indicated above maintained at DTC. Similarly, unless otherwise
indicated under "Special Delivery Instructions" below, please deliver Exchange
Capital Securities to the undersigned at the address shown below the
undersigned's signature.
BY TENDERING OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER OF
TRANSMITTAL, THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT (I) THE
UNDERSIGNED IS NOT AN "AFFILIATE" OF THE COMPANY OR THE ISSUER WITHIN THE
MEANING OF RULE 405 UNDER THE SECURITIES ACT, (II) ANY Exchange Capital
Securities TO BE RECEIVED BY THE UNDERSIGNED ARE BEING ACQUIRED IN THE ORDINARY
COURSE OF ITS BUSINESS, (III) THE UNDERSIGNED HAS NO ARRANGEMENT OR
UNDERSTANDING WITH ANY PERSON TO PARTICIPATE IN A DISTRIBUTION (WITHIN THE
MEANING OF THE SECURITIES ACT) OF Exchange Capital Securities TO BE RECEIVED IN
THE EXCHANGE OFFER, AND (IV) IF THE UNDERSIGNED IS NOT A BROKER-DEALER, THE
UNDERSIGNED IS NOT ENGAGED IN, AND DOES NOT INTEND TO ENGAGE IN, A DISTRIBUTION
(WITHIN THE MEANING OF THE SECURITIES ACT) OF SUCH Exchange Capital Securities.
BY TENDERING OLD CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER AND EXECUTING
THIS LETTER OF TRANSMITTAL, A HOLDER OF OLD CAPITAL SECURITIES WHICH IS A
BROKER-DEALER REPRESENTS AND AGREES, CONSISTENT WITH CERTAIN NO-ACTION LETTERS
ISSUED BY THE STAFF OF THE DIVISION OF CORPORATION FINANCE OF THE SECURITIES AND
EXCHANGE COMMISSION TO THIRD PARTIES, THAT (A) SUCH OLD CAPITAL SECURITIES HELD
BY THE BROKER-DEALER ARE HELD ONLY AS A NOMINEE, OR (B) SUCH OLD CAPITAL
SECURITIES WERE ACQUIRED BY SUCH BROKER-DEALER FOR ITS OWN ACCOUNT AS A RESULT
OF MARKET-MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES AND IT WILL DELIVER A
PROSPECTUS (AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME) MEETING THE
REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH ANY RESALE OF SUCH
Exchange Capital Securities (PROVIDED THAT, BY SO ACKNOWLEDGING AND BY
DELIVERING A PROSPECTUS, SUCH BROKER-DEALER WILL NOT BE DEEMED TO ADMIT THAT IT
IS AN "UNDERWRITER" WITHIN THE MEANING OF THE SECURITIES ACT).
THE COMPANY AND THE ISSUER HAVE AGREED THAT, SUBJECT TO THE PROVISIONS
OF THE REGISTRATION RIGHTS AGREEMENT, THE PROSPECTUS, AS IT MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME, MAY BE USED BY A PARTICIPATING BROKER-DEALER IN
CONNECTION WITH RESALES OF Exchange Capital Securities RECEIVED IN EXCHANGE FOR
OLD CAPITAL SECURITIES, WHERE SUCH OLD CAPITAL SECURITIES WERE ACQUIRED BY SUCH
PARTICIPATING BROKER-DEALER FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING
ACTIVITIES OR OTHER TRADING ACTIVITIES, FOR A PERIOD ENDING 180 DAYS AFTER THE
EXPIRATION DATE (SUBJECT TO EXTENSION UNDER CERTAIN LIMITED CIRCUMSTANCES
DESCRIBED IN THE PROSPECTUS) OR, IF EARLIER, WHEN ALL SUCH Exchange Capital
Securities HAVE BEEN DISPOSED OF BY SUCH PARTICIPATING BROKER-DEALER. IN THAT
REGARD, EACH PARTICIPATING BROKER-DEALER WHO ACQUIRED OLD CAPITAL SECURITIES FOR
ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES, BY
TENDERING SUCH OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER OF TRANSMITTAL,
AGREES THAT, UPON RECEIPT OF NOTICE FROM THE COMPANY OR THE ISSUER OF THE
OCCURRENCE OF ANY EVENT OR THE DISCOVERY OF ANY FACT WHICH MAKES
<PAGE>
ANY STATEMENT CONTAINED OR INCORPORATED BY REFERENCE IN THE PROSPECTUS UNTRUE IN
ANY MATERIAL RESPECT OR WHICH CAUSES THE PROSPECTUS TO OMIT TO STATE A MATERIAL
FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS CONTAINED OR INCORPORATED BY
REFERENCE THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING, OR OF THE OCCURRENCE OF CERTAIN OTHER EVENTS SPECIFIED IN THE
REGISTRATION RIGHTS AGREEMENT, SUCH PARTICIPATING BROKER-DEALER WILL SUSPEND THE
SALE OF Exchange Capital Securities PURSUANT TO THE PROSPECTUS UNTIL THE COMPANY
OR THE ISSUER HAS AMENDED OR SUPPLEMENTED THE PROSPECTUS TO CORRECT SUCH
MISSTATEMENT OR OMISSION AND HAS FURNISHED COPIES OF THE AMENDED OR SUPPLEMENTED
PROSPECTUS TO THE PARTICIPATING BROKER-DEALER, OR THE COMPANY OR THE ISSUER HAS
GIVEN NOTICE THAT THE SALE OF THE Exchange Capital Securities MAY BE RESUMED, AS
THE CASE MAY BE. IF THE COMPANY OR THE ISSUER GIVES SUCH NOTICE TO SUSPEND THE
SALE OF THE Exchange Capital Securities, IT SHALL EXTEND THE 180-DAY PERIOD
REFERRED TO ABOVE DURING WHICH PARTICIPATING BROKER-DEALERS ARE ENTITLED TO USE
THE PROSPECTUS IN CONNECTION WITH THE RESALE OF Exchange Capital Securities BY
THE NUMBER OF DAYS DURING THE PERIOD FROM AND INCLUDING THE DATE OF THE GIVING
OF SUCH NOTICE TO AND INCLUDING THE DATE WHEN PARTICIPATING BROKER-DEALERS SHALL
HAVE RECEIVED COPIES OF THE SUPPLEMENTED OR AMENDED PROSPECTUS NECESSARY TO
PERMIT RESALES OF THE Exchange Capital Securities OR TO AND INCLUDING THE DATE
ON WHICH THE COMPANY OR THE ISSUER HAS GIVEN NOTICE THAT THE SALE OF Exchange
Capital Securities MAY BE RESUMED, AS THE CASE MAY BE.
Holders of Old Capital Securities whose Old Capital Securities are
accepted for exchange will not receive accumulated Distributions on such Old
Capital Securities for any period from and after the last Distribution date to
which Distributions have been paid or duly provided for on such Old Capital
Securities prior to the original issue date of the Exchange Capital Securities
or, if no such Distributions have been paid or duly provided for, will not
receive any accrued Distributions on such Old Capital Securities, and the
undersigned waives the right to receive any interest on such Old Capital
Securities accrued from and after such Distribution date or, if no such
Distributions have been paid or duly provided for, from and after December 15,
1996.
All authority herein conferred or agreed to be conferred in this Letter
of Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
<PAGE>
HOLDERS SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 CONTAINED HEREIN)
(NOTE: SIGNATURES MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
Must be signed by registered holder exactly as name appears on
Certificate for the Old Capital Securities hereby tendered or on a security
position listing, or by any person authorized to become the registered holder by
endorsements and documents transmitted herewith (including such opinions of
counsel, certifications and other information as may be required by the Issuer
or the Property Trustee for the Old Capital Securities to comply with the
restrictions on transfer applicable to the Old Capital Securities). If signature
is by an attorney-in-fact, executor, administrator, trustee, guardian, officer
of a corporation or another acting in a fiduciary capacity or representative
capacity, please set forth the signer's full title. See Instruction 5.
------------------------------------
(Signature of Holder(s)
or Authorized Signatory)
Date:
-------------------------, 1997
Name(s):
-----------------------------------------------------------------------
(Please Print)
Capacity (full title):
---------------------------------------------------------
Address:
----------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone
Number:
------------------------------------------------------------------------
Tax Identification or Social Security Number:
----------------------------------
<PAGE>
- -------------------------------------------------------------------------------
SIGNATURE GUARANTEE
(IF REQUIRED--SEE INSTRUCTIONS 2 AND 5)
----------------------
(Authorized Signature)
Date: _________________________________, 1997
Name of Eligible Institution Guaranteeing Signatures:
--------------------------
Capacity (full title):
---------------------------------------------------------
(Please Print)
Address:
-----------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
-----------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
-------------------------------- ----------------------------------
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5 and 6) (See Instructions 1, 5 and 6)
<S> <C>
To be completed ONLY of the Exchange Capital
To be completed ONLY if the Exchange Capital Securities or any Old Capital Securities that are not
Securities or any Old Capital Securities that are not tendered are to be sent to someone other than the
tendered are to be issued in the name of someone registered holder of the Old Capital Securities whose
other than the registered holder of the Old Capital name appears above, or to such registered holder at
Securities whose name appears above. an address other than that shown above.
Issue
Mail
[ ] Exchange Capital Securities and/or
[ ] Exchange Capital Securities and/or
[ ] Old Capital Securities not tendered
[ ] Old Capital Securities not tendered
to:
to:
Name
Name
Address
Address
(Include Zip Code)
(Include Zip Code)
Area Code and Telephone Number
Area Code and Telephone Number
Tax Identification or Social Security Number
Tax Identification or Social Security Number
- ------------------------------------------------- --------------------------------------------------------
</TABLE>
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND
CONDITIONS OF THE EXCHANGE OFFER
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED
DELIVERY PROCEDURES. This Letter of Transmittal is to be completed either if (a)
Certificates are to be forwarded herewith or (b) tenders are to be made pursuant
to the procedures for tender by book-entry transfer set forth under "The
Exchange Offer--Procedures for Tendering Old Capital Securities" in the
Prospectus and an Agent's Message is not delivered. Certificates, or book-entry
confirmation of a book-entry transfer of such Old Capital Securities into the
Exchange Agent's account at DTC, as well as this Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees, and any other documents required by this Letter of
Transmittal, must be received by the Exchange Agent at its address set forth
herein on or prior to the Expiration Date. Tenders by book-entry transfer may
also be made by delivering an Agent's Message in lieu of this Letter of
Transmittal. The term "book-entry confirmation" means a timely confirmation of
book-entry transfer of Old Capital Securities into the Exchange Agent's account
at DTC. The term "Agent's Message" means a message, transmitted by DTC to and
received by the Exchange Agent and forming a part of a book-entry confirmation,
which states that DTC has received an express acknowledgment from the tendering
Participant, which acknowledgment states that such participant has received and
agrees to be bound by, and makes the representations and warranties contained
in, the Letter of Transmittal and that the Issuer and the Company may enforce
the Letter of Transmittal against such participant. Old Capital Securities may
be tendered in whole or in part in the Liquidation Amount of $100,000 (100
Capital Securities) and integral multiples of $1,000 in excess thereof, provided
that, if any Old Capital Securities are tendered for exchange in part, the
untendered Liquidation Amount thereof must be $100,000 (100 Capital Securities)
or any integral multiple of $1,000 in excess thereof.
Holders who wish to tender their Old Capital Securities and (i) whose
Old Capital Securities are not immediately available or (ii) who cannot deliver
their Old Capital Securities, this Letter of Transmittal and all other required
documents to the Exchange Agent on or prior to the Expiration Date or (iii) who
cannot complete the procedures for delivery by book-entry transfer on or prior
to the Expiration Date, may tender their Old Capital Securities by properly
completing and duly executing a Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedures set forth under "The Exchange Offer--Procedures
for Tendering Old Capital Securities" in the Prospectus. Pursuant to such
procedures: (i) such tender must be made by or through an Eligible Institution
(as defined below); (ii) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form made available by the Company and
the Issuer, must be received by the Exchange Agent on or prior to the Expiration
Date; and (iii) the Certificates (or a book-entry confirmation) representing all
tendered Old Capital Securities, in proper form for transfer, together with a
Letter of Transmittal (or facsimile thereof or Agent's Message in lieu thereof),
properly completed and duly executed, with any required signature guarantees and
any other documents required by this Letter of Transmittal, must be received by
the Exchange Agent within three New York Stock Exchange trading days after the
date of execution of such Notice of Guaranteed Delivery, all as provided in "The
Exchange Offer--Procedures for Tendering Old Capital Securities" in the
Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by facsimile or mail to the Exchange Agent, and must include a
guarantee by an Eligible Institution in the form set forth in such Notice. For
Old Capital Securities to be properly tendered pursuant to the guaranteed
delivery procedure, the Exchange Agent must receive a Notice of Guaranteed
Delivery on or prior to the Expiration Date. As used herein and in the
Prospectus, "Eligible Institution" means a firm or other entity identified in
Rule 17Ad-15 under the Exchange Act as "an eligible guarantor institution,"
including (as such terms are defined therein) (i) a bank; (ii) a broker, dealer,
municipal securities broker or dealer or government securities broker or dealer;
(iii) a credit union; (iv) a national securities exchange, registered securities
association or clearing agency; or (v) a savings association that is a
participant in a Securities Transfer Association.
<PAGE>
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE IS RECOMMENDED. IN
ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY ON OR
PRIOR TO THE EXPIRATION DATE.
Neither the Company nor the Issuer will accept any alternative,
conditional or contingent tenders. Each tendering holder, by execution of a
Letter of Transmittal (or facsimile thereof or Agent's Message in lieu thereof),
waives any right to receive any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required if:
(i) this Letter of Transmittal is signed by the registered
holder (which term, for purposes of this document, shall include any
Participant in DTC whose name appears on a security position listing as
the owner of the Old Capital Securities) of Old Capital Securities
tendered herewith, unless such holder has completed either the box
entitled "Special Issuance Instructions" or the box entitled "Special
Delivery Instructions" above, or
(ii) such Old Capital Securities are tendered for the account
of a firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the
signature on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Capital Securities Tendered" is inadequate, the Certificate
numbers and/or the Liquidation Amount of Old Capital Securities and any other
required information should be listed on a separate signed schedule which is
attached to this Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old Capital
Securities will be accepted only in the Liquidation Amount of $100,000 (100
Capital Securities) and integral multiples of $1,000 in excess thereof, provided
that if any Old Capital Securities are tendered for exchange in part, the
untendered Liquidation Amount thereof must be $100,000 (100 Capital Securities)
or any integral multiple of $1,000 in excess thereof. If less than all of the
Old Capital Securities evidenced by any Certificate submitted are to be
tendered, fill in the Liquidation Amount of Old Capital Securities which are to
be tendered in the box entitled "Liquidation Amount of Old Capital Securities
Tendered (If Less than All)." In such case, a new Certificate for the remainder
of the Old Capital Securities that were evidenced by your Old Certificate will
be sent to the holder of the Old Capital Securities, promptly after the
Expiration Date unless the appropriate boxes on this Letter of Transmittal are
completed. All Old Capital Securities represented by Certificates delivered to
the Exchange Agent will be deemed to have been tendered unless otherwise
indicated.
Except as otherwise provided herein, tenders of Old Capital Securities
may be withdrawn at any time on or prior to the Expiration Date. In order for a
withdrawal to be effective, a written, telegraphic or facsimile transmission of
such notice of withdrawal must be timely received by the Exchange Agent at one
of its addresses set forth above or in the Prospectus on or prior to the
Expiration Date. Any such notice of withdrawal must specify the name of the
person who tendered the Old Capital Securities to be withdrawn, the aggregate
Liquidation Amount of Old Capital Securities to be withdrawn, and (if
Certificates for Old Capital Securities have been tendered) the name of the
registered holder of the Old Capital Securities as set forth on the Certificate
for the Old Capital Securities, if different from that of the person who
tendered such Old Capital Securities. If Certificates for the Old Capital
Securities have been delivered or otherwise identified to the Exchange Agent,
then prior to the physical release of such Certificates for the Old Capital
Securities, the tendering holder must submit the serial numbers shown on the
particular Certificates for the
<PAGE>
Old Capital Securities to be withdrawn and the signature on the notice of
withdrawal must be guaranteed by an Eligible Institution, except in the case of
Old Capital Securities tendered for the account of an Eligible Institution. If
Old Capital Securities have been tendered pursuant to the procedures for
book-entry transfer set forth under "The Exchange Offer--Procedures for
Tendering Old Capital Securities," the notice of withdrawal must specify the
name and number of the account at DTC to be credited with the withdrawal of Old
Capital Securities, in which case a notice of withdrawal will be effective if
delivered to the Exchange Agent by written, telegraphic or facsimile
transmission on or prior to the Expiration Date. Withdrawals of tenders of Old
Capital Securities may not be rescinded. Old Capital Securities properly
withdrawn will not be deemed validly tendered for purposes of the Exchange
Offer, but may be retendered at any subsequent time on or prior to the
Expiration Date by following any of the procedures described in the Prospectus
under "The Exchange Offer--Procedures for Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including time
of receipt) of such withdrawal notices will be determined by the Company and the
Issuer, in their sole discretion, whose determination shall be final and binding
on all parties. Neither the Company and the Issuer, any affiliates or assigns of
the Company and the Issuer, the Exchange Agent nor any other person shall be
under any duty to give any notification of any irregularities in any notice of
withdrawal or incur any liability for failure to give any such notification. Any
Old Capital Securities which have been tendered but which are withdrawn on or
prior to the Expiration Date will be returned to the holder thereof without cost
to such holder promptly after withdrawal.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND ENDORSEMENTS.
If this Letter of Transmittal is signed by the registered holder of the Old
Capital Securities tendered hereby, the signature must correspond exactly with
the name as written on the face of the Certificates or on a security position
listing without alteration, enlargement or any change whatsoever.
If any of the Old Capital Securities tendered hereby are owned of
record by two or more joint owners, all such owners must sign this Letter of
Transmittal.
If any tendered Old Capital Securities are registered in different
names on several Certificates, it will be necessary to complete, sign and submit
as many separate Letters of Transmittal (or facsimiles thereof or Agent's
Messages in lieu thereof) as there are different registrations of Certificates.
If this Letter of Transmittal or any Certificates or bond powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing and must submit proper
evidence satisfactory to the Company and the Issuer, in their sole discretion,
of such persons' authority to so act.
When this Letter of Transmittal is signed by the registered owner of
the Old Capital Securities listed and transmitted hereby, no endorsement of
Certificates or separate bond powers are required unless Exchange Capital
Securities are to be issued in the name of a person other than the registered
holder. Signatures on such Certificates or bond powers must be guaranteed by an
Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner of the Old Capital Securities listed, the Certificates must be
endorsed or accompanied by appropriate bond powers, signed exactly as the name
of the registered owner appears on the Certificates, and also must be
accompanied by such opinions of counsel, certifications and other information as
the Company, the Issuer or the Property Trustee may require in accordance with
the restrictions on transfer applicable to the Old Capital Securities.
Signatures on such Certificates or bond powers must be guaranteed by an Eligible
Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If Exchange Capital
Securities are to be issued in the name of a person other than the signer of
this Letter of Transmittal, or if Exchange Capital Securities are to be sent to
someone other than the signer of this Letter of Transmittal or to an address
other than that shown above, the appropriate boxes on this Letter of Transmittal
should be completed. Certificates for Old Capital Securities not exchanged will
be returned by mail or, if tendered by book-entry transfer, by crediting the
account indicated above
<PAGE>
maintained at DTC unless the appropriate boxes on this Letter of Transmittal are
completed. See Instruction 4.
7. IRREGULARITIES. The Company and the Issuer will determine, in their
sole discretion, all questions as to the form of documents, validity,
eligibility (including time of receipt) and acceptance for exchange of any
tender of Old Capital Securities, which determination shall be final and binding
on all parties. The Company and the Issuer reserve the absolute right to reject
any and all tenders determined by either of them not to be in proper form or the
acceptance of which, or exchange for, may, in the view of counsel to the Company
or the Issuer, be unlawful. The Company and the Issuer also reserve the absolute
right, subject to applicable law, to waive any of the conditions of the Exchange
Offer set forth in the Prospectus under "The Exchange Offer--Conditions to the
Exchange Offer," or any conditions or irregularities in any tender of Old
Capital Securities of any particular holder whether or not similar conditions or
irregularities are waived in the case of other holders. The Company and the
Issuer's interpretation of the terms and conditions of the Exchange Offer
(including this Letter of Transmittal and the instructions hereto) will be final
and binding. No tender of Old Capital Securities will be deemed to have been
validly made until all irregularities with respect to such tender have been
cured or waived. The Company, the Issuer, any affiliates or assigns of the
Company, the Issuer, the Exchange Agent, or any other person shall not be under
a duty to give notification of any irregularities in tenders or incur any
liability for failure to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES.
Questions and requests for assistance may be directed to the Exchange Agent at
its address and telephone number set forth on the front of this Letter of
Transmittal. Additional copies of the Prospectus, the Notice of Guaranteed
Delivery and the Letter of Transmittal may be obtained from the Exchange Agent
or from your broker, dealer, commercial bank, trust company or other nominee.
9. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Certificates
representing Old Capital Securities have been lost, destroyed or stolen, the
holder should promptly notify the Exchange Agent. The holder will then be
instructed as to the steps that must be taken in order to replace the
Certificates. This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificates have been followed.
10. SECURITY TRANSFER TAXES. Holders who tender their Old Capital
Securities for exchange will not be obligated to pay any transfer taxes in
connection therewith. If, however, Exchange Capital Securities are to be
delivered to, or are to be issued in the name of, any person other than the
registered holder of the Old Capital Securities tendered, or if a transfer tax
is imposed for any reason other than the exchange of Old Capital Securities in
connection with the Exchange Offer, then the amount of any such transfer tax
(whether imposed on the registered holder or any other persons) will be payable
by the tendering holder. If satisfactory evidence of payment of such taxes or
exemption therefrom is not submitted with the Letter of Transmittal, the amount
of such transfer taxes will be billed directly to such tendering holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF) AND ALL
OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT AT OR PRIOR TO
THE EXPIRATION DATE.
<PAGE>
IMPORTANT TAX INFORMATION
Under federal income tax law, a holder whose tendered Old Capital
Securities are accepted for exchange is required by law to provide the Exchange
Agent with such holder's correct taxpayer identification number ("TIN") on
Substitute Form W-9 included herein or otherwise establish a basis for exemption
from backup withholding. If such holder is an individual, the TIN is his social
security number. If the Exchange Agent is not provided with the correct TIN, the
Internal Revenue Service may subject the holder or transferee to a $50 penalty.
In addition, delivery of such holder's Exchange Capital Securities may be
subject to backup withholding. Failure to comply truthfully with the backup
withholding requirements also may result in the imposition of severe criminal
and/or civil fines and penalties.
Certain holders (including, among others, all corporations and certain
foreign persons) are not subject to these backup Withholding and reporting
requirements. Exempt holders should furnish their TIN, write "Exempt" on the
face of the Substitute Form W-9, and sign, date and return the Substitute Form
W-9 to the Exchange Agent. A foreign person, including entities, may qualify as
an exempt recipient by submitting to the Exchange Agent a properly completed
Internal Revenue Service Form W-8, signed under penalties of perjury, attesting
to that holder's foreign status. A Form W-8 can be obtained from the Exchange
Agent. See the enclosed "Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9" for additional instructions.
If backup withholding applies, the Exchange Agent is required to
withhold 31% of any payments made to the holder or other transferee. Backup
withholding is not an additional federal income tax. Rather, the federal income
tax liability of persons subject to backup withholding will be reduced by the
amount of tax withheld. If withholding results in an overpayment of taxes, a
refund may be obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE
FORM W-9
To prevent backup withholding on payments made with respect to Old
Capital Securities exchanged in the Exchange Offer, the holder is required to
provide the Exchange Agent with either: (i) the holder's correct TIN by
completing the form included herein, certifying that the TIN provided on
Substitute Form W-9 is correct (or that such holder is awaiting a TIN) and that
(A) the holder has not been notified by the Internal Revenue Service that the
holder is subject to backup withholding as, a result of failure to report all
interest or dividends or (B) the Internal Revenue Service has notified the
holder that the holder is no longer subject to backup withholding; or (ii) an
adequate basis for exemption.
NUMBER TO GIVE THE DEPOSITARY
The holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered holder of
the Old Capital Securities. If the Old Capital Securities are held in more than
one name or are held not in the name of the actual owner, consult the enclosed
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for additional guidance on which number to report.
<PAGE>
<TABLE>
<CAPTION>
EXCHANGE AGENT'S NAME: THE CHASE MANHATTAN BANK
<S> <C>
- ------------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1--PLEASE PROVIDE YOUR TIN IN Social Security Number OR
FORM W-9 THE BOX AT RIGHT AND CERTIFY BY Employer Identification Number
SIGNING AND DATING BELOW _________________________________
Department of the Treasury
Internal Revenue Service
PAYER'S REQUEST FOR
TAXPAYER IDENTIFICATION
NUMBER ("TIN")
-------------------------------------------------------------------------------------
PART 2--CERTIFICATION-UNDER PENALTIES
OF PERJURY, I CERTIFY THAT:
(1) THE NUMBER SHOWN ON THIS FORM IS
MY CORRECT TAXPAYER
IDENTIFICATION NUMBER (OR I AM
WAITING FOR A NUMBER TO BE
ISSUED TO ME) AND
(2) I AM NOT SUBJECT TO BACKUP
WITHHOLDING EITHER BECAUSE I
HAVE NOT BEEN NOTIFIED BY THE
INTERNAL REVENUE SERVICE (THE
"IRS") THAT I AM SUBJECT TO
BACKUP WITHHOLDING AS A RESULT
OF A FAILURE TO REPORT ALL
INTEREST OR DIVIDENDS, OR THE
IRS HAS NOTIFIED ME THAT I AM NO
LONGER SUBJECT TO BACKUP
WITHHOLDING.
CERTIFICATION INSTRUCTIONS--You must
cross out item (2) above if you have
been notified by the IRS that you are
currently subject to backup
withholding because of underreporting
interest or dividends on your tax
return. However, if after being
notified by the IRS that you were
subject to backup withholding you
received another notification from
the IRS that you are no longer
subject to backup withholding, do not
cross out such item (2).
SIGNATURE ____________________ DATE _________ Part 3
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU. PLEASE
REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE
IF YOU CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9.
- --------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (b)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number by the time of payment, 31%
of all reportable payments made to me will be withheld, but that such amounts
will be refunded to me if I then provide a Taxpayer Identification Number within
60 days.
___________________________________________ _________________________, 1997
Signature Date
- --------------------------------------------------------------------------------
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
8.16% SERIES B CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF
CRESTAR CAPITAL TRUST I
As set forth in the Exchange Offer, this Notice of Guaranteed Delivery,
or one substantially equivalent to this form, must be used to accept the
Exchange Offer (as defined below) if (i) certificates for the Issuer's (as
defined below) 8.16% Series B Capital Securities (the "Old Capital Securities")
are not immediately available, (ii) the Old Capital Securities, the Letter of
Transmittal and all other required documents cannot be delivered to The Chase
Manhattan Bank (the "Exchange Agent") on or prior to the Expiration Date (as
defined in the Prospectus referred to below) or (iii) the procedures for
delivery by book-entry transfer cannot be completed on or prior to the
Expiration Date. This Notice of Guaranteed Delivery may be delivered by hand,
overnight courier or mail, or transmitted by facsimile transmission, to the
Exchange Agent on or prior to the Expiration Date. See "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the Prospectus.
THE CHASE MANHATTAN BANK, EXCHANGE AGENT
BY MAIL, HAND OR OVERNIGHT DELIVERY:
The Chase Manhattan Bank
55 Water Street
Room 234
North Building
New York, New York 10041
Attn: Carlos Esteves
FACSIMILE TRANSMISSION
(FOR ELIGIBLE INSTITUTIONS ONLY):
(212) 638-7375
(212) 344-9367
CONFIRM BY TELEPHONE:
Carlos Esteves: (212) 638-0828
<PAGE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH
ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
2
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Crestar Capital Trust I, a Delaware
statutory business trust, upon the terms and subject to the conditions set forth
in the Prospectus dated May [ ], 1997 (as the same may be amended or
supplemented from time to time, the "Prospectus"), and the related Letter of
Transmittal (which together constitute the "Exchange Offer"), receipt of which
is hereby acknowledged, the aggregate liquidation amount of Old Capital
Securities set forth below pursuant to the guaranteed delivery procedures set
forth in the Prospectus under the caption "The Exchange Offer--Procedure for
Tendering Old Capital Securities."
Aggregate Liquidation Name of Registered Holder:
Amount Tendered: ----------
-------------------------
Certificate Nos. Address:
(if available): ----------------------------
--------------------------
Area Code and Telephone Number:
------------------------------------
If Old Capital Securities will be tendered by book-entry transfer, provide the
following information:
Signature:
--------------------------------------------------------------------
DTC Account Number:
-----------------------------------------------------------
Date:
-------------------------------------------------------------------------
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
3
<PAGE>
GUARANTEE
(NOT TO USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified in Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended, as an "eligible guarantor
institution," including (as such terms are defined therein); (i) a bank; (ii) a
broker, dealer, municipal securities broker, municipal securities dealer,
government securities broker, government securities dealer, (iii) a credit
union; (iv) a national securities exchange, registered securities association
clearing agency; or (v) a savings association that is a participant in a
Securities Transfer Association recognized program (each of the foregoing being
referred to as an "Eligible Institution"), hereby guarantees to deliver to the
Exchange Agent, at one of its addresses set forth above, either the Old Capital
Securities tendered hereby in proper form for transfer, or confirmation of the
book-entry transfer of such Old Capital Securities to the Exchange Agent's
account at The Depository Trust Company ("DTC"), pursuant to the procedures for
book-entry transfer set forth in the Prospectus, in either case together with
one or more properly completed and duly executed Letters of Transmittal (or
facsimile thereof or Agent's Message in lieu thereof) and any other required
documents within three business days after the date of execution of this Notice
of Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Letters of Transmittal (or
facsimile thereof or Agent's Message in lieu thereof) and the Old Capital
Securities tendered hereby (or a book-entry confirmation) to the Exchange Agent
within the time period set forth above and that failure to do so could result a
financial loss to the undersigned.
Name of Firm:
------------------------------------------------------------------
(Authorized Signature):
--------------------------------------------------------
Title:
Address:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
-----------------------------------------------
Date:
--------------------------
NOTE: DO NOT SEND OLD CAPITAL SECURITIES WITH THIS NOTICE OF GUARANTEED
DELIVERY. ACTUAL SURRENDER OF OLD CAPITAL SECURITIES MUST BE MADE
PURSUANT TO, AND BE ACCOMPANIED BY, A PROPERLY COMPLETED AND DULY
EXECUTED LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS.
4
EXHIBIT 99.3
May 15, 1997
EXCHANGE AGENT AGREEMENT
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Ladies and Gentlemen:
Crestar Capital Trust I, a Delaware statutory business trust (the
"Issuer") proposes to make an offer (the "Exchange Offer") to exchange up to
$200,000,000 aggregate liquidation amount of its 8.16% Series B Capital
Securities (liquidation amount $1,000 per Capital Security) (the "Exchange
Capital Securities"), which have been registered under the Securities Act of
1933, as amended (the "Securities Act"), for a like liquidation amount of its
outstanding 8.16% Capital Securities (liquidation amount of $1,000 per Capital
Security) (the "Old Capital Securities"), of which $200,000,000 aggregate
liquidation amount is outstanding. The terms and conditions of the Exchange
Offer as currently contemplated are set forth in a prospectus, dated May [ ],
1997 (the "Prospectus"), a copy of which is attached to this Agreement as
Attachment A, proposed to be distributed to all record holders of the Old
Capital Securities. Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to them in the Prospectus.
The Issuer hereby appoints The Chase Manhattan Bank to act as exchange
agent (the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the Issuer on or
about May [ ], 1997. The Letter of Transmittal accompanying the Prospectus is to
be used by the holders of the Old Capital Securities to accept the Exchange
Offer, and contains certain instructions with respect to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
June [ ], 1997 or on such later date or time to which the Issuer or Crestar
Financial Corporation (the "Company") may extend the Exchange Offer (the
"Expiration Date"). Subject to the terms and conditions set forth in the
Prospectus, the Issuer and the Company expressly reserve the right to extend the
Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (promptly confirmed in writing) or written notice to you no later than 9:00
a.m., New York City time, on the next business day after the previously
scheduled Expiration Date.
<PAGE>
The Issuer and the Company expressly reserve the right to amend or
terminate the Exchange Offer, and not to accept for exchange any Old Capital
Securities not theretofore accepted for exchange, upon the occurrence of any of
the conditions of the Exchange Offer specified in the Prospectus under the
caption "Conditions to the Exchange Offer." The Issuer or the Company will give
oral (promptly confirmed in writing) or written notice of any amendment,
termination or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" and as specifically set forth herein and such duties which are
necessarily incidental thereto; provided, however, that in no way will your
general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Old
Capital Securities at The Depository Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Exchange Offer within two business days after the
date of the Prospectus, and any financial institution that is a participant in
the Book-Entry Transfer Facility's systems may make book-entry delivery of the
Old Capital Securities by causing the Book-Entry Transfer Facility to transfer
such Old Capital Securities into your account in accordance with the Book-Entry
Transfer Facility' s procedure for such transfer.
3. You are to examine each of the Letters of Transmittal,
certificates for Old Capital Securities and confirmations of book-entry
transfers into your account at the Book-Entry Transfer Facility and any Agent's
Message or other documents delivered or mailed to you by or for holders of the
Old Capital Securities to ascertain whether: (i) the Letters of Transmittal and
any such other documents are fully executed and properly completed in accordance
with instructions set forth therein and (ii) the Old Capital Securities have
otherwise been properly tendered. In each case where the Letter of Transmittal
or any other document has been improperly completed or executed or any of the
certificates for Old Capital Securities are not in proper form for transfer or
some other irregularity in connection with the acceptance of the Exchange Offer
exists, you will endeavor to inform the presenters of the need for fulfillment
of all requirements and to take any other action as may be necessary or
advisable to cause such irregularity to be corrected.
4. With the approval of the Issuer or the Chairman of the
Board and Chief Executive Officer, the Chief Financial Officer, or the Secretary
of the Company (such approval, if given orally, to be confirmed in writing) or
any other party designated by the Issuer or such officer of the Company in
writing, you are authorized to waive any irregularities in connection with any
tender of Old Capital Securities pursuant to the Exchange Offer.
2
<PAGE>
5. Tenders of Old Capital Securities may be made only as set
forth in the section of the Prospectus captioned "The Exchange Offer --
Procedures for Tendering Old Capital Securities" or in the Letter of Transmittal
and Old Capital Securities shall be considered properly tendered to you only
when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old
Capital Securities which the Issuer or any other party designated by the Issuer
in writing shall approve as having been properly tendered shall be considered to
be properly tendered (such approval, if given orally, shall be confirmed in
writing).
6. You shall advise the Issuer with respect to any Old Capital
Securities delivered subsequent to the Expiration Date and accept its
instructions with respect to disposition of such Old Capital Securities.
7. You shall accept tenders:
(a) in cases where the Old Capital Securities are registered
in two or more names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority to so act is submitted; and
(c) from persons other than the registered holder of Old
Capital Securities provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Capital Securities
where so indicated and as permitted in the Letter of Transmittal and deliver
certificates for Old Capital Securities to the transfer agent for split-up and
return any untendered Old Capital Securities to the holder (or to such other
person as may be designated in the Letter of Transmittal) as promptly as
practicable after expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Issuer will notify you (such notice if given orally, to be
promptly confirmed in writing) of the Company's and Issuer's acceptance,
promptly after the Expiration Date, of all Old Capital Securities properly
tendered and you, on behalf of the Issuer, will exchange such Old Capital
Securities for Exchange Capital Securities and cause such Old Capital Securities
to be canceled. Delivery of Exchange Capital Securities will be made on behalf
of the Issuer by you at the rate of $1,000 principal amount at maturity of
Exchange Capital Securities for each $1,000 principal amount at maturity of the
Old Capital Securities tendered promptly after notice (such notice if given
orally, to be promptly confirmed in writing) of acceptance of said Old Capital
Securities by the Issuer; provided, however, that in all cases, Old Capital
3
<PAGE>
Securities tendered pursuant to the Exchange Offer will be exchanged only after
timely receipt by you of certificates for such Old Capital Securities (or
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) with any required signature guarantees (or in lieu thereof an
Agent's Message) and any other required document. You shall issue Exchange
Capital Securities only in denominations of $100,000 or any integral multiple of
$1,000 in excess thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable,
except that, subject to the terms and upon the conditions set forth in the
Prospectus and the Letter of Transmittal, Old Capital Securities tendered
pursuant to the Exchange Offer may be withdrawn at any time on or prior to the
Expiration Date.
10. The Company and the Issuer shall not be required to
exchange any Old Capital Securities tendered if any of the conditions set forth
in the Exchange Offer are not met. Notice of any decision by the Company and the
Issuer not to exchange any Old Capital Securities tendered shall be given (such
notice, if given orally, shall be promptly confirmed in writing) by the Company
or the Issuer to you.
11. If, pursuant to the Exchange Offer, the Company or the
Issuer does not accept for exchange all or part of the Old Capital Securities
tendered because of an invalid tender, the occurrence of certain other events
set forth in the Prospectus under the caption "The Exchange Offer -- Conditions
to the Exchange Offer" or otherwise, you shall as soon as practicable after the
expiration or termination of the Exchange Offer return those certificates for
unaccepted Old Capital Securities (or effect the appropriate book-entry transfer
of the unaccepted Old Capital Securities), and return any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them.
12. All certificates for reissued Old Capital Securities or
for unaccepted Old Capital Securities shall be forwarded by (a) first-class
mail, return receipt requested, under a blanket surety bond protecting you, the
Issuer and the Company from loss or liability arising out of the non-receipt or
non-delivery of such certificates or (b) by registered mail insured separately
for the replacement value of such certificates.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, bank or
other persons or to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having
no responsibilities as to the validity, sufficiency, value or genuineness of Old
Capital Securities, and will not be required to and will make no representation
as to the validity, value or
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genuineness of the Exchange Offer; provided, however, that in no way will your
general duty to act in good faith be discharged by the foregoing;
(b) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with reasonable indemnity.
(c) shall not be liable to the Company or the Issuer for any
action taken or omitted by you, or any action suffered by you to be taken or
omitted, without negligence, misconduct or bad faith on your part, by reason of
or as a result of the administration of your duties hereunder in accordance with
the terms and conditions of this Agreement or by reason of your compliance with
the instructions set forth herein or with any written or oral instructions
delivered to you pursuant hereto, and may reasonably rely on and shall be
protected in acting in good faith in reliance upon any certificate, instrument,
opinion, notice, letter, facsimile or other document or security delivered to
you and reasonably believed by you to be genuine and to have been signed by the
proper party or parties;
(d) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its due
execution and validity and the effectiveness of its provisions, but also as to
the truth and accuracy of any information contained therein, which you shall in
good faith reasonably believe to be genuine or to have been signed or
represented by a proper person or persons;
(e) may rely on and shall be protected in acting upon written
or oral instructions form the Issuer or any officer of the Company with respect
to the Exchange Offer;
(f) shall not advise any person tendering Old Capital
Securities pursuant to the Exchange Offer as to the wisdom of making such tender
or as to the market value or decline or appreciation in market value of any Old
Capital Securities; and
(g) may consult with your counsel with respect to any
questions relating to your duties and responsibilities and the written opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by you hereunder in good faith
and in accordance with such written opinion of such counsel.
15. You shall take such action as may from time to time be
requested by the Company, the Issuer or their counsel (and such other action as
you may reasonably deem appropriate) to furnish copies of the Prospectus, Letter
of Transmittal and the Notice of Guaranteed Delivery, or such other forms as may
be approved from time to time by the Company or the Issuer, to all persons
requesting such documents and to accept and comply with telephone requests for
information relating to the Exchange Offer, provided that such information shall
relate only to the procedures for accepting (or withdrawing from) the Exchange
Offer. The Company or the Issuer will furnish you with copies of such documents
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at your request. All other requests for information relating to the Exchange
Offer shall be directed to the Secretary of the Company at: 919 East Byrd
Street, Richmond, Virginia 23219; (804) 782-7738.
16. You shall advise by facsimile transmission or telephone,
and promptly thereafter confirm in writing to the Issuer, the Company and Hunton
& Williams, counsel for the Company and the Issuer, and such other person or
persons as they may request, daily, and more frequently if reasonably requested,
up to and including the Expiration Date, as to the principal amount of the Old
Capital Securities which have been tendered pursuant to the Exchange Offer and
the items received by you pursuant to this Agreement, separately reporting and
giving cumulative totals as to items properly received and items improperly
received and items covered by Notices of Guaranteed Delivery. In addition, you
will also inform, and cooperate in making available to, the Company and the
Issuer or any such other person or persons as the Company or the Issuer request
from time to time prior to the Expiration Date of such other information as
they, or he reasonably requests. Such cooperation shall include, without
limitation, the granting by you to the Company, the Issuer and such person as
the Company or the Issuer may request of access to those persons or your staff
who are responsible for receiving tenders, in order to ensure that immediately
prior to the Expiration Date, the Company and the Issuer shall have received
information in sufficient detail to enable them to decide whether to extend the
Exchange Offer. You shall prepare a list of persons who failed to tender or
whose tenders were not accepted and the aggregate principal amount of Old
Capital Securities not tendered or Old Capital Securities not accepted and
deliver said list to the Company and the Issuer at least seven days prior to the
Expiration Date. You shall also prepare a final list of all persons whose
tenders were accepted, the aggregate principal amount of Old Capital Securities
accepted and deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery
shall be stamped by you as to the date and the time of receipt thereof and shall
be preserved by you for a period of time at least equal to the period of time
you preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company.
18. For services rendered as Exchange Agent hereunder you
shall be entitled to a fee of $[5,000] and you shall be entitled to
reimbursement of your expenses (including fees and expenses of your counsel,
which fees are expected under normal circumstances to be not in excess of
$[5,000] incurred in connection with the Exchange Offer. The obligations under
this Section 18 shall constitute joint and several obligations of the Issuer and
the Company.
19. You hereby acknowledge receipt of the Prospectus and the
Letter of Transmittal attached hereto and further acknowledge that you have
examined each of them to the extent necessary to perform your duties hereunder.
Any inconsistency between this Agreement, on the one hand, and the Prospectus
and the Letter of Transmittal (as they may
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be amended from time to time), on the other hand, shall be resolved in favor of
the latter two documents, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent, which shall be controlled by this
Agreement.
20. The Company and the Issuer jointly and severally agree to
indemnify and hold you harmless in your capacity as Exchange Agent hereunder
against any liability, cost or expense, including reasonable attorneys's fees,
arising out of or in connection with the acceptance or administration of your
duties hereunder, including, without limitation, in connection with any act,
omission, delay or refusal made by you in reasonable reliance upon any
signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document reasonably believed by you to be
valid, genuine and sufficient and in accepting any tender or effecting any
transfer of Old Capital Securities reasonably believed by you in good faith to
be authorized, and in delaying or refusing in good faith to accept any tenders
or effect any transfer of Old Capital Securities; provided, however, that the
Company and the Issuer shall not be liable for indemnification or otherwise for
any loss, liability, cost or expense to the extent arising out of your
negligence, willful breach of this Agreement, willful misconduct or bad faith.
In no case shall the Company and the Issuer be liable under this indemnity with
respect to any claim against you unless the Company and the Issuer shall be
notified by you, by letter or cable or by facsimile confirmed by letter, of the
written assertion of a claim against you or of any other action commenced
against you, promptly after you shall have received any such written assertion
or commencement of action. The Company and the Issuer shall be entitled to
participate at their own expense in the defense of any such claim or other
action, and, if the Company and the Issuer so elect, the Company and the Issuer
shall assume the defense of any suit brought to enforce any such claim. In the
event that the Company and the Issuer shall assume the defense of any such suit,
the Company and the Issuer shall not be liable for the fees and expenses of any
additional counsel thereafter retained by you so long as the Company and the
Issuer shall retain counsel reasonably satisfactory to you to defend such suit.
You shall not compromise or settle any such action or claim without the consent
of the Company and the Issuer.
21. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the laws of the
State of New York applicable to agreements made and to be performed entirely
within such state, and without regard to conflicts of law principles, and shall
inure to the benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of each of the parties hereto.
22. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
taken together constitute one and the same agreement.
23. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
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24. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in part, except by
a written instrument signed by a duly authorized representative of the party to
be charged. This Agreement may not be modified orally.
25. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in writing (including
facsimile) and shall be given to such party, addressed to it, at its address or
telecopy number set forth below:
If to the Company or the Issuer:
Crestar Financial Corporation
919 East Byrd Street
Richmond, Virginia 23219
Facsimile: 804/782-7244
Attention: Linda F. Rigsby, Corporate Secretary
With a copy to:
Hunton & Williams
951 East Byrd Street
Riverfront Plaza, East Tower
Richmond, Virginia 23219
Facsimile: 804/788-8218
Attention: Lathan M. Ewers, Jr.
If to the Exchange Agent:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Facsimile: (212) 946-8159
Attention: Anne G. Brenner, Vice President
26. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Paragraphs 18 and 20 shall survive the termination of this
Agreement. Except as provided in Section 17, upon any termination of this
Agreement, you shall promptly deliver to the company any funds or property
(including, without limitation, letters of Transmittal and any other documents
relating to the Exchange Offer) then held by you as Exchange Agent under this
Agreement.
27. This Agreement shall be binding and effective as of the
date hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
CRESTAR CAPITAL TRUST I
By:
--------------------------
Name:
Title:
CRESTAR FINANCIAL CORPORATION
By:
--------------------------
Name:
Title:
Accepted as the date first above written:
THE CHASE MANHATTAN BANK
By:
-------------------------
Name:
Title:
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