<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 10, 1997
REGISTRATION NOS. 333- AND 333-
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
CENTRAL FIDELITY BANKS, INC. CENTRAL FIDELITY CAPITAL TRUST I
(EXACT NAME OF REGISTRANT AS (EXACT NAME OF REGISTRANT AS
SPECIFIED IN ITS CHARTER) SPECIFIED IN ITS CHARTER)
VIRGINIA DELAWARE
(STATE OR OTHER JURISDICTION OF (STATE OR OTHER JURISDICTION OF
INCORPORATION) INCORPORATION)
6712 6719
(PRIMARY STANDARD INDUSTRIAL (PRIMARY STANDARD INDUSTRIAL
CLASSIFICATION CODE NUMBER) CLASSIFICATION CODE NUMBER)
54-1091649 54-1848917
(I.R.S. EMPLOYER IDENTIFICATION (I.R.S. EMPLOYER IDENTIFICATION
NUMBER) NUMBER)
1021 EAST CARY STREET C/O CENTRAL FIDELITY BANKS, INC.
P.O. BOX 27602 1021 EAST CARY STREET
RICHMOND, VIRGINIA 23261-7602 P.O. BOX 27602
(804) 782-4000 RICHMOND, VIRGINIA 23261-7602
(804) 782-4000
(ADDRESS, INCLUDING ZIP CODE, AND (ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING AREA TELEPHONE NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S PRINCIPAL CODE, OF REGISTRANT'S PRINCIPAL
EXECUTIVE OFFICES) EXECUTIVE OFFICES)
---------------
WILLIAM N. STOYKO, ESQ.
CORPORATE EXECUTIVE VICE PRESIDENT
CENTRAL FIDELITY BANKS, INC.
1021 EAST CARY STREET
P.O. BOX 27602
RICHMOND, VIRGINIA 23261-7602
(804) 697-7145
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
---------------
COPIES TO:
ROBERT H. CRAFT, JR., ESQ. WILLIAM H. SCHWARZSCHILD, III, ESQ.
SULLIVAN & CROMWELL WILLIAMS, MULLEN, CHRISTIAN & DOBBINS
1701 PENNSYLVANIA AVE., N.W. 1021 EAST CARY STREET, 16TH FLOOR
WASHINGTON, D.C. 20006 RICHMOND, VIRGINIA 23219
(202) 956-7500 (804) 783-6489
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As promptly
as practicable after the effective date of this Registration Statement.
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. [_]
---------------
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Floating Rate Junior
Subordinated Debt
Securities, Series A,
of Central Fidelity
Banks, Inc.(1)(2)..... $100,000,000 $1,000.00 $100,000,000 N/A
- ---------------------------------------------------------------------------------------------
Floating Rate Capital
Trust Pass-through
Securities, Series A,
of Central Fidelity
Capital Trust I(2).... $100,000 $1,000.00 $100,000,000 $30,303
- ---------------------------------------------------------------------------------------------
Guarantee of Central
Fidelity Banks, Inc.
with respect to
Floating Rate Capital
Trust Pass-through
Securities, Series
A(2)(3)............... N/A N/A N/A N/A
- ---------------------------------------------------------------------------------------------
Total.................. $100,000,000(4) 100% $100,000,000(4) $30,303
</TABLE>
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- -------------------------------------------------------------------------------
(1) Floating Rate Junior Subordinated Debt Securities were purchased by
Central Fidelity Capital Trust I with the proceeds of the sale of the
Floating Rate Capital Trust Pass-through Securities. No separate
consideration will be received from purchasers of Floating Rate Capital
Trust Pass-through Securities, Series A for the Floating Rate Junior
Subordinated Debt Securities, Series A.
(2) This Registration Statement is deemed to cover $100,000,000 aggregate
principal amount of the Floating Rate Junior Subordinated Debt Securities,
Series A of Central Fidelity Banks, Inc., the rights of holders of such
Floating Rate Junior Subordinated Debt Securities, Series A under the
related Indenture, the rights of holders of Floating Rate Capital Trust
Pass-through Securities, Series A of Central Fidelity Capital Trust I
under the Amended and Restated Declaration of Trust of Central Fidelity
Capital Trust I and the rights of holders of the Floating Rate Capital
Trust Pass-through Securities, Series A under the Guarantee of Central
Fidelity Banks, Inc., which taken together fully and unconditionally
guarantee the obligations of Central Fidelity Capital Trust I under the
Floating Rate Capital Trust Pass-through Securities, Series A.
(3) No separate consideration will be received for the Central Fidelity Banks,
Inc. Guarantee.
(4) Such amounts represent the aggregate Liquidation Amount of Floating Rate
Capital Trust Pass-through Securities, Series A to be issued and exchanged
hereunder and $100,000,000 aggregate principal amount of Floating Rate
Junior Subordinated Debt Securities, Series A to be issued and exchanged
hereunder.
---------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
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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<PAGE>
CROSS-REFERENCE SHEET
PURSUANT TO ITEM 501(B) OF REGULATION S-K SHOWING THE LOCATION IN THE
PROSPECTUS OF THE RESPONSES TO THE ITEMS OF PART I OF FORM S-4
<TABLE>
<CAPTION>
FORM S-4 ITEM LOCATION IN PROSPECTUS
------------- ----------------------
<C> <S> <C>
1. Forepart of Registration
Statement and Outside Front Outside Front Cover Page; Facing Page
Cover Page of Prospectus......
2. Inside Front and Outside Back
Cover Pages of Prospectus..... Available Information; Outside Back
Cover Page
3. Risk Factors, Ratio of Earnings
to Fixed Charges, and Other Risk Factors; Central Fidelity
Information...................
4. Terms of the Transaction....... Outside Front Cover Page; Summary;
Central Fidelity; Central Fidelity
Capital Trust I; Use of Proceeds from
Sale of Old Capital Securities;
Capitalization; Accounting Treatment;
The Exchange Offer; Description of New
Capital Securities; Relationship Among
the Capital Securities, the Junior
Subordinated Debt Securities and the
Guarantee; Description of Old
Securities; Certain Federal Income Tax
Consequences; Certain ERISA
Considerations; Plan of Distribution
5. Pro Forma Financial Incorporation of Certain Documents by
Information................... Reference; Capitalization
6. Material Contracts With the
Company Being Acquired........ *
7. Additional Information Required
for Reoffering by Persons and *
Parties Deemed to be
Underwriters..................
8. Interests of Named Experts and Validity of New Securities; Experts
Counsel.......................
9. Disclosure of Commission
Position on Indemnification *
For Securities Act
Liabilities...................
10. Information With Respect to S-3 Available Information; Incorporation of
Registrants................... Certain Documents by Reference; Summary;
Central Fidelity
11. Incorporation of Certain Incorporation of Certain Documents by
Information by Reference...... Reference
12. Information With Respect to S-2 *
or S-3 Registrants............
13. Incorporation of Certain *
Information by Reference......
14. Information With Respect to
Registrants Other Than S-3 or Available Information; Central Fidelity
S-2 Registrants............... Capital Trust I
15. Information With Respect to S-3 *
Companies.....................
16. Information With Respect to S-2 *
or S-3 Companies..............
17. Information With Respect to
Companies Other Than S-2 or S- *
3 Companies...................
18. Information if Proxies,
Consents or Authorizations Are *
to be Solicited...............
19. Information if Proxies,
Consents or Authorizations Are Incorporation of Certain Documents by
Not to be Solicited, or in an Reference
Exchange Offer................
</TABLE>
- --------
* Not Applicable.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+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 NOR 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 JUNE 10, 1997
PROSPECTUS
$100,000,000
CENTRAL FIDELITY CAPITAL TRUST I
OFFER TO EXCHANGE ITS FLOATING RATE CAPITAL TRUST PASS-THROUGH SECURITIES,
SERIES A, WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, FOR ANY
AND ALL OF THE OUTSTANDING FLOATING RATE CAPITAL TRUST PASS-THROUGH SECURITIES
OF CENTRAL FIDELITY CAPITAL TRUST I (LIQUIDATION AMOUNT $1,000 PER CAPITAL
SECURITY) FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
CENTRAL FIDELITY BANKS, INC.
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON , 1997, UNLESS EXTENDED.
Central Fidelity Banks, Inc., a Virginia corporation ("Central Fidelity" or
the "Corporation"), 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
$100,000,000 aggregate Liquidation Amount (as defined herein) of the Floating
Rate Capital Trust Pass- through Securities, Series A (Liquidation Amount
$1,000 per Capital Trust Pass-through Security) (the "New Capital Securities")
of Central Fidelity Capital Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), which have been registered
under the Securities Act of 1933 (the "Securities Act"), pursuant to a
Registration Statement (as defined herein) of which this Prospectus constitutes
a part, for a like Liquidation Amount of the outstanding Floating Rate Capital
Trust Pass-through Securities (Liquidation Amount $1,000 per Capital Security)
(the "Old Capital Securities") of the Trust, of which $100,000,000 aggregate
Liquidation Amount is outstanding. The New Capital Securities will have the
benefit of the New Guarantee (as defined herein) of the Corporation, which will
be identical in all material respects (except as described herein) to the Old
Guarantee (as defined herein) relating to the Old Capital Securities (the "Old
Guarantee"). The Trust will hold Floating Rate Junior Subordinated Debt
Securities, Series A, of the Corporation (the "New Junior Subordinated Debt
Securities") in an aggregate principal amount equal to the aggregate
Liquidation Amount of the New Capital Securities issued pursuant to the
Exchange Offer and the Common Securities currently outstanding, which will be
identical in all material respects (except as described herein) to the
Corporation's outstanding Floating Rate Junior Subordinated Debt Securities
(the "Old Junior Subordinated Debt Securities"), of which $103,093,000
aggregate principal amount is outstanding. The New Guarantee relating to the
New Capital Securities and $100,000,000 aggregate principal amount of the New
Junior Subordinated Debt Securities also have been registered under the
Securities Act. The Old Capital Securities, the Old Guarantee and the Old
Junior Subordinated Debt Securities are collectively referred to herein as the
"Old Securities" and the New Capital Securities, the New Guarantee and the New
Junior Subordinated Debt Securities are collectively referred to herein as the
"New Securities."
The terms of the New Securities are identical in all material respects to the
respective terms of the Old Securities, except that (i) the New Securities have
been registered under the Securities Act and therefore will not be subject to
certain of the restrictions on transfer applicable to the Old Securities, (ii)
the New Capital Securities will not provide for any increase in the rate at
which Distributions (as defined herein) accumulate thereon and (iii) the New
Junior Subordinated Debt Securities will not provide for any increase in the
interest rate thereon. See "Description of New Capital Securities,"
"Description of New Junior Subordinated Debt Securities," "Description of New
Guarantee" and "Description of Old Securities." The New Capital Securities are
being offered for exchange in order to satisfy certain obligations of the
Corporation and the Trust under the Registration Agreement, dated as of April
23, 1997 (the "Registration Agreement"), by and among the Corporation, the
Trust and Salomon Brothers Inc and Keefe, Bruyette & Woods, Inc. (collectively,
the "Initial Purchasers").
(continued on next page)
-----------
SEE "RISK FACTORS" BEGINNING ON PAGE 11 HEREOF FOR CERTAIN INFORMATION RELEVANT
TO AN INVESTMENT IN THE CAPITAL SECURITIES.
THESE SECURITIES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL
AGENCY.
-----------
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.
<PAGE>
(cover page continued)
The New Capital Securities offered hereby represent beneficial ownership
interests in the Trust. Central Fidelity is the owner of all of the beneficial
ownership interests represented by common securities of the Trust (the "Common
Securities" and, collectively with the Capital Securities, the "Trust
Securities"). The Bank of New York is the Property Trustee of the Trust. 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 Debt Securities issued by the Corporation and
(iii) engaging in only those other activities necessary, advisable or
incidental thereto, which includes engaging in this Exchange Offer. The Junior
Subordinated Debt Securities will mature on April 15, 2027 (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 New Capital Securities--Subordination of Common Securities."
As used herein, (i) the "Indenture" means the Junior Subordinated Indenture,
as amended and supplemented from time to time, between the Corporation and The
Bank of New York, as trustee (the "Debenture Trustee"), (ii) the "Declaration"
means the Amended and Restated Declaration of Trust, dated as of April 23,
1997, among the Corporation, as Depositor (the "Depositor"), The Bank of New
York, as Property Trustee (the "Property Trustee"), The Bank of New York
(Delaware), as Delaware Trustee (the "Delaware Trustee"), and the individuals
named as Administrative Trustees therein (the "Administrative Trustees," and
collectively with the Property Trustee and the Delaware Trustee, the "Issuer
Trustees"), (iii) the "Old Guarantee Agreement" means the Guarantee Agreement,
dated as of April 23, 1997, between the Corporation and The Bank of New York,
as Trustee (the "Guarantee Trustee"), providing a guarantee, on the terms and
conditions described herein, for the benefit of holders of Old Capital
Securities and the Common Securities (the "Old Guarantee") and (iv) the "New
Guarantee Agreement" means the New Guarantee Agreement between the Corporation
and the Guarantee Trustee, providing a guarantee, on the terms and conditions
described herein, for the benefit of holder of the Capital Securities and the
Common Securities (the "New Guarantee"). In addition, as the context may
require, unless expressly stated otherwise, (i) "Capital Securities" includes
the Old Capital Securities and the New Capital Securities, (ii) "Junior
Subordinated Debt Securities" includes the Old Junior Subordinated Debt
Securities and the New Junior Subordinated Debt Securities and (iii)
"Guarantee" includes the Old Guarantee and the New Guarantee. All share and
per share data have been adjusted to reflect the 3-for-2 stock split in the
form of a dividend paid on June 14, 1996.
Holders of the Trust Securities are entitled to receive cumulative cash
distributions, in each case arising from the payment of interest on the Junior
Subordinated Debt Securities accruing from the date of original issuance of
the Old Capital Securities and payable quarterly in arrears on the 15th day of
January, April, July and October of each year, commencing July 15, 1997 at a
variable annual rate equal to LIBOR (as defined herein) plus 1.00% of the
Liquidation Amount of $1,000 per Trust Security ("Distributions"). Subject to
certain exceptions, the Corporation has the right to defer payments of
interest on the Junior Subordinated Debt Securities at any time or from time
to time for a period not exceeding 20 consecutive quarterly periods with
respect to each deferral period (each, an "Extension Period"); provided,
however, that no Extension Period may extend beyond the Stated Maturity of the
Junior Subordinated Debt Securities. Upon the termination of any Extension
Period and the payment of all interest then accrued and unpaid (together with
interest thereon accumulated at a variable annual rate equal to LIBOR plus
1.00%, compounded quarterly, to the extent permitted by applicable law), the
Corporation may elect to begin a new Extension Period, subject to the
requirements set forth herein. If interest payments on the Junior Subordinated
Debt Securities are so deferred, during any Extension Period, Distributions on
the Trust Securities will also be deferred and the Corporation will not be
permitted, subject to certain exceptions described herein, to declare or pay
any cash distributions with respect to, or make purchases of, the
Corporation's capital stock (which includes common and preferred stock) or to
make any payment with respect to debt securities of the Corporation that rank
pari passu in all respects with or junior to the Junior Subordinated Debt
Securities. During an Extension Period, interest on the Junior Subordinated
Debt Securities will continue to accrue (and the amount of Distributions to
which holders of the Capital Securities are entitled will accumulate) at a
variable annual rate equal to LIBOR plus 1.00% per annum, compounded
quarterly, and holders of Capital
ii
<PAGE>
Securities will be required to accrue interest income for United States
Federal income tax purposes. See "Description of New Junior Subordinated Debt
Securities--Option to Extend Interest Payment Date" and "Certain United States
Federal Income Tax Consequences--Interest Income and Original Issue Discount."
Taken together, the Corporation's obligations under the Guarantee, the
Declaration, the Junior Subordinated Debt Securities and the Indenture,
including the Corporation's obligation to pay the costs, expenses and
liabilities of the Trust (other than the Trust's obligations to holders of the
Trust Securities under such Trust Securities), provide, in the aggregate, a
full irrevocable and unconditional guarantee, as described herein, of all of
the payments of Distributions and other amounts due on the Capital Securities.
See "Relationship Among the Capital Securities, the Junior Subordinated Debt
Securities and the Guarantee--Full and Unconditional Guarantee." The
Corporation has agreed to guarantee the payment of Distributions and payments
on liquidation or redemption of the Trust Securities, but only in each case to
the extent of funds held by the Trust, as described herein. See "Description
of New Guarantee." If the Corporation does not make interest payments on the
Junior Subordinated Debt Securities held by the Trust, the Trust will have
insufficient funds to pay Distributions on the Capital Securities. The
Guarantee does not cover the payment of Distributions when the Trust does not
have sufficient funds to pay such Distributions. In such event, a holder of
Capital Securities may institute a legal proceeding directly against the
Corporation for enforcement of payment to such holder of the principal of or
interest on Junior Subordinated Debt Securities having a principal amount
equal to the aggregate Liquidation Amount of the Capital Securities held by
such holder (a "Direct Action"). See "Description of New Junior Subordinated
Debt Securities--Enforcement of Certain Rights by Holders of Capital
Securities." The obligations of the Corporation under the Guarantee and the
Junior Subordinated Debt Securities are subordinate and junior in right of
payment to all Senior Debt (as defined in "Description of New Junior
Subordinated Debt Securities--Subordination") of the Corporation. In addition,
because the Corporation is a holding company, the Junior Subordinated Debt
Securities and the Guarantee are effectively subordinated to all existing and
future liabilities of the Corporation's subsidiaries, including deposits. See
"Risk Factors--Ranking of Obligations Under the Guarantee and the Junior
Subordinated Debt Securities" and "--Status of the Corporation as a Bank
Holding Company."
The Junior Subordinated Debt Securities are redeemable by the Corporation at
par, plus accrued and unpaid interest to the date of redemption, in whole or
in part, at any time and from time to time, on or after April 15, 2007. In
addition, in certain circumstances described herein, upon the occurrence and
continuation of a Tax Event or a Capital Treatment Event (each as defined
herein), the Junior Subordinated Debt Securities also are redeemable by the
Corporation at any time, within 90 days following the occurrence of such Tax
Event or Capital Treatment Event, as the case may be, in whole but not in
part, at par, plus accrued and unpaid interest thereon to the date of the
redemption. Any redemption prior to maturity is subject to the Corporation
having received prior approval from 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. Upon repayment in full
at maturity or the redemption in whole or in part of the Junior Subordinated
Debt Securities (other than following the distribution of the Junior
Subordinated Debt Securities to the holders of the Trust Securities), the
proceeds from such repayment or payment shall concurrently be applied to
redeem on a pro rata basis Trust Securities having an aggregate liquidation
amount equal to the aggregate principal amount of the Junior Subordinated Debt
Securities so redeemed or matured at a redemption price equal to $1,000 per
Trust Security, plus accrued and unpaid Distributions on such Trust Securities
to the date fixed for redemption (the "Redemption Price"). See "Description of
New Capital Securities--Mandatory Redemption." The Capital Securities will be
redeemed upon maturity of the Junior Subordinated Debt Securities, whereupon
the Trust will be dissolved. See "Description of New Junior Subordinated Debt
Securities."
The Corporation, as the holder of the outstanding Common Securities, has the
right at any time (including, without limitation, upon the occurrence of a Tax
Event or a Capital Treatment Event (as defined herein)) to terminate the Trust
and cause a Like Amount (as defined herein) of the Junior Subordinated Debt
Securities to be distributed to the holders of the Trust Securities upon
liquidation of the Trust, subject to prior approval of the Federal Reserve to
do so if then required under applicable capital guidelines or policies of the
Federal Reserve. In the event of such termination of the Trust, after
satisfaction of liabilities to creditors of the Trust as required
iii
<PAGE>
by applicable law, the holders of the Capital Securities generally will be
entitled to receive a Liquidation Amount of $1,000 per Capital Security plus
accumulated and unpaid Distributions thereon to the date of payment, which may
be in the form of a distribution of a Like Amount of Junior Subordinated Debt
Securities in certain circumstances. See "Description of New Capital
Securities--Liquidation of the Trust and Distribution of Junior Subordinated
Debt Securities."
Except as provided below, the Capital Securities will be represented by
global Capital Securities in fully registered form, deposited with a custodian
for and registered in the name of a nominee of The Depository Trust Company
("DTC"). Beneficial interests in such Capital Securities will be shown on, and
transfers thereof will be effected through, records maintained by DTC and its
participants. Beneficial interests in such 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. The
Capital Securities will be issued, and may be transferred, only in a block
having a Liquidation Amount of $100,000 (100 Capital Securities) and integral
multiples of $1,000 in excess thereof.
The Corporation and the Trust are making the Exchange Offer of the New
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 Corporation 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, and subject to the two
immediately following sentences, the Corporation and the Trust believe that
New 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 New 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 New Capital Securities. However, any holder of Old Capital
Securities who is an "affiliate" of the Corporation or the Trust within the
meaning of Rule 405 under the Securities Act (an "Affiliate") or who intends
to participate in the Exchange Offer for the purpose of distributing New
Capital Securities, or any broker-dealer who purchased Old Capital Securities
from the Trust to resell pursuant to Rule 144A under the Securities Act ("Rule
144A") or any other available exemption under the Securities Act, (i) 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, (ii) will not be entitled to tender such Old Capital
Securities in the Exchange Offer and (iii) 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 or
other transfer 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 New Capital
Securities (such broker-dealer referred to herein as a "Participating Broker-
Dealer"), then such Participating Broker-Dealer must deliver a prospectus
meeting the requirements of the Securities Act in connection with any resales
of such New Capital Securities.
Each holder of Old Capital Securities who wishes to exchange Old Capital
Securities for New Capital Securities in the Exchange Offer will be required
to represent that (i) it is not an Affiliate, (ii) any New 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 New 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 New Capital
Securities. The Letter of Transmittal contains the foregoing representations.
In addition, the Corporation and the Trust may require such holder, as a
condition to such holder's eligibility to participate in the Exchange Offer,
to
iv
<PAGE>
furnish to the Corporation 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 Capital Securities to
be exchanged in the Exchange Offer. Each Participating Broker-Dealer 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 New Capital Securities.
See "Plan of Distribution." The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a Participating 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 Participating Broker-
Dealers may fulfill their prospectus delivery requirements with respect to the
New 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 New 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 New 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 Agreement, the Corporation
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 New Capital Securities for a period ending
on the close of business on the first anniversary following the Expiration
Date (as defined herein) or, if earlier, when all such New Capital Securities
have been disposed of by such Participating Broker-Dealer. See "Plan of
Distribution." Any person, including any Participating Broker-Dealer, who is
an Affiliate 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."
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 (as defined
herein) that, upon receipt of notice from the Corporation 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 the light of the circumstances under which they were
made, not misleading, or of the occurrence of certain other events specified
in the Registration Agreement, such Participating Broker-Dealer will suspend
the sale of New Capital Securities pursuant to this Prospectus until the
Corporation 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
Corporation or the Trust has given notice that the sale of the New Capital
Securities 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 New Capital
Securities will be a new issue of securities for which there currently is no
established market. The Initial Purchasers informed the Corporation and the
Trust in connection with the offering of the Old Capital Securities that they
each intended to make a market in the Old Capital Securities and, if issued,
the New Capital Securities. However, 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 New Capital Securities.
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 Declaration
(except for those rights which terminate upon consummation of the Exchange
Offer). Following
v
<PAGE>
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 Corporation nor the Trust will have any further
obligation 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.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A
PROXY.
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 Corporation and 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 Corporation or the Trust and to the
terms and provisions of the Registration Agreement. Holders may tender their
Old Capital Securities in whole or in part in a Liquidation Amount of not less
than $100,000 (100 Old Capital Securities) and any integral multiple of $1,000
Liquidation Amount (1 Old Capital Security) in excess thereof. The Corporation
has agreed to pay all expenses of the Exchange Offer, except as otherwise
specified herein. See "The Exchange Offer--Fees and Expenses." Each New
Capital Security will pay cumulative Distributions from the most recent
Distribution Date (as defined herein) on the Old Capital Securities
surrendered in exchange for such New Capital Securities or, if no
Distributions have been paid on such Old Capital Securities, from April 23,
1997. Holders of the 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
with respect to such Old Capital Securities prior to the original issue date
of the New Capital Securities or, if no such Distributions have been paid,
will not receive any accumulated 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 such Distribution Date
or, if no such Distributions have been paid or duly provided for, from and
after April 23, 1997. This Prospectus, together with the Letter of
Transmittal, is being sent to all registered holders of Old Capital Securities
as of , 1997.
Neither the Corporation nor the Trust will receive any proceeds from the
issuance of the New Capital Securities offered hereby. No dealer-manager is
being used in connection with this Exchange Offer. See "Use of Proceeds From
Sale of Old Capital Securities" and "Plan of Distribution."
----------------
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS ARE AVAILABLE UPON REQUEST FROM
SUSAN LAWRENCE MISTR, PUBLIC RELATIONS MANAGER, CENTRAL FIDELITY BANKS, INC.,
1021 EAST CARY STREET, P.O. BOX 27602, RICHMOND, VIRGINIA 23261-7602,
TELEPHONE NUMBER (804) 697-7261. IN ORDER TO ENSURE TIMELY DELIVERY OF THE
DOCUMENTS, ANY REQUEST SHOULD BE MADE BY , 1997.
----------------
THE JUNIOR SUBORDINATED DEBT SECURITIES ARE DIRECT AND UNSECURED OBLIGATIONS
OF THE CORPORATION, DO NOT EVIDENCE DEPOSITS AND ARE NOT INSURED BY
vi
<PAGE>
THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE "FDIC") OR ANY OTHER INSURER OR
GOVERNMENTAL AGENCY. THE JUNIOR SUBORDINATED DEBT SECURITIES ARE SUBORDINATE
TO THE CLAIMS OF DEPOSITORS AND GENERAL CREDITORS OF THE CORPORATION.
----------------
NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (EACH, A "PLAN"), NO ENTITY
WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S
INVESTMENT IN THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING
"PLAN ASSETS" OF ANY PLAN, MAY ACQUIRE OR HOLD THE CAPITAL SECURITIES OR ANY
INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION ("PTCE") 96-23, 95-60, 91-38, 90-1 OR 84-14 WITH
RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE CAPITAL
SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS
PURCHASE AND HOLDING THEREOF THAT IT EITHER (A) IS NOT A PLAN OR A PLAN ASSET
ENTITY AND IS NOT PURCHASING SUCH SECURITIES ON BEHALF OF OR WITH "PLAN
ASSETS" OF ANY PLAN OR (B) IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE
UNDER PTCE 96-23, 95-60, 91-38, 90-1 OR 84-14 WITH RESPECT TO SUCH PURCHASE OR
HOLDING.
----------------
THE NEW CAPITAL SECURITIES WILL BE ISSUED, AND MAY BE TRANSFERRED, ONLY IN
BLOCKS HAVING A LIQUIDATION AMOUNT OF $100,000 AND INTEGRAL MULTIPLES OF
$1,000 IN EXCESS THEREOF. ANY TRANSFER, SALE OR OTHER DISPOSITION OF NEW
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 NEW CAPITAL
SECURITIES FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF
DISTRIBUTIONS ON SUCH NEW CAPITAL SECURITIES, AND SUCH TRANSFEREE SHALL BE
DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCH NEW CAPITAL SECURITIES.
vii
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information.................................................... 1
Incorporation of Certain Documents by Reference.......................... 2
Summary.................................................................. 3
Risk Factors............................................................. 11
Use of Proceeds from Sale of Old Capital Securities...................... 17
Central Fidelity Capital Trust I......................................... 17
Central Fidelity......................................................... 18
Ratio of Earnings to Fixed Charges for the Corporation................... 21
Selected Historical Financial Information................................ 22
Capitalization........................................................... 23
Accounting Treatment..................................................... 24
Regulatory Treatment..................................................... 24
The Exchange Offer....................................................... 24
Description of New Capital Securities.................................... 34
Description of New Junior Subordinated Debt Securities................... 47
Description of New Guarantee............................................. 56
Description of Old Securities............................................ 58
Relationship Among the Capital Securities, the Junior Subordinated Debt
Securities and the Guarantee............................................ 59
Certain United States Federal Income Tax Consequences.................... 60
Certain ERISA Considerations............................................. 64
Plan of Distribution..................................................... 65
Validity of New Securities............................................... 66
Accountants.............................................................. 66
</TABLE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THE OFFER MADE HEREBY EXCEPT AS CONTAINED
IN THIS PROSPECTUS AND, IF GIVEN OR MADE, NO SUCH INFORMATION OR
REPRESENTATIONS SHOULD BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
CORPORATION, THE TRUST OR ANY OF THEIR RESPECTIVE AGENTS. NEITHER THE DELIVERY
OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE INFORMATION SET
FORTH HEREIN OR IN THE AFFAIRS OF THE CORPORATION OR THE TRUST SINCE THE DATE
HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, THE CAPITAL SECURITIES 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
ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
AVAILABLE INFORMATION
The Corporation 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.).
The Corporation and the Trust have filed with the Commission a Registration
Statement on Form S-4 (together with all amendments and exhibits thereto, the
"Registration Statement") under the Securities Act with respect to the
securities offered hereby. This Prospectus does not contain all the
information set forth in the Registration Statement, certain portions of which
have been omitted as permitted by the rules and regulations of the Commission.
For further information with respect to the Corporation and the securities
offered hereby,
1
<PAGE>
reference is made to the Registration Statement and the exhibits and the
financial statements, notes and schedules filed as part thereof or
incorporated by reference therein, which may be inspected at the public
reference facilities of the Commission, at the addresses set forth above.
Statements made in this Prospectus concerning the contents of any documents
referred to herein are not necessarily complete, and in each instance are
qualified in all respects by reference to the copy of such document filed as
an exhibit to the Registration Statement.
No separate financial statements of the Trust have been included herein. The
Corporation and the Trust do not consider that such financial statements would
be material to holders of the Capital Securities because the Trust is a newly
formed special purpose entity, has no operating history or independent
operations and 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 Debt Securities issued by the
Corporation and (iii) engaging in only those other activities necessary,
advisable or incidental thereto, which includes engaging in this Exchange
Offer. See "Central Fidelity Capital Trust I," "Description of New Capital
Securities," "Description of New Junior Subordinated Debt Securities,"
"Description of New Guarantee" and "Description of Old Securities." In
addition, the Corporation does not expect that the Trust will file reports
under the Exchange Act with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Corporation with the Commission
pursuant to Section 13(a) or Section 15(d) of the Exchange Act are
incorporated into this Prospectus by reference:
1. The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1996.
2. The Corporation's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997.
3. The Corporation's Current Report on Form 8-K dated as of March 6,
1997.
4. The Corporation's Current Report on Form 8-K dated as of April 23,
1997.
Each document or report filed by the Corporation 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 any offering of securities made by this Prospectus 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 all or a portion of which is 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 such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
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
Corporation 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:
Central Fidelity Banks, Inc.
1021 East Cary Street
P.O. Box 27602
Richmond, Virginia 23261-7602
Telephone: (804) 697-7261
Susan Lawrence Mistr
Public Relations Manager
2
<PAGE>
SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere in this Prospectus and in the documents
incorporated by reference in this Prospectus.
CENTRAL FIDELITY CAPITAL TRUST I
The Trust is a statutory business trust formed under Delaware law pursuant to
(i) the Declaration and (ii) the filing of a certificate of trust with the
Delaware Secretary of State on April 2, 1997. The Trust's business and affairs
are conducted by the Issuer Trustees: The Bank of New York, as Property
Trustee, The Bank of New York (Delaware), as Delaware Trustee, and three
individual Administrative Trustees who are employees or officers of or
affiliated with the Corporation. 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 Debt Securities
issued by the Corporation and (iii) engaging in only those other activities
necessary, advisable or incidental thereto, which includes engaging in this
Exchange Offer. The Junior Subordinated Debt Securities will be the sole assets
of the Trust, and payments under the Junior Subordinated Debt Securities will
be the sole revenues of the Trust. All of the Common Securities are owned by
the Corporation. The Trust's executive offices are located at 1021 East Cary
Street, Richmond, Virginia 23219. Its mailing address is c/o Central Fidelity
Banks, Inc., Post Office Box 27602, Richmond, Virginia 23261-7602, and its
telephone number is (804) 782-4000.
CENTRAL FIDELITY BANKS, INC.
Central Fidelity, the third largest banking company headquartered in
Virginia, serves Virginia markets primarily through its wholly-owned banking
subsidiary, Central Fidelity National Bank, a national banking association (the
"Bank"). At March 31, 1997, the Bank operated 248 branch offices, including 27
full-service supermarket locations, and 228 automated teller machines
throughout the Commonwealth of Virginia. Central Fidelity was formed in the
late 1970's through the consolidation of two bank holding companies, Central
National Corporation and Fidelity American Bankshares, Inc., the earliest
predecessors of which were organized in 1911 and 1865, respectively. At March
31, 1997, Central Fidelity had total assets of approximately $10.6 billion,
deposits of approximately $8.0 billion and shareholders' equity of
approximately $822.2 million.
Central Fidelity, through the Bank and its other subsidiaries, provides a
wide variety of financial services to a broad customer base of individuals,
corporations, institutions and governments primarily located in Virginia. The
Bank is an issuer of MasterCard(R) and VISA(R) credit cards. Through the use of
reciprocally shared automated teller machines, Central Fidelity can deliver
services through its membership in the Internet/HONOR regional and PLUS(R)
national networks of automated teller machines. Central Fidelity also engages
in limited international banking activities, primarily in connection with
foreign trade financing for Virginia-based companies. In addition to
traditional retail and commercial banking activities, Central Fidelity
generates noninterest income by sales of trust and fiduciary services,
annuities and other investment services.
Central Fidelity is a legal entity separate and distinct from the Bank and
its nonbanking subsidiaries. Accordingly, the right of Central Fidelity, and
thus the right of Central Fidelity's creditors, to participate in any
distribution of the assets or earnings of the Bank or any other subsidiary is
necessarily subject to the prior claims of creditors of the Bank or such
subsidiary, except to the extent that claims of Central Fidelity in its
capacity as a creditor may be recognized. The principal sources of Central
Fidelity's revenues are dividends and fees from the Bank.
3
<PAGE>
Central Fidelity, a Virginia corporation, is a bank holding company
registered with the Board of Governors of the Federal Reserve under the Bank
Holding Company Act of 1956, as amended (the "BHCA"). Central Fidelity's
executive offices are located at 1021 East Cary Street, Richmond, Virginia
23219. Its mailing address is Post Office Box 27602, Richmond, Virginia 23261-
7602, and its telephone number is (804) 782-4000.
THE EXCHANGE OFFER
The Exchange Offer.......... Up to $100,000,000 aggregate Liquidation Amount
of New Capital Securities are being offered in
exchange for a like aggregate Liquidation Amount
of Old Capital Securities. Holders may tender
their Old Capital Securities in whole or in part
in a Liquidation Amount of $100,000 (100 Capital
Securities), or any integral multiple of $1,000
in excess thereof. The Corporation and the Trust
are making the Exchange Offer in order to satisfy
their obligations under the Registration
Agreement 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
(such time on such date being hereinafter called
the "Expiration Date") unless the Exchange Offer
is extended by the Corporation and the Trust (in
which case the term "Expiration Date" shall mean
the latest date and time to which the Exchange
Offer is extended). See "The Exchange Offer--
Expiration Date; Extensions; Amendments."
Conditions to the Exchange
Offer...................... The Exchange Offer is subject to certain
conditions, which may be waived by the
Corporation 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." The Corporation and the Trust 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 if certain specified
conditions 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
and (iv) to waive any condition or otherwise
amend the terms of the Exchange Offer in any
respect. See "The Exchange Offer--Expiration
Date; Extensions; Amendments."
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 (as defined
below) in conformity with certain procedures set
forth below under "The Exchange Offer--Withdrawal
Rights."
4
<PAGE>
Procedures for Tendering
Old Capital Securities..... To participate in the Exchange Offer, holders of
Old Capital Securities must tender by (a) book-
entry transfer pursuant to the procedures set
forth under "The Exchange Offer--Procedures for
Tendering Old Capital Securities" or (b)
forwarding certificates representing such Old
Capital Securities with the Letter of
Transmittal. Holders who are participants in DTC
tendering by book-entry transfer must execute
such tender through the DTC's ATOP (as defined
herein) procedures. A holder using ATOP should
transmit its acceptance to DTC on or prior to the
Expiration Date. DTC will verify such acceptance,
execute a book-entry transfer of the tendered Old
Capital Securities into the Exchange Agent's
account at DTC and then send to the Exchange
Agent confirmation of such book-entry transfer,
including an Agent's Message confirming that DTC
has received an express acknowledgment from such
holder that such holder has received and agrees
to be bound by the Letter of Transmittal and that
the Trust and the Corporation may enforce the
Letter of Transmittal against such holder. The
book-entry confirmation must be received by the
Exchange Agent in order for the tender relating
thereto to be effective.
If the tender is not made through ATOP,
certificates for such Old Capital Securities, as
well as the Letter of Transmittal (or facsimile
thereof), properly completed and duly executed,
with any required signature guarantees, and any
other documents required by the Letter of
Transmittal, must be received by the Exchange
Agent at its address set forth in the Letter of
Transmittal on or prior to the Expiration Date in
order for such tender to be effective. 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 Corporation or the Trust. Such
documents should only be sent to the Exchange
Agent. Questions regarding how to tender and
requests for information should be directed to
the Exchange Agent. See "The Exchange Offer--
Exchange Agent."
Resales of New Capital
Securities............... The Corporation and the Trust are making the
Exchange Offer of the New 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 Corporation 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, and subject to
the two immediately following sentences, the
Corporation and the Trust believe that New
Capital Securities issued pursuant to this
Exchange Offer in exchange for Old Capital
5
<PAGE>
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 New 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 New Capital Securities.
However, any holder of Old Capital Securities who
is an Affiliate or who intends to participate in
the Exchange Offer for the purpose of
distributing New Capital Securities, or any
broker-dealer who purchased the Old Capital
Securities from the Trust to resell 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 or other transfer is made
pursuant to an exemption from such requirements.
In addition, as described below, if any
Participating 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 New Capital Securities, then such
Participating Broker-Dealer must deliver a
prospectus meeting the requirements of the
Securities Act in connection with any resales of
such New Capital Securities.
Each holder of Old Capital Securities who wishes
to exchange Old Capital Securities for New
Capital Securities in the Exchange Offer will be
required to represent that (i) it is not an
Affiliate, (ii) any New 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 New 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 New Capital Securities. The Letter of
Transmittal contains the foregoing
representations. Each Participating Broker-Dealer
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 New Capital Securities. See "Plan of
Distribution." The Letter of Transmittal states
that by so acknowledging and by delivering a
prospectus, a Participating Broker-Dealer will
not be deemed to admit that it is an
"underwriter" within the meaning of the
Securities Act. Based on
6
<PAGE>
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
Participating Broker-Dealers may fulfill their
prospectus delivery requirements with respect to
the New 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
New 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 New
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 Agreement, the Corporation 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 New Capital
Securities for a period ending on the close of
business on the first anniversary following the
Expiration Date or, if earlier, when all such New
Capital Securities have been disposed of by such
Participating Broker-Dealer. See "Plan of
Distribution." Any person, including any
Participating Broker-Dealer, who is an Affiliate
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 Bank of New York (the "Exchange
Agent"). The 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.
Federal Income Tax
Consequences............... The exchange of an Old Capital Security for a New
Capital Security should not constitute a taxable
exchange.
THE NEW CAPITAL SECURITIES
Securities Offered.......... $100,000,000 aggregate Liquidation Amount of
Floating Rate Capital Trust Pass-through
Securities, Series A (Liquidation Amount $1,000
per Capital Security).
Distributions............... Holders of the Capital Securities are entitled to
receive cumulative cash distributions at a
variable annual rate equal to LIBOR plus 1.00% on
the stated Liquidation Amount of $1,000 per
Capital
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Security, accruing from the original date of
issuance of the Old Capital Securities, and
(subject to the extension of distribution payment
periods described below) are payable quarterly,
in arrears, on the 15th day of January, April,
July and October of each year, commencing July
15, 1997. See "Description of New Capital
Securities--Distributions."
Each New Capital Security will pay cumulative
Distributions from the most recent Distribution
Date on the Old Capital Securities, or if no
Distributions have been paid on such Old Capital
Securities, from April 23, 1997. 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 with respect to such Old
Capital Securities prior to the original issue
date of the New Capital Securities or, if no such
Distributions have been paid, will not receive
any accumulated 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
such Distribution Date or, if no such
Distributions have been paid, from and after
April 23, 1997.
Extension Periods........... Distributions on Capital Securities will be
deferred for the duration of any Extension Period
elected by the Corporation with respect to the
payment of interest on the Junior Subordinated
Debt Securities. No Extension Period will exceed
20 consecutive quarterly periods or extend beyond
the Stated Maturity of the Junior Subordinated
Debt Securities. See "Description of New Junior
Subordinated Debt Securities--Option to Extend
Interest Payment Date" and "Certain United States
Federal Income Tax Consequences--Interest Income
and Original Issue Discount."
Ranking..................... The New Capital Securities will rank pari passu,
and payments thereon will be made pro rata, with
the Common Securities except as described under
"Description of New Capital Securities--
Subordination of Common Securities." The New
Junior Subordinated Debt Securities will rank
pari passu with all other junior subordinated
debt securities to be issued by the Corporation
pursuant to the Indenture 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 Corporation
(if any), in each case similar to the Trust
("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 Debt of the Corporation.
See "Description of New Junior Subordinated Debt
Securities." The New Guarantee will rank pari
passu with all other guarantees (if any) which
may be issued by the Corporation with respect to
capital securities (if any) which may be issued
by Other Trusts ("Other Guarantees") and will
constitute an unsecured obligation of the
Corporation and will rank subordinate and junior
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<PAGE>
in right of payment to the extent and in the
manner set forth in the New Guarantee to all
Senior Debt of the Corporation. See "Description
of New Guarantee." In addition, because the
Corporation is a holding company, the New Junior
Subordinated Debt Securities and the New
Guarantee are effectively subordinated to all
existing and future liabilities of the
Corporation's subsidiaries, including deposits.
See "Risk Factors--Status of the Corporation as a
Bank Holding Company."
Optional Redemption......... The Corporation has the right to redeem the
Junior Subordinated Debt Securities, in whole or
in part, at any time or from time to time on or
after April 15, 2007, at par, plus accrued and
unpaid interest to the date of redemption,
subject to the Corporation having received prior
approval from the Federal Reserve if then
required under applicable capital guidelines or
policies of the Federal Reserve. See "Description
of New Junior Subordinated Debt Securities--
Optional Redemption." Upon the redemption in
whole or in part of the Junior Subordinated Debt
Securities, the proceeds of such redemption shall
concurrently be applied to redeem on a pro rata
basis at the Redemption Price Trust Securities
having an aggregate Liquidation Amount equal to
the aggregate principal amount of the Junior
Subordinated Debt Securities so redeemed, upon
the terms and conditions described herein. See
"Description of New Capital Securities--Mandatory
Redemption."
Tax Event or Capital
Treatment Event
Redemption................. If at any time a Tax Event or a Capital Treatment
Event should occur and be continuing, the
Corporation may, within 90 days following the
occurrence of such Tax Event or Capital Treatment
Event, redeem the Junior Subordinated Debt
Securities in whole but not in part in certain
circumstances described herein at a redemption
price equal to par plus accrued and unpaid
interest thereon to the redemption date, subject
to the Corporation having received prior approval
from the Federal Reserve if then required under
applicable capital guidelines or policies of the
Federal Reserve. See "Description of New Junior
Subordinated Debt Securities--Optional
Redemption." Upon the redemption in whole or in
part of the Junior Subordinated Debt Securities,
the proceeds of such redemption shall
concurrently be applied to redeem at the
Redemption Price Trust Securities having an
aggregate Liquidation Amount equal to the
aggregate principal amount of the Junior
Subordinated Debt Securities so redeemed, upon
the terms and conditions described herein. See
"Description of New Capital Securities--Mandatory
Redemption."
Ratings..................... The New Capital Securities are expected to be
rated "baa2" by Moody's Investors Service, Inc.
and "BBB-" by Standard & Poor's Ratings Services.
In January 1995, Standard & Poor's Ratings
Services placed the Corporation on "Outlook:
Negative." 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.
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<PAGE>
ERISA Considerations........ Prospective purchasers must carefully consider
the restrictions on purchase set forth under
"Certain ERISA Considerations."
Absence of Market for the
Capital Securities......... The New Capital Securities will be a new issue of
securities for which there is currently no
established market. The Initial Purchasers
informed the Trust and the Corporation in
connection with the offering of the Old Capital
Securities that they each intended to make a
market in the Old Capital Securities and, if
issued, the New Capital Securities. However, 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 Old Capital
Securities or the New Capital Securities.
Use of Proceeds............. Neither the Corporation nor the Trust will
receive any cash proceeds from the issuance of
the New Capital Securities offered hereby. See
"Use of Proceeds from Sale of Old Capital
Securities."
For additional information regarding the Capital
Securities, see "Description of New Capital
Securities," "Description of New Junior
Subordinated Debt Securities," "Description of
New Guarantee," "Description of Old Capital
Securities" and "Certain United States Federal
Income Tax Consequences."
RISK FACTORS
Holders tendering Old Capital Securities in the Exchange Offer should
carefully consider the matters set forth under "Risk Factors."
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<PAGE>
RISK FACTORS
Holders of the Old Capital Securities should carefully review the
information contained elsewhere in this Prospectus and should particularly
consider the following matters prior to tendering Old Capital Securities in
the Exchange Offer.
RANKING OF OBLIGATIONS UNDER THE GUARANTEE AND THE JUNIOR SUBORDINATED DEBT
SECURITIES
The obligations of the Corporation under the Guarantee issued by the
Corporation for the benefit of the holders of Capital Securities and under the
Junior Subordinated Debt Securities are unsecured and rank subordinate and
junior in right of payment to all Senior Debt (which, as defined, includes all
outstanding subordinated debt of the Corporation) of the Corporation. At March
31, 1997, the aggregate outstanding Senior Debt of the Corporation was
approximately $150 million. The obligations of the Corporation under the
Guarantee also rank subordinate and junior in right of payment to creditors of
the Bank and the Corporation's other subsidiaries. See "--Status of the
Corporation as a Bank Holding Company." The Corporation does not have any
indebtedness that ranks pari passu with or junior to its obligations under the
Guarantee and the Junior Subordinated Debt Securities. None of the Indenture,
the Guarantee or the Declaration places any limitation on the amount of
secured or unsecured debt, including Senior Debt, that may be incurred by the
Corporation or any subsidiary. See "Description of New Junior Subordinated
Debt Securities--Subordination" and "Description of New Guarantee--Status of
the Guarantee."
The ability of the Trust to pay amounts due on the Capital Securities is
solely dependent upon the Corporation making payments on the Junior
Subordinated Debt Securities as and when required.
STATUS OF THE CORPORATION AS A BANK HOLDING COMPANY
The Corporation is a legal entity separate and distinct from the Bank and
its other subsidiaries, although the principal source of the Corporation's
cash revenues is dividends from the Bank. The right of the Corporation to
participate in the distribution of assets of any subsidiary, including the
Bank, upon the latter's liquidation, reorganization or otherwise (and thus the
ability of the holders of Capital Securities to benefit indirectly from any
such distribution) will be subject to the prior claims of such subsidiary's
creditors, which will take priority except to the extent that the Corporation
may itself be a creditor of such subsidiary with a recognized claim.
Accordingly, the Junior Subordinated Debt Securities will be effectively
subordinated to all existing and future liabilities of the Corporation's
subsidiaries, and holders of Junior Subordinated Debt Securities should look
only to the assets of the Corporation for payments on the Junior Subordinated
Debt Securities. Because the Corporation is a holding company with limited
assets and liabilities, a substantial portion of the consolidated liabilities
of the Corporation are liabilities of its subsidiaries. The Guarantee will
constitute an unsecured obligation of the Corporation and will rank
subordinate and junior in right of payment to all Senior Debt in the same
manner as the Junior Subordinated Debt Securities.
As a holding company, the Corporation conducts its operations principally
through its subsidiaries and, therefore, its principal source of cash, other
than its investing and financing activities, is receipt of dividends from the
Bank. However, there are legal limitations on the source and amount of
dividends that a national bank such as the Bank is permitted to pay. A
national bank may pay dividends only to the extent that retained net profits
(including the portion transferred to surplus) exceed bad debts (as defined by
regulation). Moreover, unless a national bank's surplus fund equals its common
capital, dividends may be paid only after 10 percent of its net profits (as
defined by regulation) for the specified preceding period have been
transferred to the bank's surplus fund. In addition, prior approval of the
Office of Comptroller of the Currency (the "OCC") is required if the total of
all dividends declared by a national bank in any calendar year will exceed the
sum of that bank's net profits for that year and its retained net profits for
the preceding two calendar years, less any required transfers to either
surplus or any fund for retirement of any preferred stock. At March 31, 1997,
the Bank could have paid approximately $101.7 million in dividends to the
Corporation without prior OCC approval. The payment of dividends by the Bank
may also be affected by other factors, such as requirements for the
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<PAGE>
maintenance of adequate capital. In addition, the OCC is authorized to
determine, under certain circumstances relating to the financial condition of
a national bank, whether the payment of dividends would be an unsafe or
unsound banking practice and to prohibit payment thereof.
OPTION TO EXTEND INTEREST PAYMENT DATE; TAX CONSEQUENCES; MARKET PRICE
CONSEQUENCES
So long as no Debenture Event of Default (as defined herein) has occurred
and is continuing, the Corporation has the right under the Indenture to defer
the payment of interest on the Junior Subordinated Debt Securities at any time
or from time to time for a period not exceeding 20 consecutive quarterly
periods with respect to each Extension Period, provided, however, that no
Extension Period may extend beyond the Stated Maturity of the Junior
Subordinated Debt Securities. As a consequence of any such deferral, quarterly
Distributions on the Capital Securities by the Trust will also be deferred
(and the amount of Distributions to which holders of the Capital Securities
are entitled will accumulate additional Distributions thereon at a variable
annual rate equal to LIBOR plus 1.00%, compounded quarterly from the relevant
payment date for such Distributions during any such Extension Period). During
any Extension Period, the Corporation may not (i) declare or pay any dividends
or distributions on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of the Corporation's capital stock (which
includes common and preferred stock), (ii) make any payment of principal,
interest or premium, if any, on, or repay, repurchase or redeem any debt
securities of the Corporation (including Other Debentures) that rank pari
passu with or junior in interest to, the Junior Subordinated Debt Securities
or (iii) make any guarantee payments with respect to any guarantee by the
Corporation of the debt securities of any subsidiary of the Corporation
(including Other Guarantees) if such guarantee ranks pari passu with or junior
in interest to the Junior Subordinated Debt Securities (other than (a)
dividends or distributions in Common Stock, par value $5.00 per share (the
"Common Stock"), of the Corporation, (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, (d) purchases or acquisitions of shares of the Corporation's Common
Stock in connection with the satisfaction by the Corporation of its
obligations under any employee benefit plan or any other contractual
obligation of the Corporation (other than a contractual obligation ranking
pari passu with or junior to the Junior Subordinated Debt Securities), (e) as
a result of a reclassification of the Corporation's capital stock or the
exchange or conversion of one class or series of the Corporation's capital
stock for another class or series of the Corporation's capital stock or (f)
the purchase of fractional interests in shares of the Corporation's capital
stock pursuant to the conversion or exchange provisions of such capital stock
or the security being converted or exchanged). Prior to the termination of any
Extension Period, the Corporation may further extend such Extension Period,
provided, however, that such extension does not cause such Extension Period to
exceed 20 consecutive quarterly 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 Debt Securities
(together with interest thereon accrued at a variable annual rate equal to
LIBOR plus 1.00%, compounded quarterly, to the extent permitted by applicable
law), and subject to the foregoing limitations, the Corporation may elect to
begin a new Extension Period. There is no limitation on the number of times
that the Corporation may elect to begin an Extension Period. See "Description
of New Capital Securities--Distributions" and "Description of New Junior
Subordinated Debt Securities--Option to Extend Interest Payment Date."
If an Extension Period occurs, for United States federal income tax
purposes, a holder of Capital Securities will continue to include income (in
the form of original issue discount) in respect of its pro rata share of the
Junior Subordinated Debt Securities held by the Trust as long as the Junior
Subordinated Debt Securities remain outstanding. As a result, during an
Extension Period 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 thereafter. See "Certain United States
Federal Income Tax Consequences--Interest Income and Original Issue Discount"
and "--Sales or Redemption of the Capital Securities."
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<PAGE>
Should the Corporation elect to exercise its right to defer payments of
interest on the Junior Subordinated Debt Securities 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 Corporation's right to defer interest payments on the Junior Subordinated
Debt Securities, the market price of the Capital Securities (which represent
beneficial ownership interests in the Trust holding the Junior Subordinated
Debt Securities as its sole assets) may be more volatile than the market
prices of other securities that are not subject to such deferrals.
TAX EVENT OR CAPITAL TREATMENT EVENT REDEMPTION
Upon the occurrence and continuation of a Tax Event or a Capital Treatment
Event (each as defined herein), the Corporation may, at its option within 90
days following the occurrence of such Tax Event or Capital Treatment Event and
subject to receipt of prior approval of the Federal Reserve if such approval
is then required under applicable capital guidelines or policies, redeem the
Junior Subordinated Debt Securities in whole, but not in part, at par, plus
accrued and unpaid interest thereon to the date of redemption. In such event,
the Trust will redeem the Trust Securities. See "Description of New Junior
Subordinated Debt Securities--Optional Redemption," "Description of New
Capital Securities--Mandatory Redemption" and "Description of New Capital
Securities--Liquidation of the Trust and Distribution of Junior Subordinated
Debt Securities."
POSSIBLE TAX LAW CHANGES AFFECTING THE CAPITAL SECURITIES
On February 6, 1997, the revenue portion of President Clinton's fiscal year
1998 budget proposal (the "Budget Proposal") was released. If enacted, the
Budget Proposal would generally 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, where 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 Corporation's consolidated
balance sheet. The above described provision of the Budget Proposal is
proposed to be effective generally for instruments issued on or after the date
of first Congressional committee action. No such action has yet occurred. If
this provision were to apply to the Junior Subordinated Debt Securities, the
Corporation would be unable to deduct interest on the Junior Subordinated Debt
Securities. Under current law, the Corporation will be able to deduct interest
on the Junior Subordinated Debt Securities. There can be no assurance,
however, that current or future legislative proposals, if enacted, or final
legislation will not affect the ability of the Corporation to deduct interest
on the Junior Subordinated Debt Securities. Such a change could give rise to a
Tax Event, which may permit the Corporation to cause a redemption of the
Capital Securities, as described more fully under "Description of New Capital
Securities--Mandatory Redemption" and "Description of New Junior Subordinated
Debt Securities--Optional Redemption." See also "Certain United States Federal
Income Tax Consequences--Possible Tax Law Changes."
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBT
SECURITIES
The Corporation, as the holder of the outstanding Common Securities, has the
right at any time to terminate the Trust and cause the Junior Subordinated
Debt Securities to be distributed to the holders of the Trust Securities.
Under current United States federal income tax law, a distribution of Junior
Subordinated Debt Securities upon the dissolution of the Trust would not be a
taxable event to holders of the Capital Securities. If, however, the Trust is
characterized for United States federal income tax purposes as an association
taxable as a corporation at the time of dissolution of the Trust, the
distribution of the Junior Subordinated Debt Securities may constitute a
taxable event to holders of Capital Securities. See "Certain United States
Federal Income Tax Consequences--Distribution of the Junior Subordinated Debt
Securities to Holders of Capital Securities."
There can be no assurance as to the market prices for Capital Securities or
Junior Subordinated Debt Securities that may be distributed in exchange for
Capital Securities if a liquidation of the Trust occurs.
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<PAGE>
Accordingly, the Capital Securities or the Junior Subordinated Debt Securities
may trade at a discount to the price that the investor paid to purchase the
Capital Securities offered hereby. Because holders of Capital Securities may
receive Junior Subordinated Debt Securities on termination of the Trust,
prospective purchasers of Capital Securities are also making an investment
decision with regard to the Junior Subordinated Debt Securities and should
carefully review all the information regarding the Junior Subordinated Debt
Securities contained herein. See "Description of New Capital Securities--
Liquidation of the Trust and Distribution of the Junior Subordinated Debt
Securities" and "Description of New Junior Subordinated Debt Securities--
General."
RIGHTS UNDER THE GUARANTEE
The Guarantee guarantees to the holders of the Trust Securities the
following payments, to the extent not paid by the Trust: (i) any accumulated
and unpaid Distributions required to be paid on the Trust Securities, to the
extent that the Trust has funds on hand available therefor at such time, (ii)
the Redemption Price with respect to any Trust 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 dissolution, winding-
up or liquidation of the Trust (unless the Junior Subordinated Debt Securities
are distributed to holders of the Trust Securities or all of the Capital
Securities are redeemed), the lesser of (a) the aggregate of the Liquidation
Amount and all accumulated 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 Trust Securities after the satisfaction of liabilities to
creditors of the Trust as required by applicable law. See "Description of New
Guarantee."
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
Trust Securities may institute a legal proceeding directly against the
Corporation 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 Corporation were to default on its obligation
to pay amounts payable under the Junior Subordinated Debt Securities, 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 Corporation to pay principal of or interest on the Junior
Subordinated Debt Securities on the applicable payment date, then a holder of
Capital Securities may institute a Direct Action. Notwithstanding any payments
made to a holder of Capital Securities by the Corporation in connection with a
Direct Action, the Corporation shall remain obligated to pay the principal of
and interest on the Junior Subordinated Debt Securities, and the Corporation
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 Corporation 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 Debt Securities or assert directly any other rights in respect of
the Junior Subordinated Debt Securities. See "Description of New Junior
Subordinated Debt Securities--Enforcement of Certain Rights by Holders of
Capital Securities," "Description of New Junior Subordinated Debt Securities--
Debenture Events of Default" and "Description of New Guarantee." The
Declaration provides that each holder of Capital Securities by acceptance
thereof agrees to the provisions of the New Guarantee and the Indenture. The
Bank of New York currently acts as Guarantee Trustee under the Old Guarantee
and will act as Guarantee Trustee under the New Guarantee. In addition, the
Guarantee Trustee currently holds the Old Guarantee for the benefit of the
holders of the Old Capital Securities and will hold the New Guarantee for the
benefit of the holders of the New Capital Securities. The Bank of New York
also acts as Property Trustee under the Declaration and as Debenture Trustee
under 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, the dissolution,
winding-up or liquidation of the Trust, and the exercise of the Trust's rights
as holder of Junior Subordinated Debt Securities. The right to vote to
appoint, remove or replace the Property Trustee, the Delaware Trustee or the
Administrative Trustees is vested exclusively in the holder of the Common
Securities except, with respect to the Property Trustee and the Delaware
Trustee, upon the occurrence of certain events described herein. The Property
Trustee, the Administrative Trustees and the Corporation may amend the
Declaration without the consent of holders of Capital Securities to ensure
that the Trust will not be classified for United States Federal income tax
purposes as an association taxable as a corporation or, as other than a
grantor trust, even if such action adversely affects the interests of such
holders. See "Description of New Capital Securities--Removal of Issuer
Trustees" and "Description of New Capital Securities--Voting Rights; Amendment
of the Declaration."
REGULATORY CAPITAL REQUIREMENTS
The Corporation and the Bank are subject to regulatory capital guidelines.
At March 31, 1997, the Bank was in compliance with applicable regulatory
capital requirements. The Corporation, at that date, had a total capital to
risk-weighted assets ratio of 13.09% and a Tier 1 Capital to risk-weighted
assets ratio of 9.91%, both above the minimum requirements of 8.0% and 4.0%,
respectively. The Corporation's leverage ratio at that date was 7.53%.
Although the minimum leverage ratio requirement is 3.00%, most bank holding
companies, including the Corporation, are expected to maintain an additional
cushion of at least 100 to 200 basis points above the minimum. However, the
Federal Reserve may assign a specific capital ratio to an individual bank
holding company, including the Corporation, based on its assessment of asset
quality, earnings performance, interest-rate risk and liquidity. As of the
date of this Prospectus, the Federal Reserve has not advised the Corporation
of a specific leverage ratio requirement.
There can be no assurance that either the Corporation or the Bank will
continue to be able to meet their respective minimum capital ratios. In the
event that the Corporation or the Bank falls below the minimum capital
requirements described above, agencies may take regulatory action including,
in the case of the Bank, "prompt corrective action." Such actions could impair
the Corporation's ability to make principal and interest payments on the
Junior Subordinated Debt Securities.
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 that 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 that 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 Agreement (subject to certain limited
exceptions). The Corporation 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. In addition, to the extent that Old Capital
Securities are tendered and accepted in connection with the Exchange Offer,
any trading market for Old Capital Securities which remain outstanding after
the Exchange Offer could be adversely affected.
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The New Capital Securities and any Old Capital Securities that remain
outstanding after consummation of the Exchange Offer will constitute a single
series of Capital Securities under the Declaration and, accordingly, 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 New Capital Securities--General."
The Registration Agreement provides that if the Exchange Offer is not
consummated by November 19, 1997, the Distribution rate borne by the holders
of Old Capital Securities will increase by 0.25% per annum commencing on
November 20, 1997 until the Exchange Offer is consummated. The aggregate
amount of such additional Distributions payable pursuant to the foregoing
provisions will in no event exceed 0.50% per annum. See "Description of Old
Capital Securities." Upon consummation of the Exchange Offer, the holders of
Capital Securities will not be entitled to any such increase in the
Distribution rate thereon.
ABSENCE OF PUBLIC MARKET
The Old Capital Securities have not been registered under the Securities Act
and will be subject to significant restrictions on resale to the extent that
they are not exchanged for New Capital Securities. Although the New Capital
Securities will generally be permitted to be resold or otherwise transferred
by the holders (who are not affiliates of the Corporation 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. The Capital Securities may be transferred only in blocks
having a Liquidation Amount of $100,000 (100 Capital Securities) and integral
multiples of $1,000 in excess thereof. There is no existing market for the New
Capital Securities and there can be no assurance as to the development or
liquidity of any markets that may develop for the New Capital Securities, the
ability of the holders to sell their New Capital Securities or at what price
holders of the New Capital Securities will be able to sell their New Capital
Securities. Future trading prices of the Capital Securities will depend on
many factors including, among other things, prevailing interest rates, the
Corporation's operating results and the market for similar securities. The
Initial Purchasers informed the Trust and the Corporation in connection with
the offering of the Old Capital Securities that they each intended to make a
market in the Old Capital Securities and, if issued, the New Capital
Securities; however, the Initial Purchasers are not obligated to do so, and
any such market making activity may be discontinued at any time without notice
to the holders of the New Capital Securities.
Notwithstanding the registration of the New Capital Securities pursuant to
the Exchange Offer, holders who are Affiliates of the Corporation or the Trust
may publicly offer for sale or resell the New Capital Securities only in
compliance with the provision of Rule 144 under the Securities Act.
Each Participating Broker-Dealer that receives New Capital Securities for
its own account in exchange for Old Capital Securities, where such Old Capital
Securities were acquired by such Participating Broker-Dealer as a result of
market-making activities or other trading activities, 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 in connection with any resale of such New Capital
Securities. See "Plan of Distribution."
EXCHANGE OFFER PROCEDURES
Subject to certain exceptions more fully described under "The Exchange
Offer--Acceptance for Exchange and Issuance of New Capital Securities,"
issuance of the New Capital Securities in exchange for Old Capital Securities
pursuant to the Exchange Offer will be made only after a timely receipt by the
Exchange Agent of such Old Capital Securities (unless such holder complies
with the procedures specified for guaranteed delivery of the 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 New Capital Securities should allow sufficient time
to ensure
16
<PAGE>
timely delivery. None of the Corporation, the Trust or the Exchange Agent is
under any duty to give notification of defects or irregularities with respect
to the tenders of Old Capital Securities for exchange.
USE OF PROCEEDS FROM SALE OF OLD CAPITAL SECURITIES
Neither the Trust nor the Corporation will receive cash proceeds from the
issuance of the New Capital Securities offered hereby. In consideration for
issuing the New Capital Securities in exchange for Old Capital Securities as
described in this Prospectus, the Trust will receive Old Capital Securities in
like Liquidation Amount. The Old Capital Securities surrendered in exchange
for the New Capital Securities will be retired and canceled.
The net proceeds to the Trust from the offering of the Old Capital
Securities were $99,134,000.
All of the proceeds from the sale of the Old Capital Securities and Common
Securities were invested by the Trust in the Old Junior Subordinated Debt
Securities. The Corporation has applied the net proceeds from the sale of the
Old Junior Subordinated Debt Securities to its general funds to be used, from
time to time, for the purchase, in the open market or in privately negotiated
transactions, of outstanding Common Stock of the Corporation and for other
general corporate purposes, including, from time to time, the making of
advances to its subsidiaries. A portion of the net proceeds has been used by
the Corporation to repurchase 2 million shares of its outstanding Common Stock
for an aggregate repurchase price of approximately $55.8 million, including
expenses. A portion of such net proceeds could also be used in connection with
one or more future acquisitions. From time to time, the Corporation
investigates and holds discussions and negotiations in connection with
possible acquisitions of other financial services companies. As of the date of
this Prospectus, the Corporation has not entered into any agreements or
understandings with respect to any potential acquisitions or any other
material transactions of the type referred to above, and no discussions or
negotiations are taking place with respect thereto. Pending any such
application by the Corporation, the remainder of the net proceeds has been
invested in short-term interest-bearing securities or used to reduce short-
term borrowings.
CENTRAL FIDELITY CAPITAL TRUST I
The Trust is a statutory business trust formed under Delaware law pursuant
to (i) the original declaration of trust executed by the Corporation, as
Depositor, The Bank of New York (Delaware), as Delaware Trustee, and the
Administrative Trustees named therein, which original declaration of trust was
amended and restated and executed on April 23, 1997 by the Corporation, as
Depositor, The Bank of New York, as Property Trustee, The Bank of New York
(Delaware), as Delaware Trustee, and the Administrative Trustees named
therein, and (ii) the filing of a certificate of trust with the Delaware
Secretary of State on April 2, 1997. 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 Debt Securities and (iii) engaging in only those other activities
necessary or incidental thereto (such as engaging in this Exchange Offer).
Accordingly, the Junior Subordinated Debt Securities will be the sole assets
of the Trust, and payments under the Junior Subordinated Debt Securities will
be the sole revenues of the Trust. All of the Common Securities are owned by
the Corporation. The Common Securities rank pari passu, and payments will be
made thereon pro rata, with the Capital Securities, except that upon the
occurrence and continuance of any Debenture Event of Default (or an event
that, with notice or the passage of time, would become such an Event of
Default) or an Event of Default under the Declaration, the rights of the
Corporation as holder of the Common Securities to payment in respect of
Distributions and payments upon liquidation, redemption or otherwise are
subordinated to the rights of the holders of the Capital Securities. See
"Description of New Capital Securities--Subordination of Common Securities."
The Corporation has acquired Common Securities in an aggregate Liquidation
Amount equal to approximately 3% of the total capital of the Trust. The Trust
has a term of 40 years, but may terminate earlier as provided in the
Declaration. The Trust's business and affairs are conducted by its trustees,
each appointed by the Corporation, as holder of the Common Securities. The
trustees for the Trust are The Bank of New York, as the
17
<PAGE>
Property Trustee, The Bank of New York (Delaware), as the Delaware Trustee,
and three individual trustees as Administrative Trustees who are employees or
officers of or affiliated with the Corporation. The Bank of New York, as
Property Trustee, will act as sole indenture trustee under the Declaration.
The Bank of New York also acts as trustee under the Old Guarantee Agreement
and the Indenture and will act as trustee under the New Guarantee Agreement.
See "Description of New Junior Subordinated Debt Securities" and "Description
of New Guarantee." The holder of the Common Securities, or the holders of a
majority in Liquidation Amount of the Capital Securities if an Event of
Default under the Declaration resulting from a Debenture Event of Default has
occurred and is continuing, are entitled to appoint, remove or replace the
Property Trustee and/or Delaware Trustee. In no event will the holders of the
Capital Securities have the right to vote to appoint, remove or replace the
Administrative Trustees; 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 Declaration. Pursuant to the expense provisions
under the Indenture, the Corporation, as obligor on the Junior Subordinated
Debt Securities, will pay all fees and expenses related to the Trust and this
Exchange Offer and will pay, directly or indirectly, all ongoing costs,
expenses and liabilities of the Trust. See "Description of New Capital
Securities--Expenses and Taxes." The address and telephone number of the
principal executive office of the Trust is c/o
Central Fidelity Banks, Inc.
1021 East Cary Street
P.O. Box 27602
Richmond, Virginia 23261-7602
Telephone: (804) 697-7145
William N. Stoyko
Corporate Secretary
CENTRAL FIDELITY
Central Fidelity, the third largest banking company headquartered in
Virginia, serves Virginia markets primarily through its wholly-owned banking
subsidiary, Central Fidelity National Bank, a national banking association. At
March 31, 1997, the Bank operated 248 branch offices, including 27 full-
service supermarket locations, and 228 automated teller machines throughout
the Commonwealth of Virginia. Central Fidelity was formed in the late 1970s
through the consolidation of two bank holding companies, Central National
Corporation and Fidelity American Bankshares, Inc., the earliest predecessors
of which were organized in 1911 and 1865, respectively. At March 31, 1997,
Central Fidelity had total assets of approximately $10.6 billion, deposits of
approximately $8.0 billion and shareholders' equity of approximately $822.2
million.
Central Fidelity, through the Bank and its other subsidiaries, provides a
wide variety of financial services to a broad customer base of individuals,
corporations, institutions and governments primarily located in Virginia. The
Bank is an issuer of MasterCard(R) and VISA(R) credit cards. Through the use
of reciprocally shared automated teller machines, Central Fidelity can deliver
services through its membership in the Internet/HONOR(R) regional and PLUS(R)
national networks of automated teller machines. Central Fidelity also engages
in limited international banking activities, primarily in connection with
foreign trade financing for Virginia-based companies. In addition to
traditional retail and commercial banking activities Central Fidelity
generates noninterest income by sales of trust and fiduciary services,
annuities and other investment services.
Year Ended December 31, 1996. Central Fidelity's net income for 1996 was
$112.7 million, an increase of 7.0% from the $105.4 million reported for 1995.
Central Fidelity's net interest income, on a taxable equivalent basis, was
$382.4 million for 1996, an increase of 10.1% from $347.3 million in 1995.
Noninterest income was $85.9 million for 1996 compared to $79.7 million in
1995, an increase of 7.8%. Noninterest expense increased 5.8% to $251.9
million for 1996 compared to $238.2 million in 1995. The increase of
noninterest expense for 1996 was adversely affected by the special Savings
Association Insured Fund ("SAIF") assessment in the amount of $4.0 million for
the year. The assessment was a one-time charge by the Federal Deposit
Insurance
18
<PAGE>
Corporation ("FDIC") to recapitalize the SAIF, and was assessed on deposits
acquired for SAIF-insured entities. Another contributing factor was a $2.3
million charge associated with certain severance arrangements. As a result of
higher consumer loan charge-offs during 1996, the provision for loan losses
was $43.9 million in 1996, representing an increase of 64.2% from $26.7
million in 1995.
Earning assets averaged $9.9 billion in 1996, compared to $9.7 billion in
1995, an increase of 1.4%. Total loans increased $486.2 million in 1996, or
8.1% from 1995, averaging $6.5 billion. Consumer loan categories accounted for
the majority of the loan growth. Securities available for sale declined 9.4%
to an average of $3.3 billion in 1996. Trading account securities averaged
$1.9 million in 1996, reflecting an increase of 72.7% from 1995. Money market
investments declined 7.6% from 1995 to an average of $95.9 million in 1996.
Interest-bearing liabilities averaged $8.5 billion in 1996, down $31.3
million from 1995. Interest-bearing deposits increased 2.9% from 1995 to an
average of $6.8 billion in 1996. Certificates of deposit $100,000 and over
contributed the largest growth to total average interest-bearing deposits, up
26.7%. Borrowings from the Federal Home Loan Bank and other short-term
borrowings also contributed to the growth in funding sources, up 28.2% and
13.0%, respectively. Medium-term notes, capitalized lease obligations and
federal funds purchased and repos all registered declines for 1996, down
79.8%, 6.3% and 6.2%, respectively. The 79.8% decline in medium-term notes was
a result of notes maturing during 1996.
Shareholders' equity grew 8.8% to an average of $819.9 million in 1996 from
$753.4 million in 1995. The return on average shareholders' equity of 13.75%
in 1996 declined from 13.99% in 1995.
Three Months Ended March 31, 1997. Central Fidelity's net income for the
three months ended March 31, 1997 was $30.4 million, an increase of 8.6% from
the $28.0 million reported for the first three months of 1996. Central
Fidelity's net interest income for the three months ended March 31, 1997 was
$99.2 million, an 8.9% increase from the net interest income reported in the
corresponding 1996 period. Noninterest income for the Corporation increased
18.9% to $24.5 million for the first quarter of 1997 compared with $20.6
million for the same period in 1996. Such increase resulted from higher trust
income, higher profits on securities available for sale and trading account
securities and growth in deposit and miscellaneous fees. Noninterest expense
increased 6.6% to $64.5 million for the first three months of 1997 compared to
the corresponding 1996 period. Such growth was due primarily to higher
personnel, occupancy and equipment costs. Interest expense on interest-bearing
liabilities in the first quarter of 1997 declined 7.7% to $98.1 million from
the corresponding 1996 period.
The Corporation's provision for loan losses increased to $14.2 million for
the three months ended March 31, 1997 compared with $10.3 million for the
corresponding period in 1996, as a result of a higher level of net charge-
offs. Such higher levels of net charge-offs resulted principally from
continued losses in consumer portfolios and a $2.3 million non-recurring loss
in the Corporation's commercial loan portfolio.
For the first three months of 1997, Central Fidelity's average earning
assets and interest earned on earning assets declined $137.7 million and
$250,000, respectively, from the levels recorded in the first three months of
1996. Such declines were due primarily to the lower levels of securities
available for sale and money market investments during the first three months
of 1997.
Central Fidelity's total assets as of March 31, 1997 were $10.6 billion, a
modest increase from $10.5 billion at the end of 1996. Total loans at March
31, 1997 increased to $6.8 billion, an increase of 1.4% from the balance at
December 31, 1996, primarily as a result of the increase in the Corporation's
loan commercial portfolio and consumer mortgage portfolio. Central Fidelity's
total deposits were $8.0 billion at March 31, 1997, flat from the level at
year-end 1996. Shareholders' equity at March 31, 1997 was $822.2 million, or
7.8% of total assets, as compared to $846.5 million, or 8.0% of total assets,
at December 31, 1996. The return on average shareholders' equity was 14.76%
for the first three months of 1997 compared to 13.61% for the first three
months of 1996.
Stock Repurchase Program. On March 6, 1997, the Corporation announced that
its Board of Directors granted authority for the Corporation to purchase up to
an additional 3,000,000 shares of its Common Stock
19
<PAGE>
under a repurchase program that commenced in January 1996. At March 6, 1997,
the Corporation had approximately 400,000 shares remaining under its original
repurchase authorization. During the three month period ended March 31, 1997,
the Corporation purchased 989,000 shares of its Common Stock pursuant to such
program. In addition, on May 1, 1997, the Corporation entered into an
accelerated stock repurchase program under which 2,000,000 shares of its
outstanding Common Stock were repurchased for a repurchase price of
$55,810,000. See "Capitalization" and "Use of Proceeds from Sale of Old
Capital Securities."
Central Fidelity is a legal entity separate and distinct from the Bank and
its nonbanking subsidiaries. Accordingly, the right of Central Fidelity, and
thus the right of Central Fidelity's creditors, to participate in any
distribution of the assets or earnings of the Bank or any other subsidiary is
necessarily subject to the prior claims of creditors of the Bank or such
subsidiary, except to the extent that claims of Central Fidelity in its
capacity as a creditor may be recognized. The principal sources of Central
Fidelity's revenues are dividends and fees from the Bank.
Central Fidelity, a Virginia corporation, is a bank holding company
registered with the Federal Reserve under the BHCA. Central Fidelity's
executive offices are located at 1021 East Cary Street, Richmond, Virginia
23219. Its mailing address is Post Office Box 27602, Richmond, Virginia 23261-
7602, and its telephone number is (804) 782-4000.
20
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES FOR THE CORPORATION
The following table sets forth the consolidated ratios of earnings to fixed
charges for the Corporation for each of the years in the five-year period
ended December 31, 1996 and for each of the three months ended March 31, 1997
and March 31, 1996. For purposes of computing these ratios, earnings represent
net income, plus total taxes based on income, plus fixed charges. Fixed
charges include interest expense (ratios are presented both excluding and
including interest on deposits), the estimated interest component of net
rental expense and amortization of debt expense.
<TABLE>
<CAPTION>
THREE
MONTHS
ENDED
MARCH 31, YEARS ENDED DECEMBER 31,
---------- ----------------------------
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges
Excluding interest on deposits..... 3.08x 2.58x 2.74x 2.33x 2.37x 3.72x 3.98x
Including interest on deposits..... 1.45x 1.38x 1.40x 1.35x 1.37x 1.50x 1.38x
</TABLE>
21
<PAGE>
SELECTED HISTORICAL FINANCIAL INFORMATION
The following unaudited consolidated summary sets forth selected financial
data for Central Fidelity and its subsidiaries for each of the years in the
five-year period ended December 31, 1996 and for each of the three-month
periods ended March 31, 1997 and March 31, 1996. The following summary should
be read in conjunction with the financial information incorporated herein by
reference to other documents. See "Incorporation of Certain Documents by
Reference."
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEARS ENDED DECEMBER 31,
------------------------ -------------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
----------- ----------- ----------- ----------- ----------- ---------- ----------
(IN THOUSANDS, EXCEPT RATIOS AND PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
SUMMARY OF OPERATIONS:
Interest income......... $ 197,328 $ 197,498 $ 788,620 $ 771,920 $ 664,797 $ 613,845 $ 579,174
Interest expense........ 98,126 106,323 413,353 432,295 330,691 289,731 285,697
----------- ----------- ----------- ----------- ----------- ---------- ----------
Net interest income..... 99,202 91,175 375,267 339,625 334,106 324,114 293,477
Provision for loan
losses................. 14,233 10,307 43,865 26,713 24,359 79,509 99,757
----------- ----------- ----------- ----------- ----------- ---------- ----------
Net income from earning
assets................. 84,969 80,868 331,402 312,912 309,747 244,605 193,720
Noninterest income...... 24,530 20,639 85,915 79,675 59,238 125,920 116,411
Noninterest expense..... 64,487 60,468 251,941 238,165 245,065 223,274 200,833
----------- ----------- ----------- ----------- ----------- ---------- ----------
Income before income
taxes.................. 45,012 41,039 165,376 154,422 123,920 147,251 109,298
Income taxes............ 14,619 13,058 52,674 49,052 39,056 44,334 30,782
----------- ----------- ----------- ----------- ----------- ---------- ----------
Net income.............. $ 30,393 $ 27,981 $ 112,702 $ 105,370 $ 84,864 $ 102,917 $ 78,516
=========== =========== =========== =========== =========== ========== ==========
PER SHARE DATA:
Net income.............. $ 0.52 $ 0.47 $ 1.89 $ 1.77 $ 1.45 $ 1.77 $ 1.50
Cash dividends
declared............... 0.22 0.20 0.86 0.79 0.76 0.68 0.55
Book value.............. 14.04 13.49 14.26 13.71 10.56 12.41 10.44
Average shares
outstanding............ 58,864,168 60,292,019 59,736,817 59,673,709 58,741,982 58,102,754 52,440,425
PERIOD-END BALANCE SHEET
DATA:
Total assets............ $10,569,656 $10,534,452 $10,540,360 $10,810,974 $10,054,172 $9,662,284 $8,712,315
Loans................... 6,808,094 6,376,365 6,716,836 6,316,813 5,772,093 4,812,509 3,953,354
Allowance for loan
losses................. 110,000 110,000 110,000 110,000 110,000 105,000 101,800
Earning assets.......... 9,999,723 9,973,720 9,937,036 10,179,856 9,456,750 9,107,251 8,139,100
Deposits................ 8,017,423 7,798,642 8,071,454 7,985,898 7,227,244 6,656,016 6,672,453
Long-term debt.......... 150,299 150,362 150,324 150,386 150,440 151,389 158,423
Shareholders' equity.... 822,184 808,319 846,499 826,547 623,072 726,137 601,987
PERFORMANCE RATIOS:
Return on average
assets................. 1.18% 1.07% 1.09% 1.03% 0.89% 1.16% 1.06%
Return on average
shareholders' equity... 14.76 13.61 13.75 13.99 12.72 15.91 15.60
Net interest margin..... 4.18 3.76 3.88 3.58 3.79 3.98 4.40
Efficiency.............. 51.88 52.53 53.38 55.85 54.60 51.36 53.30
Dividend payout......... 42.31 42.55 45.50 44.63 52.41 38.42 36.67
ASSET QUALITY RATIOS:
Nonaccrual loans to
loans.................. 0.55% 0.65% 0.57% 0.77% 1.17% 1.94% 2.13%
Nonperforming assets to
loans and foreclosed
properties............. 0.78 0.93 0.80 1.04 1.56 2.72 2.82
Net charge-offs to
average loans.......... 0.85 0.65 0.68 0.45 0.36 1.80 1.58
Provision for loan
losses to average
loans.................. 0.85 0.65 0.68 0.45 0.46 1.87 2.67
Allowance to loans...... 1.62 1.73 1.64 1.74 1.91 2.18 2.58
Allowance to nonaccrual
loans.................. 2.93x 2.65x 2.85x 2.26x 1.63x 1.12x 1.21x
Allowance to
nonperforming assets... 2.06x 1.84x 2.04x 1.67x 1.22x 0.79x 0.91x
LIQUIDITY AND CAPITAL
RATIOS:
Loans to deposits....... 84.92% 81.76% 83.22% 79.10% 79.87% 72.30% 59.25%
Equity to assets........ 7.78 7.67 8.03 7.65 6.20 7.52 6.91
Tangible equity to
tangible assets........ 7.17 7.10 7.42 7.08 5.90 7.19 6.53
Tier 1 capital.......... 9.91 9.92 10.09 9.87 10.36 11.06 9.46
Total capital........... 13.09 13.17 13.29 13.12 13.85 14.88 13.22
Leverage................ 7.53 7.17 7.57 7.06 7.04 7.10 6.85
</TABLE>
22
<PAGE>
CAPITALIZATION
The following table sets forth (i) the consolidated capitalization of
Central Fidelity at March 31, 1997 and (ii) as adjusted for the offering of
the Old Capital Securities and the use of a portion of the net proceeds to
repurchase 2 million shares of the Corporation's outstanding Common Stock for
an aggregate repurchase price of $55,810,000, including expenses. See "Use of
Proceeds from Sale of Old Capital Securities." The issuance of the New Capital
Securities in the Exchange Offer will have no effect on the capitalization of
the Corporation. This table is based on, and is qualified in its entirety by,
the historical consolidated financial statements of Central Fidelity,
including the related notes thereto, which are included in documents
incorporated by reference herein, and should be read in conjunction therewith.
<TABLE>
<CAPTION>
MARCH 31, 1997
-------------------------
ACTUAL AS ADJUSTED
---------- -------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Long-term debt....................................... $ 150,299 $ 150,299
Capitalized lease obligations........................ 7,325 7,325
Corporation--Obligated Mandatorily Redeemable Capital
Trust Pass-through Securities of Subsidiary
Trust(1)............................................ -- 99,134
Shareholders' Equity
Preferred stock, none issued
Common Stock, par value $5 per share, authorized
100,000,000 shares, shares outstanding--
58,599,425........................................ 292,997 282,997
Capital surplus.................................... 152,158 106,348
Unamortized deferred compensation.................. (750) (750)
Retained earnings.................................. 385,953 385,953
Unrealized gains on securities available for sale,
net of income taxes............................... (8,174) (8,174)
---------- ------------
Total shareholders' equity....................... 822,184 766,374
Total capitalization........................... $ 979,808 $ 1,023,132
========== ============
Consolidated Capital Ratios
Equity to assets................................... 7.78% 7.22%
Tier 1 Capital..................................... 9.91 10.41
Total Capital...................................... 13.09 13.57
</TABLE>
- --------
(1) The "Corporation--Obligated Mandatorily Redeemable Capital Trust Pass-
through Securities of Subsidiary Trust" reflects the Old Capital
Securities at their issue price. As described herein, the sole assets of
the Trust will be $103,093,000 of Junior Subordinated Debt Securities,
which will mature on April 15, 2027. The Corporation owns all of the
Common Securities of the Trust. It is anticipated that the Trust will not
be subject to the reporting requirements under the Exchange Act.
23
<PAGE>
ACCOUNTING TREATMENT
The financial statements of the Trust will be consolidated into the
Corporation's consolidated financial statements, with the Capital Securities
treated as minority interest and shown in the Corporation's consolidated
balance sheet as "Corporation-Obligated Mandatorily Redeemable Capital Trust
Pass-through Securities of Subsidiary Trust." The financial statement
footnotes of the Corporation will reflect that the sole asset of the Trust
will be $103,093,000 principal amount of the Junior Subordinated Debt
Securities maturing on April 15, 2027. All future reports filed by the
Corporation under the Exchange Act will present information regarding the
Trust and any other similar trusts in the manner described above.
REGULATORY TREATMENT
As a registered bank holding company, the Corporation is required by the
Federal Reserve to maintain certain levels of capital for bank regulatory
purposes. The Corporation expects that the Capital Securities will be treated
as "Tier 1 Capital" of the Corporation for such purposes.
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
In connection with the sale of the Old Capital Securities, the Corporation
and the Trust entered into the Registration Agreement with the Initial
Purchasers, pursuant to which the Corporation and the Trust agreed to file and
to use their reasonable best efforts to cause to be declared effective by the
Commission a Registration Statement with respect to the exchange of the Old
Capital Securities for capital securities with terms identical in all material
respects to the terms of the Old Capital Securities. A copy of the
Registration 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 Corporation and the Trust under the Registration Agreement. The form and
terms of the New Capital Securities are the same as the form and terms of the
Old Capital Securities, except that the New Capital Securities (i) have been
registered under the Securities Act and therefore will not be subject to
certain restrictions on transfer applicable to the Old Capital Securities and
(ii) will not provide for any increase in the Distribution rate thereon. In
that regard, the Registration Agreement provides, among other things, that, if
the Exchange Offer is not consummated by November 19, 1997, except in limited
circumstances, the Distribution rate borne by the Old Capital Securities will
increase by 0.25% per annum commencing on November 20, 1997 until the Exchange
Offer is consummated. The aggregate amount of such additional Distributions
payable pursuant to the foregoing provisions will in no event exceed 0.50% per
annum. Upon consummation of the Exchange Offer, holders of Old Capital
Securities will not be entitled to any such increase in the Distribution rate
thereon or any further registration rights under the Registration Agreement,
except under limited circumstances. See "Risk Factors--Consequences of a
Failure to Exchange Old Capital Securities" and "Description of Old
Securities."
The Exchange Offer is not being made to, nor will the Trust or the
Corporation 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 the registered holder, or any person whose
Old Capital Securities are held of record by DTC who desires to deliver such
Old Capital Securities by book-entry transfer at DTC.
Pursuant to the Exchange Offer, the Corporation will exchange as soon as
practicable after the date hereof the Old Guarantee for the New Guarantee and
$100,000,000 aggregate principal amount of the Old Junior
24
<PAGE>
Subordinated Debt Securities for a like aggregate principal amount of the New
Junior Subordinated Debt Securities. The New Guarantee and the New Junior
Subordinated Debt Securities have been registered under the Securities Act.
TERMS OF EXCHANGE
The Trust and the Corporation hereby offer, upon the terms and subject to
the conditions set forth in this Prospectus and in the accompanying Letter of
Transmittal, to exchange up to $100,000,000 aggregate Liquidation Amount of
New 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 $100,000,000 of New Capital Securities in exchange for a like
Liquidation 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 or any integral multiple of $1,000 in excess thereof.
The Exchange Offer is not conditioned upon any minimum Liquidation Amount of
Old Capital Securities being tendered. As of the date of this Prospectus,
$100,000,000 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 that 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 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 Corporation 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 BOARD OF DIRECTORS OF THE CORPORATION NOR ANY 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 AFTER READING THIS PROSPECTUS AND THE LETTER OF TRANSMITTAL AND
CONSULTING WITH THEIR ADVISERS, IF ANY, BASED ON THEIR OWN FINANCIAL POSITION
AND REQUIREMENTS.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" means 5:00 p.m., New York City time, on ,
1997, unless the Exchange Offer is extended by the Corporation and the Trust
(in which case the term "Expiration Date" shall mean the latest date and time
to which the Exchange Offer is extended).
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The Corporation and the Trust expressly reserve the right in their sole
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 Corporation and the Trust
determine, in their sole discretion, that any of the events or conditions
referred to under "--Conditions to the Exchange Offer" have occurred or exist,
(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
Corporation and the Trust to constitute a material change, or if the
Corporation and the Trust waive a material condition of the Exchange Offer,
the Corporation and the Trust will promptly disclose such amendment by means
of an amended or supplemented Prospectus that will be distributed to the
registered holders of the Old Capital Securities, and the Corporation 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 or written notice thereof to the Exchange Agent and
by making a public 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 Corporation and the Trust may choose to make
any public announcement and subject to applicable law, the Corporation 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 NEW 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, New Capital
Securities for Old Capital Securities validly tendered and not withdrawn
(pursuant to the withdrawal rights described under "--Withdrawal Rights")
promptly after the Expiration Date.
In all cases, delivery of New 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, including an
Agent's Message if the tendering holder has not delivered a Letter of
Transmittal, (ii) the Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, 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 (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 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 the Letter of Transmittal
and that the Trust and the Corporation may enforce such Letter of Transmittal
against such participant.
Subject to the terms and conditions of the Exchange Offer, the Corporation
and 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 or written notice to the Exchange Agent of the
Corporation's and 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 Corporation and 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 New 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
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Exchange Offer is delayed (whether before or after the Corporation's and the
Trust's acceptance for exchange of Old Capital Securities) or the Corporation
and the Trust extend the Exchange Offer or are unable to accept for exchange
or exchange Old Capital Securities tendered pursuant to the Exchange Offer,
then, without prejudice to the Corporation's and the Trust's rights set forth
herein, the Exchange Agent may, nevertheless, on behalf of the Corporation and
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 or Agent's Message, as the case may be, 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 that 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 Corporation, 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.
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 tender, an
Agent's Message in lieu of the Letter of Transmittal, and any other required
documents, must be received by the Exchange Agent at its address set forth
under "--Exchange Agent," and either (i) tendered Old Capital Securities must
be received by the Exchange Agent, (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 a tendering holder is tendering less than all of its Old Capital
Securities, the tendering holder should fill in the amount of Old Capital
Securities being tendered in the appropriate box on the Letter of Transmittal.
If fewer than all of the Old Capital Securities of a holder are tendered for
exchange, the untendered Liquidation Amount of the holder's remaining Old
Capital Securities must be $100,000 or any integral multiple of $1,000 in
excess thereof. 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. DELIVERY IS RECOMMENDED BY OVERNIGHT DELIVERY OR, IF DELIVERY
IS BY MAIL, REGISTERED MAIL, RETURN RECEIPT REQUESTED, PROPERLY INSURED 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 Authorized Tender Offer
Program ("ATOP") procedures for transfers. Such holder of Old Capital
Securities using ATOP should transmit its acceptance on DTC on or prior to the
Expiration Date (or comply with the guaranteed delivery procedures set forth
below). DTC will verify such acceptance, execute a book-entry transfer of the
tendered Old Capital Securities into the Exchange Agent's
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account at DTC and then send to the Exchange Agent confirmation of such book-
entry transfer, including an Agent's Message confirming that DTC has received
an express acknowledgment from such holder that such holder has received and
agrees to be bound by the Letter of Transmittal and that the Trust and the
Corporation may enforce the Letter of Transmittal against such holder.
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 (i) a certificate for the Old Capital Securities is
registered in a name other than that of the person surrendering the
certificate or (ii) such registered holder completes the box entitled "Special
Issuance Instructions" or "Special Delivery Instructions" in the Letter of
Transmittal. In the case of (i) or (ii) 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.
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 before the Expiration Date, or the
procedures 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:
(i) such tenders are made by or through an Eligible Institution;
(ii) 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
(iii) 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 mail 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 New 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 New Capital Securities might 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 Corporation's and the Trust's acceptance for exchange of Old Capital
Securities tendered pursuant to any of the procedures described above will
constitute a binding agreement among the tendering holder, the Corporation and
the Trust upon the terms and subject to the conditions of the Exchange Offer.
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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 Corporation
and the Trust, in their sole discretion, whose determination shall be final
and binding on all parties. The Corporation and the Trust reserve the absolute
right, in their sole 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 view of counsel to the Corporation or the Trust, be unlawful. The
Corporation 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 Corporation's and the Trust's interpretation 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
Corporation, the Trust, any affiliates or assigns of the Corporation or Trust,
the 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 Trust or
the Corporation, proper evidence satisfactory to the Corporation 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 NEW CAPITAL SECURITIES
The Corporation and the Trust are making the Exchange Offer of the New
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
Corporation 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, and
subject to the two immediately following sentences, the Corporation and the
Trust believe that New 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 New 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 New Capital Securities. However, any holder of Old
Capital Securities who is an Affiliate or who intends to participate in the
Exchange Offer for the purpose of distributing New Capital Securities, or any
broker-dealer who purchased Old Capital Securities from the Trust to resell
pursuant to Rule 144A or any other available exemption under the Securities
Act, (i) 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, (ii) will not be entitled to tender such Old
Capital Securities in the Exchange Offer and (iii) 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 or transfer is made pursuant to an exemption from such
requirements. In addition, as described below, Participating Broker-Dealers
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resales of New Capital Securities.
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Each holder of Old Capital Securities who wishes to exchange Old Capital
Securities for New Capital Securities in the Exchange Offer will be required
to represent that (i) it is not an Affiliate, (ii) any New 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 New 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 New Capital
Securities. The Letter of Transmittal contains the foregoing representations.
In addition, the Corporation 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 Corporation 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
Capital Securities to be exchanged in the Exchange Offer. Each Participating
Broker-Dealer 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 New
Capital Securities. See "Plan of Distribution." The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a
Participating 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 Participating Broker-Dealers may fulfill their prospectus
delivery requirements with respect to the New 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 New 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 New 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
Agreement, the Corporation 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 New Capital
Securities for a period ending on the close of business on the first
anniversary following the Expiration Date or, if earlier, when all such New
Capital Securities have been disposed of by such Participating Broker-Dealer.
See "Plan of Distribution." Any person, including any Participating Broker-
Dealer, who is an Affiliate 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 Corporation 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 the light of the circumstances under
which they were made, not misleading, or of the occurrence of certain other
events specified in the Registration Agreement, such Participating Broker-
Dealer will suspend the sale of New Capital Securities pursuant to this
Prospectus until the Corporation 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 Corporation or the Trust has given notice that the sale of the New
Capital Securities may be resumed, as the case may be.
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.
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In order for a withdrawal to be effective a written, telegraphic, telex or
facsimile transmission of such notice of withdrawal must be timely received by
the Exchange Agent at its address 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 certificate
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,
telex 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 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 Corporation and
the Trust, in their sole discretion, whose determination shall be final and
binding on all parties. Neither the Corporation, the Trust, any Affiliates or
assigns of the Corporation 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 without cost to
such holder promptly after withdrawal.
DISTRIBUTIONS ON THE NEW CAPITAL SECURITIES
Each New Capital Security will pay cumulative Distributions from the most
recent Distribution Date on the Old Capital Securities, or if no Distributions
have been paid on such Old Capital Securities, from April 23, 1997. 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 with respect to such Old
Capital Securities prior to the original issue date of the New Capital
Securities or, if no such Distributions have been paid, will not receive any
accumulated 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 such Distribution Date or, if no such
Distributions have been paid, from and after April 23, 1997.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, or any extension
of the Exchange Offer, the Corporation and the Trust will not be required to
accept for exchange, or to exchange, any Old Capital Securities for any New
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 has occurred or exists:
(i) there shall occur a change in the current interpretation by the staff
of the Commission (including oral interpretations) which permits the New
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) without compliance with the registration and
prospectus delivery provisions in the ordinary course of such holders'
business and such
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holders have no arrangement or understanding with any person to participate
in the distribution of such New Capital Securities;
(ii) any action or proceeding shall have been instituted or threatened in
any court or by or before any governmental agency or body with respect to
the Exchange Offer which, in the Corporation's and the Trust's judgment,
would reasonably be expected to impair the ability of the Trust or the
Corporation to proceed with the Exchange Offer;
(iii) any law, statute, rule or regulation shall have been adopted or
enacted which, in the Corporation's and the Trust's judgment, would
reasonably be expected to impair the ability of the Trust or the
Corporation to proceed with the Exchange Offer;
(iv) a banking moratorium shall have been declared by United States
federal or New York state authorities which, in the Corporation's and the
Trust's judgment, would reasonably be expected to impair the ability of the
Trust or the Corporation to proceed with the Exchange Offer;
(v) trading on the New York Stock Exchange or generally in the United
States over-the-counter market shall have been suspended by order of the
Commission or any other governmental authority which, in the Trust's and
the Corporation's judgment, would reasonably be expected to impair the
ability of the Trust or the Corporation to proceed with the Exchange Offer;
(vi) 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 the
Corporation or the Trust, threatened for that purpose or any governmental
approval has not been obtained, which approval the Corporation and the
Trust shall, in their sole discretion, deem necessary for the consummation
of the Exchange Offer as contemplated hereby;
(vii) any change, or any development involving a prospective change, in
the business or financial affairs of the Trust or the Corporation or any of
its subsidiaries has occurred which, in the judgment of the Corporation and
the Trust, might materially impair the ability of the Trust or the
Corporation to proceed with the Exchange Offer;
(viii) there shall occur any change in law or in currently prevailing
interpretations thereof by the Commission's staff (including oral
interpretations) which causes the Trust and the Corporation to determine
upon advice of their outside counsel that they are not permitted to effect
the Exchange Offer as contemplated by this Prospectus; or
(ix) the Corporation shall have received an opinion of a nationally
recognized independent tax counsel to the Corporation experienced in such
matters to the effect that as a result of the consummation of the Exchange
Offer, there is more than an insubstantial risk that (A) if the Junior
Subordinated Debt Securities are held by or on behalf of the Trust, (x) 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 interest accrued or
received on the Junior Subordinated Debt Securities or subject to more than
a de minimis amount of other taxes, duties or other governmental charges as
determined by such counsel or (y) any portion of interest payable by the
Corporation to the Trust on the Junior Subordinated Debt Securities is not,
or within 90 days of the date of such opinion will not be, deductible by
the Corporation in whole of in part for United States federal income tax
purposes or (B) with respect to Junior Subordinated Debt Securities which
are no longer held by or on behalf of the Trust, any portion of interest
payable by the Corporation on the Junior Subordinated Debt Securities is
not, or within 90 days of the date of such opinion will not be, deductible
by the Corporation in whole or in part for United States federal income tax
purposes.
If the Corporation and the Trust determine in their sole discretion that any
of the foregoing events or conditions has occurred or exists, the Corporation
and the Trust 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 Corporation and the Trust will
promptly disclose such waiver by means of an amended or supplemented
Prospectus that will be distributed to the
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registered holders of the Old Capital Securities, and the Corporation and the
Trust will extend the Exchange Offer to the extent required by Rule 14e-1
under the Exchange Act.
EXCHANGE AGENT
The Bank of New York 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, all whether by
registered or certified mail, by hand or by overnight courier, should be
directed to the Exchange Agent as follows:
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Reorganization Section
Telephone: (212) 571-3780
Facsimile: (212) 815-3687
Delivery to other than the above address or facsimile number will not
constitute a valid delivery.
FEES AND EXPENSES
The Corporation 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 Corporation 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, New
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 Corporation nor the Trust will make any payment to brokers,
dealers or others soliciting acceptances of the Exchange Offer.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The Corporation and the Trust expect that the exchange of Old Capital
Securities for New Capital Securities should not be a taxable exchange for
federal income tax purposes, and the holders of Old Capital Securities should
not recognize any taxable gain or loss or any interest income as a result of
such exchange.
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DESCRIPTION OF NEW CAPITAL SECURITIES
Pursuant to the terms of the Declaration, the Issuer Trustees on behalf of
the Trust have issued the Old Capital Securities and the Common Securities and
will issue the New Capital Securities. The New Capital Securities will
represent beneficial ownership 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, as well as other benefits
as described in the Declaration. See "--Subordination of Common Securities."
The Declaration has been qualified under the Trust Indenture Act of 1939 (the
"Trust Indenture Act"). This summary of certain provisions of the Capital
Securities, the Common Securities and the Declaration does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
all the provisions of the Declaration, including the definitions therein of
certain terms. The Declaration is attached as an exhibit to the Registration
Statement.
GENERAL
The Capital Securities (including the Old Capital Securities and the New
Capital Securities) will be limited to $100,000,000 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 Debt Securities is held by the Property Trustee on
behalf of the Trust in trust for the benefit of the holders of the Capital
Securities and Common Securities. The Guarantee is a guarantee on a
subordinated basis with respect to the Capital Securities but does 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 New
Guarantee."
DISTRIBUTIONS
The Capital Securities represent beneficial ownership interests in the
Trust, and Distributions on each Capital Security are payable at a variable
annual rate equal to LIBOR plus 1.00% of the stated Liquidation Amount of
$1,000, and are payable quarterly in arrears on the 15th day of January,
April, July and October of each year to the holders of the Capital Securities
at the close of business on the Business Day (as defined herein) immediately
preceding such Distribution Date (each, a "record date"). Distributions on the
Capital Securities will be cumulative. Distributions will accumulate from the
original issue date of the Old Capital Securities. The first Distribution Date
for the Capital Securities will be July 15, 1997. The amount of Distributions
payable for any period will be computed on the actual number of days elapsed
in a 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,
payment of the Distributions payable on such date will be made on the next
succeeding day that is a Business Day (and without any additional
Distributions or other payments in respect to any such delay) with the same
force and effect as if made on the date such payment was originally payable
(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
Corporation has the right under the Indenture to defer the payment of interest
on the Junior Subordinated Debt Securities at any time or from time to time
for a period not exceeding 20 consecutive quarterly periods with respect to
each Extension Period, provided that no Extension Period may extend beyond the
Stated Maturity of the Junior Subordinated Debt Securities. As a consequence
of any such election, quarterly Distributions on the Capital Securities by the
Trust will be deferred during any such Extension Period. Distributions to
which holders of the Capital Securities are entitled will accumulate
additional Distributions thereon at a variable annual rate equal to LIBOR plus
1.00%, compounded quarterly from the relevant payment date for such
Distributions during any such Extension Period, to the extent permitted by
applicable law. The term "Distributions" as used herein shall include any
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such additional Distributions. During any such Extension Period, the
Corporation may not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Corporation's capital stock (which includes common and preferred
stock), (ii) make any payment of principal, interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Corporation (including
Other Debentures) that rank pari passu with or junior in interest to the
Junior Subordinated Debt Securities, or (iii) make any guarantee payments with
respect to any guarantee by the Corporation of the debt securities of any
subsidiary of the Corporation (including Other Guarantees) if such guarantee
ranks pari passu with or junior in interest to the Junior Subordinated Debt
Securities (other than (a) dividends or distributions in Common Stock of the
Corporation, (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, (d) purchases or
acquisitions of shares of the Corporation's Common Stock in connection with
the satisfaction by the Corporation of its obligations under any employee
benefit plan or any other contractual obligation of the Corporation (other
than a contractual obligation ranking pari passu with or junior to the Junior
Subordinated Debt Securities), (e) as a result of a reclassification of the
Corporation's capital stock or the exchange or conversion of one class or
series of the Corporation's capital stock for another class or series of the
Corporation's capital stock or (f) the purchase of fractional interests in
shares of the Corporation's stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or
exchanged). Prior to the termination of any such Extension Period, the
Corporation may further extend such Extension Period, provided that such
extension does not cause such Extension Period to exceed 20 consecutive
quarterly periods or to extend beyond the Stated Maturity of the Junior
Subordinated Debt Securities. Upon the termination of any such Extension
Period and the payment of all amounts then accrued and unpaid on the Junior
Subordinated Debt Securities (together with interest thereon accrued at a
variable annual rate equal to LIBOR plus 1.00%, compounded quarterly, to the
extent permitted by applicable law), and subject to the foregoing limitations,
the Corporation may elect to begin a new Extension Period. No interest or
other amounts shall be due and payable during an Extension Period, except at
the end thereof. The Corporation must give the Property Trustee, the
Administrative Trustees and the Debenture Trustee notice of its election of
any such Extension Period at least three 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 Administrative Trustees 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
three Business Days prior to such record date. The Debenture Trustee shall
give notice of the Corporation's election to begin or extend an Extension
Period to the holders of the Capital Securities. There is no limitation on the
number of times that the Corporation may elect to begin an Extension Period.
See "Description of New Junior Subordinated Debt Securities--Option to Extend
Interest Payment Date" and "Certain United States Federal Income Tax
Consequences--Interest Income and Original Issue Discount."
The Corporation has no current intention of exercising its right to defer
payments of interest on the Junior Subordinated Debt Securities.
The revenue of the Trust available for distribution to holders of the
Capital Securities will be limited to payments under the Junior Subordinated
Debt Securities in which the Trust will invest the proceeds from the issuance
and sale of the Trust Securities. See "Description of New Junior Subordinated
Debt Securities--General." If the Corporation does not make interest payments
on the Junior Subordinated Debt Securities, 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 legally available for
the payment of such Distributions and cash sufficient to make such payments)
is guaranteed by the Corporation on a limited basis as set forth herein under
"Description of New Guarantee."
MANDATORY REDEMPTION
The Junior Subordinated Debt Securities will mature on April 15, 2027. The
Junior Subordinated Debt Securities may be redeemed by the Corporation, in
whole or in part, at any time and from time to time on or
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after April 15, 2007, at par, plus accrued and unpaid interest thereon to the
date of redemption. In addition, the Junior Subordinated Debt Securities may
be redeemed by the Corporation at any time, in whole but not in part, in
certain circumstances described herein upon the occurrence and continuation of
a Tax Event or a Capital Treatment Event, within 90 days following the
occurrence of such Tax Event or Capital Treatment Event, as the case may be,
at par, plus accrued and unpaid interest thereon to the date of redemption,
upon not less than 30 nor more than 60 days' notice to holders of such Junior
Subordinated Debt Securities. In each case, the right of the Corporation to
redeem the Junior Subordinated Debt Securities is subject to the Corporation
having received prior approval from the Federal Reserve, if then required
under applicable capital guidelines or policies of the Federal Reserve.
Upon the repayment in full at maturity or redemption in whole or in part of
the Junior Subordinated Debt Securities (other than following the distribution
of the Junior Subordinated Debt Securities to the holders of the Trust
Securities), the proceeds from such repayment or payment shall concurrently be
applied to redeem on a pro rata basis at the Redemption Price, Trust
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Junior Subordinated Debt Securities so repaid or
redeemed; provided, however, that holders of such Trust Securities shall be
given not less than 30 nor more than 60 days' notice of such redemption (other
than at the Stated Maturity of the Junior Subordinated Debt Securities). See
"Description of New Junior Subordinated Debt Securities--Optional Redemption."
In the event that fewer than all of the outstanding Capital Securities are to
be redeemed, the Capital Securities held in book-entry form will be redeemed
in accordance with the procedures of DTC as described under "--Form,
Denominations, Book-Entry Procedures and Transfer."
"Tax Event" means the receipt by the Trust or the Corporation of an opinion
of a nationally recognized independent tax counsel to the Corporation
experienced in such matters to the effect that, as a result of (a) 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, (b) any judicial decision
or official administrative pronouncement, ruling, regulatory procedure, notice
or announcement, including any notice or announcement of intent to adopt such
procedures or regulations (an "Administrative Action") or (c) any amendment to
or change in the administrative position or interpretation of any
Administrative Action or judicial decision that differs from the theretofore
generally accepted position, in each case, by any legislative body, court,
governmental agency or regulatory body, irrespective of the manner in which
such amendment or change is made known, which amendment or change is effective
or such Administrative Action or decision is announced, in each case, on or
after the Issue Date, there is more than an insubstantial risk that (x) if the
Trust holds the Junior Subordinated Debt Securities, (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 interest accrued or received on the Junior
Subordinated Debt Securities or subject to more than a de minimis amount of
other taxes, duties or other governmental charges as determined by such
counsel, or (ii) any portion of interest payable by the Corporation to the
Trust on the Junior Subordinated Debt Securities is not, or within 90 days of
the date of such opinion will not be, deductible by the Corporation in whole
or in part for United States federal income tax purposes or (y) with respect
to Junior Subordinated Debt Securities which are no longer held by the Trust,
any portion of interest payable by the Corporation on the Junior Subordinated
Debt Securities is not, or within 90 days of the date of such opinion will not
be, deductible by the Corporation in whole or in part for United States
federal income tax purposes.
"Capital Treatment Event" means the Corporation shall have received an
opinion of independent bank regulatory counsel experienced in such matters to
the effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any rules or regulations
thereunder) of the United States or any political subdivision thereof or
therein or any rules, guidelines or policies of the Federal Reserve or (b) 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 Issue Date of the Capital Securities, the Corporation will not be
entitled to treat the Capital Securities as "Tier 1 Capital" (or the
equivalent thereof) for purposes of the risk-based capital adequacy
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guidelines of the Federal Reserve, as then in effect and applicable to the
Corporation; provided, however, that the distribution of the Junior
Subordinated Debt Securities in connection with the liquidation of the Trust
by the Corporation shall not in and of itself constitute a Capital Treatment
Event.
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, the Corporation will pay as
additional amounts on the Junior Subordinated Debt Securities the Additional
Sums (as defined below).
"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.
REDEMPTION PROCEDURES
Trust Securities shall be redeemed, if at all, at the Redemption Price with
the proceeds from the contemporaneous repayment or redemption of the Junior
Subordinated Debt Securities. Redemptions of the Trust Securities shall be
made and the Redemption Price shall be payable on each Redemption Date (as
defined below) only to the extent that the Trust has funds on hand available
for the payment of such Redemption Price. See also "--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 date fixed for
redemption (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 Redemption Price
and will give DTC irrevocable instructions and authority to pay the Redemption
Price to the holders of the Capital Securities. See "--Form, Denomination,
Book-Entry Procedures and Transfer." 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 Redemption Price and will give such
paying agent irrevocable instructions and authority to pay the 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 the 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 Capital Securities will cease, except the right
of the holders of the Capital Securities to receive the Redemption Price, but
without interest on such Redemption Price, and the Capital Securities will
cease to be outstanding. In the event that any date fixed for redemption of
Capital Securities is not a Business Day, then payment of the 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), except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day. In the
event that payment of the Redemption Price is improperly withheld or refused
and not paid either by the Trust or by the Corporation pursuant to the
Guarantee as described under "Description of New 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
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.
Subject to applicable law (including, without limitation, United States
federal securities law), the Corporation 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.
Notice of any redemption (other than at the Stated Maturity of the Junior
Subordinated Debt Securities) will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each holder of Trust Securities at
its registered address. Unless the Corporation defaults in payment of the
Redemption Price on, or in
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the repayment of, the Junior Subordinated Debt Securities, on and after the
Redemption Date, Distributions will cease to accrue on the Trust Securities
called for redemption.
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBT
SECURITIES
The Corporation, as the holder of the outstanding Common Securities, will
have the right at any time (including, without limitation, upon the occurrence
of a Tax Event or Capital Treatment Event) to terminate the Trust and cause a
Like Amount of the Junior Subordinated Debt Securities to be distributed to
the holders of the Trust Securities upon liquidation of the Trust; provided,
however, that following such distribution of the Junior Subordinated Debt
Securities, the Corporation agrees to use its best efforts to maintain any
ratings of such Junior Subordinated Debt Securities by any nationally
recognized rating agency for so long as any such Junior Subordinated Debt
Securities are outstanding. Such right to terminate is subject to prior
approval of the Federal Reserve if then required under applicable capital
guidelines or policies of the Federal Reserve.
Upon liquidation of the Trust and certain other events, the Junior
Subordinated Debt Securities may be distributed to holders of the Capital
Securities. Under current United States federal income tax law, a distribution
of Junior Subordinated Debt Securities upon the dissolution of the Trust would
not be a taxable event to holders of the Capital Securities. If, however, the
Trust is characterized for United States federal income tax purposes as an
association taxable as a corporation at the time of dissolution of the Trust,
the distribution of the Junior Subordinated Debt Securities may constitute a
taxable event to holders of Capital Securities. See "Certain United States
Federal Income Tax Consequences--Distribution of Junior Subordinated Debt
Securities to Holders of Capital Securities."
The Trust shall automatically terminate upon the first to occur of: (i)
certain events of bankruptcy, dissolution or liquidation of the Corporation;
(ii) the distribution of a Like Amount of the Junior Subordinated Debt
Securities to the holders of the Trust Securities if the Corporation, as
Depositor, has given written direction to the Property Trustee to terminate
the Trust (which direction is optional and, except as described above, wholly
within the discretion of the Corporation, as Depositor); (iii) redemption of
all of the Trust Securities as described under "--Mandatory Redemption" above;
(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 termination 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 such Trust Securities a Like Amount of the
Junior Subordinated Debt Securities, unless such distribution would not be
practical, in which event such holders will be entitled to receive out 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, in the case of holders of Capital Securities, the aggregate
of the Liquidation Amount plus accumulated 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 (or an event that, with notice or passage of time,
would become such an Event of Default) or an Event of Default under the
Declaration has occurred and is continuing, the Capital Securities shall have
a priority over the Common Securities with respect to any such distributions.
See "--Subordination of Common Securities." If an early termination occurs as
described in clause (v) above, the Junior Subordinated Debt Securities will be
subject to optional redemption in whole (but not in part).
"Like Amount" means (i) with respect to a redemption of Capital Securities,
Capital Securities having a Liquidation Amount equal to that portion of the
principal amount of Junior Subordinated Debt Securities to be
contemporaneously redeemed in accordance with the Indenture, allocated to the
Common Securities and to the Capital Securities based upon the relative
Liquidation Amounts of such classes and the proceeds of which will
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be used to pay the Redemption Price of the Capital Securities and (ii) with
respect to a distribution of Junior Subordinated Debt Securities to holders of
Capital Securities in connection with a dissolution or liquidation of the
Trust, Junior Subordinated Debt Securities having a principal amount equal to
the Liquidation Amount of the Trust Securities of the holder to whom such
Junior Subordinated Debt Securities are distributed.
If the Corporation elects not to redeem the Junior Subordinated Debt
Securities prior to maturity and the Trust is not liquidated and the Junior
Subordinated Debt Securities are not distributed to holders of the Trust
Securities, the Capital Securities will remain outstanding until the repayment
of the Junior Subordinated Debt Securities at the Stated Maturity.
After the liquidation date is fixed for any distribution of Junior
Subordinated Debt Securities 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 Junior
Subordinated Debt Securities to be delivered upon such distribution with
respect to Capital Securities held by DTC or its nominee and (iii) any
certificates representing Capital Securities not held by DTC or its nominee
will be deemed to represent Junior Subordinated Debt Securities 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 accumulated
and unpaid Distributions on such Capital Securities until such certificates
are presented to the Administrative Trustees or their agent for cancellation,
whereupon the Corporation will issue to such holder, and the Debenture Trustee
will authenticate, a certificate representing such Junior Subordinated Debt
Securities.
There can be no assurance as to the market prices for the Capital Securities
or the Junior Subordinated Debt Securities that may be distributed in exchange
for the Trust Securities if a dissolution and liquidation of the Trust were to
occur. Accordingly, the Capital Securities that an investor may purchase, or
the Junior Subordinated Debt Securities 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 Capital Securities offered hereby.
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 to the
holders of Capital Securities and Common Securities based on the Liquidation
Amount of the Trust Securities, provided that, if on any Distribution Date or
Redemption Date any Debenture Event of Default (or an event that, with notice
or passage of time, would become such an Event of Default) or an Event of
Default under the Declaration shall have occurred and be continuing, no
payment of any Distribution on, or Redemption Price of, any of the Common
Securities, and no other payment on account of the redemption, liquidation or
other acquisition of such 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 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 the Redemption Price of, the Capital Securities then due
and payable.
In the case of any Event of Default under the Declaration resulting from a
Debenture Event of Default, the Corporation as holder of the Common Securities
will be deemed to have waived any right to act with respect to any such Event
of Default under the Declaration until the effect of all such Events of
Default have been cured, waived or otherwise eliminated. Until all such Events
of Default under the Declaration have been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the holders of
such Capital Securities and not on behalf of the Corporation 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
Declaration (an "Event of Default") (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be
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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
New Junior Subordinated Debt Securities--Debenture Events of Default");
(ii) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of
30 days;
(iii) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable;
(iv) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Issuer Trustees in the Declaration (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 Issuer 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 Declaration; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by the Corporation to
appoint a successor Property Trustee within 60 days thereof.
Within five Business 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
Administrative Trustees and the Corporation, as Depositor, unless such Event
of Default shall have been cured or waived. The Corporation, as Depositor, and
the Administrative Trustees 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 Declaration.
If a Debenture Event of Default (or an event that with notice or the passage
of time, would become such an Event of Default) or an Event of Default under
the Declaration has occurred and is continuing, the Capital Securities shall
have a preference over the Common Securities as described above. See "--
Liquidation of the Trust and Distribution of Junior Subordinated Debt
Securities" and "--Subordination of Common Securities."
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 Administrative Trustees, which
voting rights are vested exclusively in the Corporation 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
Declaration.
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 Corporation, as the holder of the Common
Securities, and the Administrative Trustees 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 Declaration. In case a Debenture Event of
Default has occurred and is continuing, the Property Trustee alone shall have
power to make such appointment.
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MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural person 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 Issuer Trustee shall be a party, or
any person succeeding to all or substantially all the corporate trust business
of such Issuer Trustee, shall be the successor of such Issuer Trustee under
the Declaration, provided such person 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 person, except as described below or as
otherwise set forth in the Declaration. The Trust may, at the request of the
Corporation, as Depositor, with the consent of the Administrative Trustees but
without the consent of the holders of the Capital Securities, the Property
Trustee or the Delaware Trustee, 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, however, 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 Corporation
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 Debt Securities, (iii) the Successor Securities are listed or
traded, or any Successor Securities will be listed or traded 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 identical and limited to that of the Trust, (vii) prior to such
merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Corporation 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 (the "Investment Company Act") and (viii)
the Corporation 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 an association taxable
as a corporation or as other than a grantor trust for United States federal
income tax purposes.
VOTING RIGHTS; AMENDMENT OF THE DECLARATION
Except as provided below and under "Description of New Guarantee--Amendments
and Assignment" and as otherwise required by law and the Declaration, the
holders of the Capital Securities will have no voting rights.
The Declaration may be amended from time to time by the Corporation, the
Property Trustee and the Administrative Trustees, without the consent of the
holders of the Trust Securities, (i) to cure any ambiguity,
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correct or supplement any provision in the Declaration that may be
inconsistent with any other provision, or to make any other provisions with
respect to matters or questions arising under the Declaration, which shall not
be inconsistent with the other provisions of the Declaration, or (ii) to
modify, eliminate or add to any provisions of the Declaration 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 or as other than an
association taxable as a corporation 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 Declaration shall become effective when
notice thereof is given to the holders of the Trust Securities. The
Declaration may be amended by the Issuer Trustees and the Corporation with (i)
the consent of holders representing not less than a majority (based upon
Liquidation Amounts) of the outstanding Capital 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 cause the Trust to be classified as an
association taxable as a corporation or 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. In
addition, without the consent of each holder of Trust Securities, the
Declaration 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 Debt Securities 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 the Property Trustee with respect
to the Junior Subordinated Debt Securities, (ii) waive any past default that
is waivable under Section 5.13 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior
Subordinated Debt Securities shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the Junior
Subordinated Debt Securities, 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 Debt Securities 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 Debt Securities. 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 as a result of such
action and such action would not cause the Trust to be classified as other
than a grantor trust for United States federal income tax purposes.
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
Declaration.
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
Declaration.
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 Corporation, the Issuer
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Trustees or any affiliate of the Corporation or any Issuer Trustees, shall,
for purposes of such vote or consent, be treated as if they were not
outstanding.
EXPENSES AND TAXES
In the Indenture, the Corporation, as borrower, has agreed to pay all debts
and other obligations (other than with respect to payments of Distributions,
amounts payable upon redemption and the Liquidation Amount of the Trust
Securities) and all costs and expenses of the Trust (including costs and
expenses relating to the organization of the Trust, the fees and expenses of
the Issuer Trustees and the costs and expenses relating to the operation of
the Trust) and the offering of the Capital Securities, and to pay any and all
taxes and all costs and expenses with respect to the foregoing (other than
United States withholding taxes) to which the Trust might become subject. The
foregoing obligations of the Corporation under the Indenture are for the
benefit of, and shall be enforceable by, any person to whom any such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice thereof. Any such Creditor may enforce such
obligations of the Corporation directly against the Corporation, and the
Corporation has irrevocably waived any right or remedy to require that any
such Creditor take any action against the Trust or any other person before
proceeding against the Corporation. The Corporation has also agreed in the
Indenture to execute such additional agreement(s) as may be necessary or
desirable to give full effect to the foregoing.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
In the event that Capital Securities are issued in certificated form, such
Capital Securities will be in blocks having a Liquidation Amount of $100,000
(100 Capital Securities) and integral multiples of $1,000 in excess thereof
and may be transferred or exchanged in such blocks in the manner and at the
offices described below.
The New Capital Securities initially will be represented by one or more
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 and only in amounts that would not cause a holder to own
less than 100 Capital Securities. Beneficial interests in the Global Capital
Securities may not be exchanged for Capital Securities in certificated form
except in the limited circumstances described below. In addition, transfer of
beneficial interests in the Global Capital Securities will be subject to the
applicable rules and procedures of DTC and its direct or indirect participants
which may change from time to time. See "--Exchange of Book-Entry Capital
Securities for Certificated Capital Securities."
Depositary Procedures
DTC has advised the Trust and the Corporation as follows: DTC is a limited
purpose trust company organized under the laws of the State of New York, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the Uniform Commercial Code and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act. DTC was 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
to accounts of its Participants, thereby eliminating the need for physical
movement of certificates. Participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other organizations.
Indirect 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 the Indirect Participants. The ownership interest and transfer
of ownership
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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 Corporation that, pursuant to
procedures established by it, ownership of 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 Global Capital Securities may hold their interests therein
directly through DTC, if they are Participants in DTC, or indirectly through
organizations which are Participants in such system. All interests in a Global
Capital Security will be subject to the procedures and requirements of DTC.
The laws of some states require that certain persons take physical delivery in
certificated form of certain securities, such as the Capital 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."
EXCEPT AS DESCRIBED BELOW, OWNERS OF BENEFICIAL INTERESTS IN THE GLOBAL
CAPITAL SECURITIES WILL NOT BE ENTITLED TO HAVE CAPITAL SECURITIES REGISTERED
IN THEIR NAMES, WILL NOT RECEIVE OR BE ENTITLED TO RECEIVE PHYSICAL DELIVERY
OF CAPITAL SECURITIES IN CERTIFICATED FORM AND WILL NOT BE CONSIDERED THE
REGISTERED OWNERS OR HOLDERS THEREOF UNDER THE DECLARATION 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 or its
nominee as the registered holder under the Declaration by wire transfer in
immediately available funds on each Distribution Date. Under the terms of the
Declaration, 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 Corporation 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 Global Capital 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 of Capital Securities represented by
Global Capital Securities held through such Participants 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.
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.
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DTC has advised the Trust and the Corporation that it will take any action
permitted to be taken by a holder of Capital Securities (including, without
limitation, the presentation of Capital Securities for exchange as described
below) 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 represented by the Global 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 Declaration, 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.
So long as DTC or its nominee is the registered owner of the Global Capital
Securities, DTC or such nominee, as the case may be, will be considered the
sole owner or holder of the Capital Securities represented by the Global
Capital Security for all purposes under the Declaration.
Neither DTC nor its nominee will consent or vote with respect to the Capital
Securities. Under its usual procedures, DTC would mail an omnibus proxy to the
Trust as soon as possible after the record date. The omnibus proxy assigns the
consenting or voting rights of DTC or its nominee to those Participants to
whose accounts the Capital Securities are credited on the record date
(identified in a listing attached to the omnibus proxy).
The information in this section concerning DTC and its book-entry system has
been obtained from sources that the Trust and the Corporation believe to be
reliable, but neither the Trust nor the Corporation takes responsibility for
the accuracy thereof.
Although DTC has agreed to the foregoing procedures to facilitate transfers
of interest in the Global Capital Securities among Participants in DTC, it is
under no obligation to perform or to continue to perform such procedures, and
such procedures may be discontinued at any time. Neither the Trust nor the
Property Trustee will have any responsibility for the performance by DTC or
its 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 no
longer willing or able to properly discharge its responsibilities with respect
to the Capital Securities and the Corporation is unable to locate a qualified
successor, or (y) has ceased to be a "clearing agency" registered under the
Exchange Act; (ii) the Trust at its sole option elects to terminate the book-
entry system through DTC; or (iii) there shall have occurred and be continuing
a Debenture Event of Default. In addition, beneficial interests in a Global
Capital Security may be exchanged by or on behalf of DTC for certificated
Capital Securities upon request by DTC, but only upon at least 20 days prior
written notice given to the Property Trustee in accordance with DTC's
customary procedures. 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 DTC (in accordance with its customary
procedures).
PAYMENT AND PAYING AGENCY
Payments in respect of the Capital Securities held in global form shall be
made to DTC, which shall credit the relevant accounts at DTC on the applicable
Distribution Dates or in respect of the Capital Securities that are not held
by DTC, 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") initially is the Property Trustee and any
co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Corporation. The Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the
Property Trustee, the Administrative Trustees and the Corporation. In the
event that the Property Trustee shall no longer be the Paying Agent, the
Administrative Trustees shall appoint a successor (which shall be a bank or
trust company acceptable to the Administrative Trustees and the Corporation)
to act as Paying Agent.
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The Bank of New York has informed the Trust that so long as it serves as
paying agent for the Capital Securities, it anticipates that information
regarding Distributions on the Capital Securities, including payment date,
record date and redemption information, will be made available through The
Bank of New York at 101 Barclay Street, New York, New York 10286, Attn:
Corporate Trust Department.
RESTRICTIONS ON TRANSFER
The New Capital Securities will be issued, and may be transferred only, in
blocks having a liquidation amount (the "Liquidation Amount") of $100,000 (100
Capital Securities) and integral multiples of $1,000 in excess thereof. Any
attempted transfer, sale or other disposition of New 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 New Capital Securities for any purpose, including
but not limited to the receipt of Distributions on such New Capital
Securities, and such transferee shall be deemed to have no interest whatsoever
in such New Capital Securities.
REGISTRAR AND TRANSFER AGENT
The Property Trustee is acting as the 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 or exchange 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 Declaration and, during the existence of an 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 Declaration 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 causes of action, construe ambiguous provisions in
the Declaration or is unsure of the application of any provision of the
Declaration, and the matter is not one on which holders of the Capital
Securities or the Common Securities are entitled under the Declaration to
vote, then the Property Trustee shall take such action as is directed by the
Corporation 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 Administrative Trustees 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 or as other than a
grantor trust for United States federal income tax purposes, and so that the
Junior Subordinated Debt Securities will be treated as indebtedness of the
Corporation for United States federal income tax purposes. In this connection,
the Corporation and the Administrative Trustees are authorized to take any
action, not inconsistent with applicable law, the certificate of trust of the
Trust or the Declaration, that the Corporation and the Administrative Trustees
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 NEW JUNIOR SUBORDINATED DEBT SECURITIES
The Old Junior Subordinated Debt Securities were issued, and the New Junior
Subordinated Debt Securities 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 Debt
Securities 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. The Indenture is attached as an exhibit to the
Registration Statement.
GENERAL
Concurrently with the issuance of the Old Capital Securities and the Common
Securities, the Trust invested the proceeds thereof in the Junior Subordinated
Debt Securities issued by the Corporation. The Junior Subordinated Debt
Securities bear interest at a variable annual rate equal to LIBOR plus 1.00%,
payable quarterly in arrears on the 15th day of January, April, July and
October of each year (each, an "Interest Payment Date"), commencing July 15,
1997, to the person in whose name each Junior Subordinated Debt Security 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 of the Trust, each Junior Subordinated Debt
Security 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 the actual number of days
elapsed in a year of twelve 30-day months. In the event that any date on which
interest is payable on the Junior Subordinated Debt Securities 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), 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 a variable
annual rate equal to LIBOR plus 1.00%, compounded quarterly from the relevant
Interest Payment Date. The term "interest" as used herein shall include
quarterly payments, interest on quarterly interest payments not paid on the
applicable Interest Payment Date and Additional Sums, as applicable. Unless
previously redeemed or repurchased, the Junior Subordinated Debt Securities
will mature on April 15, 2027. See "--Optional Redemption."
Pursuant to the Exchange Offer, the Corporation will exchange the Old Junior
Subordinated Debt Securities for the New Junior Subordinated Debt Securities
as soon as practicable after the date hereof. No Old Junior Subordinated Debt
Securities will remain outstanding after such exchange. The Junior
Subordinated Debt Securities are unsecured and rank junior and be subordinate
in right of payment to all Senior Debt. Because the Corporation is a bank
holding company, the right of the Corporation to participate in any
distribution of assets of any subsidiary, including the 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 such subsidiary,
except to the extent that the Corporation may itself be recognized as a
creditor of such subsidiary. Accordingly, the Junior Subordinated Debt
Securities will be subordinated to all Senior Debt and effectively
subordinated to all existing and future liabilities of the Corporation's
subsidiaries, and holders of Junior Subordinated Debt Securities should look
only to the assets of the Corporation for payments on the Junior Subordinated
Debt Securities. The Indenture does not limit the incurrence or issuance of
other secured or unsecured debt of the Corporation, including Senior Debt,
whether under the Indenture or any existing or other indenture that the
Corporation may enter into in the future or otherwise. See "--Subordination."
The Junior Subordinated Debt Securities rank pari passu with all Other
Debentures issued under the Indenture and are unsecured and subordinate and
junior in right of payment to the extent and in the manner set forth in the
Indenture to all Senior Debt of the Corporation. See "--Subordination." As a
holding company, the Corporation conducts its operations principally through
its subsidiaries and, therefore, its principal source of cash, other than its
investing and financing activities, is receipt of dividends from the Bank. The
Corporation is a
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legal entity separate and distinct from the Bank and its other subsidiaries.
See "Risk Factors--Ranking of Obligations Under the Guarantee and the Junior
Subordinated Debt Securities" and "--Status of the Corporation as a Bank
Holding Company." The Bank is subject to certain restrictions imposed by
federal law on any extensions of credit to, and certain other transactions
with, the Corporation and certain other affiliates, and on investments in
stock or other securities thereof. Such restrictions prevent the Corporation
and such other affiliates from borrowing from the Bank unless the loans are
secured by various types of collateral. In addition, payment of dividends to
the Corporation by the Bank is subject to ongoing review by banking regulators
and is subject to various statutory limitations and in certain circumstances
requires approval by banking regulatory authorities. The Other Debentures will
be issuable in one or more series pursuant to an indenture supplemental to the
Indenture or a resolution of the Corporation's Board of Directors or a
committee thereof.
DENOMINATIONS, REGISTRATION AND TRANSFER
The Junior Subordinated Debt Securities will be represented by one or more
global certificates registered in the name of Cede & Co. as the nominee of DTC
if, and only if, distributed to the holders of the Trust Securities. Until
such time, the Junior Subordinated Debt Securities will be held in the name of
the Property Trustee in trust for the benefit of the holders of the Trust
Securities. Should the Junior Subordinated Debt Securities be distributed to
holders of the Trust Securities, beneficial interests in the Junior
Subordinated Debt Securities will be shown on, and transfers thereof will be
effected only through, records maintained by Participants in DTC. Except as
described below, Junior Subordinated Debt Securities in certificated form will
not be issued in exchange for the global certificates.
A global security shall be exchangeable for Junior Subordinated Debt
Securities registered in the names of persons other than Cede & Co. only if
(i) DTC notifies the Corporation that it is unwilling or unable to continue as
a depositary for such global security and no successor depositary shall have
been appointed, 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, (ii) the Corporation 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 Junior
Subordinated Debt Securities are issued in certificated form, such Junior
Subordinated Debt Securities will be in minimum blocks having an aggregate
principal amount 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 Junior Subordinated Debt Securities represented by a global
security will be made to DTC, as the depositary for the Junior Subordinated
Debt Securities. In the event Junior Subordinated Debt Securities are issued
in certificated form, principal and interest will be payable, the transfer of
the Junior Subordinated Debt Securities will be registrable, and Junior
Subordinated Debt Securities will be exchangeable for Junior Subordinated Debt
Securities 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 Corporation,
provided that payment of interest may be made at the option of the Corporation
by check mailed to the address of the persons entitled thereto or by wire
transfer.
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 New Capital Securities--Form,
Denomination, Book-Entry Procedures and Transfer." If the Junior Subordinated
Debt Securities 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 New Capital Securities--Form, Denomination, Book-Entry
Procedures and Transfer," shall apply to the Junior Subordinated Debt
Securities mutatis mutandis.
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PAYMENT AND PAYING AGENTS
Payment of principal of and any interest on Junior Subordinated Debt
Securities 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
Corporation may designate from time to time, except that at the option of the
Corporation payment of any interest may be made (except in the case of Junior
Subordinated Debt Securities in global form), (i) by check mailed to the
address of the person entitled thereto as such address shall appear in the
register for Junior Subordinated Debt Securities or (ii) by wire transfer to
an account specified 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 Debt
Security will be made to the person in whose name such Junior Subordinated
Debt Security is registered at the close of business on the Record Date for
such interest, except in the case of defaulted interest. The Corporation may
at any time designate additional Paying Agents or rescind the designation of
any Paying Agent; however the Corporation will at all times be required to
maintain a Paying Agent in each Place of Payment for the Junior Subordinated
Debt Securities.
Any moneys deposited with the Debenture Trustee or any Paying Agent, or then
held by the Corporation in trust, for the payment of the principal of or
interest on any Junior Subordinated Debt Security and remaining unclaimed for
two years after such principal or interest has become due and payable shall,
at the request of the Corporation, be repaid to the Corporation and the holder
of such Junior Subordinated Debt Security shall thereafter look, as a general
unsecured creditor, only to the Corporation for payment thereof.
OPTION TO EXTEND INTEREST PAYMENT DATE
So long as no Debenture Event of Default has occurred and is continuing, the
Corporation has the right under the Indenture to defer the payment of interest
on the Junior Subordinated Debt Securities at any time or from time to time
for a period not exceeding 20 consecutive quarterly periods with respect to
each Extension Period, provided, that no Extension Period may extend beyond
the Stated Maturity of the Junior Subordinated Debt Securities. At the end of
an Extension Period, the Corporation must pay all interest then accrued and
unpaid on the Junior Subordinated Debt Securities (together with interest
thereon accrued at a variable annual rate equal to LIBOR plus 1.00%,
compounded quarterly from the relevant Interest Payment Date, to the extent
permitted by applicable law). During an Extension Period and for so long as
the Junior Subordinated Debt Securities remain outstanding, interest will
continue to accrue and holders of Junior Subordinated Debt Securities (and
holders of the Capital Securities while Capital Securities are outstanding)
will be required to accrue interest income (in the form of OID) for United
States federal income tax purposes. See "Certain United States Federal Income
Tax Consequences--Interest Income and Original Issue Discount."
During any Extension Period, the Corporation may not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Corporation's capital stock
(which includes common and preferred stock), (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Corporation (including any Other Debentures) that rank
pari passu with or junior in interest to the Junior Subordinated Debt
Securities or (iii) make any guarantee payments with respect to any guarantee
by the Corporation of the debt securities of any subsidiary of the Corporation
(including any Other Guarantees) if such guarantee ranks pari passu with or
junior in interest to the Junior Subordinated Debt Securities (other than (a)
dividends or distributions in Common Stock of the Corporation, (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, (d) purchases or acquisitions of shares of
the Corporation's Common Stock in connection with the satisfaction by the
Corporation of its obligations under any employee benefit plan or any other
contractual obligation of the Corporation (other than a contractual obligation
ranking pari passu with or junior to the Junior Subordinated Debt Securities),
(e) as a result of a reclassification of the Corporation's capital stock or
the exchange or conversion of one class or series of the Corporation's capital
stock for another class or series of the Corporation's capital stock or (f)
the purchase of fractional interests in shares of the Corporation's capital
stock pursuant to the conversion or exchange provisions of such capital stock
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or the security being converted or exchanged). Prior to the termination of any
Extension Period the Corporation may further extend such Extension Period,
provided, however, that such extension does not cause such Extension Period to
exceed 20 consecutive quarterly periods or to extend beyond the Stated
Maturity of the Junior Subordinated Debt Securities. Upon the termination of
any Extension Period and the payment of all interest then accrued and unpaid
on the Junior Subordinated Debt Securities (together with interest thereon
accrued at a variable annual rate equal to LIBOR plus 1.00%, compounded
quarterly, to the extent permitted by applicable law), and subject to the
foregoing limitations, the Corporation may elect to begin a new Extension
Period. No interest shall be due and payable during an Extension Period,
except at the end thereof. The Corporation must give the Property Trustee, the
Administrative Trustees and the Debenture Trustee notice of its election of
any Extension Period (or an extension thereof) at least three 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 or extend
such Extension Period or (ii) the date the Administrative Trustees are
required to give notice to any automated quotation system or to holders of
Capital Securities of the record date or the date such Distributions are
payable, but in any event not less than three Business Days prior to such
record date. The Debenture Trustee shall give notice of the Corporation'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
Corporation may elect to begin an Extension Period.
OPTIONAL REDEMPTION
The Corporation may redeem the Junior Subordinated Debt Securities, in whole
or in part, at any time and from time to time, on or after April 15, 2007 upon
not less than 30 nor more than 60 days' notice, at par plus accrued and unpaid
interest to the redemption date. In addition, the Junior Subordinated Debt
Securities may be redeemed by the Corporation at any time, in whole but not in
part, in certain circumstances described herein upon the occurrence and
continuation of a Tax Event or a Capital Treatment Event, upon not less than
30 nor more than 60 days' notice, within 90 days following the occurrence of
such Tax Event or Capital Treatment Event, as the case may be, at par, plus
any accrued and unpaid interest thereon to the redemption date. In each case,
the right of the Corporation to redeem the Junior Subordinated Debt Securities
is subject to the receipt by the Corporation of prior approval from the
Federal Reserve, if then required under applicable capital guidelines or
policies of the Federal Reserve. See "Description of New Capital Securities--
Mandatory Redemption."
INTEREST
The Junior Subordinated Debt Securities bear interest at a variable annual
rate equal to LIBOR plus 1.00%, from the original date of issuance of the Old
Junior Subordinated Debt Securities, payable quarterly in arrears on the 15th
day of January, April, July and October of each year, commencing July 15,
1997, to the person in whose name such Junior Subordinated Debt Security is
registered, subject to certain exceptions, at the close of business on the
Business Day next preceding such Interest Payment Date. The term "interest" as
used herein, as such term relates to the Junior Subordinated Debt Securities,
includes any compounded interest or Additional Sums or any Additional
Distributions payable unless otherwise stated. In the event the Junior
Subordinated Debt Securities are not held solely in book-entry only form, the
Corporation will select relevant record dates, which shall be 15 days prior to
the relevant Interest Payment Date.
The Bank of New York, as Calculation Agent (the "Calculation Agent"), will
calculate the interest rate for each quarterly interest period based on LIBOR
determined as of two London Business Days (defined as any day, other than a
Saturday or Sunday, on which banks are open for business in London) prior to
the first day of such interest period (each, a "Determination Date"). "LIBOR"
means, with respect to a quarterly interest period relating to an Interest
Payment Date (in the following order of priority):
(i) the rate (expressed as a percentage per annum) for Eurodollar
deposits having a three-month maturity that appears on Telerate Page 3750
as of 11:00 a.m. (London time) on the related Determination Date;
(ii) if such rate does not appear on Telerate Page 3750 as of 11:00 a.m.
(London time) on the related Determination Date, LIBOR will be the
arithmetic mean (if necessary rounded upwards to the nearest whole
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multiple of .00001%) of the rates (expressed as percentages per annum) for
Eurodollar deposits having a three-month maturity that appear on Reuters
Monitor Money Rates Page LIBO ("Reuters Page LIBO") as of 11:00 a.m.
(London time) on such Determination Date;
(iii) if such rate does not appear on Reuters Page LIBO as of 11:00 a.m.
(London time) on the related Determination Date, the Calculation Agent will
request the principal London offices of four leading banks in the London
interbank market to provide such banks' offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for
Eurodollar deposits having a three-month maturity as of 11:00 a.m. (London
time) on such Determination Date. If at least two quotations are provided,
LIBOR will be the arithmetic mean (if necessary rounded upwards to the
nearest whole multiple of .00001%) of such quotations;
(iv) if fewer than two such quotations are provided as requested in
clause (iii) above, the Calculation Agent will request four major New York
City banks to provide such banks' offered quotations (expressed as
percentages per annum) to leading European banks for loans in Eurodollars
as of 11:00 a.m. (London time) on such Determination Date. If at least two
such quotations are provided, LIBOR will be the arithmetic mean (if
necessary rounded upwards to the nearest whole multiple of .00001%) of such
quotations; and
(v) if fewer than two such quotations are provided as requested in clause
(iv) above, LIBOR will be LIBOR determined with respect to the interest
period immediately preceding such current interest period.
If the rate for Eurodollar deposits having a three-month maturity that
initially appears on Telerate Page 3750 or Reuters Page LIBO, as the case may
be, as of 11:00 a.m. (London time) on the related Determination Date is
superseded on Telerate Page 3750 or Reuters Page LIBO, as the case may be, by
a corrected rate before 12:00 noon (London time) on such Determination Date,
the corrected rate as so substituted on the applicable page will be the
applicable LIBOR for such Determination Date.
LIBOR for the initial interest period (commencing upon the original issuance
of the Old Junior Subordinated Debt Securities) shall be determined as
provided above.
Absent manifest error, the Calculation Agent's determination of LIBOR and
its calculation of the applicable interest rate for each interest period will
be final and binding. Investors may obtain the interest rates for the current
and preceding interest period by writing or calling the office of Corporate
Trust Administration at the Calculation Agent at The Bank of New York, 101
Barclay Street, New York, New York 10286.
The amount of interest payable for any period will be computed on the basis
of the actual number of days elapsed in a year of twelve 30-day months. In the
event that any date on which interest is payable on the Junior Subordinated
Debt Securities 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) with the
same force and effect as if made on such date.
ADDITIONAL SUMS
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, the Corporation will pay as
additional amounts on the Junior Subordinated Debt Securities such amounts as
shall be required so that the Distributions payable by the Trust shall not be
reduced as a result of any such additional taxes, duties or other governmental
charges. The Corporation has covenanted in the Indenture that, if and so long
as (i) the Trust is the holder of all Junior Subordinated Debt Securities and
(ii) a Tax Event in respect of the Trust has occurred and is continuing, it
will pay Additional Sums (as defined under "Description of New Capital
Securities--Mandatory Redemption") in respect of such Trust Securities to the
Trust.
RESTRICTIONS ON CERTAIN PAYMENTS
The Corporation has also covenanted that it will not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Corporation's capital stock
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(which includes common and preferred stock), (ii) make any payment of
principal, interest or premium, if any, on or repay or repurchase or redeem
any debt securities of the Corporation (including Other Debentures) that rank
pari passu with or junior in interest to the Junior Subordinated Debt
Securities or (iii) make any guarantee payments with respect to any guarantee
by the Corporation of the debt securities of any subsidiary of the Corporation
(including under Other Guarantees) if such guarantee ranks pari passu with or
junior in interest to the Junior Subordinated Debt Securities (other than (a)
dividends or distributions in Common Stock of the Corporation, (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, (d) purchases or acquisitions of shares of
the Corporation's Common Stock in connection with the satisfaction by the
Corporation of its obligations under any employee benefit plan or any other
contractual obligation of the Corporation (other than a contractual obligation
ranking pari passu with or junior in interest to the Junior Subordinated Debt
Securities), (e) as a result of a reclassification of the Corporation's
capital stock or the exchange or conversion of one class or series of the
Corporation's capital stock for another class or series of the Corporation's
capital stock or (f) the purchase of fractional interests in shares of the
Corporation's capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or exchanged), if at
such time (i) there shall have occurred a Debenture Event of Default, (ii) the
Corporation shall be in default with respect to its payment of any obligations
under the Guarantee or (iii) the Corporation 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 Corporation and the Debenture Trustee may, without the
consent of the holders of Junior Subordinated Debt Securities, 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 Debt Securities or the holders of the 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 Corporation and the Debenture Trustee, with
the consent of the holders of not less than a majority in principal amount of
outstanding Junior Subordinated Debt Securities, to modify the Indenture in a
manner affecting the rights of the holders of Junior Subordinated Debt
Securities; provided, however, that no such modification may, without the
consent of the holder of each outstanding Junior Subordinated Debt Security so
affected, change the Stated Maturity, or reduce the principal amount of the
Junior Subordinated Debt Securities, or reduce the rate or extend the time of
payment of interest thereon or reduce the percentage of principal amount of
Junior Subordinated Debt Securities, or have certain other effects as set
forth in the Indenture.
In addition, the Corporation and the Debenture Trustee may execute, without
the consent of any holder of Junior Subordinated Debt Securities, any
supplemental Indenture for the purpose of creating any Other Debentures.
DEBENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events with respect to the Junior Subordinated Debt Securities that has
occurred and is continuing constitutes a "Debenture Event of Default":
(i) failure for 30 days to pay any interest on the Junior Subordinated
Debt Securities when due (subject to the deferral of any due date in the
case of an Extension Period);
(ii) failure to pay any principal on the Junior Subordinated Debt
Securities when due, whether at maturity, upon redemption, by declaration
of acceleration or otherwise;
(iii) failure to observe or perform in any material respect certain other
covenants contained in the Indenture for 90 days after written notice to
the Corporation from the Debenture Trustee or the holders of at least 25%
in aggregate outstanding principal amount of the Junior Subordinated Debt
Securities;
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(iv) certain events in bankruptcy, insolvency or reorganization of the
Corporation; or
(v) the voluntary or involuntary dissolution, winding-up or termination
of the Trust, except in connection with the distribution of the Junior
Subordinated Debt Securities to the holder of Trust Securities in
liquidation of the Trust, the redemption of all of the Trust Securities of
the Trust, or certain mergers, consolidations or amalgamations, each as
permitted by the Declaration.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debt Securities have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Debenture Trustee. The Debenture Trustee or the holders of not less than 25%
in aggregate outstanding principal amount of the Junior Subordinated Debt
Securities may declare the principal due and payable immediately upon a
Debenture Event of Default and, should the Debenture Trustee or such holders
of Junior Subordinated Debt Securities fail to make such declaration, the
holders of at least 25% in aggregate Liquidation Amount of the Capital
Securities shall have such right. The holders of a majority in aggregate
outstanding principal amount of the Junior Subordinated Debt Securities may
annul such declaration and waive the default if the default (other than the
non-payment of the principal of the Junior Subordinated Debt Securities which
has become due solely by such acceleration) 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.
Should the holders of Junior Subordinated Debt Securities fail to annul such
declaration and waive such default, the holders of a majority in aggregate
Liquidation Amount of the Capital Securities shall have such right.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debt Securities affected thereby may, on behalf of the
holders of all the Junior Subordinated Debt Securities, waive any past
default, except a default in the payment of principal of 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) on the Junior Subordinated Debt
Securities 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 Junior Subordinated Debt Security. Should the holders of such
Junior Subordinated Debt Securities fail to annul such declaration and waive
such default, the holders of a majority in aggregate Liquidation Amount of the
Capital Securities shall have such right. The Corporation is required to file
annually with the Debenture Trustee a certificate as to whether or not the
Corporation is in compliance with all the conditions and covenants applicable
to it under the Indenture.
In case a Debenture Event of Default shall occur and be continuing, the
Property Trustee will have the right to declare the principal of and the
interest on the Junior Subordinated Debt Securities, and any other amounts
payable under the Indenture, to be forthwith due and payable and to enforce
its other rights as a creditor with respect to the Junior Subordinated Debt
Securities.
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 Corporation to pay interest or
principal on the Junior Subordinated Debt Securities on the date such interest
or principal is otherwise payable, a holder of Capital Securities may
institute a Direct Action. The Corporation 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 the reporting obligations under the Exchange Act. Notwithstanding
any payments made to a holder of Capital Securities by the Corporation in
connection with a Direct Action, the Corporation shall remain obligated to pay
the principal of and interest on the Junior Subordinated Debt Securities, and
the Corporation 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 Corporation to such holder in any Direct
Action.
The holders of the Capital Securities will 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 Debt Securities unless there
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shall have been an Event of Default under the Declaration. See "Description of
New Capital Securities--Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that the Corporation shall not consolidate with or
merge with or into any other person or convey, transfer or lease its
properties and assets substantially as an entirety to any person, and no
person shall consolidate with or merge with or into the Corporation or convey,
transfer or lease its properties and assets substantially as an entirety to
the Corporation, unless (i) in case the Corporation consolidates with or
merges with or into another person or conveys or transfers its properties and
assets substantially as an entirety to any person, the successor person is
organized under the laws of the United States or any state or the District of
Columbia, and such successor person expressly assumes the Corporation's
obligations on the Junior Subordinated Debt Securities issued under the
Indenture; (ii) immediately after giving effect thereto, no Debenture Event of
Default, and no event which, after notice or lapse of time or both, would
become a Debenture Event of Default, shall have occurred and be continuing;
(iii) if at the time any Capital Securities are outstanding, such transaction
is permitted under the Declaration and the Guarantee and does not give rise to
any breach or violation of the Declaration or the Guarantee; and (iv) certain
other conditions as prescribed in the Indenture are met.
The general provisions of the Indenture do not afford holders of the Junior
Subordinated Debt Securities protection in the event of a highly leveraged or
other transaction involving the Corporation that may adversely affect holders
of the Junior Subordinated Debt Securities.
SUBORDINATION
In the Indenture, the Corporation has covenanted and agreed that any Junior
Subordinated Debt Securities issued thereunder shall be subordinate and junior
in right of payment to all Senior Debt to the extent provided in the
Indenture. Upon any payment or distribution of assets to creditors upon any
liquidation, dissolution, winding-up, reorganization, assignment for the
benefit of creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceeding of the Corporation, the holders of Senior Debt will
first be entitled to receive payment in full of principal of and interest, if
any, on such Senior Debt before the holders of Junior Subordinated Debt
Securities, or the Property Trustee on behalf of the holders, will be entitled
to receive or retain any payment or distribution in respect thereof.
In the event of the acceleration of the maturity of the Junior Subordinated
Debt Securities, the holders of all Senior Debt outstanding at the time of
such acceleration will first be entitled to receive payment in full of all
amounts due thereon (including any amounts due upon acceleration) before the
holders of the Junior Subordinated Debt Securities will be entitled to receive
or retain any payment in respect of the principal of or interest, if any, on
the Junior Subordinated Debt Securities.
In the event that the Corporation shall default in the payment of any
principal of or interest, if any, on any Senior Debt when the same becomes due
and payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise, then, unless and until such default
shall have been cured or waived or shall have ceased to exist or all Senior
Debt shall have been paid, no direct or indirect payment (in cash, property,
securities, by set-off or otherwise) shall be made or agreed to be made for
principal or interest, if any, on the Junior Subordinated Debt Securities, or
in respect of any redemption, repayment, retirement, purchase or other
acquisition of any of the Junior Subordinated Debt Securities.
"Senior Debt" means (a) the principal of, and premium, if any, and interest
on all indebtedness of the Corporation for money borrowed, whether outstanding
on the date of execution of the Indenture or thereafter created, assumed or
incurred, (b) all obligations to make payment pursuant to the terms of
financial instruments, such as (i) securities contracts and foreign currency
exchange contracts, (ii) derivative instruments, such as swap agreements
(including interest rate and foreign exchange rate swap agreements), cap
agreements, floor
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agreements, collar agreements, interest rate agreements, foreign exchange
agreements, options, commodity futures contracts and commodity options
contracts, and (iii) similar financial instruments; except, in the case of
both (a) and (b) above, such indebtedness and obligations that are expressly
stated to rank junior in right of payment to, or pari passu in right of
payment with, the Junior Subordinated Debt Securities, (c) and indebtedness or
obligations of others of the kind described in both (a) and (b) above for the
payment of which the Corporation is responsible or liable as guarantor or
otherwise, and (d) any deferrals, renewals or extensions of any such Senior
Debt; provided, however, that Senior Debt shall not be deemed to include (i)
any debt of the Corporation which, when incurred and without respect to any
election under Section 1111(b) of the United States Bankruptcy Code of 1978,
was without recourse to the Corporation, (ii) any debt of the Corporation to
any of its subsidiaries, (iii) debt to any employee of the Corporation, (iv)
debt which by its terms is subordinated to trade accounts payable or accrued
liabilities arising in the ordinary course of business to the extent that
payments made to the holders of such debt by the holders of the Junior
Subordinated Debt Securities as a result of the subordination provisions of
the Indenture would be greater than such payments otherwise would have been as
a result of any obligation of such holders of such debt to pay amounts over to
the obligees on such trade accounts payable or accrued liabilities arising in
the ordinary course of business as a result of subordination provisions to
which such debt is subject, (v) trade accounts payable or accrued liabilities
arising in the ordinary course of business and (vi) any other debt securities
issued pursuant to the Indenture.
The Indenture places no limitation on the amount of Senior Debt that may be
incurred by the Corporation. The Corporation expects from time to time to
incur additional indebtedness constituting Senior Debt. At March 31, 1997, the
aggregate outstanding Senior Debt of the Corporation was approximately $150
million on an unconsolidated basis. The Indenture also places no limitation on
the indebtedness of the Corporation's subsidiaries, which rank senior in right
of payment to the Junior Subordinated Debt Securities.
RESTRICTIONS ON TRANSFER
The New Junior Subordinated Debt Securities will be issued, and may be
transferred only, in blocks having aggregate principal amounts of $100,000 and
integral multiples of $1,000 in excess thereof. Any transfer, sale or other
disposition of New Junior Subordinated Debt Securities in a block having a
principal 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 New Junior Subordinated Debt Securities for any purpose,
including but not limited to the receipt of payments on such New Junior
Subordinated Debt Securities, and such transferee shall be deemed to have no
interest whatsoever in such New Junior Subordinated Debt Securities.
GOVERNING LAW
The Indenture and the Junior Subordinated Debt Securities are governed by
and construed in accordance with the laws of the State of New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee has and is 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 Junior Subordinated Debt Securities,
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 NEW GUARANTEE
The Old Guarantee was entered into by the Corporation concurrently with the
issuance by the Trust of the Old Capital Securities and the Common Securities
for the benefit of the holders from time to time of such Old Capital
Securities and the Common Securities. As soon as practicable after the date
hereof, the Old Guarantee will be exchanged by the Corporation for the New
Guarantee. The New Guarantee Agreement has been qualified under the "Trust
Indenture Act." This summary of certain provisions of the Guarantee 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, including the
definitions therein of certain terms, and the Trust Indenture Act. The
Guarantee Trustee will hold the Guarantee for the benefit of the holders of
the Trust Securities. The New Guarantee Agreement is attached as an exhibit to
the Registration Statement.
GENERAL
The Corporation has agreed (and under the New Guarantee will agree) to pay
in full on a subordinated basis, to the extent set forth herein, the Guarantee
Payments (as defined herein) to the holders of the Trust 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 Trust Securities, to the extent not paid by or on
behalf of the Trust (the "Guarantee Payments"), will be subject to the
Guarantee: (i) any accrued and unpaid Distributions required to be paid on the
Trust Securities, to the extent that the Trust has funds on hand available
therefor at such time, (ii) the Redemption Price with respect to Trust
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 dissolution, winding up or liquidation of the Trust (other than in
connection with the distribution of Junior Subordinated Debt Securities to the
holders of the Trust Securities or the redemption of all of the Capital
Securities) the lesser of (a) the Liquidation Distribution, to the extent the
Trust has funds available therefor and (b) the amount of assets of the Trust
remaining available for distribution to holders of the Trust Securities upon
liquidation of the Trust after satisfaction of liabilities to creditors of the
Trust as required by applicable law. The Corporation's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts
by the Corporation to the holders of the Trust 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 Trust Securities, although it 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 Corporation does not make interest
payments on the Junior Subordinated Debt Securities held by the Trust, the
Trust will not be able to pay Distributions on the Capital Securities and will
not have funds legally available therefor.
The Guarantee ranks subordinate and junior in right of payment to all Senior
Debt. See "--Status of the Guarantee." As a holding company, the Corporation
conducts its operations principally through its subsidiaries and, therefore,
its principal source of cash, other than its investing and financing
activities, is receipt of dividends from the Bank. However, there are legal
limitations on the source and amount of dividends that a national bank such as
the Bank is permitted to pay. A national bank may pay dividends only to the
extent that retained net profits (including the portion transferred to
surplus) exceed bad debts (as defined by regulation). Moreover, unless a
national bank's surplus fund equals its common capital, dividends may be paid
only after 10 percent of its net profits (as defined by regulation) for the
specified preceding period have been transferred to the bank's surplus fund.
In addition, prior approval of the OCC is required if the total of all
dividends declared by a national bank in any calendar year will exceed the sum
of that bank's net profits for that year and its retained net profits for the
preceding two calendar years, less any required transfers to either surplus or
any fund for retirement of any preferred stock. At March 31, 1997, the Bank
could have paid approximately $101.7 million in dividends to the Corporation
without prior OCC approval. The payment of dividends by the Bank may also be
affected by other factors, such as requirements for the maintenance of
adequate capital. In addition, the OCC is authorized to determine, under
certain circumstances relating to the financial condition of a national bank,
whether the payment of dividends would be an unsafe or unsound banking
practice and to prohibit payment thereof. See
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"Central Fidelity." The Guarantee does not limit the incurrence or issuance of
other secured or unsecured debt of the Corporation, including Senior Debt,
whether under the Indenture, any other indenture that the Corporation may
enter into in the future or otherwise.
Taken together, the Corporation's obligations under the Guarantee, the
Declaration, the Junior Subordinated Debt Securities and the Indenture,
including the Corporation's obligation to pay the costs, expenses and other
liabilities of the Trust (other than the Trust's obligations to the holders of
the Trust Securities under the Trust Securities), provide, in the aggregate, a
full, irrevocable and unconditional guarantee of all of the Trust's
obligations under the 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 Capital
Securities. See "Relationship Among the Capital Securities, the Junior
Subordinated Debt Securities and the Guarantee."
STATUS OF THE GUARANTEE
The Guarantee constitutes an unsecured obligation of the Corporation and
ranks subordinate and junior in right of payment to all Senior Debt in the
same manner as Junior Subordinated Debt Securities.
The Guarantee ranks pari passu with all Other Guarantees issued by the
Corporation. The Guarantee constitutes a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding
directly against the Corporation to enforce its rights under the Guarantee
without first instituting a legal proceeding against any other person or
entity). The Guarantee is held for the benefit of the holders of the Trust
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 Trust Securities of the Junior Subordinated
Debt Securities. The Guarantee does not place a limitation on the amount of
additional Senior Debt that may be incurred by the Corporation. The
Corporation expects from time to time to incur additional indebtedness
constituting Senior Debt.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not materially adversely affect
the rights of holders of the Trust Securities (in which case no vote will be
required), the Guarantee 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 Capital Securities. The manner of obtaining any such approval
will be as set forth under "Description of New Capital Securities--Voting
Rights; Amendment of the Declaration." All guarantees and agreements contained
in the Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Corporation and shall inure to the benefit of the
holders of the Capital Securities then outstanding.
EVENTS OF DEFAULT
An event of default under the Guarantee will occur upon the failure of the
Corporation to perform any of its payment or other obligations thereunder;
provided, however, that except with respect to a default in payment of any
Guarantee Payment, the Corporation shall have received notice of default and
shall not have cured such default within 60 days after receipt of such notice;
and provided, further, that no event of default under the Guarantee shall
occur unless an Event of Default under the Declaration or a Debenture Event of
Default shall have occurred. 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 or power conferred upon the Guarantee Trustee under
the Guarantee.
Any holder of the Capital Securities may institute a legal proceeding
directly against the Corporation 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.
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The Corporation, as guarantor, is required to file annually with the
Guarantee Trustee a certificate as to whether or not the Corporation is in
compliance with all the conditions and covenants applicable to it under the
Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of a
default by the Corporation in performance of the Guarantee, undertakes to
perform only such duties as are specifically set forth in the Guarantee 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 at
the request of any holder of the Trust 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 Redemption Price of the Trust Securities, upon full payment of
the amounts payable upon liquidation of the Trust or upon distribution of
Junior Subordinated Debt Securities to the holders of the Trust 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 Trust Securities must restore payment
of any sums paid under the Trust Securities or the Guarantee.
GOVERNING LAW
The Old Guarantee is and the New Guarantee will be governed by and construed
in accordance with the laws of the State of New York.
DESCRIPTION OF OLD SECURITIES
The terms of the Old Securities are identical in all material respects to
the New Securities, except that (i) the Old Securities have not been
registered under the Securities Act, are subject to certain restrictions on
transfer and are entitled to certain rights under the Registration Agreement
(which rights will terminate upon consummation of the Exchange Offer, except
under limited circumstances); and (ii) the New Capital Securities will not
provide for any increase in the Distribution rate thereon. The Old Securities
provided that, in the event that the Exchange Offer is not consummated on or
prior to November 19, 1997, or in certain limited circumstances, in the event
a shelf registration statement (the "Shelf Registration Statement") with
respect to the resale of the Old Capital Securities is not declared effective
on or prior to November 19, 1997, the interest rate borne by the Old Junior
Subordinated Debt Securities would increase by 0.25% per annum, and the
Distribution rate borne by the Old Capital Securities would increase by 0.25%
per annum, each commencing on November 20, 1997 until the time the Exchange
Offer is consummated or any required Shelf Registration Statement is declared
effective, as the case may be. The aggregate amount of such additional
interest and Distributions payable pursuant to the foregoing provisions will
in no event exceed 0.50% per annum. The holders of New Securities are not, and
upon consummation of the Exchange Offer the holders of Old Securities will not
be, entitled to any such additional interest or Distributions. Accordingly,
holders of the Old Capital Securities should review the information set forth
under "Risk Factors--Consequences of a Failure to Exchange Old Capital
Securities" and "Description of New Capital Securities."
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RELATIONSHIP AMONG THE CAPITAL SECURITIES,
THE JUNIOR SUBORDINATED DEBT SECURITIES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Capital Securities
(to the extent the Trust has funds available for the payment of such
Distributions) are irrevocably guaranteed by the Corporation as and to the
extent set forth under "Description of New Guarantee." Taken together, the
Corporation's obligations under the Junior Subordinated Debt Securities, the
Indenture, the Declaration and the Guarantee provide, in the aggregate, a
full, irrevocable and unconditional guarantee of payments of Distributions and
other amounts due on the 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 Capital
Securities. If and to the extent that the Corporation does not make payments
on the Junior Subordinated Debt Securities, the Trust will not pay
Distributions or other amounts due on the 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 Capital Securities is to institute a Direct Action. The obligations
of the Corporation under the Guarantee are subordinate and junior in right of
payment to all Senior Debt.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on the
Junior Subordinated Debt Securities, such payments will be sufficient to cover
Distributions and other payments due on the Capital Securities, primarily
because (i) the aggregate principal amount or Redemption Price of the Junior
Subordinated Debt Securities will be equal to the sum of the aggregate
Liquidation Amount or Redemption Price, as applicable, of the Trust
Securities; (ii) the interest rate and interest and other payment dates on the
Junior Subordinated Debt Securities will match the Distribution rate and
Distribution and other payment dates for the Capital Securities; (iii) the
Corporation shall pay for all costs, expenses and liabilities of the Trust
except the Trust's obligations to holders of Trust Securities under such Trust
Securities; and (iv) the Declaration further provides that the Trust will not
engage in any activity that is not consistent with the limited purposes
thereof.
Notwithstanding anything to the contrary in the Indenture, the Corporation
has the right to set off any payment it is otherwise required to make
thereunder with and to the extent the Corporation has theretofore made, or is
concurrently on the date of such payment making, any payment under the
Guarantee used to satisfy the related payment of indebtedness under the
Indenture.
ENFORCEMENT RIGHTS OF HOLDERS OF CAPITAL SECURITIES
A holder of any Capital Security may institute a legal proceeding directly
against the Corporation 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 Debt would not constitute a
default or Event of Default under the Declaration. However, in the event of
payment defaults under, or acceleration of, Senior Debt, the subordination
provisions of the Indenture provide that no payments may be made in respect of
the Junior Subordinated Debt Securities until such Senior Debt has been paid
in full or any payment default thereunder has been cured or waived. Failure to
make required payments on Junior Subordinated Debt Securities would constitute
an Event of Default under the Declaration.
LIMITED PURPOSE OF THE TRUST
The Capital Securities evidence a beneficial interest in the Trust, and the
Trust exists for the sole purpose of issuing the Capital Securities and Common
Securities, investing the proceeds of the Trust Securities in Junior
Subordinated Debt Securities and engaging in other activities necessary or
incidental thereto.
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RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
the Trust involving the liquidation of the Junior Subordinated Debt
Securities, after satisfaction of the liabilities of creditors of the Trust 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 New Capital Securities--Liquidation
of the Trust and Distribution of Junior Subordinated Debt Securities." Upon
any voluntary or involuntary liquidation or bankruptcy of the Corporation, the
Property Trustee, as holder of the Junior Subordinated Debt Securities, would
be a subordinated creditor of the Corporation, subordinated in right of
payment to all Senior Debt as set forth in the Indenture, but entitled to
receive payment in full of principal and interest, before any stockholders of
the Corporation receive payments or distributions. Since the Corporation is
the guarantor under the Guarantee and has agreed 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 Capital
Securities and a holder of Junior Subordinated Debt Securities relative to
other creditors and to stockholders of the Corporation in the event of
liquidation or bankruptcy of the Corporation are expected to be substantially
the same.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the principal United States federal income tax
consequences of the purchase, ownership and disposition of Capital Securities.
Unless otherwise stated, this summary addresses only the tax consequences to a
"U.S. Holder" (as defined below) that acquired Old Capital Securities on their
original issue at their original offering price and does not address the tax
consequences to 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, dealers in securities or currencies, persons that
hold Capital Securities as part of a position in a "straddle" or as part of a
"hedging", "conversion" or other integrated investment transaction for United
States federal income tax purposes, persons whose functional currency is not
the United States dollar or persons that do not hold Capital Securities as
capital assets. For purposes of this summary, a U.S. Holder is a
Securityholder (as defined below) who or that is (i) an individual citizen or
resident of the United States, (ii) a domestic corporation or partnership
organized under the laws of the United States or any State thereof or the
District of Columbia or (iii) an estate or trust the income of which is
subject to United States federal income taxation regardless of source.
The statements of law or legal conclusions set forth in this summary
constitute the opinion of Sullivan & Cromwell, special tax counsel to the
Corporation and the Trust. This summary is based upon the Internal Revenue
Code of 1986, as amended, 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 the Capital Securities. In particular,
legislation has been proposed that could adversely affect the Corporation's
ability to deduct interest on the Junior Subordinated Debt Securities, which
may in turn permit the Corporation to cause a redemption of the Capital
Securities. See "--Possible Tax Law Changes." The authorities on which this
summary is based are subject to various interpretations, and it is therefore
possible that the United States federal income tax treatment of the purchase,
ownership and disposition of the Capital Securities may differ from the
treatment described below.
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
PURCHASE, OWNERSHIP AND DISPOSITION OF THE CAPITAL SECURITIES, AS WELL AS THE
EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
CLASSIFICATION OF THE JUNIOR SUBORDINATED DEBT SECURITIES AND THE TRUST
Under current law and assuming compliance with the terms of the Declaration,
the Trust will not be classified as an association taxable as a corporation
for United States federal income tax purposes. Moreover, the
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Trust should be classified as a grantor trust, and if not so classified will
be classified as a partnership, for United States federal income tax purposes.
As a result, each beneficial owner of Capital Securities (a "Securityholder")
that is a U.S. Holder will be required to include in its gross income its pro
rata share of the interest income, including OID, paid or accrued with respect
to the Junior Subordinated Debt Securities, whether or not cash is actually
distributed to the Securityholders. See "--Interest Income and Original Issue
Discount," below. The Junior Subordinated Debt Securities will be classified
as indebtedness of the Corporation for United States federal income tax
purposes.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under applicable Treasury regulations (the "Regulations"), a "remote"
contingency that stated interest will not be timely paid will be ignored in
determining whether a debt instrument is issued with OID. The Corporation
believes that the likelihood of its exercising its option to defer payments of
interest is remote. Based on the foregoing, the Corporation believes that the
Junior Subordinated Debt Securities will not be considered to be issued with
OID at the time of their original issuance.
The following discussion assumes that unless and until the Corporation
exercises its option to defer interest on the Junior Subordinated Debt
Securities, the Junior Subordinated Debt Securities will not be treated as
issued with OID other than de minimis OID.
Under the Regulations, if the Corporation exercised its option to defer any
payment of interest, the Junior Subordinated Debt Securities would be treated
as reissued with OID, and, thereafter, all stated interest on the Junior
Subordinated Debt Securities would be treated as OID as long as the Junior
Subordinated Debt Securities remained outstanding. In such event, all of a
U.S. Holder's taxable interest income with respect to the Junior Subordinated
Debt Securities would be accounted for as OID on an economic accrual basis
regardless of such U.S. Holder's method of tax accounting, and actual
distributions of stated interest would not be reported separately as taxable
income. Consequently, a U.S. Holder would be required to include OID in gross
income even though the Corporation would not make any actual cash payments
during an Extension Period.
The Regulations have not been addressed in any rulings or other
interpretations by the IRS, and it is possible that the IRS could take the
position that the Junior Subordinated Debt Securities were issued with OID at
the time of their original issuance.
Because income on the Capital Securities will constitute interest or OID,
corporate U.S. Holders will not be entitled to the dividends-received
deduction with respect to any income recognized with respect to the Capital
Securities.
Subsequent uses of the term "interest" in this summary shall include income
in the form of OID.
DISTRIBUTION OF THE JUNIOR SUBORDINATED DEBT SECURITIES TO HOLDERS OF CAPITAL
SECURITIES
Under current law, a distribution by the Trust of the Junior Subordinated
Debt Securities, as described under the caption "Description of New Capital
Securities--Liquidation of the Trust and Distribution of Junior Subordinated
Debt Securities," will be non-taxable and will result in a U.S. Holder
receiving directly its pro rata share of the Junior Subordinated Debt
Securities previously held indirectly through the Trust, with a holding period
and aggregate adjusted tax basis equal to the holding period and aggregate
adjusted tax basis such U.S. Holder had in its Capital Securities immediately
before such distribution. If, however, the liquidation of the Trust were to
occur because the Trust was subject to United States federal income tax with
respect to income accrued or received on the Junior Subordinated Debt
Securities, the distribution of Junior Subordinated Debt Securities to U.S.
Holders by the Trust would be a taxable event to the Trust and each U.S.
Holder, and each U.S. Holder would recognize gain or loss as if the U.S.
Holder had exchanged its Capital Securities for the Junior Subordinated Debt
Securities it received upon the liquidation of the Trust. A U.S. Holder will
include interest in respect of the Junior Subordinated Debt Securities
received from the Trust in the manner described above under "--Interest Income
and Original Issue Discount."
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SALES OR REDEMPTION OF THE CAPITAL SECURITIES
Gain or loss will be recognized by a U.S. Holder on a sale, exchange, or
other disposition of the Capital Securities (including a redemption for cash)
in an amount equal to the difference between the amount realized and the U.S.
Holder's adjusted tax basis in the Capital Securities sold or so redeemed.
Assuming that the Corporation does not exercise its option to defer payment of
interest on the Junior Subordinated Debt Securities, a U.S. Holder's adjusted
tax basis in the Capital Securities generally will be its initial purchase
price. If the Junior Subordinated Debt Securities are deemed to be issued with
OID (as a result of the Corporation's deferral of any interest payment), a
U.S. Holder's adjusted tax basis in the Capital Securities generally will be
its initial purchase price, increased by OID previously included in such U.S.
Holder's gross income to the date of disposition and decreased by
distributions or other payments received on the Capital Securities other than
payments of stated interest that are not treated as OID. Gain or loss
recognized by a U.S. Holder on the Capital Securities generally will be
taxable as capital gain or loss (except to the extent any amount realized is
treated as a payment of accrued interest with respect to such U.S. Holder's
pro rata share of the Junior Subordinated Debt Securities required to be
included in income) and generally will be long-term capital gain or loss if
the Capital Securities have been held for more than one year.
Should the Corporation exercise its option to defer any payment of interest
on the Junior Subordinated Debt Securities, the Capital Securities may trade
at a price that does not fully reflect the value of accrued but unpaid
interest with respect to the underlying Junior Subordinated Debt Securities.
In the event of such a deferral, a Securityholder that disposes of its Capital
Securities between record dates for payments of Distributions (and
consequently does not receive a Distribution from the Trust for the period
prior to such disposition) will nevertheless be required to include in income
as ordinary income accrued but unpaid interest on the Junior Subordinated Debt
Securities through the date of disposition and to add such amount to its
adjusted tax basis in its Capital Securities disposed of. Such U.S. Holder
will recognize a capital loss on the disposition of its Capital Securities to
the extent the selling price (which may not fully reflect the value of accrued
but unpaid interest) is less than the U.S. Holder's adjusted tax basis in the
Capital Securities (which will include accrued but unpaid interest). Subject
to certain limited exceptions, capital losses cannot be applied to offset
ordinary income for United States federal income tax purposes.
The exchange of an Old Capital Security for a New Capital Security should
not constitute a taxable exchange.
POSSIBLE TAX LAW CHANGES
On February 6, 1997, the Budget Proposal was released. If enacted, the
Budget Proposal would generally 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, where 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 corporation's consolidated
balance sheet. The above described provision of the Budget Proposal is
proposed to be effective generally for instruments issued on or after the date
of first Congressional committee action. No such action has yet occurred. If
this provision were to apply to the Junior Subordinated Debt Securities, the
Corporation would be unable to deduct interest on the Junior Subordinated Debt
Securities. Under current law, the Corporation will be able to deduct interest
on the Junior Subordinated Debt Securities. There can be no assurance,
however, that current or future legislative proposals, if enacted, or final
legislation will not affect the ability of the Corporation to deduct interest
on the Junior Subordinated Debt Securities. Such a change could give rise to a
Tax Event, which may permit the Corporation to cause a redemption of the
Capital Securities, as described more fully under "Description of New Capital
Securities--Mandatory Redemption" and "Description of New Junior Subordinated
Debt Securities--Optional Redemption."
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UNITED STATES ALIEN HOLDERS
For purposes of this discussion, a "United States Alien Holder" is any
corporation, individual, partnership, estate or trust that is, as to the
United States, a foreign corporation, a non-resident alien individual, a
foreign partnership or a non-resident fiduciary of a foreign estate or trust.
Under current United States federal income tax law, and subject to the
discussion of backup withholding below: (i) payments by the Trust or any of
its paying agents to any Securityholder who or that is a United States Alien
Holder will not be subject to United States federal withholding tax; provided
that (a) the Securityholder does not actually or constructively own 10% or
more of the total combined voting power of all classes of stock of the
Corporation entitled to vote, (b) the Securityholder is not a controlled
foreign corporation that is related to the Corporation through stock ownership
and (c) either (A) the Securityholder certifies to the Trust or its agent,
under penalties of perjury, that it is not a United States holder and provides
its name and address or (B) a securities clearing organization, bank or other
financial institution that holds customers' securities in the ordinary course
of its trade or business (a "Financial Institution"), and holds the Capital
Security in such capacity, certifies to the Trust or its agent, under
penalties of perjury, that such statement has been received from the
Securityholder by it or by a Financial Institution holding such security for
the Securityholder and furnishes the Trust or its agent with a copy thereof;
and (ii) a United States Alien Holder of a Capital Security will not be
subject to United States federal withholding tax on any gain realized upon the
sale or other disposition of a Capital Security.
Recently proposed Internal Revenue Service Treasury regulations (the
"Proposed Regulations") would provide alternative methods for satisfying the
certification requirement described in clause (i)(c) above. The Proposed
Regulations also would require, in the case of Capital Securities held by a
foreign partnership, that (x) the certification described in clause (i)(c)
above be provided by the partners rather than by the foreign partnership and
(y) the partnership provide certain information, including a United States
taxpayer identification number. A look-through rule would apply in the case of
tiered partnerships. The Proposed Regulations are proposed to be effective for
payments made after December 31, 1997. There can be no assurance that the
Proposed Regulations will be adopted or as to the provisions that they will
include if and when adopted in temporary or final form.
INFORMATION REPORTING TO SECURITYHOLDERS
Generally, income on the Capital Securities will be reported to
Securityholders on Forms 1099, which forms should be mailed to Securityholders
by January 31 following each calendar year.
BACKUP WITHHOLDING
Payments made on, and proceeds from the sale of, the Capital Securities may
be subject to a "backup" withholding tax of 31% unless the Securityholder
complies with certain certification requirements. Any withheld amounts will be
allowed as a credit against the Securityholder's United States federal income
tax, provided the required information is furnished to the Internal Revenue
Service on a timely basis.
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CERTAIN ERISA CONSIDERATIONS
Each fiduciary of a pension, profit-sharing or other employee benefit plan
(a "Plan") subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), should consider the fiduciary standards of ERISA in the
context of the Plan's particular circumstances before authorizing an
investment in the Capital Securities. Accordingly, among other factors, the
fiduciary should consider whether the investment would satisfy the prudence
and diversification requirements of ERISA and would be consistent with the
documents and instruments governing the Plan.
Section 406 of ERISA and Section 4975 of the Code prohibit Plans, as well as
individual retirement accounts and Keogh plans subject to Section 4975 of the
Code (also "Plans"), from engaging in certain transactions involving "plan
assets" with persons who are "parties in interest" under ERISA or
"disqualified persons" under the Code ("Parties in Interest") with respect to
such Plan. A violation of these "prohibited transaction" rules may result in
an excise tax or other liabilities under ERISA and/or Section 4975 of the Code
for such persons, unless exemptive relief is available under an applicable
statutory or administrative exemption. Employee benefit plans that are
governmental plans (as defined in Section 3(32) of ERISA), certain church
plans (as defined in Section 3(33) of ERISA) and foreign plans (as described
in Section 4(b)(4) of ERISA) are not subject to the requirements of ERISA or
Section 4975 of the Code.
Under a regulation (the "Plan Assets Regulation") issued by the U.S.
Department of Labor (the "DOL"), the assets of the Trust would be deemed to be
"plan assets" of a Plan for purposes of ERISA and Section 4975 of the Code if
"plan assets" of the Plan were used to acquire an equity interest in the Trust
and no exception were applicable under the Plan Assets Regulation. An "equity
interest" is defined under the Plan Assets Regulation as any interest in an
entity other than an instrument which is treated as indebtedness under
applicable local law and which has no substantial equity features and
specifically includes a beneficial interest in a trust.
Pursuant to an exception contained in the Plan Assets Regulation, the assets
of the Trust would not be deemed to be "plan assets" of investing Plans if,
immediately after the most recent acquisition of any equity interest in the
Trust, less than 25% of the value of each class of equity interest in the
Trust were held by Plans, other employee benefit plans not subject to ERISA or
Section 4975 of the Code (such as governmental, church and foreign plans) and
entities holding assets deemed to be "plan assets" of any Plan (collectively,
"Benefit Plan Investors"), or if the New Capital Securities were "publicly-
offered securities" for purposes of the Plan Assets Regulation. No assurance
can be given by the Initial Purchaser that the value of the Capital Securities
held by Benefit Plan Investors will be less than 25% of the total value of
such Capital Securities at the completion of the initial offering or
thereafter, and no monitoring or other measures will be taken with respect to
the satisfaction of the conditions to this exception. Furthermore, it is not
anticipated that the New Capital Securities would be considered to be
"publicly-offered securities" under the Plan Assets Regulation. All of the
Common Securities are held by the Corporation.
Certain transactions involving the Trust could be deemed to constitute
direct or indirect prohibited transactions under ERISA and Section 4975 of the
Code with respect to a Plan if the Capital Securities were acquired with "plan
assets" of such Plan and assets of the Trust were deemed to be "plan assets"
of Plans investing in the Trust. For example, if the Corporation is a Party in
Interest with respect to an investing Plan (either directly or by reason of
its ownership of the Trust or of any of the Corporation's other subsidiaries),
extensions of credit between the Corporation and the Trust (as represented by
the Junior Subordinated Debt Securities and the Guarantee) would likely be
prohibited by Section 406(a)(1)(B) of ERISA and Section 4975(c)(1)(B) of the
Code, unless exemptive relief were available under an applicable
administrative exemption (see below).
The DOL has issued five prohibited transaction class exemptions ("PTCEs")
that may provide exemptive relief for direct or indirect prohibited
transactions resulting from the purchase or holding of the Capital Securities,
assuming that assets of the Trust were deemed to be "plan assets" of Plans
investing in the Trust (see above). Those class exemptions are PTCE 96-23 (for
certain transactions determined by in-house asset managers),
64
<PAGE>
PTCE 95-60 (for certain transactions involving insurance company general
accounts), PTCE 91-38 (for certain transactions involving bank collective
investment funds), PTCE 90-1 (for certain transactions involving insurance
company pooled separate accounts) and PTCE 84-14 (for certain transactions
determined by independent qualified professional asset managers).
Because the Capital Securities may be deemed to be equity interests in the
Trust for purposes of applying ERISA and Section 4975 of the Code, the Capital
Securities may not be purchased or held by any Plan, any entity whose
underlying assets include "plan assets" by reason of any Plan's investment in
the entity (a "Plan Asset Entity") or any person investing "plan assets" of
any Plan, unless such purchaser or holder is eligible for the exemptive relief
available under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14. Any purchaser or
holder of the Capital Securities or any interest therein will be deemed to
have represented by its purchase and holding thereof that it either (a) is not
a Plan or a Plan Asset Entity and is not purchasing such securities on behalf
of or with "plan assets" of any Plan or (b) is eligible for the exemptive
relief available under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 with respect to
such purchase or holding. Furthermore, to avoid certain prohibited
transactions under ERISA and the Code that could result under certain
circumstances if the Capital Securities are deemed to be such equity
interests, each investing Plan, by purchasing the Capital Securities, will be
deemed to have directed the Trust to invest in the Junior Subordinated Debt
Securities and to have appointed the Property Trustee.
Due to the complexity of these rules and the penalties that may be imposed
upon persons involved in non-exempt prohibited transactions, it is
particularly important that fiduciaries or other persons considering
purchasing the Capital Securities on behalf of or with "plan assets" of any
Plan consult with their counsel regarding the potential consequences if the
assets of the Trust were deemed to be "plan assets" and the availability of
exemptive relief under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14.
PLAN OF DISTRIBUTION
Each Participating Broker-Dealer that receives New Capital Securities for
its own account pursuant to the Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such New Capital
Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a Participating 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 certain interpretive letters, the Corporation and
the Trust believe that Participating Broker-Dealers, may fulfill their
prospectus delivery requirements with respect to the New 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 New 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 New 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 Agreement, the Corporation 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 New
Capital Securities for a period ending on the close of business on the first
anniversary following the Expiration Date or, if earlier, when all such New
Capital Securities have been disposed of by such Participating Broker-Dealer.
Any person, including any Participating Broker-Dealer, who is an Affiliate 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 addition, until , 1997, all dealers effecting
transactions in the New Capital Securities may be required to deliver a
prospectus.
65
<PAGE>
The Trust and the Corporation will not receive any proceeds from any sale of
New Capital Securities by broker-dealers. New Capital Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be
sold from time to time in one or more transactions in the over-the-counter
market, in negotiated transactions, through the writing of options on the New
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 commissions or concessions from any such broker-dealer and/or the
purchasers of any such New Capital Securities. Any broker-dealer that resells
New Capital Securities that were received by it for its own account pursuant
to the Exchange Offer and any broker or dealer that participates in a
distribution of such New Capital Securities may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of New 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 so
acknowledging and by delivering a prospectus, a Participating Broker-Dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
For a period of one year after the Expiration Date, the Trust and the
Corporation will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal. The Trust and the Corporation
have agreed to pay all expenses incident to the Exchange Offer (including the
expenses of one counsel for the holders of the Old Capital Securities) other
than commissions or concessions of any brokers or dealers and will indemnify
the holders of the Old Capital Securities (including any broker-dealers)
against certain liabilities, including liabilities under the Securities Act.
VALIDITY OF NEW SECURITIES
Certain matters of Delaware law relating to the validity of the New Capital
Securities will be passed upon by Richards, Layton & Finger, special Delaware
counsel to the Corporation and the Trust. The validity of the New Guarantee
and the New Junior Subordinated Debt Securities will be passed upon for the
Corporation by Sullivan & Cromwell. Sullivan & Cromwell will rely on the
opinion of Richards, Layton & Finger as to matters of Delaware law and on the
opinion of Williams, Mullen, Christian & Dobbins as to matters of Virginia
law. As of June 1, 1997 certain principals of Williams, Mullen, Christian &
Dobbins were beneficial owners of an aggregate of approximately 371,762 shares
of the Corporation's Common Stock.
ACCOUNTANTS
The consolidated financial statements of Central Fidelity Banks, Inc. and
subsidiaries as of December 31, 1996 and 1995 and for each of the years in the
three year period ended December 31, 1996, included in Central Fidelity's 1996
Form 10-K incorporated by reference into this Offering Memorandum, have been
incorporated by reference herein in reliance upon the report of KPMG Peat
Marwick LLP, independent auditors, included in Central Fidelity's 1996 Form
10-K and incorporated by reference herein, and upon the authority of said firm
as experts in accounting and auditing.
66
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article 10 of Chapter 9 of Title 13.1 of the Code of Virginia (the "Virginia
Code") permits a Virginia corporation to indemnify any director or officer for
reasonable expenses incurred in any legal proceeding in advance of final
disposition of the proceeding, if the director or officer furnishes the
corporation a written statement of his good faith belief that he has met the
standard of conduct prescribed by the Virginia Code, and a determination is
made by the board of directors that such standard has been met. In a
proceeding by or in the right of the corporation, no indemnification shall be
made in respect of any matter as to which an officer or director is adjudged
to be liable to the corporation, unless the court in which the proceeding took
place determines that, despite such liability, such person is reasonably
entitled to indemnification in view of all the relevant circumstances. In any
other proceeding, no indemnification shall be made if the director or officer
is adjudged liable to the corporation on the basis that personal benefit was
improperly received by him. Corporations are given the power to make any other
or further indemnity, including advance of expenses, to any director or
officer that may be authorized by the articles of incorporation or any bylaw
made by the shareholders, or any resolution adopted, before or after the
event, by the shareholders, except an indemnity against willful misconduct or
a knowing violation of the criminal law. Unless limited by its articles of
incorporation, indemnification of a director or officer is mandatory when he
entirely prevails in the defense of any proceeding to which he is a party
because he is or was a director or officer.
The Articles of Incorporation of Central Fidelity contain provisions
indemnifying the directors and officers of Central Fidelity against expenses
and liabilities incurred in legal proceedings and authorizing the Board of
Directors to advance and reimburse expenses as permitted by law. The Articles
of Incorporation of Central Fidelity also eliminate the liability of directors
and officers to Central Fidelity or its shareholders for monetary damages in
excess of one dollar as permitted by the Virginia Code.
Under the Amended and Restated Declaration of Trust, Central Fidelity, as
depositor of the Trust, has agreed (i) to indemnify and hold harmless each
Issuer Trustee and any employee or agent of the Trust or its Affiliates from
and against any loss, damage, liability, tax, penalty, expense or claim of any
kind or nature whatsoever incurred by such person by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by such person in good faith on behalf of the Trust and in a manner
such person reasonably believes to be within the scope of authority conferred
on such person by the Declaration, except that no person shall be entitled to
be indemnified in respect of any loss, damage or claim incurred by such person
by reason of negligence or willful misconduct with respect to such acts or
omissions, and (ii) to advance expenses (including legal fees) incurred by
such person in defending any claim, demand, action, suit or proceeding, from
time to time, prior to the final disposition of such claim, demand, action,
suit or proceeding.
ITEM 21. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT NAME
----------- ------------
<C> <S>
4.1 --Junior Subordinated Indenture, dated as of April 23, 1997,
between the Corporation and The Bank of New York, as Debenture
Trustee
4.2 --Certificate of Trust of Central Fidelity Capital Trust I
4.3 --Declaration of Trust of Central Fidelity Capital Trust I
4.4 --Amended and Restated Declaration Trust, dated as of April 23,
1997, of Central Fidelity Capital Trust I
4.5 --Form of Capital Security Certificate for Central Fidelity
Capital Trust I (included in Exhibit 4.4)
4.6 --Form of New Guarantee Agreement for the benefit of the holders
of the Trust Securities
4.7 --Form of Junior Subordinated Debt Security (included in Exhibit
4.1)
4.8 --Registration Agreement, dated as of April 23, 1997, among the
Corporation, Central Fidelity Capital Trust I and the Initial
Purchasers
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT NAME
----------- ------------
<C> <S>
5.1 --Opinion of Sullivan & Cromwell as to validity of the New Junior
Subordinated Debt Securities and the New Guarantee to be issued
by the Corporation
5.2 --Opinion of Richards, Layton & Finger, special Delaware counsel,
as to validity of the New Capital Securities to be issued by
Central Fidelity Capital Trust I
8 --Opinion of Sullivan & Cromwell as to certain federal income tax
matters
12 --Statement re: Computation of Consolidated Ratio of Earnings to
Fixed Charges
23.1 --Consent of KPMG Peat Marwick LLP
23.2 --Consent of Richards, Layton & Finger (included in Exhibit 5.2)
23.3 --Consent of Sullivan & Cromwell (included in Exhibit 5.1)
23.4 --Consent of Williams, Mullen, Christian & Dobbins (included in
Exhibit 5.1)
24 --Powers of Attorney
25.1 --Form T-1 Statement of Eligibility of The Bank of New York to act
as trustee under the Junior Subordinated Indenture
25.2 --Form T-1 Statement of Eligibility of The Bank of New York to act
as trustee under the Amended and Restated Declaration of Trust
25.3 --Form T-1 Statement of Eligibility of The Bank of New York to act
as trustee under the New Guarantee Agreement
99.1 --Form of Letter of Transmittal
99.2 --Form of Notice of Guaranteed Delivery
</TABLE>
ITEM 22. UNDERTAKINGS
Each of the undersigned Registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of a
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) which 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of a
Registrant pursuant to the foregoing provisions, or otherwise, each of the
Registrants has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by a
Registrant of expenses incurred or paid by a director, officer or controlling
person of a 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, such 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
Securities Act and will be governed by the final adjudication of such issue.
Each of the undersigned Registrants hereby undertakes to respond to requests
for information that is incorporated by reference into the Prospectus pursuant
to Item 4, 10(b), 11 or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the Registration Statement through
the date of responding to the request.
Each of the undersigned Registrants hereby undertakes to supply by means of
a post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective
II-2
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, 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,
VIRGINIA ON JUNE 9, 1997.
Central Fidelity Banks, Inc.
/s/ William N. Stoyko
------------------------------------
WILLIAM N. STOYKOCORPORATE
EXECUTIVE VICE PRESIDENT AND
SECRETARY
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE
--------- ----- ----
* Chairman of the June 9, 1997
- ------------------------------------- Board, President
(LEWIS N. MILLER, JR.) and Chief Executive
Officer
* Chief Financial June 9, 1997
- ------------------------------------- Officer (Principal
(CHARLES W. TYSINGER) Financial Officer)
* Senior Vice June 9, 1997
- ------------------------------------- President
(JAMES F. CAMPBELL) (Principal
Accounting Officer)
* Director June 9, 1997
- -------------------------------------
(JAMES F. BETTS)
* Director June 9, 1997
- -------------------------------------
(ALVIN R. CLEMENTS)
* Director June 9, 1997
- -------------------------------------
(PHYLLIS L. COTHRAN)
II-3
<PAGE>
SIGNATURE TITLE DATE
* Director June 9, 1997
- -------------------------------------
(JACK H. FERGUSON)
Director June , 1997
- -------------------------------------
(THOMAS R. GLASS)
Director June , 1997
- -------------------------------------
(GEORGE R. LEWIS)
* Director June 9, 1997
- -------------------------------------
(G. BRUCE MILLER)
* Director June 9, 1997
- -------------------------------------
(T. JUSTIN MOORE, III)
* Director June 9, 1997
- -------------------------------------
(RICHARD L. MORRILL)
* Director June 9, 1997
- -------------------------------------
(LLOYD U. NOLAND, III)
* Director June 9, 1997
- -------------------------------------
(WILLIAM G. REYNOLDS, JR.)
* Director June 9, 1997
- -------------------------------------
(KENNETH S. WHITE)
* William N. Stoyko, by signing his name hereto, signs this document on behalf
of each of the persons indicated by an asterisk above pursuant to powers of
attorney duly executed by such persons and filed herewith with the Securities
and Exchange Commission.
June 9, 1997 /s/ William N. Stoyko
By: _________________________________
WILLIAM N. STOYKO ATTORNEY-IN-FACT
II-4
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
Central Fidelity Capital Trust I, has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Richmond, Virginia on June 9, 1997.
Central Fidelity Capital Trust I
By: Central Fidelity Banks, Inc, as
Depositor
/s/ William N. Stoyko
-------------------------------------
WILLIAM N. STOYKO CORPORATE
EXECUTIVE VICE PRESIDENT AND
SECRETARY
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT NAME
----------- ------------
<C> <S>
4.1 --Junior Subordinated Indenture, dated as of April 23, 1997,
between the Corporation and The Bank of New York, as
Debenture Trustee
4.2 --Certificate of Trust of Central Fidelity Capital Trust I
4.3 --Declaration of Trust of Central Fidelity Capital Trust I
4.4 --Amended and Restated Declaration Trust, dated as of April
23, 1997, of Central Fidelity Capital Trust I
4.5 --Form of Capital Security Certificate for Central Fidelity
Capital Trust I (included in Exhibit 4.4)
4.6 --Form of New Guarantee Agreement for the benefit of the
holders of the Trust Securities
4.7 --Form of Junior Subordinated Debt Security (included in
Exhibit 4.1)
4.8 --Registration Agreement, dated as of April 23, 1997, among
the Corporation, Central Fidelity Capital Trust I and the
Initial Purchasers
5.1 --Opinion of Sullivan & Cromwell as to validity of the New
Junior Subordinated Debt Securities and the New Guarantee
to be issued by the Corporation
5.2 --Opinion of Richards, Layton & Finger, special Delaware
counsel, as to validity of the New Capital Securities to be
issued by Central Fidelity Capital Trust I
8 --Opinion of Sullivan & Cromwell as to certain federal
income tax matters
12 --Statement re: Computation of Consolidated Ratio of
Earnings to Fixed Charges
23.1 --Consent of KPMG Peat Marwick LLP
23.2 --Consent of Richards, Layton & Finger (included in Exhibit
5.2)
23.3 --Consent of Sullivan & Cromwell (included in Exhibit 5.1)
23.4 --Consent of Williams, Mullen, Christian & Dobbins (included
in Exhibit 5.1)
24 --Powers of Attorney
25.1 --Form T-1 Statement of Eligibility of The Bank of New York
to act as trustee under the Junior Subordinated Indenture
25.2 --Form T-1 Statement of Eligibility of The Bank of New York
to act as trustee under the Amended and Restated
Declaration of Trust
25.3 --Form T-1 Statement of Eligibility of The Bank of New York
to act as trustee under the New Guarantee Agreement
99.1 --Form of Letter of Transmittal
99.2 --Form of Notice of Guaranteed Delivery
</TABLE>
<PAGE>
EXECUTION COPY
EXHIBIT 4.1
================================================================================
CENTRAL FIDELITY BANKS, INC.
to
THE BANK OF NEW YORK
Trustee
---------------------------
JUNIOR SUBORDINATED INDENTURE
Dated as of April 23, 1997
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
Definitions and Other Provisions of
-----------------------------------
General Application
- ---------------------------------------
<S> <C> <C>
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Compliance Certificate and
Opinions. . . . . . . . . . . . . . . . . . 13
SECTION 1.03. Forms of Documents Delivered to
Trustee . . . . . . . . . . . . . . . . . . 14
SECTION 1.04. Acts of Holders . . . . . . . . . . . . . . . 15
SECTION 1.05. Notices, Etc. to Trustee and
Company . . . . . . . . . . . . . . . . . . 16
SECTION 1.06. Notice to Holders; Waiver . . . . . . . . . . 17
SECTION 1.07. Conflict with Trust Indenture Act . . . . . . 17
SECTION 1.08. Effect of Headings and Table of
Contents. . . . . . . . . . . . . . . . . . 17
SECTION 1.09. Successors and Assigns. . . . . . . . . . . . 17
SECTION 1.10. Separability Clause . . . . . . . . . . . . . 18
SECTION 1.11. Benefits of Indenture . . . . . . . . . . . . 18
SECTION 1.12. Governing Law . . . . . . . . . . . . . . . . 18
SECTION 1.13. Non-Business Days . . . . . . . . . . . . . . 18
ARTICLE II
Security Forms
--------------
SECTION 2.01. Forms Generally . . . . . . . . . . . . . . . 18
SECTION 2.02. Form of Face of Security. . . . . . . . . . . 19
SECTION 2.03. Form of Reverse of Security . . . . . . . . . 26
SECTION 2.04. Additional Provisions Required in
Global Security . . . . . . . . . . . . . . 31
SECTION 2.05. Form of Trustee's Certificate of
Authentication. . . . . . . . . . . . . . . 32
ARTICLE III
The Securities
--------------
SECTION 3.01. Title and Terms . . . . . . . . . . . . . . . 32
SECTION 3.02. Denominations . . . . . . . . . . . . . . . . 35
SECTION 3.03. Execution, Authentication, Delivery
and Dating. . . . . . . . . . . . . . . . . 35
SECTION 3.04. Temporary Securities. . . . . . . . . . . . . 37
SECTION 3.05. Global Securities . . . . . . . . . . . . . . 38
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 3.06. Registration, Transfer and Exchange
Generally; Certain Transfers and
Exchanges; Restricted Securities
Legends . . . . . . . . . . . . . . . . . 40
SECTION 3.07. Mutilated, Destroyed, Lost and
Stolen Securities. . . . . . . . . . . . . 44
SECTION 3.08. Payment of Interest; Interest
Rights Preserved . . . . . . . . . . . . . 45
SECTION 3.09. Persons Deemed Owners. . . . . . . . . . . . 47
SECTION 3.10. Cancelation. . . . . . . . . . . . . . . . . 47
SECTION 3.11. Computation of Interest. . . . . . . . . . . 48
SECTION 3.12. Deferrals of Interest Payment
Dates. . . . . . . . . . . . . . . . . . . . 48
SECTION 3.13. CUSIP Numbers. . . . . . . . . . . . . . . . 50
ARTICLE IV
Satisfaction and Discharge
--------------------------
SECTION 4.01. Satisfaction and Discharge of
Indenture. . . . . . . . . . . . . . . . . 50
SECTION 4.02. Application of Trust Money . . . . . . . . . 52
ARTICLE V
Remedies
--------
SECTION 5.01. Events of Default. . . . . . . . . . . . . . 52
SECTION 5.02. Acceleration of Maturity;
Rescission and Annulment . . . . . . . . . 54
SECTION 5.03. Collection of Indebtedness and
Suits for Enforcement by Trustee . . . . . 56
SECTION 5.04. Trustee May File Proofs of Claim . . . . . . 57
SECTION 5.05. Trustee May Enforce Claim Without
Possession of Securities . . . . . . . . . 58
SECTION 5.06. Application of Money Collected . . . . . . . 58
SECTION 5.07. Limitation on Suits. . . . . . . . . . . . . 59
SECTION 5.08. Unconditional Right of Holders to
Receive Principal and Interest . . . . . . 59
SECTION 5.09. Restoration of Rights and Remedies . . . . . 60
SECTION 5.10. Rights and Remedies Cumulative . . . . . . . 60
SECTION 5.11. Delay or Omission Not Waiver . . . . . . . . 61
SECTION 5.12. Control by Holders . . . . . . . . . . . . . 61
SECTION 5.13. Waiver of Past Defaults. . . . . . . . . . . 62
SECTION 5.14. Undertaking for Costs. . . . . . . . . . . . 62
SECTION 5.15. Waiver of Usury, Stay or Extension
Laws . . . . . . . . . . . . . . . . . . . 63
ARTICLE VI
The Trustee
-----------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 6.01. Certain Duties and
Responsibilities. . . . . . . . . . . . . . 63
SECTION 6.02. Notice of Defaults. . . . . . . . . . . . . . 64
SECTION 6.03. Certain Rights of Trustee . . . . . . . . . . 65
SECTION 6.04. Not Responsible for Recitals or
Issuance of Securities. . . . . . . . . . . 67
SECTION 6.05. May Hold Securities . . . . . . . . . . . . . 67
SECTION 6.06. Money Held in Trust . . . . . . . . . . . . . 67
SECTION 6.07. Compensation and Reimbursement. . . . . . . . 67
SECTION 6.08. Disqualification; Conflicting
Interests . . . . . . . . . . . . . . . . . 68
SECTION 6.09. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . . . . 68
SECTION 6.10. Resignation and Removal;
Appointment of Successor. . . . . . . . . . 69
SECTION 6.11. Acceptance of Appointment by
Successor . . . . . . . . . . . . . . . . . 71
SECTION 6.12. Merger, Conversion, Consolidation
or Succession to Business . . . . . . . . . 72
SECTION 6.13. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . . 73
SECTION 6.14. Appointment of Authenticating
Agent . . . . . . . . . . . . . . . . . . . 73
SECTION 6.15. Trustee's Rights and Obligations
After Qualification of Indenture. . . . . . 75
ARTICLE VII
Holder's Lists and Reports by Trustee and Company
-------------------------------------------------
SECTION 7.01. Company to Furnish Trustee Names
and Addresses of Holders. . . . . . . . . . 76
SECTION 7.02. Preservation of Information,
Communications to Holders . . . . . . . . . 76
SECTION 7.03. Reports by Trustee. . . . . . . . . . . . . . 76
SECTION 7.04. Reports by Company. . . . . . . . . . . . . . 77
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
----------------------------------------------------
SECTION 8.01. Company May Consolidate, etc., Only
on Certain Terms. . . . . . . . . . . . . . 77
SECTION 8.02. Successor Company
Substituted . . . . . . . . . . . . . . . . 79
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures without
Consent of Holders. . . . . . . . . . . . . 79
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 9.02. Supplemental Indentures with
Consent of Holders . . . . . . . . . . . . 81
SECTION 9.03. Execution of Supplemental
Indentures . . . . . . . . . . . . . . . . 83
SECTION 9.04. Effect of Supplemental
Indentures . . . . . . . . . . . . . . . . 83
SECTION 9.05. Conformity with Trust Indenture
Act. . . . . . . . . . . . . . . . . . . . 83
SECTION 9.06. Reference in Securities to
Supplemental Indentures. . . . . . . . . . 84
ARTICLE X
Covenants
---------
SECTION 10.01. Payment of Principal and Interest. . . . . . 84
SECTION 10.02. Maintenance of Office or Agency. . . . . . . 84
SECTION 10.03. Money for Security Payments to be
Held in Trust. . . . . . . . . . . . . . . 85
SECTION 10.04. Statement as to Compliance . . . . . . . . . 86
SECTION 10.05. Waiver of Certain Covenants. . . . . . . . . 87
SECTION 10.06. Payment of the Trust's Costs and
Expenses . . . . . . . . . . . . . . . . . 87
SECTION 10.07. Additional Covenants . . . . . . . . . . . . 88
SECTION 10.08. Information Returns. . . . . . . . . . . . . 89
SECTION 10.09. Statement by Officers as to
Default. . . . . . . . . . . . . . . . . . 89
SECTION 10.10. Delivery of Certain Information. . . . . . . 89
ARTICLE XI
Redemption or Prepayment of Securities
--------------------------------------
SECTION 11.01. Applicability of This Article. . . . . . . . 90
SECTION 11.02. Election to Redeem; Notice to
Trustee. . . . . . . . . . . . . . . . . . 90
SECTION 11.03. Selection of Securities to be
Redeemed . . . . . . . . . . . . . . . . . 91
SECTION 11.04. Notice of Redemption . . . . . . . . . . . . 91
SECTION 11.05. Deposit of Redemption Price. . . . . . . . . 92
SECTION 11.06. Payment of Securities Called for
Redemption . . . . . . . . . . . . . . . . 93
SECTION 11.07. Company's Right of Redemption. . . . . . . . 93
ARTICLE XII
Exchange and Registration Rights
--------------------------------
SECTION 12.01. Exchange . . . . . . . . . . . . . . . . . . 94
SECTION 12.02. Registration . . . . . . . . . . . . . . . . 95
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 12.03. Special Interest....................................... 95
SECTION 12.04. Compliance with Law.................................... 95
ARTICLE XIII
Sinking Funds
-------------
SECTION 13.01. Applicability of Article............................... 96
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities.. 96
SECTION 13.03. Redemption of Securities for Sinking Fund.............. 97
ARTICLE XIV
Subordination of Securities
---------------------------
SECTION 14.01. Securities Subordinate to Senior Debt.................. 99
SECTION 14.02. Payment Over of Proceeds Upon Dissolution, Etc......... 99
SECTION 14.03. Prior Payment to Senior Debt Upon Acceleration of
Securities........................................... 101
SECTION 14.04. No Payment When Senior Debt in Default................. 101
SECTION 14.05. Payment Permitted If No Default........................ 102
SECTION 14.06. Subrogation to Rights of Holders of Senior Debt........ 103
SECTION 14.07. Provisions Solely to Define Relative Rights............ 103
SECTION 14.08. Trustee to Effectuate Subordination.................... 104
SECTION 14.09. No Waiver of Subordination Provisions.................. 104
SECTION 14.10. Notice to Trustee...................................... 104
SECTION 14.11. Reliance on Judicial Order or Certificate of
Liquidating Agent.................................... 105
SECTION 14.12. Trustee Not Fiduciary for Holders of Senior Debt....... 105
SECTION 14.13. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights..................... 105
SECTION 14.14. Article Applicable to Paying Agents.................... 105
SECTION 14.15. Certain Conversions or Exchanges Deemed Payments....... 105
</TABLE>
Exhibit A - Form of Restricted Securities Certificate
<PAGE>
CENTRAL FIDELITY BANKS, INC.
Reconciliation and tie between the Trust Indenture Act of 1939
(including cross-references to provisions of Sections 310 to and including 317
which, pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended
by the Trust Reform Act of 1990, are a part of and govern the Indenture whether
or not physically contained therein) and the Junior Subordinated Indenture,
dated as of April 23, 1997.
<TABLE>
<CAPTION>
Indenture
Trust Indenture Act Section Section
- --------------------------- ---------
<S> <C>
(S)310(a)(1), (2) and (5).................................... 6.09
(S)310(a)(3)................................................. Not Applicable
(S)310(a)(4)................................................. Not Applicable
(S)310(b).................................................... 6.08, 6.10
(S)310(c).................................................... Not Applicable
(S)311(a).................................................... 6.13
(S)311(b).................................................... 6.13
(S)311(c).................................................... Not Applicable
(S)312(a).................................................... 7.01, 7.02(a)
(S)312(b).................................................... 7.02(b)
(S)312(c).................................................... 7.02(c)
(S)313(a).................................................... 7.03(a)
(S)313(b).................................................... 7.03(b)
(S)313(c).................................................... 7.03(a), 7.03(b)
(S)313(d).................................................... 7.03(c)
(S)314(a)(1), (2) and (3).................................... 7.04
(S)314(a)(4)................................................. 10.04
(S)314(b).................................................... Not Applicable
(S)314(c)(1)................................................. 1.02
(S)314(c)(2)................................................. 1.02
(S)314(c)(3)................................................. Not Applicable
(S)314(d).................................................... Not Applicable
(S)314(e).................................................... 1.02
(S)314(f).................................................... Not Applicable
(S)315(a).................................................... 6.01(a)
(S)315(b).................................................... 6.02, 7.03(a)
(S)315(c).................................................... 6.01(b)
(S)315(d).................................................... 6.01(c)
(S)315(d)(1)................................................. 6.01(c)(1)
(S)315(d)(2)................................................. 6.01(c)(2)
(S)315(d)(3)................................................. 6.01(c)(3)
(S)315(e).................................................... 5.14
(S)316(a).................................................... 5.12
(S)316(a)(1)(A).............................................. 5.12
(S)316(a)(1)(B).............................................. 5.13
(S)316(a)(2)................................................. Not Applicable
(S)316(b).................................................... 5.08
(S)316(c).................................................... 1.04(f)
(S)317(a)(1)................................................. 5.03
(S)317(a)(2)................................................. 5.04
(S)317(b).................................................... 10.03
(S)318(a).................................................... 1.07
</TABLE>
- ------------
Note:
This reconciliation and tie shall not, for any purpose, be deemed to be a part
of the Junior Subordinated Indenture.
<PAGE>
JUNIOR SUBORDINATED INDENTURE, dated as of April 23, 1997, between
CENTRAL FIDELITY BANKS, INC., a bank holding company established under
the laws of the Commonwealth of Virginia (hereinafter called the
"Company") having its principal office at 1021 East Cary Street, P.O.
Box 27602, Richmond, Virginia 23261-7602, and THE BANK OF NEW YORK, a
New York banking corporation, as Trustee (hereinafter called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured junior
subordinated debt securities in series (hereinafter called the "Securities") of
substantially the tenor 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 "Central
Fidelity Capital Trust" and, collectively, the "Central Fidelity Capital
Trusts") of preferred trust interests in such Central Fidelity Capital Trusts
(the "Capital Securities") and common interests in such Central Fidelity Capital
Trusts (the "Common Securities" and, collectively with the Capital Securities,
the "Trust Securities"), and to provide the terms and conditions upon which the
Securities are to be authenticated, issued and delivered.
NOW THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of
the premises and the purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, as follows:
ARTICLE I
Definitions and Other Provisions of General Application
-------------------------------------------------------
SECTION 1.01. Definitions. 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.
<PAGE>
2
(2) All other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein.
(3) All accounting terms not otherwise defined herein 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;
provided, that when two or more principles are so generally accepted, it shall
- --------
mean that set of principles consistent with those in use by the Company.
(4) The words "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", when used with respect to any Holder, has the meaning specified
in Section 1.04.
"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 any Officers' Certificate
delivered pursuant to Section 3.01 of the Indenture.
"Additional Sums" has the meaning specified in Section 10.06.
"Administrative Action" has the meaning specified in the definition
of "Tax Event" in this Section 1.01.
"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.
"Agent Member" means any member of, or participant in, the
Depositary.
<PAGE>
3
"Amended and Restated Declaration of Trust" for each series of
Securities has the meaning specified in the Officers' Certificate for such
series delivered pursuant to Section 3.01 of this Indenture.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors, or such committee of the Board of Directors or officers
of the Company to which authority to act on behalf of the Board of Directors has
been delegated, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii)
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 (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Securities of a
series issued to a Central Fidelity Capital Trust, the Corporate Trust Office of
the Property Trustee under the related Trust Agreement, is closed for business.
"Calculation Agent" means The Bank of New York and its respective
successors.
"Capital Securities" has the meaning specified in the first recital of
this Indenture, and shall include, where appropriate, Exchange Capital
Securities as defined in Article XII.
"Capital Treatment Event" means the Company shall have received an
opinion of independent bank regulatory counsel experienced in such matters to
the effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any rules or regulations
thereunder) of the United States or any political subdivision thereof or therein
or any rules, guidelines or policies of the Federal Reserve or (b) any official
or administrative pronouncement or action or judicial decision interpreting or
applying such laws or
<PAGE>
4
regulations, which amendment or change is effective or such pronouncement,
action or decision is announced on or after the Original Issue Date of the
Capital Securities, the Company will not be entitled to treat the Capital
Securities as "Tier 1 Capital" (or the equivalent thereof) for purposes of the
risk-based capital adequacy guidelines of the Federal Reserve, as then in effect
and applicable to the Company; provided, however, that the distribution of the
-------- -------
Securities in connection with the liquidation of a Central Fidelity Capital
Trust by the Company shall not in and of itself constitute a Capital Treatment
Event.
"Central Fidelity Capital Trust" has the meaning specified in the
first recital of this Indenture.
"Central Fidelity Guarantee" means the guarantee by the Company of the
distributions on the Trust Securities of a Central Fidelity Capital Trust to the
extent of the Guarantee Agreement.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time under the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Securities" has the meaning specified in the first recital
of this Indenture.
"Common Stock" means the common stock, $5.00 par value, of the
Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of the Company by the Chairman, Chief
Executive Officer, President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office
<PAGE>
5
as of the date of this Indenture is located at 101 Barclay Street, New York, New
York 10286.
"Corporation" includes a corporation, association, company, joint-
stock company or business trust.
"Declaration of Trust" for each series of Securities has the meaning
specified in the Officers' Certificate for such series delivered pursuant to
Section 3.01 of this Indenture.
"Defaulted Interest" has the meaning specified in Section 3.08.
"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 3.01 with respect to such series (or any successor thereto (a "Successor
Depositary")).
"Determination Date" has the meaning specified in Section 2.02.
"Discount Security" means any security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.02.
"Dollar" means the currency of the United States of America that, as
at the time of payment, is legal tender for the payment of public and private
debts.
"DTC" means The Depository Trust Company.
"Event of Default", unless otherwise specified in the supplemental
indenture creating a series of Securities, has the meaning specified in Article
V.
"Exchange Capital Securities" has the meaning specified in Section
12.01(a).
"Exchange Guarantee" has the meaning specified in Section 12.01(b).
"Exchange Offer Registration Statement" has the meaning specified in
Section 12.01(a).
"Exchange Securities" has the meaning specified in Section 12.01(a).
<PAGE>
6
"Extension Period" has the meaning specified in Section 3.12.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Foreign Currency" means any currency issued by the government of one
or more countries other than the United States of America or by any recognized
confederation or association of such governments.
"Global Security" means a Security in the form prescribed in Section
2.04 evidencing all or part of a series of Securities, issued to the Depositary
or its nominee for such series, and registered in the name of such Depositary or
its nominee.
"Guarantee Agreement" for each series of Securities has the meaning
specified in the Officers' Certificate for such series delivered pursuant to
Section 3.01 of this Indenture.
"Holder" means a Person in whose name a Security is registered in
the Securities Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of each particular series of Securities established
as contemplated by Section 3.01.
"Institutional Accredited Investor" means an accredited investor
within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act.
"Interest Payment Date" means as to each series of Securities the
Stated Maturity of an installment of interest on such Securities.
"Interest Rate" means the rate of interest specified or determined as
specified in each Security as being the rate of interest payable on such
Security.
"Junior Subordinated Payment" has the meaning specified in Section
14.02.
"LIBOR" has the meaning specified in Section 2.02.
"Lien" means any mortgage, pledge, lien, security interest or other
encumbrance.
<PAGE>
7
"Liquidation Amount" has the meaning specified in Section 1.01 of
the Trust Agreement.
"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 as the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"1940 Act" means the Investment Company Act of 1940.
"Officers' Certificate" means a certificate signed by the Chairman and
Chief Executive Officer, President, or Vice President, and by the Treasurer, the
Controller, the Chief Financial Officer, the Secretary or any Assistant
Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company.
"Original Issue Date" means the date of issuance specified as such
in each Security.
"Other Debentures" means, with respect to any series of Securities,
all junior subordinated debt securities to be issued by the Company pursuant to
this Indenture, other than such series of Securities, with substantially similar
subordination terms, and which will be issued and sold (if at all) to any
Central Fidelity Capital Trust established by the Company (if any), and will be
unsecured and subordinate and junior in right of payment to the extent and to
the manner set forth in this Indenture to all Senior Debt of the Company.
"Other Guarantees" means, with respect to any series of Securities,
all guarantees (if any) to be issued by the Company with respect to Capital
Securities (if any) to be issued by any Central Fidelity Capital Trust to be
established by the Company (if any), other than the guarantee related to such
series of Securities.
"Outstanding" means, when used in reference to any Securities, as of
the date of determination, all Securities
<PAGE>
8
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancelation;
(ii) Securities for whose payment money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent in trust
for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or which have been paid
pursuant to Section 3.07, unless proof satisfactory to the Trustee is
presented that any such Securities are held by Holders in whose hands such
Securities are valid, binding and legal obligations of the Company;
provided, however, that 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, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer actually knows to
be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
Upon the written request of the Trustee, the Company shall furnish 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 any Affiliate of the Company
or such obligor, and, subject to the provisions of Section 6.01, 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.
"Paying Agent" means the Trustee or any Person authorized by the
Company to pay the principal of or interest on any Securities on behalf of the
Company.
<PAGE>
9
"Person" means any individual, Corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment" means, with respect to the Securities of any
series, the place or places where the principal of and interest on the
Securities of such series are payable pursuant to Sections 3.01 and 3.08.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any security
authenticated and delivered under Section 3.07 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Proceeding" has the meaning specified in Section 14.02.
"Property Trustee" means, in respect of any Central Fidelity 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 Central Fidelity Capital Trust under each 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.
"Redemption Date", when used with respect to any Security of a series
to be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Registration Agreement" has the meaning specified in Section 12.01.
"Regular Record Date" for the interest payable on any Interest Payment
Date with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.01 with respect to Securities of a series, the date which
is the Business Day next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee means any
officer assigned to the Corporate Trust Office, including any managing director,
vice president, assistant vice president, assistant treasurer, assistant
secretary or any other officer of the Trustee customarily performing functions
similar to those performed
<PAGE>
10
by any of the above designated officers and having direct responsibility for the
administration of this Indenture, and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Restricted Security" means each Security required pursuant to Section
3.06(c) hereof to bear a Restricted Securities Legend.
"Restricted Securities Certificate" means a certificate substantially
in the form set forth in Exhibit A to this Indenture.
"Restricted Securities Legend" means a legend substantially in the
form of the legend required in the form of Security set forth in Section 2.02 to
be placed on a Restricted Security.
"Reuters Page LIBO" has the meaning specified in Section 2.02.
"Securities" or "Security" means any debt securities or debt security,
as the case may be, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Certificate" means a certificate evidencing ownership of
Securities.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.06.
"Senior Debt" with respect to any series of Securities means (a) the
principal of, and premium, if any, and interest on all indebtedness of the
Company for money borrowed, whether outstanding on the date of execution of this
Indenture or thereafter created, assumed or incurred, (b) all obligations to
make payment pursuant to the terms of financial instruments, such as (i)
securities contracts and foreign currency exchange contracts, (ii) derivative
instruments, such as swap agreements (including interest rate and foreign
exchange note swap agreements), cap agreements, floor agreements, collar
agreements, interest rate agreements, foreign exchange agreements, options,
commodity futures contracts and commodity options contracts, and (iii) similar
financial instruments; except, in the case of both (a) and (b) above, such
indebtedness and obligations that are expressly stated to rank junior in right
of payment
<PAGE>
11
to, or pari passu in right of payment with, the Securities, (c) and indebtedness
----------
or obligations of other of the kind described in both (a) and (b) above for the
payment of which the Company is responsible or liable as guarantor or otherwise,
and (d) any deferrals, renewals or extensions of any such Senior Debt; provided,
--------
however, that Senior Debt shall not be deemed to include (a) any debt of the
- -------
Company which, when incurred and without respect to any election under
Section 1111(b) of the U.S. Bankruptcy Code of 1978, as amended, was without
recourse to the Company; (b) any debt of the Company to any of its Subsidiaries;
(c) debt to any employee of the Company; (d) debt which by its terms is
subordinated to trade accounts payable or accrued liabilities arising in the
ordinary course of business to the extent that payments made to the holders of
such debt by the Holders as a result of the subordination provisions of this
Indenture would be greater than such payments otherwise would have been as a
result of any obligation of such holders of such debt to pay amounts over to the
obligees on such trade accounts payable or accrued liabilities arising in the
ordinary course of business as a result of the subordination provisions to which
such debt is subject; (e) trade accounts payable or accrued liabilities arising
in the ordinary course of business; and (f) any other debt securities issued
pursuant to this Indenture.
"Shelf Registration Statement" has the meaning specified in
Section 12.02.
"Special Interest" has the meaning specified in Section 12.03.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.08.
"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 as provided pursuant
to the terms of such Security and this Indenture.
"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
<PAGE>
12
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.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.07 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Successor Trustee" has the meaning specified in the definition of
"Trustee" in this Section 1.01.
"Tax Event" means the receipt by the Trust or the Company of an
opinion of a nationally recognized independent tax counsel to the Company
experienced in such matters to the effect that, as a result of (a) 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, (b) any judicial decision or official
administrative pronouncement, ruling, regulatory procedure, notice or
announcement, including any notice or announcement of intent to adopt such
procedures or regulations (an "Administrative Action") or (c) any amendment to
or change in the administrative position or interpretation of any Administrative
Action or judicial decision that differs from the theretofore generally accepted
position, in each case, by any legislative body, court, governmental agency or
regulatory body, irrespective of the manner in which such amendment or change is
made known, which amendment or change is effective or such Administrative Action
or decision is announced, in each case, on or after the date of the Original
Issue Date of the applicable series of Securities or the issue date of the
applicable Capital Securities issued by the affected Central Fidelity Capital
Trust, there is more than an insubstantial risk that (x) if the Securities are
held by or on behalf of the affected Central Fidelity Capital Trust, (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 interest accrued or received on
the Securities or subject to more than a de minimis amount of other taxes,
----------
duties or other governmental charges as determined by such counsel, or (ii) any
portion of interest payable by the Company to the affected Central Fidelity
Capital Trust on the Securities is not, or within 90 days of the date of such
opinion will not
<PAGE>
13
be, deductible by the Company in whole or in part for United States federal
income tax purposes or (y) with respect to Securities which are no longer held
by or on behalf of the affected Central Fidelity Capital Trust, any portion of
interest payable by the Company on the Securities 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.
"Trust Agreement" with respect to each series of Securities means the
Declaration of Trust with respect to such series, as amended by the Amended and
Restated Declaration of Trust with respect to such series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
(S)(S) 77aaa-77bbbb), as in effect on the date of this Indenture, except as
provided in Sections 1.07 and 9.05.
"Trust Securities" has the meaning specified in the first recital of
this Indenture.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee (a "Successor Trustee")
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Trustee" shall mean or include each Person who is then a Trustee
hereunder and, if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series shall mean the Trustee with
respect to Securities of that series.
"Vice President", when used with respect to the Company, means any
duly appointed vice president, whether or not designated by a number or a word
or words added before or after the title "vice president".
SECTION 1.02. Compliance Certificate and Opinions. Upon any
------------------------------------
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent (including covenants
compliance with which constitutes a condition 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 that all such
conditions precedent (including covenants compliance with which constitute a
condition precedent), if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any
<PAGE>
14
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided regarding conditions or covenants waived by the Holders
pursuant to Section 10.05) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(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 each such individual, 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, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03. Forms of Documents Delivered to Trustee. In any case
----------------------------------------
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate 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, or in the exercise of
reasonable care should know, that the certificate or opinion or representation
with respect to matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer
<PAGE>
15
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,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders. (a) Any request, demand,
----------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given to or taken by Holders, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments is or are delivered to the Trustee, and, where it
is hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders 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 Indenture and (subject to
Section 6.01) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) 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 the certificate of any 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 Person acting in other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
<PAGE>
16
(d) The ownership of Securities shall be proved by the Securities
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(f) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to take any action under
this Indenture by vote or consent. Except as otherwise provided herein, such
record date shall be the later of 30 days prior to the first solicitation of
such consent or vote or the date of the most recent list of Securityholders
furnished to the Trustee pursuant to Section 7.01 prior to such solicitation.
If a record date is fixed, those persons who were Securityholders at such record
date (or their duly designated proxies), and only those persons, shall be
entitled to take such action by vote or consent or to revoke any vote or consent
previously given, whether or not such persons continue to be Holders after such
record date, provided, however, that unless such vote or consent is obtained
-------- -------
from the Holders (or their duly designated proxies) of the requisite principal
amount of Outstanding Securities prior to the date which is the 120th day after
such record date, any such vote or consent previously given shall automatically
and without further action by any Holder be canceled and of no further effect.
SECTION 1.05. Notices, Etc. to Trustee and Company. Any request,
-------------------------------------
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose (except as otherwise provided in Section 5.01 hereof)
hereunder if in writing and mailed, first class, postage prepaid, to the
Company addressed to it at the address of its principal office specified in
the first paragraph of
<PAGE>
17
this instrument or at any other address previously furnished in writing to
the Trustee by the Company.
SECTION 1.06. Notice to Holders; Waiver. Where this Indenture
--------------------------
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Securities Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. In case, by reason of the suspension of or
irregularities in regular mail service or for any other reason, it shall be
impossible or impracticable to mail notice of any event to Holders when said
notice is required to be given pursuant to any provision of this Indenture or of
the relevant Securities, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 1.07. Conflict with Trust Indenture Act. This Indenture will
----------------------------------
not be qualified under the Trust Indenture Act except upon the effectiveness of
a registration statement as contemplated in Article XII hereof. If any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by any of Section 310 to 317, inclusive, of the Trust Indenture Act
through operation of Section 318(c) thereof, such imposed duties shall control.
SECTION 1.08. Effect of Headings and Table of Contents. The Article
-----------------------------------------
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and agreements
-----------------------
in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
<PAGE>
18
SECTION 1.10. Separability Clause. In case any provision in this
--------------------
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality or enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture or in
----------------------
the Securities, express or implied, shall give to any Person, other than the
parties hereto, any Paying Agent and their successors and assigns, the holders
of Senior Debt and the Holders of the Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law. This Indenture and the Securities shall
--------------
be governed by and construed in accordance with the laws of the State of New
York, without regard to principles of conflicts of laws.
SECTION 1.13. Non-Business Days. In any case where any Interest
------------------
Payment Date, Redemption Date or Stated Maturity of any Security shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or the
Securities) payment of interest or principal need not be made on such date, but
may be made on the next succeeding Business Day (and no interest shall accrue
for the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be, until such next succeeding Business Day)
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 Interest Payment Date or
Redemption Date or at the Stated Maturity, as the case may be.
ARTICLE II
Security Forms
--------------
SECTION 2.01. Forms Generally. The Securities of each series and the
----------------
Trustee's certificate of authentication shall be in substantially the forms set
forth in this Article, or in such other form or forms as shall be established by
or pursuant to a Board Resolution or in one or more 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 and such legends or
endorsements placed thereon as may be required to comply with applicable tax
<PAGE>
19
laws or the rules of any securities exchange or as may, consistently herewith,
be determined by the officers executing such securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, 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 Company Order contemplated by Section 3.03 with respect to
the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods, if required by any securities
exchange on which the Securities may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Securities distributed to holders of book-entry Capital Securities
shall be distributed in the form of one or more Global Securities registered in
the name of a Depositary or its nominee, and deposited with the Securities
Registrar, as custodian for such Depositary, or held by such Depositary for
credit by the Depositary to the respective accounts of the beneficial owners of
the Securities represented thereby (or such other accounts they may direct).
Securities distributed to holders of Capital Securities other than book-entry
Capital Securities shall not be issued in the form of a Global Security or any
other form intended to facilitate book-entry trading in beneficial interests in
such Securities.
SECTION 2.02. Form of Face of Security.
-------------------------
[If this Security is a Restricted Security, insert--THIS SECURITY HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR
ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY
PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH CENTRAL FIDELITY BANKS, INC. (THE
<PAGE>
20
"COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR
ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTIONS TERMINATION DATE")
ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN
ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF TRUST, A COPY OF WHICH
MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTIONS TERMINATION DATE.]
CENTRAL FIDELITY BANKS, INC.
(Title of Security)
CUSIP
No. $
CENTRAL FIDELITY BANKS, INC., a corporation organized and existing
under the laws of the Commonwealth of Virginia (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to ,
or its registered assigns, the principal sum of Dollars on
(the "Stated Maturity"). The Company further promises to pay interest on said
principal sum from , or from the most recent interest payment date
(each such date, an "Interest Payment Date") on which interest has been paid or
duly provided for, [monthly] [quarterly] [semi-annually] [annually] [if
applicable, insert--(subject to deferral as set forth herein)], in arrears on
[insert applicable Interest Payment Dates] of each year, commencing ,
----------------------------------------
, at a variable annual rate equal to LIBOR plus [ ]%, until the
principal hereof shall have become due and
<PAGE>
21
payable, [if applicable, insert--plus Additional Interest, if any,] until the
principal hereof is paid or duly provided for or made available for payment [if
applicable, insert--and on any overdue principal and (without duplication and to
the extent that payment of such interest is enforceable under applicable law) on
any overdue installment of interest at a variable annual rate equal to LIBOR
plus [ ]% compounded [monthly] [quarterly] [semi-annually] [annually] as
Additional Interest].
The Calculation Agent will calculate the interest rate for each
[monthly] [quarterly] [semi-annual] [annual] interest period based on LIBOR
determined as of two London Business Days (defined as any day, other than a
Saturday or Sunday, on which banks are open for business in London) prior to the
first day of such interest period (each, a "Determination Date"). "LIBOR"
means, with respect to a [monthly] [quarterly] [semi-annual] [annual] interest
period relating to an Interest Payment Date (in the following order of
priority): (i) the rate (expressed as a percentage per annum) for Eurodollar
deposits having a three-month maturity that appears on Telerate Page 3750 as of
11:00 a.m. (London time) on the related Determination Date; (ii) if such rate
does not appear on Telerate Page 3750 as of 11:00 a.m. (London time) on the
related Determination Date, LIBOR will be the arithmetic mean (if necessary
rounded upwards to the nearest whole multiple of .00001%) of the rates
(expressed as percentages per annum) for Eurodollar deposits having a three-
month maturity that appear on Reuters Monitor Money Rates Page LIBO ("Reuters
Page LIBO") as of 11:00 a.m. (London time) on such Determination Date; (iii) if
such rate does not appear on Reuters Page LIBO as of 11:00 a.m. (London time) on
the related Determination Date, the Calculation Agent will request the principal
London offices of four leading banks in the London interbank market to provide
such banks' offered quotations (expressed as percentages per annum) to prime
banks in the London interbank market for Eurodollar deposits having a three-
month maturity as of 11:00 a.m. (London time) on such Determination Date. If at
least two quotations are provided, LIBOR will be the arithmetic mean (if
necessary rounded upwards to the nearest whole multiple of .00001%) of such
quotations; (iv) if fewer than two such quotations are provided as requested in
clause (iii) above, the Calculation Agent will request four major New York City
banks to provide such banks' offered quotations (expressed as percentages per
annum) to leading European banks for loans in Eurodollars as of 11:00 a.m.
(London time) on such Determination Date; provided that, if at least two such
-------- ----
quotations are provided, LIBOR will be the arithmetic mean (if necessary rounded
upwards to the nearest whole multiple of .00001%) of such
<PAGE>
22
quotations; and (v) if fewer than two such quotations are provided as requested
in clause (iv) above, LIBOR will be LIBOR determined with respect to the
interest period immediately preceding such current interest period.
If the rate for Eurodollar deposits having a three-month maturity that
initially appears on Telerate Page 3750 or Reuters Page LIBO, as the case may
be, as of 11:00 a.m. (London time) on the related Determination Date is
superseded on Telerate Page 3750 or Reuters Page LIBO, as the case may be, by a
corrected rate before 12:00 noon (London time) on such Determination Date, the
corrected rate as so substituted on the applicable page will be the applicable
LIBOR for such Determination Date.
LIBOR for the initial interest period (commencing upon the original
issuance of the Securities) shall be determined as provided above. Absent
manifest error, the Calculation Agent's determination of LIBOR and its
calculation of the applicable interest rate for each interest period will be
final and binding. Investors may obtain the interest rates for the current and
preceding interest period by writing or calling the office of Corporate Trust
Administration at the Calculation Agent at The Bank of New York, 101 Barclay
Street, Floor 21 West, New York, New York 10286.
The amount of interest payable for any period shall be computed on the
basis of the actual number of days elapsed in a year of twelve 30-day months;
except that the amount of interest payable for any partial period shall be
computed on the basis of the actual number of days elapsed in a 360-day year.
In the event that any date on which interest is payable on this Security 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), [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 the payment was originally payable. A "Business Day"
------------
shall mean any day other than (i) a Saturday or Sunday, (ii) 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 (iii) a day on which the Corporate Trust
Office of the Trustee or the Corporate Trust Office of the Property Trustee
under the Trust Agreement hereinafter referred to for Central Fidelity Capital
Trust is closed for business. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
<PAGE>
23
provided in the Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities, as defined in the Indenture) is registered
at the close of business on the Regular Record Date for such interest
installment, which shall be the [insert definition of Regular Record Dates].
-----------------------------------------
Any such interest installment not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture.
[If applicable, insert--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 Security, from time to time, to defer payment of interest on such
Security for up to consecutive [monthly] [quarterly] [semi-annual] [annual]
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, and at
the end of which the Company shall pay all interest then accrued and unpaid on
the Securities (together with Additional Interest thereon to the extent
permitted by applicable law); provided, however, that no Extension Period may
-------- -------
extend beyond the Stated Maturity of this Security. During any such Extension
Period, the Company may not (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 of, interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Company (including any
Other Debentures) that rank pari passu with or junior in interest to this
---- -----
Security or (iii) 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 this Security (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
<PAGE>
24
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the applicable Central Fidelity Guarantee,
(d) purchases or acquisitions of shares of the Company's Common Stock in
connection with the satisfaction by the Company of its obligations under any
employee benefit plan or other contractual obligation of the Company (other than
a contractual obligation ranking pari passu with or junior to these Securities),
---- -----
(e) as a result of a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock for
another class or series of the Company's capital stock or (f) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged). Prior to the termination of any such Extension Period,
the Company may further extend such Extension Period, provided, however, that
-------- -------
such extension does not cause such Extension Period to exceed consecutive
[monthly] [quarterly] [semi-annual] [annual] interest payment periods or extend
beyond the Stated Maturity of this Security. Upon the termination of any such
Extension Period and the payment of all accrued and unpaid interest and any
Additional Interest then due, and, subject to the foregoing limitations, the
Company may elect to begin a new Extension Period. 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 Extension Period at least
three Business Days prior to the Interest Payment Date, [if applicable, insert--
or, with respect to the Securities issued to a Central Fidelity Capital Trust,
prior to the earlier of (i) the date the Distributions on the Capital Securities
would have been payable except for the election to begin or extend such
Extension Period or (ii) the date the Administrative Trustees 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 three Business Days prior to such record date]. There is
no limitation on the number of times the Company may elect to begin an Extension
Period.
Payment of the principal of and interest on this Security will be made
at the office or agency of the Trustee in The City of New York or at the office
of such Paying Agents in the United States as the Company may designate from
time to time, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts [if
applicable, insert--; provided, however, that at the option of the
-------- -------
<PAGE>
25
Company payment of any interest may be made (except in the case of Securities in
Global form) (i) by check mailed to the address of the Person entitled thereto
as such address shall appear in the Securities Register or (ii) by wire transfer
in immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Securities
Register].
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions,
(b) authorizes and directs the Trustee on his behalf to take such actions as may
be necessary or appropriate to effectuate the subordination so provided and
(c) appoints the Trustee his attorney-in-fact for any and all such purposes.
Each Holder hereof, by his acceptance hereof, waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Debt, whether now outstanding or hereinafter incurred,
and waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be
<PAGE>
26
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Date: CENTRAL FIDELITY BANKS, INC.,
[Seal]
by
-----------------------------
[Chairman and Chief
Executive Officer,
President or
Vice President]
Attest:
- ----------------------------
[Secretary or Assistant
Secretary]
SECTION 2.03. Form of Reverse of Security. This Security is one of a
----------------------------
duly authorized issue of securities of the Company (herein called the
"Securities"), issued and to be issued in one or more series under a Junior
- -----------
Subordinated Indenture, dated as of April 23, 1997, as supplemented by an
Officers' Certificate dated as of , (herein called the "Indenture"),
---------
between the Company and The Bank of New York, as Trustee (herein called the
"Trustee", which term includes any Successor Trustee under the Indenture), to
- --------
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof[, limited in aggregate principal amount to $ ].
All terms used in this Security that are defined in the Indenture [if
applicable, insert--and in the Amended and Restated Declaration of Trust of
[insert the applicable Central Fidelity Capital Trust ], dated as of [ , ]
as amended (the "Amended and Restated Declaration of Trust"), among Central
Fidelity Banks, Inc., as Depositor, and the Trustees named therein,] shall have
the meanings assigned to them in the Indenture or, to the extent not
<PAGE>
27
defined in the Indenture, the Amended and Restated Declaration of Trust, as the
case may be.
[If applicable, insert--On or after , the Company may at any
time, at its option, subject to the terms and conditions of Article XI of the
Indenture and 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, redeem this Security in whole or in part at any time or
from time to time prior to the Stated Maturity, at 100% of the aggregate
principal amount hereof, plus accrued and unpaid interest to the redemption
date.
[If applicable, insert--If a Tax Event or a 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 and subject to
the provisions of Article XI of the Indenture, redeem the Securities in whole,
but not in part, prior to [ , ] and within 90 days after the
occurrence of such Tax Event or Capital Treatment Event, upon not less than 30
nor more than 60 days' notice, at 100% of the aggregate principal amount hereof,
plus accrued and unpaid interest to the redemption date.]
In the event of redemption of this Security in part only, a new
Security or Securities of this series for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancelation hereof.
[If the Security is not a Discount Security,--If an Event of Default
------------------------------------------
with respect to Securities of this series shall occur and be continuing, the
principal of this Security may be declared due and payable in the manner, with
the effect and subject to the conditions provided in the Indenture].
[If the Security is a Discount Security,--If an Event of Default with
--------------------------------------
respect to Securities of this series shall occur and be continuing, an amount of
principal of this Security may be declared due and payable in the manner, with
the effect and subject to the conditions provided in the Indenture. Such amount
shall be equal to [--insert formula for determining the amount]. Upon payment
------------------------------------------
(i) of the amount of principal so declared due and payable and (ii) of interest
on any overdue principal and overdue interest (in each case to the extent that
the payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the
<PAGE>
28
principal of and interest, if any, on this Security shall terminate.]
The Indenture permits, with certain exceptions as therein provided,
the Company and the Trustee at any time to enter into a supplemental indenture
or indentures for the purpose of modifying in any manner the rights and
obligations of the Company and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series to be affected by such supplemental
indenture. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
[If the Security is not a Discount Security,--As provided in and
------------------------------------------
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of this
series may declare the principal amount of all the Securities of this series to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), provided, however, that, in the case of the
-------- -------
Securities of this series issued to a Central Fidelity Capital Trust, if upon an
Event of Default, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of this series fails to declare
the principal of all the Securities of this series to be immediately due and
payable, the holders of at least 25% in aggregate Liquidation Amount of the
corresponding series of Capital Securities then outstanding shall have such
right by a notice in writing to the Company and the Trustee with a copy to the
Property Trustee. The Holders of a majority in aggregate principal amount of the
Outstanding Securities of this series may annul such declaration and waive the
default by written notice to the Property Trustee, the Company and the Trustee
if the default (other than the non-payment of the principal of these Securities
which has become due solely by such
<PAGE>
29
acceleration) 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 Trustee. Should the Holders of these Securities of this
series fail to annul such declaration and waive such default, the holders of a
majority in aggregate Liquidation Amount of the Capital Securities shall have
such right. Upon any such declaration of such principal amount and the accrued
interest (including any Additional Interest) on all the Securities of this
series shall become immediately due and payable, provided that the payment of
principal and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article XIV of the
Indenture.]
[If the Security is a Discount Security,--As provided in and subject
--------------------------------------
to the provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of this series may
declare such portion of the principal amount as may be specified in the terms of
this series of all the Securities of this series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), provided that, in the case of the Securities of this series issued
--------
to a Central Fidelity Capital Trust, if upon an Event of Default, the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of this series fails to declare the principal of all the
Securities of this series to be immediately due and payable, the holders of at
least 25% in aggregate Liquidation Amount of the corresponding series of Capital
Securities then outstanding shall have such right by a notice in writing to the
Company and the Trustee with a copy to the Property Trustee. The Holders of a
majority in aggregate principal amount of the Outstanding Securities of this
series may annul such declaration and waive the default by written notice to the
Property Trustee, the Company and the Trustee if the default (other than the
non-payment of the principal of these Securities which has become due solely by
such acceleration) 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 Trustee. Should the Holders of these Securities of this
series fail to annul such declaration and waive such default, the holders of a
majority in aggregate Liquidation Amount of the Capital Securities shall have
such right. Upon any such declaration of such principal amount and the accrued
interest (including any Additional Interest)
<PAGE>
30
on all the Securities of this series shall become immediately due and payable,
provided that the payment of principal and interest (including any Additional
Interest) on such Securities shall remain subordinated to the extent provided in
Article XIV of the Indenture.]
No reference herein to the Indenture and no provision of this Security
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
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Securities Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained pursuant to Section
10.02 of the Indenture duly endorsed by, 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
and thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees. No service charge shall be made for any
such registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
shall treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities of this series are issuable only in registered form
without coupons in blocks having aggregate principal amounts of not less than
$100,000 (100 Securities) and any integral multiple of $1,000 in excess thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of such series of a different authorized denomination, as
requested by the Holder surrendering the same.
<PAGE>
31
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security intend that such Security constitute indebtedness and
agree to treat such Security as indebtedness for all United States Federal,
state and local tax purposes.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
SECTION 2.04. Additional Provisions Required in Global Security. Any
--------------------------------------------------
Global Security issued hereunder shall, in addition to the provisions contained
in Sections 2.02 and 2.03, bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of The Depository
Trust Company (the "Depositary") or a nominee of the Depositary. This
Security is exchangeable for Securities registered in the name of a person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture and no transfer of this Security (other than a
transfer of this Security 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 limited
circumstances.
Unless this Security is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York) to Central Fidelity
Banks, Inc. or its agent for registration of transfer, exchange or payment,
and any Security 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 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."
<PAGE>
32
SECTION 2.05. Form of Trustee's Certificate of Authentication. This
------------------------------------------------
is one of the Securities referred to in the within mentioned Indenture:
-------------------------------
as Trustee
Dated:
By:
----------------------------
Authorized Signatory
ARTICLE III
The Securities
--------------
SECTION 3.01. Title and Terms. 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. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of a series:
(a) the title of the securities of such series, which shall
distinguish the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series which may be authenticated and made available
for delivery under this Indenture (except for Securities authenticated and
made available for delivery upon registration of, transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Section 3.04, 3.06, 3.07, 9.06 or 11.06); provided, however, that the
-------- -------
authorized aggregate principal amount of such series may be increased
above such amount by a Board Resolution to such effect;
(c) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination
thereof;
(d) the rate or rates, if any, at which the Securities of such series
shall bear interest, if any, the rate or rates and extent to which
Additional Interest, if any, shall be payable in respect of any
<PAGE>
33
Securities of such series, the Interest Payment Dates on which such
interest shall be payable, the right, pursuant to Section 3.12 or as
otherwise set forth therein, of the Company to defer or extend an Interest
Payment Date, and the Regular Record Date for the interest payable on any
Interest Payment Date or the method by which any of the foregoing shall be
determined;
(e) the place or places where the principal of and interest on the
Securities of such series shall be payable, the place or places where the
Securities of such series may be presented for registration of transfer or
exchange, and the place or places where notices and demands to or upon the
Company in respect of the Securities of such series may be made;
(f) the period or periods within or the date or dates on which, if
any, the price or prices at which and the terms and conditions upon which
the Securities of such series may be redeemed, in whole or in part, at the
option of the Company;
(g) the obligation or the right, if any, of the Company to redeem,
repay or purchase the Securities of such series pursuant to any sinking
fund, amortization or analogous provisions, or at the option of a Holder
thereof, and the period or periods within which, the prices or prices at
which, the currency or currencies (including currency unit or units) in
which and the other terms and conditions upon which Securities of the
series shall be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligations;
(h) the denominations in which any Securities of such series shall be
issuable, if other than in blocks having aggregate principal amounts of not
less than $100,000 (100 Securities) and integral multiples of $1,000 in
excess thereof;
(i) if other than Dollars, the currency or currencies (including
currency unit or units) in which the principal of and interest, if any, on
the Securities of the series shall be payable, or in which the Securities
of the series shall be denominated and the manner of determining the
equivalent thereof in Dollars for purposes of the definition of the term
"Outstanding";
(j) the additions, modifications or deletions, if any, in the Events
of Default or covenants of the
<PAGE>
34
Company set forth herein with respect to the Securities of such series;
(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with respect
to the Securities of such series as shall be necessary to permit or
facilitate the issuance of the Securities of such series in bearer form,
registrable or not registrable as to principal, and with or without
interest coupons;
(m) any index or indices used to determine the amount of payments of
principal on the Securities of such series or the manner in which such
amounts will be determined;
(n) the issuance of a temporary Global Security representing all of
the Securities of such series and exchange of such temporary Global
Security for definitive Securities of such series;
(o) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Securities, which Depositary shall be a clearing
agency registered under the Securities Exchange Act of 1934;
(p) the appointment of any Paying Agent or Agents for the Securities
of such series;
(q) the terms of any right to convert or exchange Securities of such
series into any other securities or property of the Company, and the
additions or changes, if any, to this Indenture with respect to the
Securities of such series to permit or facilitate such conversion or
exchange;
(r) the transfer restrictions and legends required to be on the
Securities;
(s) the definitions of Amended and Restated Declaration of Trust,
Declaration of Trust and Guarantee Agreement for each series;
(t) the relative degree, if any, to which the Securities of the series
shall be senior to or be
<PAGE>
35
subordinated to other series of Securities in right of payment, whether
such other series of Securities are Outstanding or not; and
(u) any other terms of the Securities of such series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided herein or in
or pursuant to such Board Resolution and set forth in such Officers' Certificate
or in any such indenture supplemental hereto.
Unless otherwise provided with respect to the Securities of any
series, at the option of the Company, interest on the Securities of any series
that bears interest may be paid (except in the case of Securities in Global
form) (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Securities Register or (ii) by wire transfer in
immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Securities
Register.
SECTION 3.02. Denominations. The Securities of each series shall be
--------------
in registered form without coupons and shall be issuable in blocks having
aggregate principal amounts of not less than $100,000 (100 Securities) and
integral multiples of $1,000 in excess thereof, unless otherwise specified as
contemplated by Section 3.01.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
-----------------------------------------------
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President or one of its Vice Presidents under its corporate seal
reproduced or impressed thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver
Securities executed by the Company to the Trustee for authentication.
Securities may be
<PAGE>
36
authenticated on original issuance from time to time and delivered pursuant to
such procedures acceptable to the Trustee ("Procedures") as may be specified
from time to time by Company Order. Procedures may authorize authentication and
delivery pursuant to oral instructions of the Company or a duly authorized
agent, which instructions shall be promptly confirmed in writing. The Trustee
shall authenticate and deliver such Securities in accordance with such
instructions and as provided in this Indenture.
Prior to the delivery of a Security in any such form to the Trustee
for authentication, the Company shall deliver to the Trustee the following:
(a) a Company Order requesting the Trustee's authentication and
delivery of all or a portion of the Securities of such series, and if less
than all, setting forth procedures for such authentication;
(b) the Board Resolution by or pursuant to which such form of Security
has been approved, and the Board Resolution, if any, by or pursuant to
which the terms of the Securities of such series have been approved, and,
if pursuant to a Board Resolution, an Officers' Certificate describing the
action taken;
(c) an Officers' Certificate dated the date such certificate is
delivered to the Trustee, stating that all conditions precedent provided
for in this Indenture relating to the authentication and delivery of
Securities in such form and with such terms have been complied with; and
(d) an Opinion of Counsel or Opinions of Counsel substantially to the
effect that (i) the form of such Securities has been duly authorized and
approved in conformity with the provisions of this Indenture; (ii) the
terms of such Securities have been duly authorized and determined in
conformity with the provisions of this Indenture, or, if such terms are to
be determined pursuant to Procedures, as defined above, when so determined
such terms shall have been duly authorized and determined in conformity
with the provisions of this Indenture; and (iii) Securities in such form
when completed by appropriate insertions and executed and delivered by the
Company to the Trustee for authentication in accordance with this
Indenture, authenticated and made available for delivery by the Trustee in
accordance with this Indenture within the authorization as to aggregate
principal amount established from time to time by the Board of Directors
<PAGE>
37
and sold in the manner specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company entitled to
the benefits of this Indenture, subject to bankruptcy, reorganization,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles and except as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Securities denominated other
than in Dollars (or a Foreign Currency or currency unit judgment in respect
of such claim) be converted into Dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments in Foreign
Currencies or currency units or payments outside the United States, and
subject to such other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities.
The Trustee shall be entitled to receive the documents referred to in
clauses (b) and (d) above only at or prior to the first request of the Company
to the Trustee to authenticate Securities of such series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture, or
be valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
officers, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and made
available for delivery hereunder.
SECTION 3.04. Temporary Securities. Pending the preparation of
---------------------
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor of the definitive Securities of such
series in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities.
<PAGE>
38
If temporary Securities of any series are issued, the Company will
cause definitive Securities of such series to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancelation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations having the same Original Issue Date and Stated Maturity and having
the same terms as such temporary Securities. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 3.05. Global Securities. (a) Each Global Security issued
------------------
under this Indenture shall be registered in the name of the Depositary
designated by the Company for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and
each such Global Security shall constitute a single Security for all purposes of
this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (a) such Depositary advises the Trustee in writing that
such Depositary is no longer willing or able to continue as a Depositary with
respect to such Global Security, and no successor depositary shall have been
appointed, or if at any time the Depositary ceases to be a "clearing agency"
regestered under the Exchange Act, at a time when the Depositary is required to
be so registered to act as such depositary, (b) the Company in its sole
discretion determines that such Global Security shall be so exchangeable, (c)
there shall have occurred and be continuing an Event of Default or (d) pursuant
to the following sentence. All or any portion of a Global Security may be
exchanged for a Security that has a like aggregate principal amount and is not a
Global Security upon 20 days' prior request made by the Depositary or its Agent
Member to the Securities Registrar.
<PAGE>
39
(c) If any Global Security is to be exchanged for other Securities or
canceled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Securities Registrar for exchange or cancelation as provided
in this Article III. If any Global Security is to be exchanged for other
Securities or canceled in part, or if another Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security, then either
(i) such Global Security shall be so surrendered for exchange or cancelation as
provided in this Article III or (ii) the principal amount thereof shall be
reduced, subject to Section 3.06(b)(iv), or increased by an amount equal to the
portion thereof to be so exchanged or canceled, or equal to the principal amount
of such other Security to be so exchanged for a beneficial interest therein, as
the case may be, by means of an appropriate adjustment made on the records of
the Securities Registrar, whereupon the Trustee shall instruct the Depositary or
its authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of a Global Security by the Depositary,
accompanied by registration instructions and, to the extent required by Section
3.06, a Restricted Securities Certificate, the Trustee shall, subject to Section
3.05(b) and as otherwise provided in this Article III, authenticate and make
available for delivery any Securities issuable in exchange for such Global
Security (or any portion thereof) in accordance with the instructions of the
Depositary. The Trustee shall not be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be fully protected in
relying on, such instructions.
(d) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interest pursuant to the rules and procedures of
the Depositary. Accordingly, any such owner's beneficial interests in a Global
Security shall be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or its nominee or
its Agent Members. Neither the Trustee nor the Securities Registrar shall have
any liability in respect of any transfers effected by the Depositary.
(e) The rights of the beneficial interests in a Global Security shall
be exercised only through the Depositary and shall be limited to those
established by law and agreements between such owners and the Depositary and/or
its Agent Members.
<PAGE>
40
SECTION 3.06. Registration, Transfer and Exchange Generally; Certain
------------------------------------------------------
Transfers and Exchanges; Restricted Securities Legends. (a) The Company shall
- -------------------------------------------------------
cause to be kept at the Corporate Trust Office of the Trustee a register in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of the Securities and of transfers of
Securities. Such register is herein sometimes referred to as the "Securities
Register". The Trustee is hereby appointed "Securities Registrar" for the
purpose of registering the Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated for that purpose the Company shall
execute, and the Trustee shall authenticate and make available for delivery, in
the name of the designated transferee or transferees, one or more new Securities
of the same series of any authorized denominations, of a like aggregate
principal amount, of the same Original Issue Date and Stated Maturity and having
the same terms and bearing such restrictive legends as may be required by this
Indenture.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms and bearing such restrictive legends as may be
required by this Indenture, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and make available
for delivery, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall
(if so required by the Company or the Securities Registrar) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Securities, but the Company may
<PAGE>
41
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Securities.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, transfer or exchange any Security of
any series during a period beginning at the opening of business 15 days before
the day of mailing of a notice of redemption of Securities pursuant to Article
XI and ending at the close of business on the day of mailing of notice of
redemption or (b) to transfer or exchange any Security so selected for
redemption in whole or in part, except, in the case of any Security to be
redeemed in part, any portion thereof not to be redeemed.
(b) Certain Transfers and Exchanges. Notwithstanding any other
--------------------------------
provision of the Indenture, transfers and exchanges of Securities and beneficial
interests in a Global Capital Security of the kinds specified in this Section
3.06(b) shall be made only in accordance with this Section 3.06(b).
(i) Non-Global Security to Global Security. If the Holder of a
---------------------------------------
Security (other than a Global Security) wishes at any time to transfer all or
any portion of such Security to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Global Security, such transfer may be
effected only in accordance with the provisions of this clause (b)(i) and
subject to the rules and procedures of the Depositary. Upon receipt by the
Securities Registrar of (A) such Security as provided in Section 3.06(a) and
instructions satisfactory to the Securities Registrar directing that a
beneficial interest in the Global Security in a specified principal amount not
greater than the principal amount of such Security be credited to a specified
Agent Member's account and (B) a Securities Certificate duly executed by such
Holder or such Holder's attorney duly authorized in writing, then the Securities
Registrar shall cancel such Security (and issue a new Security in respect of the
untransferred portion thereof) as provided in Section 3.06(a) and increase the
aggregate principal amount of the Global Security by the specified principal
amount as provided in Section 3.05(c).
(ii) Non-Global Security to Non-Global Security. A Security that is
-------------------------------------------
not a Global Security may be transferred, in whole or in part, to a Person who
takes delivery in the form of another Security that is not a Global Security as
provided in Section 3.06(a); provided, that if such Security to be transferred
--------
in whole or in part is a Restricted
<PAGE>
42
Security, the Securities Registrar shall have received a Restricted Securities
Certificate duly executed by the transferor Holder or such Holder's attorney
duly authorized in writing.
(iii) Exchanges between Global Security and Non-Global Security. A
----------------------------------------------------------
beneficial interest in a Global Security may be exchanged for a Security that is
not a Global Security as provided in Section 3.05.
(iv) Limitations Relating to Principal Amount. Notwithstanding any
-----------------------------------------
other provision of this Indenture and unless otherwise specified as permitted by
Section 3.01, Securities or portions thereof may be transferred or exchanged
only in principal amounts of not less than $100,000 (100 Securities) and
integral multiples of $1,000 in excess thereof. Any transfer, exchange or other
disposition of Securities in contravention of this Section 3.06(b)(iv) shall be
deemed to be void and of no legal effect whatsoever, any such transferee shall
be deemed not to be the Holder or owner of any beneficial interest in such
Securities for any purpose, including but not limited to the receipt of interest
payable on such Securities, and such transferee shall be deemed to have no
interest whatsoever in such Securities.
(c) Restricted Securities Legend. (i) Except as set forth below, all
-----------------------------
Securities shall bear a Restricted Securities Legend, substantially in the
following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH CENTRAL
FIDELITY BANKS, INC. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE
"RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE COMPANY, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES
<PAGE>
43
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM IN ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF
TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTIONS TERMINATION DATE.
(ii) Subject to Section 3.06(d) and to the following clauses of this
Section 3.06(c), a Security (other than a Global Security) that does not
bear a Restricted Securities Legend may be issued in exchange for or in
lieu of a Restricted Security or any portion thereof that bears such legend
if, in the Company's judgement, placing such a legend upon such new
Security is not necessary to ensure compliance with the registration
requirements of the Securities Act, and the Trustee, at the written
direction of the Company in the form of an Officers' Certificate, shall
countersign and deliver such a new Security as provided in this Article
III.
(iii) Notwithstanding the foregoing provisions of this Section
3.06(c), a successor Security of a Security that does not bear a Restricted
Securities Legend shall not bear such form of legend unless the Company has
reasonable cause to believe that such successor Security is a "restricted
security" within the meaning of Rule 144 under the Securities Act, in which
case the Trustee, at the written direction of the Company in the form of an
Officers' Certificate, shall countersign and deliver a new Security bearing
a Restricted Securities Legend in exchange for such successor Security as
provided in this Article III.
<PAGE>
44
(iv) Upon any sale or transfer of a Restricted Security (including
any Restricted Security represented by a Global Security) pursuant to an
effective registration statement under the Securities Act or pursuant to
Rule 144 under the Securities Act after such registration ceases to be
effective: (A) in the case of any Restricted Security that is a definitive
Security, the Securities Registrar shall permit the Holder thereof to
exchange such Restricted Security for a definitive Security that does not
bear the Restricted Securities Legend and rescind any restriction on the
transfer of such Restricted Security; and (B) in the case of any Restricted
Security that is represented by a Global Security, the Securities Registrar
shall permit the Holder of such Global Security to exchange such Global
Security for another Global Security that does not bear the Restricted
Securities Legend.
(v) If Restricted Securities are being presented or surrendered for
transfer or exchange then there shall be (if so required by the Trustee),
(A) if such Restricted Securities are being delivered to the Securities
Registrar by a Holder for registration in the name of such Holder, without
transfer, a certification from such Holder to that effect; or (B) if such
Restricted Securities are being transferred, (i) a certification from the
transferor in a form substantially similar to that attached hereto as
Exhibit A, and (ii) if the Company or Securities Registrar so requests,
evidence reasonably satisfactory to them as to the compliance with the
restrictions set forth in the Restricted Securities Legend.
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen Securities. If
-------------------------------------------------
any mutilated Security is surrendered to the Trustee together with such security
or indemnity as may be required by the Company or the Trustee to save each of
them harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same issue and series of like
tenor and principal amount, having the same Original Issue Date and Stated
Maturity and bearing the same Interest Rate as such mutilated Security, and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the
<PAGE>
45
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the issuing Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same issue and series of like tenor and
principal amount, having the same Original Issue Date and Stated Maturity and
bearing the same Interest Rate as such destroyed, lost or stolen Security, and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, 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
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.08. Payment of Interest; Interest Rights Preserved.
-----------------------------------------------
Interest on any Security of any series which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date, shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
in respect of Securities of such series, except that, unless otherwise provided
in the Securities of such series, interest payable on the Stated Maturity of a
Security shall be paid to the Person to whom principal is paid. The initial
payment of interest on any Security of any series which is issued between a
Regular Record Date and the related Interest Payment Date shall be payable as
provided in such Security or in the Board Resolution pursuant to
<PAGE>
46
Section 3.01 with respect to the related series of Securities.
Any interest on any Security which is payable, but is not timely paid
or duly provided for, on any Interest Payment Date for Securities of such series
(herein called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series in respect of which
interest is in default (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall not be more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class, postage prepaid, to each Holder of a
Security of such series at the address of such Holder as it appears in the
Securities Register not less than 10 days prior to such Special Record Date.
The Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in a newspaper,
customarily published in the English language on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest
<PAGE>
47
shall be paid to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of the series in respect of which interest is
in default may be listed and, upon such notice as may be required by such
exchange (or by the Trustee if the Securities are not listed), if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this
Clause, such payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security. Any interest on any Security
which is deferred or extended pursuant to Section 3.12 shall not constitute
Defaulted Interest for purposes of this Section 3.08.
SECTION 3.09. Persons Deemed Owners. The Company, the Trustee and
----------------------
any agent of the Company or the Trustee may treat the Person in whose name any
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and (subject to Section 3.08) interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary. No holder of any
beneficial interest in any Global Security held on its behalf by a Depositary
shall have any rights under this Indenture with respect to such Global Security,
and such Depositary may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company or the Trustee from giving effect to any written certification, proxy,
or other authorization furnished by a Depositary or impair, as between the
Depositary and such holders of beneficial interests, the operation of customary
practices governing the exercise of the rights of the Depositary (or its
nominee) as Holder of any Security.
SECTION 3.10. Cancelation. All Securities surrendered for payment,
------------
redemption, transfer or exchange
<PAGE>
48
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancelation any Securities previously
authenticated and made available for delivery hereunder which the Company may
have acquired in any manner whatsoever, and all Securities so delivered shall
be promptly canceled by the Trustee. No Securities shall be authenticated in
lieu of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities shall
be delivered to the Company.
SECTION 3.11. Computation of Interest. Except as otherwise specified
------------------------
as contemplated by Section 3.01 for Securities of any series, interest on the
Securities of each series for any period shall be computed on the basis of a
360-day year of twelve 30-day months and interest on the Securities of each
series 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.
SECTION 3.12. Deferrals of Interest Payment Dates. If specified as
------------------------------------
contemplated by Section 3.01 with respect to the Securities of a particular
series, provided that no Event of Default has occurred and is continuing with
respect to such Securities, the Company shall have the right, at any time or
from time to time during the term of such series, to defer the payment of
interest on such Securities for such period or periods as may be specified as
contemplated by Section 3.01 (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 may extend beyond the Stated
- -------- -------
Maturity of these Securities. During any such Extension Period, the Company
shall not (i) declare or pay 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 Securities of such series or
- ---- -----
<PAGE>
49
(iii) 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
---- -----
Securities of such series (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 applicable Central Fidelity Guarantee,
(d) purchases or acquisitions of shares of the Company's Common Stock in
connection with the satisfaction by the Company of its obligations under any
employee benefit plan or other contractual obligation of the Company (other than
a contractual obligation ranking pari passu with or junior to these Securities,
---- -----
(e) as a result of a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock for
another class or series of the Company's capital stock, or (f) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged). Prior to the termination of any such Extension Period,
the Company may further extend such Extension Period; provided, however, that no
-------- -------
Extension Period shall exceed the period or periods specified in such Securities
or extend beyond the Stated Maturity 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, and subject to the
foregoing limitations, the Company may elect to begin a new Extension Period. No
interest shall be due and payable during an Extension Period, except at the end
thereof. The Company shall give the Trustee and the Property Trustee notice of
its election to begin any such Extension Period (or an extension thereof) at
least three Business Days prior to the Interest Payment Date or, with respect to
the Securities of a series issued to a Central Fidelity Capital Trust, prior to
the earlier of (i) the date the Distributions on the Trust Securities of such
Central Fidelity Capital Trust would have been payable except for the election
to begin or extend such Extension Period or (ii) the date the Administrative
Trustees of such Central Fidelity Capital Trust are required to give notice to
any automated quotation system or to holders of Trust Securities of the record
date or the date such Distributions are payable, but in any event not less than
three 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.
<PAGE>
50
SECTION 3.13. CUSIP Numbers. The Company in issuing the Securities
--------------
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption or other related material as
a convenience to Holders; provided, however, that any such notice or other
-------- -------
related material may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of a redemption or other related material and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
So long as the Securities are held by or on behalf of a Central
Fidelity Capital Trust, notwithstanding anything to the contrary herein, the
Company shall have the right to set off any payment it is otherwise required to
make hereunder in respect of any Security with and to the extent the Company has
theretofore made, or is concurrently on the date of such payment making, any
payment under Guarantee used to satisfy the related payment of indebtedness
hereunder.
ARTICLE IV
Satisfaction and Discharge
--------------------------
SECTION 4.01. Satisfaction and Discharge of Indenture. This
----------------------------------------
Indenture, upon Company Request, shall cease to be of further effect (except as
to (i) any surviving rights of transfer, substitution and exchange of
Securities, (ii) rights hereunder of Holders to receive payments of principal of
and interest on the Securities and other rights, duties and obligations of the
Holders as beneficiaries hereof with respect to the amounts, if any, deposited
with the Trustee pursuant to this Article IV and (iii) the rights and
obligations of the Trustee hereunder), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.07 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated
<PAGE>
51
and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 10.03) have been
delivered to the Trustee for cancelation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancelation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year of the date of deposit, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of Clause (B)(i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the currency or currencies in which the
Securities of such series are payable sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancelation, for principal and interest (including any
Additional Interest) to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or the date
for redemption, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture or the earlier
resignation or removal of the Trustee, the obligations of the Company to the
Trustee under Section 6.07 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall
survive.
<PAGE>
52
SECTION 4.02. Application of Trust Money. Subject to the provisions
---------------------------
of the last paragraph of Section 10.03, all money deposited with the Trustee
pursuant to Section 4.01, shall be held in trust and applied by the Trustee, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and interest for the payment of which such
money or obligations have been deposited with or received by the Trustee;
provided, however, that such moneys need not be segregated from other funds
- -------- -------
except to the extent required by law.
ARTICLE V
Remedies
--------
SECTION 5.01. Events of Default. "Event of Default", wherever used
------------------
herein with respect to the Securities of any series, 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):
(1) default in the payment of any interest upon any Security of that
series, including any Additional Interest in respect thereof, when it
becomes 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 the principal of any Security of that
series when due, whether at its Maturity, upon redemption, by declaration
of acceleration or otherwise; or
(3) default in the observation or performance in any material respect,
of any covenant of the Company in this Indenture (other than a covenant a
default in the performance of which or the breach of which is elsewhere in
this Section specifically dealt with), and continuance of such default for
a period of 90 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 at least 25% in aggregate outstanding principal amount of
the
<PAGE>
53
Securities of that series a written notice specifying such default and
requiring it to be remedied; or
(4) the entry or a decree or order by a court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company 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 the Company 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
(5) the institution by the Company 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 other similar official) of the Company 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 the Company in furtherance
of any such action; or
(6) in respect of a series issued to a Central Fidelity Capital Trust,
the voluntary or involuntary dissolution, winding-up or termination of a
Central Fidelity Capital Trust, except in connection with the distribution
of the Securities of such series to the holders of Trust Securities in
liquidation of such Central Fidelity Capital Trust, the redemption of all
the Trust Securities of a Central Fidelity Capital Trust, or certain
mergers, consolidations or amalgamations, each as permitted by the
applicable Trust Agreement; or
(7) any other Event of Default with respect to Securities of that
series as set forth in the Board
<PAGE>
54
Resolution and the Officers' Certificate, or established in a supplemental
indenture hereto, prior to the issuance of the series of such Securities as
contemplated by Section 3.01.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If
---------------------------------------------------
an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
the Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), provided,
--------
however, that, in the case of the Securities of a series issued to a Central
- -------
Fidelity Capital Trust, if, upon an Event of Default, the Trustee or the Holders
of not less than 25% in aggregate 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 Capital Securities
then outstanding shall have such right by a notice in writing to the Company and
the Trustee with a copy to the Property Trustee. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of a series may annul
such declaration and waive the default by written notice to the Property
Trustee, the Company and the Trustee if the default (other than the nonpayment
of the principal of these Securities which has become due solely by such
acceleration) 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 Trustee. Should the Holders of the Securities of such a
series fail to annul such declaration and waive such default, the holders of a
majority in aggregate Liquidation Amount of the Capital Securities shall have
such right. Upon any such declaration such principal amount (or specified
amount) of and the accrued interest (including any Additional Interest) on all
the Securities of such series shall become immediately due and payable,
provided, however, that the payment of principal and interest (including any
- -------- -------
Additional Interest) on such Securities shall remain subordinated to the extent
provided in Article XIV.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the
<PAGE>
55
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest (including any Additional
Interest) on all Securities of that series,
(B) the principal of any Securities of that series which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which has become due solely by such acceleration, have been cured or waived
as provided in Section 5.13.
The Company is required to file annually with the Trustee a
certificate as to whether or not the Company is in compliance with all the
conditions and covenants applicable to it under this Indenture.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities of
a series all or part of which is represented by a Global Security, a record date
shall be established for determining Holders of Outstanding Securities of such
series entitled to join in such notice, which record date shall be at the close
of business on the day the 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;
<PAGE>
56
provided, however, 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 5.02.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
----------------------------------------------------
by Trustee. The Company covenants that if:
- -----------
(1) default is made in the payment of any instalment of interest
(including any Additional Interest) on any Security when such interest
becomes due and payable and such default continues for a period of 30 days,
or
(2) default is made in the payment of the principal of any Security
at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, including any sinking fund payment or
analogous obligations and interest (including any Additional Interest); and, in
addition thereto, all amounts owing to the Trustee under Section 6.07 and
Section 10.06.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in
<PAGE>
57
its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of the
---------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities of any 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 on the Company for the payment of overdue
principal or interest (including any Additional Interest)) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
and interest (including any Additional Interest) owing and unpaid in
respect to the Securities and to file such other papers or documents
as may be necessary or advisable and to take any and all actions as
are authorized under the Trust Indenture Act in order to have the
claims of the Holders and any predecessor to the Trustee under Section
6.07 and of the Holders allowed in any such judicial proceedings; and
(ii) in particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any
such claims and to distribute the same in accordance with Section
5.06; and
(b) 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 Trustee for
distribution in accordance with Section 5.06, 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 and any predecessor
Trustee under Section 6.07.
<PAGE>
58
Nothing herein contained shall be deemed to authorize the 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 Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any proceeding; provided, however, that
-------- -------
the Trustee may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors' or other similar
committee.
SECTION 5.05. Trustee May Enforce Claim Without Possession of
-----------------------------------------------
Securities. All rights of action and claims under this Indenture or the
- -----------
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of all the amounts owing the Trustee and any
predecessor Trustee under Section 6.07, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.06. Application of Money Collected. Any money or property
-------------------------------
collected or to be applied by the Trustee with respect to a series of Securities
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money or
property on account of principal or interest (including any Additional
Interest), upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: to the payment of all amounts due the Trustee and any
-----
predecessor Trustee under Section 6.07;
Second: to the payment of the amounts then due and unpaid upon such
------
series of Securities for principal and interest (including any Additional
Interest), in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such series of Securities for
principal and interest (including any Additional Interest), respectively;
and
Third: the balance, if any, to the Person or Persons entitled
-----
thereto.
<PAGE>
59
SECTION 5.07. Limitation on Suits. No Holder of any Securities of
--------------------
any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or for the appointment of a receiver,
assignee, trustee, liquidator, sequestrator (or other similar official) or for
any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Principal and
-------------------------------------------------------
Interest. Notwithstanding any other provision in this Indenture, the Holder of
- ---------
any Security shall have the right which is absolute and unconditional to receive
payment of the principal of and (subject to Section 3.08) interest (including
any Additional Interest) on such Security on the respective Stated Maturities
expressed in such Security and to institute suit for the enforcement of any such
payment, and such right shall not be
<PAGE>
60
impaired without the consent of such Holder. In the case of Securities of a
series issued to a Central Fidelity Capital Trust, any holder of the
corresponding series of Capital Securities shall have the right, upon the
occurrence of an Event of Default described in Section 5.01(1) or 5.01(2)
hereof, to institute a suit directly against the Company for enforcement of
payment to such Holder of principal of and (subject to Section 3.08) interest
(including any Additional Interest) on the Securities having a principal amount
equal to the aggregate Liquidation Amount of the Capital Securities of the
corresponding series held by such Holder. Notwithstanding any payments made to a
holder of Capital Securities by the Company in connection with a suit directly
against the Company, the Company shall remain obligated to pay the principal of
or interest on the Securities, 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 suit directly against the Company.
The holders of the Capital Securities will not be able to exercise
directly any remedies, other than those set forth in this Section 5.08,
available to the holders of the Securities unless there shall have been an Event
of Default under the Trust Agreement.
SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or
-----------------------------------
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise
-------------------------------
provided in the last paragraph of Section 3.07, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
<PAGE>
61
SECTION 5.11. Delay or Omission Not Waiver. Except as otherwise
-----------------------------
provided in the last paragraph of Section 3.07, no delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority in
-------------------
principal amount of the Outstanding Securities of any series 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 the Securities of such series, provided that:
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture;
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(3) subject to the provisions of Section 6.01, the Trustee shall have
the right to decline to follow such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that
the proceeding so directed would be unjustly prejudicial to the Holders not
joining in any such direction or would involve the Trustee in personal
liability.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such trust
or power, with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in
such notice, which record date shall be at the close of business on the day the
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, however, that, unless the Holders of a majority in principal amount of
- -------- -------
the Outstanding Securities of such
<PAGE>
62
series shall have joined in such notice prior to the day which is 90 days after
such record date, such notice 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 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
5.12.
SECTION 5.13. Waiver of Past Defaults. The Holders of a majority in
------------------------
aggregate principal amount of the Outstanding Securities of a series affected
thereby may, on behalf of the Holders of all the Securities of such series,
waive any past default, except a default in the payment of principal of or
interest (including any Additional Interest) (unless such default has been cured
and a sum sufficient to pay all overdue installments of interest and principal
due otherwise than by acceleration has been deposited with the Trustee) on any
Security of such series or a default in respect of a covenant or provision which
under Article IX cannot be modified or amended without the consent of the Holder
of each outstanding Security of such series and, in the case of Securities of a
series issued to a Central Fidelity 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 Amount of the related series of Capital
Securities shall have such right.
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.
SECTION 5.14. Undertaking for Costs. 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 of such
suit, and that such court may in its discretion assess reasonable 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
<PAGE>
63
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of or interest (including any Additional Interest) on any Security
on or after the respective Stated Maturities expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws. The Company
----------------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
The Trustee
-----------
SECTION 6.01. Certain Duties and Responsibilities. (a) Except
------------------------------------
during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligatio ns shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the 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 Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provisions
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 (but need not
confirm or investigate the accuracy of mathematical calculations or other
facts stated therein).
<PAGE>
64
(b) In case an Event of Default has occurred and is continuing, 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 person would exercise or use under the circumstances in the conduct of
his own affairs.
(c) 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 except that:
(i) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) 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 Holders pursuant to Section 5.12 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 with respect to the Securities of such series.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to its against such risk or
liability is not assured to it.
(e) 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.
SECTION 6.02. Notice of Defaults. Within 90 days after actual
-------------------
knowledge by a Responsible Officer of the Trustee of the occurrence of any
default hereunder with respect to the Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series, as their
names and addresses appear in the Securities Register, notice of such default
hereunder known to a Responsible Officer of the Trustee, unless such default
<PAGE>
65
shall have been cured or waived; provided, however, that, except in the case of
-------- -------
a default in the payment of the principal of or interest (including any
Additional Interest) on any Security of such series, the Trustee shall be fully
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 Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Securities of such series; and
provided, further, however, that, in the case of any default of the character
- -------- ------- -------
specified in Section 5.01(3), no such notice to Holders of Securities of such
series shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 6.03. Certain Rights of Trustee. Subject to the provisions
--------------------------
of Section 6.01:
(a) the Trustee may conclusively 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, Security or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) shall be entitled to receive
and may, in the absence of bad faith on its part, conclusively rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
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 reliance thereon;
<PAGE>
66
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) 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, direction, consent, order, bond, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney at the reasonable cost of the Company upon
giving reasonable notice to the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;
(g) 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;
(h) the Trustee shall not be under any obligation to take any action
that is discretionary under the provisions of this Indenture;
(i) the Trustee shall not be charged with knowledge of any Event of
Default unless either (1) a Responsible Officer of the Trustee shall have actual
knowledge or (2) the Trustee shall have received notice thereof in accordance
with Section 1.05(1) hereof from the Company or a Holder;
(j) no permissive power or authority available to the Trustee shall be
construed as a duty; and
(k) the Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
<PAGE>
67
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
-------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities or any offering or disclosure materials prepared in connection
therewith. The Trustee shall not be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any Paying Agent,
--------------------
Securities Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Securities Registrar or such
other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee in
--------------------
trust hereunder 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
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 6.07. Compensation and Reimbursement. The Company, as
-------------------------------
borrower on the Securities, agrees:
(1) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation a trustee of an
express trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (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
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense (other than taxes based upon, measured by or
determined by the income of the Trustee) (including the reasonable
compensation and the expenses and disbursements of its
<PAGE>
68
agents and counsel) incurred without negligence or bad faith, arising out
of or in connection with the acceptance or administration of this trust or
the performance of its duties 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.
The obligations of the Company under this Section 6.07 shall survive
the termination of this Indenture or the earlier resignation or removal of the
Trustee.
To secure the Company's payment obligations in this Section, the
Company and the Holders agree that the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the Trustee. Such lien
shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.01(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Code of 1978, as amended, or any successor
statute.
The provisions of this Section 6.07 shall survive the termination of
this Indenture.
SECTION 6.08. Disqualification; Conflicting Interests. The Trustee
----------------------------------------
for the Securities of any series issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act. Nothing herein shall
prevent the Trustee from filing with the Commission the application referred to
in the second-to-last paragraph of Section 301(b) of the Trust Indenture Act.
SECTION 6.09. Corporate Trustee Required, Eligibility. There shall
----------------------------------------
at all times be a Trustee hereunder which shall be:
(a) a corporation organized and doing business under the laws of the
United States of America or of any state, territory or the District of
Columbia, authorized under such laws to exercise corporate trust powers and
subject to supervision or examination by Federal, state, territorial or
District of Columbia authority, or
(b) a corporation or other Person organized and doing business under
the laws of a foreign government
<PAGE>
69
that is permitted to act as Trustee pursuant to a rule, regulation or order
of the Commission, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by authority of such
foreign government or a political subdivision thereof substantially
equivalent to the supervision or examination applicable to United States
institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision of examination by Federal or state 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. If at any time the Trustee
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. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall serve
as Trustee for the Securities of any series issued hereunder.
SECTION 6.10. Resignation and Removal; Appointment of Successor. (a)
--------------------------------------------------
No resignation or removal of the Trustee and no appointment of a Successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the Successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a Successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a Successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
<PAGE>
70
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(iii) 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, (i)
the Company, acting pursuant to the authority of a Board Resolution, may
remove the Trustee, or (ii) subject to Section 5.14, any Holder who has
been a bona fide Holder of a Security 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.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a Successor Trustee with respect to the
Securities of that or those series. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a Successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the Successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become
the Successor Trustee with respect to the Securities of such series and
supersede the Successor Trustee appointed by the Company. If no Successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, within 30 days of such resignation or removal the Trustee
or any Holder who has been a bona fide Holder of a Security for at least six
months, subject to Section 5.14, on behalf of himself and all others similarly
situated, may
<PAGE>
71
petition any court of competent jurisdiction for the appointment of a Successor
Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a Successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Securities of such series as their names an addresses appear in
the Securities Register. Each notice shall include the name of the Successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. (a) In case
---------------------------------------
of the appointment hereunder of a Successor Trustee with respect to all
Securities, every such Successor Trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and 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; but, on the request of the Company or the
Successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such Successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such Successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of the 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 one or more series shall execute and deliver a written instrument or 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 that or those 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 that or those series
as to which the retiring Trustee is not
<PAGE>
72
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 written
instrument or supplemental indenture shall constitute such Trustee co-trustees
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 written instrument or 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 that or those 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 the Securities of that or those series to
which the appointment of such Successor Trustee relates.
(c) Upon request of any such Successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such Successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
(d) No Successor Trustee shall accept its appointment unless at the
time of such acceptance such Successor Trustee shall be qualified and eligible
under this Article. In the event that the Trust Indenture Act applies to this
Indenture at the time that any Successor Trustee is appointed, such Successor
Trustee shall qualify under such Act.
SECTION 6.12. Merger, Conversion, 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 otherwise qualified and eligible under this
Article (including qualification under the Trustee Indenture Act, if
applicable), without the execution or filing of any paper or any further act on
the part of any of
<PAGE>
73
the parties hereto. In case any Securities shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such Successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against Company. If
--------------------------------------------------
and when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent. The Trustee may
------------------------------------
appoint an authenticating agent or agents (each, an "Authenticating Agent") with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer or partial redemption
thereof, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Where reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any state, Territory or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent 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
<PAGE>
74
this Section, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be 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.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
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 such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.06 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. 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.
No successor Authenticating Agent shall be appointed unless eligible under the
provision of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of
<PAGE>
75
each series may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alterative certificate of authentication in the following
form:
This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
--------------------------------
Agent Trustee
by
-----------------------------
As Authenticating Agent
by
-----------------------------
Authorized Signatory
SECTION 6.15. Trustee's Rights and Obligations After Qualification of
-------------------------------------------------------
Indenture. Following the qualification of this Indenture under the Trust
- ----------
Indenture Act, the 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 Trustee is under no obligation to
exercise any of the powers vested in it by this Indenture at the request of any
holder of the Securities, unless offered indemnity to its satisfaction by such
holder against the costs, expenses and liabilities which might be incurred
thereby. The Trustee will not be required to expend or risk its own funds or
otherwise incur personal financial liability in the performance of its duties if
the Trustee reasonably believes that repayment or adequate indemnity is not
reasonably assured to it. Notwithstanding the foregoing, nothing in this Section
6.15 shall be deemed to abrogate any of the rights, indemnities or protections
otherwise provided to the Trustee under this Indenture.
<PAGE>
76
ARTICLE VII
Holder's Lists and Reports by Trustee and Company
-------------------------------------------------
SECTION 7.01. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders. The Company will furnish or cause to be furnished to the Trustee:
- --------
(a) quarterly, not more than 15 days after each Regular Record Date in
each year, a list, in such form as the Trustee may reasonably require, of
the names and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished, excluding from any such list names and
---------
addresses received by the Trustee in its capacity as Securities Registrar.
SECTION 7.02. Preservation of Information, Communications to Holders.
-------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.03. Reports by Trustee. (a) The Trustee shall transmit to
-------------------
Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act, at the times and in the
manner provided pursuant thereto.
<PAGE>
77
(b) Reports so required to be transmitted at stated intervals of not
more than 12 months shall be transmitted no later than the last calendar day in
February of each calendar year, commencing with the last calendar day in
February of the year following the Original Issue Date.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which the Securities are listed and also with the Commission. The Company
will notify the Trustee whenever the Securities are listed on any securities
exchange.
SECTION 7.04. Reports by Company. The Company shall file with the
-------------------
Trustee and with the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided in
the Trust Indenture Act; provided that any such information, documents or
--------
reports required to be filed with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended, shall be filed
with the Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, the Company shall continue to file with the
Commission and provide the Trustee with the annual reports and the information,
documents and other reports which are specified in Sections 13 and 15(d) of the
Securities Exchange Act of 1934, as amended. The Company also shall comply with
the other provisions of Trust Indenture Act Section 314(a). Delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee's receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
----------------------------------------------------
SECTION 8.01. Company May Consolidate, etc., Only on Certain Terms.
-----------------------------------------------------
The Company shall not consolidate with or merge with or into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
<PAGE>
78
to any Person, and no Person shall consolidate with or merge with or into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge with or into
another Person or convey, transfer or lease its properties and asses
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation,
partnership or trust organized and existing under the laws of the United
States of America or any State or the District of Columbia, and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of and interest (including any Additional
Interest) on all the Securities and the performance of every covenant and
every obligation of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing;
(3) if at such time Securities of a series issued to a Central
Fidelity Capital Trust are Outstanding, such consolidation, merger,
conveyance, transfer or lease is permitted under the related Trust
Agreement and Central Fidelity Guarantee and does not give rise to any
breach or violation of the related Trust Agreement or Central Fidelity
Guarantee; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or lease and any such supplemental indenture complies
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with; and the Trustee,
subject to Section 6.01, may rely upon such Officers' Certificate and
Opinion of Counsel as conclusive evidence that such transaction complies
with this Section 8.01.
<PAGE>
79
SECTION 8.02. Successor Company Substituted. Upon any consolidation
------------------------------
or merger by the Company with or into any other Person, or any conveyance,
transfer or lease by the Company of its properties and assets substantially as
an entirety to any Person in accordance with Section 8.01, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein; and in the event of any such conveyance, transfer or
lease the Company shall be discharged from all obligations and covenants under
the Indenture and the Securities and may be dissolved and liquidated.
Such successor Person 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 signed by the Company
and delivered to the Trustee; and, upon the order of such successor Person
instead of the Company and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall make
available for delivery any Securities which previously shall have been signed
and delivered by the officers of the Company to the Trustee for authentication
pursuant to such provisions and any Securities which such successor Person
thereafter shall cause to be signed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. 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, conveyance or lease,
such changes in phraseology and form may be made in the Securities thereafter to
be issued as may be appropriate.
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Supplemental Indentures without Consent of Holders.
---------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the
<PAGE>
80
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory, to the Trustee, for any of
the following:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company herein
and in the Securities contained;
(2) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or to surrender any right or power herein conferred upon
the Company;
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 or 3.01;
(4) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company;
(5) to add any additional Events of Default;
(6) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination (a) shall become effective
--------
only when there is no Security Outstanding of any series created prior to
the execution of such supplemental indenture which is entitled to the
benefit of such provision or (b) shall not apply to any Outstanding
Securities;
(7) to cure any ambiguity, to 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 Indenture; provided that such action pursuant to this clause (7)
--------
shall not materially adversely affect the interest of (a) the Holders of
Securities of any series or, (b) in the case of the Securities of a series
issued to a Central Fidelity Capital Trust and for so long as any of the
corresponding series of Capital Securities shall remain outstanding, the
holders of such Capital Securities;
(8) to evidence and provide for the acceptance of appointment
hereunder by a Successor Trustee with respect to the Securities of one or
more series and to
<PAGE>
81
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, pursuant to the requirements of Section
6.11(b); or
(9) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act.
SECTION 9.02. Supplemental Indentures with Consent of Holders. With
------------------------------------------------
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
-------- -------
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) except to the extent permitted by Section 3.12 or as otherwise
specified as contemplated by Section 3.01 with respect to the extension of
the interest payment period of the Securities of any series, change the
Stated Maturity of the principal of, or any installment of interest
(including any Additional Interest) on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, or reduce the
amount of principal of a Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.02, or change the place of payment where, or the coin or currency
in which, any Security or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
date fixed for redemption thereof);
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions
<PAGE>
82
of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture;
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.05, 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 Holder of each Security affected thereby; or
(4) modify the provisions in Article XIII of this Indenture with
respect to the subordination of Outstanding Securities of any series in a
manner adverse to the Holders thereof;
provided that, in the case of the Securities of a series issued to a Central
- --------
Fidelity Capital Trust, so long as any of the corresponding series of Capital
Securities remain outstanding, no such amendment shall be made that adversely
affects the holders of such Capital Securities in any material respect, and no
termination of this Indenture shall occur, and no waiver of any Event of Default
or compliance with any covenant 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 then outstanding unless and until
the principal of the Securities of such series and all accrued and, subject to
Section 3.08, unpaid interest (including any Additional Interest) thereon have
been paid in full; and provided further, however, that in the case of the
---------------- -------
Securities of a series issued to a Central Fidelity Capital Trust, so long as
any of the corresponding series of Capital Securities remain outstanding, no
amendment shall be made to Section 5.08 of this Indenture that would impair the
rights of the holders of such Capital Securities provided herein without the
prior consent of the holders of each Capital Security then outstanding unless
and until the principal of the Securities of such series and all accrued and
(subject to Section 3.08) unpaid interest (including any Additional Interest)
thereon have been paid in full.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such
<PAGE>
83
record date, any such consent previously given shall automatically and without
further action by any Holder be canceled and of no further effect.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of 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 of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In executing or
-------------------------------------
accepting the additional trusts created by any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in conclusively relying upon, an Officer's
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, and that
all conditions precedent have been complied with. The Trustee may, but 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, or
which may subject it to liability or be contrary to applicable law.
SECTION 9.04. Effect of Supplemental Indentures. Upon the execution
----------------------------------
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION 9.05. Conformity with Trust Indenture Act. No supplemental
------------------------------------
indenture will be qualified or executed pursuant to the Trust Indenture Act
unless this Indenture is so qualified, or in connection with Capital Securities
which are registered under the Securities Exchange Act of 1934, as amended, upon
the effectiveness of a registration statement and the consummation of an
exchange offer pursuant to a Registration Agreement as contemplated in Article
XII hereof. Every supplemental indenture so
<PAGE>
84
qualified or executed shall conform to the requirements of the Trust Indenture
Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
---------------------------------------------------
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Company,
bear a notation in form approved by the Company as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
of any series so modified as to conform, in the opinion of the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such Series.
ARTICLE X
Covenants
---------
SECTION 10.01. Payment of Principal and Interest. The Company
----------------------------------
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and interest on the Securities of that
series in accordance with the terms of such Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. The Company will
--------------------------------
maintain in each Place of Payment for any series, an office or agency where
Securities of that series may be presented or surrendered for payment and an
office or agency where Securities may be surrendered for transfer or exchange
and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company initially appoints the
Trustee, acting through its Corporate Trust Office, as its agent for said
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the Company
shall fail to maintain such office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all of such purposes, and may from time to time rescind such
<PAGE>
85
designations; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
and any change in the location of any such office or agency.
SECTION 10.03. Money for Security Payments to be Held in Trust. If
------------------------------------------------
the Company shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of or
interest on any of the Securities of such series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to 10:00 a.m. New York City time on each due date of the principal of or
interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and make available for delivery to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of or
interest on Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee written notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal or interest;
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
<PAGE>
86
(4) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by the Company or any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be paid
on Company Request to the Company, or (if then held by the Company) shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; 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, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, the City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 10.04. Statement as to Compliance. The Company shall deliver
---------------------------
to the Trustee, within 120 days after the end of such calendar year of the
Company commencing after the date hereof, an Officers' Certificate executed by
authorized officers at least one of whom shall be the principal executive,
financial or accounting officer of the Company covering the preceding calendar
year, stating whether or not to the best knowledge of the signers thereof the
Company is in default in the performance, observance or fulfillment of or
compliance with any of the material terms,
<PAGE>
87
provisions, covenants and conditions of this Indenture, and if the Company shall
be in such default, specifying all such defaults and the nature and status
thereof of which they may have knowledge. For the purpose of this Section 10.04,
compliance shall be determined without regard to any grace period (other than an
Extension Period) or requirement of notice provided pursuant to the terms of
this Indenture.
SECTION 10.05. Waiver of Certain Covenants. The Company may omit in
----------------------------
any particular instance to comply with any covenant or condition as specified as
contemplated by Section 3.01 with respect to the Securities of any series, if
before or after the time for such compliance the Holders of at least a majority
in principal amount of the Outstanding Securities of such series shall, by Act
of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, 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 in respect of any such covenant or condition shall remain in full force
and effect.
SECTION 10.06. Payment of the Trust's Costs and Expenses. Since the
------------------------------------------
Central Fidelity Capital Trusts are being formed solely to facilitate the
investment in the Securities, the Company, as borrower on the Securities, hereby
covenants to pay all debts and obligations (other than with respect to the
payment of principal and interest on the Trust Securities) and all costs and
expenses of such Trusts (including, but not limited to, all costs and expenses
relating to the organization of such Trusts, the fees and expenses of the
Trustees and all costs and expenses relating to the operation of such Trusts)
and to pay any and all taxes, duties, assessments or other governmental charges
of whatever nature (other than United States withholding taxes) imposed on such
Trusts by the United States, or any other taxing authority (such payments of
amounts in connection with taxes being herein referred to as "Additional Sums"),
so that the net amounts received and retained by such Trusts and their
respective Property Trustees after paying such expenses or Additional Sums will
be equal to the amounts such Trusts and Property Trustees would have received
had no such costs, expenses or taxes, duties, assessments or other governmental
charges been incurred by or imposed on such Trusts. The foregoing obligations
of the Company are for the benefit of, and shall be enforceable by, any person
to whom such debts, obligations, costs, expenses and taxes are owed (a
"Creditor") whether or not such Creditor has received notice thereof. Any such
Creditor may enforce such obligations of
<PAGE>
88
the Company hereunder directly against the Company, and the Company hereby
irrevocably waives any right or remedy to require that any such Creditor take
any action against any Trust or any other person before proceeding against the
Company. The Company also agrees hereby to execute such additional agreements as
may be necessary or desirable to give full effect to the foregoing.
SECTION 10.07. Additional Covenants. The Company covenants and
---------------------
agrees with each Holder of Securities of a series issued to a Central Fidelity
Capital Trust that it will not (i) 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 (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
---- -----
Securities of such series or (iii) make any guarantee payments with respect to
any guarantee by the Company of debt securities of any subsidiary of the Company
(including Other Guarantees) 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 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 Central Fidelity Guarantee, (d)
purchases or acquisitions of shares of the Company's Common Stock in connection
with the satisfaction by the Company of its obligations under any employee
benefit plan or other contractual obligation of the Company (other than a
contractual obligation ranking pari passu with or junior in interest to these
---- -----
Securities), (e) as a result of a reclassification of the Company's capital
stock or the exchange or conversion of one class or series of the Company's
capital stock for another class or series of the Company's capital stock or (f)
the purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged), if at such time (i) there shall have
occurred an Event of Default, (ii) the Company shall be in default with respect
to its payment of any obligations under the related Central Fidelity 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 Extension Period, or any extension thereof, shall be continuing.
<PAGE>
89
The Company also covenants with each Holder of Securities of a series
issued to a Central Fidelity Capital Trust (i) to maintain directly, or
indirectly through a wholly owned Subsidiary, 100% ownership of the Common
Securities of such Central Fidelity 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 to voluntarily terminate, windup
or liquidate such Central Fidelity Capital Trust, except (a) in connection with
a distribution of the Securities of such series to the holders of Capital
Securities in liquidation of such Central Fidelity Capital Trust or (b) in
connection with certain mergers, consolidations or amalgamations permitted by
the related Trust Agreement and (iii) to use its reasonable best efforts,
consistent with the terms and provisions of such Trust Agreement, (x) not to
adversely affect such Central Fidelity Capital Trust's status as a grantor trust
and (y) to not cause such Central Fidelity Capital Trust to be classified as an
association taxable as a corporation for United States Federal income tax
purposes.
SECTION 10.08. Information Returns. For each year during which any
--------------------
Securities are outstanding, the Company shall furnish to each Paying Agent on a
timely basis such information as may be reasonably requested by each Paying
Agent in order that such Paying Agent may prepare the information which it is
required to report for such year on Internal Revenue Service Forms 1096 and
1099. Such information shall include the amount of original issue discount, if
any, includible in income for each $1,000 of principal amount at Stated Maturity
of outstanding Securities during such year.
SECTION 10.09 Statement by Officers as to Default. The Company shall
-----------------------------------
deliver to the Trustee, within five days after the Company becomes aware of the
occurrence of any Event of Default, an Officers' Certificate setting forth the
details of such Event of Default and the action which the Company proposes to
take with respect thereto, if known at such time.
SECTION 10.10 Delivery of Certain Information. If specified as
-------------------------------
contemplated by Section 3.01 with respect to a series of Securities, at any time
when the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon
the request of a Holder of a Security, the Company will promptly furnish or
cause to be furnished Rule 144A Information (as defined below) to such Holder,
to a prospective purchaser who is a "qualified institutional buyer", within the
meaning of Rule 144A under the Securities Act, of such Security
<PAGE>
90
designated by such Holder in order to permit compliance by such Holder with Rule
144A in connection with the resale of such Security by such Holder; provided,
--------
however, that unless otherwise specified as contemplated by Section 3.01, the
- -------
Company shall not be required to furnish such information in connection with any
request made on or after the date which is two years from the later of (i) the
date such Security (or any predecessor Security) was acquired from the Company
or (ii) the date such Security (or any predecessor Security) was last acquired
from an "affiliate" of the Company within the meaning of Rule 144 under the
Securities Act. "Rule 144A Information" shall be such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act as in effect on
the date hereof.
ARTICLE XI
Redemption or Prepayment of Securities
--------------------------------------
SECTION 11.01. Applicability of This Article. Redemption of
------------------------------
Securities (whether by operation of a sinking fund or otherwise) as permitted or
required by any form of Security issued pursuant to this Indenture shall be made
in accordance with such form of Security and this Article; provided, however,
-------- -------
that if any provision of any such form of Security shall conflict with any
provision of this Article, the provision of such form of Security shall govern.
Except as otherwise set forth in the form of Security for such series, each
Security shall be subject to partial redemption only in an amount not less than
$100,000 or, in the case of the Securities of a series issued to a Central
Fidelity Capital Trust, an amount not less than $100,000, or integral multiples
of $1,000 in excess thereof.
SECTION 11.02. Election To Redeem; Notice to Trustee. The election
--------------------------------------
of the Company to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of
any Securities of any particular series and having the same terms, the Company
shall, not less than 30 nor more than 60 days prior to the date fixed for
redemption (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee and, in the case of Securities held by or on behalf of a
Central Fidelity Capital Trust, the Property Trustee of such date and of the
principal amount of Securities of that series to be redeemed. In the case of
any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities, the Company shall furnish
the Trustee with an Officers' Certificate and an Opinion of Counsel
<PAGE>
91
evidencing compliance with such restriction. Any such notice given to the
Trustee hereunder shall include the information required by Section 11.04
hereof.
SECTION 11.03. Selection of Securities to be Redeemed. If less than
---------------------------------------
all the Securities of any series are to be redeemed (unless all the Securities
of such series and of a specified tenor are to be redeemed or unless such
redemption affects only a single Security all as designated to the Trustee by
the Company), the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of a portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless
such redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for partial redemption and the principal amount thereof to
be redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed. If the Company shall so direct, Securities registered in the name of
the Company, any Affiliate or any Subsidiary thereof shall not be included in
the Securities selected for redemption.
SECTION 11.04. Notice of Redemption. Notice of redemption (other
---------------------
than at the Stated Maturity) shall be given by first-class mail, postage
prepaid, mailed not later than the thirtieth day, and not earlier than the
sixtieth day, prior to the date fixed for redemption, to each Holder of
Securities to be redeemed, at the address of such Holder as it appears in the
Securities Register.
<PAGE>
92
With respect to Securities of each series to be redeemed, each
notice of redemption shall state:
(a) the Redemption Date for Securities of such series;
(b) the redemption price at which Securities of such series are to be
redeemed;
(c) if less than all Outstanding Securities of such particular series
and having the same terms are to be redeemed, the identification (and, in
the case of partial redemption, the respective principal amounts) of the
particular Securities to be redeemed;
(d) that on the date fixed for redemption, the redemption price at
which such Securities are to be redeemed will become due and payable upon
each such Security or portion thereof, and that interest thereon, if any,
shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered
for payment of the redemption price at which such Securities are to be
redeemed;
(f) that the redemption is for a sinking fund, if such is the case;
(g) such other provisions as may be required in respect of the terms
of a particular series of Securities; and
(h) the CUSIP number if any.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall not be
irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 11.05. Deposit of Redemption Price. Prior to 10:00 a.m. New
----------------------------
York City time on the redemption date specified in the notice of redemption
given as provided in Section 11.04, the Company will deposit with the Trustee or
with one or more Paying Agents an amount of money
<PAGE>
93
sufficient to redeem on the redemption date all the Securities so called for
redemption at the applicable redemption price.
SECTION 11.06. Payment of Securities Called for Redemption. If any
--------------------------------------------
notice of redemption has been given as provided in Section 11.04, the Securities
or portion of Securities with respect to which such notice has been given shall
become due and payable on the date and at the place or places stated in such
notice at the applicable redemption price. On presentation and surrender of
such Securities at a place of payment in said notice specified, the said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the Holder
thereof, at the expense of the Company, a new Security or Securities of that
same series, of authorized denominations, in aggregate principal amount equal to
the unredeemed portion of the Security so presented and having the same Original
Issue Date, Stated Maturity and terms. If the Global Security is so
surrendered, such new Security will (subject to Section 3.06) also be a new
Global Security.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of such Security shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 11.07. Company's Right of Redemption. Unless otherwise
------------------------------
specified as contemplated by Section 3.01 with respect to the Securities of a
particular series and notwithstanding any additional redemption rights that may
be so specified:
(a) the Company may at any time on or after the date set forth in an
Officer's Certificate pursuant to (S)3.01 or a supplemental indenture, as
applicable, at its option, subject to the terms and conditions of this
Article XI and 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, redeem the Securities in whole or in part
at any time or from time to time prior to Maturity, at 100% of the
aggregate principal amount of the Securities, plus accrued and unpaid
interest to the Redemption Date; and
<PAGE>
94
(b) if a Tax Event or a 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 and subject to the provisions
of this Article XI, redeem the Securities, in whole, but not in part, at
any time within 90 days after the occurrence of such Tax Event or Capital
Treatment Event, at 100% of the aggregate principal amount of the
Securities plus accrued and unpaid interest to the Redemption Date.
ARTICLE XII
Exchange and Registration Rights
--------------------------------
SECTION 12.01. Exchange. (a) If specified as contemplated by
---------
Section 3.01 for Securities for any series, the Company and a Central Fidelity
Capital Trust holding such Securities shall enter into a registration rights
agreement (a "Registration Agreement") for the benefit of the holders of any
Capital Securities of such Central Fidelity Capital Trust which are not
registered under the Securities Act providing that such Central Fidelity Capital
Trust use its best efforts to exchange such Capital Securities for registered
securities, by means of an exchange offer registration statement (an "Exchange
Offer Registration Statement"), issued by such Central Fidelity Capital Trust
with terms identical in all material respects to the terms of the Capital
Securities (the "Exchange Capital Securities").
(b) In the event that Central Fidelity Capital Trust is successful in
providing Exchange Capital Securities to the holders of Capital Securities as
described in clause (a) of this Section 12.01, the Company shall, in certain
circumstances specified in the Registration Agreement, contemporaneously
exchange the Securities held by or on behalf of such Central Fidelity Capital
Trust for new securities issued by the Company (the "Exchange Securities") with
terms identical in all material respects to the terms of the Securities to such
Capital Securities (except that the interest rate step-up provisions and the
transfer restrictions will be eliminated), and shall further contemporaneously
exchange the Central Fidelity Guarantee then held by the Guarantee Trustee under
the Guarantee Agreement for a new guarantee of the Company (the "Exchange
Guarantee") with terms identical in all material respects to the terms of the
Central Fidelity Guarantee.
<PAGE>
95
SECTION 12.02. Registration. If specified as contemplated by Section
-------------
3.01 for Securities of any series, the Company and such Central Fidelity Capital
Trust shall (a) file a shelf registration statement under the Securities Act
covering resales of the Capital Securities (the "Shelf Registration Statement"),
(b) use their reasonable best efforts to cause such Shelf Registration Statement
to be declared effective under the Securities Act, and (c) use their reasonable
best efforts to cause such Shelf Registration Statement to remain effective for
as long as specified as contemplated by the Registration Agreement. The
Administrative Trustees shall promptly cause to be delivered to the holders, the
Delaware Trustee and the Property Trustee written notice of their intent to file
such Registration Statement. All costs incurred in connection with the filing
and maintenance of such Registration Statement shall be borne by the Company.
SECTION 12.03. Special Interest. If specified as contemplated by
-----------------
Section 3.01 for Securities of any series, the Company may enter into an
agreement providing that, in the event that (i) an Exchange Offer Registration
Statement is not filed, subject to certain exceptions described in the
Registration Agreement (ii) such Exchange Offer Registration Statement is not
declared effective within the time period contemplated by the applicable
registration rights agreement, unless such Exchange Offer Registration Statement
is not required to be declared effective pursuant to the Registration Agreement,
(iii) the exchange offer pursuant to the Exchange Offer Registration Statement
is not consummated or the Shelf Registration Statement is not declared effective
within the time period contemplated by the applicable registration rights
agreement or (iv) such Exchange Offer Registration Statement or Registration
Statement does not remain effective for as long as contemplated by the
applicable registration rights agreement, the Company shall pay to the relevant
Central Fidelity Capital Trust, and such Central Fidelity Capital Trust shall
pay to the holders of the Capital Securities, an amount of Special Interest
("Special Interst"), which may be either fixed or based on the duration and/or
principal amount of the Securities or the Liquidation Amount of the Capital
Securities affected thereby, all as set forth in the applicable registration
rights agreement.
SECTION 12.04. Compliance with Law. Any registration rights
--------------------
agreement entered into hereunder may provide that any holder of Capital
Securities who is considered to be an Affiliate of the Company or the Central
Fidelity Capital Trust or any underwriter in connection with the issuance and
sale of Capital Securities be barred from
<PAGE>
96
participation in the Exchange Offer Registration Statement or other Shelf
Registration Statement, in accordance with applicable law or regulation.
ARTICLE XIII
Sinking Funds
-------------
SECTION 13.01. Applicability of Article. The provisions of this
-------------------------
Article shall be applicable to any sinking fund for the retirement of Securities
of any series except as otherwise specified as contemplated by Section 3.01 for
such Securities.
The minimum amount of any sinking fund payment provided for by the
terms of any Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any sinking fund payment in excess of such minimum
amount which is permitted to be made by the terms of such Securities of any
series is herein referred to as an "optional sinking fund payment". If provided
for by the terms of any Securities of any series, the case amount of any sinking
fund payment may be subject to reduction as provided in Section 13.02. Each
sinking fund payment shall be applied to the redemption (or purchase by tender
or otherwise) of Securities of any series as provided for by the terms of such
Securities.
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities.
------------------------------------------------------
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Securities of a series in cash, the Company may at its option, at
any time no more than 16 months and no less than 45 days prior to the date on
which such sinking fund payment is due, deliver to the Trustee Securities of
such series (together with the unmatured Coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company, except Securities of
such series that have been redeemed through the application of mandatory or
optional sinking fund payments pursuant to the terms of the Securities of such
series, accompanied by a Company Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Company by way of bona fide sale or other negotiation for value;
provided that the Securities to be so credited have not been previously so
- --------
credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the redemption price for such Securities, as
specified in the Securities so to be redeemed, for redemption through operation
of the sinking
<PAGE>
97
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund. Not less
------------------------------------------
than 45 days prior to each sinking fund payment date for any series of
securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.01) and the portion thereof, if any, which is to be satisfied by delivering
and crediting Securities pursuant to Section 13.02 and will also deliver to the
Trustee any Securities to be so delivered. Such Certificate shall be irrevocable
and upon its delivery the Company shall be obligated to make the cash payment or
payments therein referred to, if any, on or before the succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such
Certificate (or, as required by this Indenture, the Securities and coupons, if
any, specified in such Certificate) by the due date therefor, the sinking fund
payment due on the succeeding sinking fund payment date for such series shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of
the Securities of such series subject to a mandatory sinking fund payment
without the right to deliver or credit securities as provided in Section 13.02
and without the right to make the optional sinking fund payment with respect to
such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made with
respect to the Securities of any particular series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent) on
the sinking fund payment date on which such payment is made (or, if such payment
is made before a sinking fund payment date, on the sinking fund payment date
immediately following the date of such payment) to the redemption of Securities
of such series at the redemption price specified in such Securities with respect
to the sinking fund. Any sinking fund moneys not so applied or allocated by the
Trustee (or by the Company if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 10.03) for such series and
together with such payment (or such amount so segregated) shall be applied in
accordance with the provisions of this Section 13.03. Any and all sinking fund
moneys with respect to the Securities of any particular series held by the
<PAGE>
98
Trustee (or if the Company is acting as its own Paying Agent, segregated and
held in trust as provided in Section 10.03) on the last sinking fund payment
date with respect to Securities of such series and not held for the payment or
redemption of particular Securities of such series shall be applied by the
Trustee (or by the Company if the Company is acting as its own Paying Agent),
together with other moneys, if necessary, to be deposited (or segregated)
sufficient for the purpose, to the payment of the principal of the Securities of
such series at Maturity. The Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 11.03 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 11.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Section 11.06. On or before each sinking fund
payment date, the Company shall pay to the Trustee (or, if the Company is acting
as its own Paying Agent, the Company shall segregate and hold in trust as
provided in Section 10.03) in cash a sum in the currency in which Securities of
such series are payable (except as provided pursuant to Section 3.01) equal to
the principal and any interest accrued to the redemption date for Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section 13.03.
Neither the Trustee nor the Company shall redeem any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund for such series during the
continuance of a default in payment of interest, if any, on any Securities of
such series or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph) with respect to the Securities of such
series, except that if the notice of redemption shall have been provided in
accordance with the provisions hereof, the Trustee (or the Company if the
Company is then acting as its own Paying Agent) shall redeem such Securities if
cash sufficient for that purpose shall be deposited with the Trustee (or
segregated by the Company) for that purpose in accordance with the terms of this
Article XIII. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default shall occur and any
moneys thereafter paid into such sinking fund shall, during the continuance of
such default or Event of Default, be held as security for the payment of the
Securities and coupons, if any, of such series; provided, however, that in case
-------- -------
such default or Event of Default shall have been cured or waived herein, such
moneys shall
<PAGE>
99
thereafter be applied on the next sinking fund payment date for the Securities
of such series on which such moneys may be applied pursuant to the provisions of
this Section 13.03.
ARTICLE XIV
Subordination of Securities
---------------------------
SECTION 14.01. Securities Subordinate to Senior Debt. The Company
--------------------------------------
covenants and agrees, and each Holder of a Security, by its acceptance thereof,
likewise covenants and agrees, that, to the extent and in the manner hereinafter
set forth in this Article, the payment of the principal of and interest
(including any Additional Interest) on each and all of the Securities are hereby
expressly made subordinate and junior in right of payment to the prior payment
in full of all amounts then due and payable in respect of all Senior Debt.
SECTION 14.02. Payment Over of Proceeds Upon Dissolution, etc. In
-----------------------------------------------
the event of (a) any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company, its creditors or its property, (b) any
proceeding for the liquidation, dissolution, or other winding up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy
proceedings, (c) any assignment by the Company for the benefit of creditors or
(d) any other marshaling of the assets of the Company (each such event, if any,
herein sometimes referred to as a "Proceeding"), then the holders of Senior Debt
shall be entitled to receive payment in full of principal of and interest, if
any, on such Senior Debt, or provision shall be made for such payment in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of Senior
Debt, before the Holders of the Securities are entitled to receive or retain any
payment or distribution of any kind or character, whether in cash, property or
securities (including any payment or distribution which may be payable or
deliverable by reason of the payment of any other debt of the Company (including
any series of the Securities) subordinated to the payment of the Securities,
such payment or distribution being hereinafter referred to as a "Junior
Subordinated Payment"), on account of principal of or interest (including any
Additional Interest) on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any Subsidiary and to that end the
holders of Senior Debt shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or
<PAGE>
100
character, whether in cash, property or securities, including any Junior
Subordinated Payment, which may be payable or deliverable in respect of the
Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, and if such fact shall, at or prior to the time of such
payment or distribution, have been made known to a Responsible Officer of the
Trustee or, as the case may be, such Holder, then and in such event such payment
or distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Debt remaining unpaid, to the extent necessary to
pay all Senior Debt in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan or reorganization or readjustment, in each case, which securities are
subordinated in right of payment to all then outstanding Senior Debt to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the sale of all or
substantially all of its properties and assets as an entirety to another Person
or the liquidation or dissolution of the Company following the sale of all or
substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in Article VIII shall not be deemed a
Proceeding for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale such properties and assets substantially as an entirety, as the case may
be, shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article VIII.
<PAGE>
101
SECTION 14.03. Prior Payment to Senior Debt Upon Acceleration of
-------------------------------------------------
Securities. In the event that any Securities are declared due and payable
- -----------
before their Stated Maturity, then and in such event the holders of the Senior
Debt outstanding at the time such Securities so become due and payable shall
first be entitled to receive payment in full of all amounts due on or in respect
of such Senior Debt (including any amounts due upon acceleration), or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, before the Holders of the
Securities will be entitled to receive or retain any payment or distribution of
any kind or character, whether in cash, property or securities (including any
Junior Subordinated Payment) by the Company on account of the principal of or
interest (including any Additional Interest) on the Securities or on account of
the purchase or other acquisition of Securities by the Company or any
Subsidiary; provided, however, that nothing in this Section shall prevent the
-------- -------
satisfaction of any sinking fund payment in accordance with this Indenture or as
otherwise specified as contemplated by Section 3.01 for the Securities of any
series by delivering and crediting pursuant to Section 13.02 or as otherwise
specified as contemplated by Section 3.01 for the Securities of any series
Securities which have been acquired (upon redemption or otherwise) prior to such
declaration of acceleration.
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 a Responsible Officer of the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 14.02 would be applicable.
SECTION 14.04. No Payment When Senior Debt in Default. (a) In the
---------------------------------------
event and during the continuation of any default by the Company in the payment
of principal of or interest, if any, on any Senior Debt, or in the event that
any event of default with respect to any Senior Debt shall have occurred and be
continuing and shall have resulted in such Senior Debt 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
<PAGE>
102
annulled, or (b) in the event any judicial proceeding shall be pending with
respect to any such default in payment or event of default, then no direct or
indirect payment or distribution of any kind or character, whether in cash,
property or securities (including any Junior Subordinated Payment), by set-off
or otherwise, shall be made or agreed to be made by the Company on account of
principal or interest (including any Additional Interest) on the Securities or
on account of any redemption, repayment, retirement, purchase or other
acquisition of any Securities by the Company or any Subsidiary; provided,
--------
however, that nothing in this Section shall prevent the satisfaction of any
- -------
sinking fund payment in accordance with this Indenture or as otherwise specified
as contemplated by Section 3.01 for the Securities of any series by delivering
and crediting pursuant to Section 13.02 or as otherwise specified as
contemplated by Section 3.01 for the Securities of any series Securities which
have been acquired (upon redemption or otherwise) prior to such default in
payment or event of default.
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 a Responsible Officer of the
Trustee or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 14.02 would be applicable.
SECTION 14.05. Payment Permitted If No Default. Nothing contained in
--------------------------------
this Article or elsewhere in this Indenture or in any of the Securities shall
prevent (a) the Company, at any time except during the pendency of any
Proceeding referred to in Section 14.02 or under the conditions described in
Sections 14.03 and 14.04, from making payments at any time of principal of or
interest (including any Additional Interest) on the Securities, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of or interest (including any
Additional Interest) on the Securities or the retention of such payment by the
Holders, if, at the time of such payment by the Company or application by the
Trustee, as the case may be, it did not have knowledge that such payment or
application, as the case may be, would have been prohibited by the provisions of
this Article.
<PAGE>
103
SECTION 14.06. Subrogation to Rights of Holders of Senior Debt.
------------------------------------------------
Subject to the payment in full of all amounts due on all Senior Debt to the
extent required under Sections 14.02 and 14.03 of this Indenture, or the
provision for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, the Holders of the Securities shall
be subrogated to the extent of the payments or distributions made to the holders
of such Senior Debt pursuant to the provisions of this Article (equally and
ratably with the holders of all indebtedness of the Company which by its express
terms is subordinated to Senior Debt of the Company to substantially the same
extent as the Securities are subordinated to the Senior Debt and is entitled to
like rights of subrogation by reason of any payments or distributions made to
holders of such Senior Debt) to the rights of the holders of such Senior Debt to
receive payments and distributions of cash, property and securities applicable
to the Senior Debt until the principal of and interest on the Securities shall
be paid in full. For purposes of such subrogation or assignment, no payments or
distributions to the holders of the Senior Debt of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Debt by
Holders of the Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Debt, and the Holders of the Securities,
be deemed to be a payment or distribution by the Company to or on account of the
Senior Debt.
SECTION 14.07. Provisions Solely to Define Relative Rights. The
--------------------------------------------
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall (a) impair, as between the Company and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of and interest (including any
Additional Interest) on the Securities as and when the same shall become due and
payable in accordance with their terms; or (b) affect the relative rights
against the Company of the Holders of the Securities and creditors of the
Company other than their rights in relation to the holders of Senior Debt; or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this Indenture
including, without limitation, filing and voting claims in any
<PAGE>
104
Proceeding, subject to the rights, if any, under this Article of the holders of
Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 14.08. Trustee to Effectuate Subordination. Each Holder of a
------------------------------------
Security by his or her acceptance thereof authorizes and directs the Trustee on
his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination provided in this Article and
appoints the Trustee his or her attorney-in-fact for any and all such purposes.
SECTION 14.09. No Waiver of Subordination Provisions. No right of
--------------------------------------
any present or future holder of any Senior Debt 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 that any such holder may have or be otherwise charged with.
SECTION 14.10. Notice to Trustee. The Company shall give prompt
------------------
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior Debt
or from any trustee, agent or representative therefor (whether or not the facts
contained in such notice are true); provided, however, that if the Trustee shall
-------- -------
not have received the notice provided for in this Section at least two Business
Days prior to the date upon which by the terms hereof any monies may become
payable for any purpose (including, without limitation, the payment of the
principal of or interest (including any Additional Interest) on any Security),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such monies and to 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 within two Business Days
prior to such date.
<PAGE>
105
SECTION 14.11. Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent. Upon any payment or distribution of assets of the Company
- ------------------
referred to in this Article, the Trustee, subject to the provisions of Article
VI, and the Holders of the Securities shall be entitled to conclusively rely
upon any order or decree entered by any court of competent jurisdiction in which
such Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Debt and other 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.
SECTION 14.12. Trustee Not Fiduciary for Holders of Senior Debt. The
-------------------------------------------------
Trustee, in its capacity as trustee under this Indenture, shall not be deemed to
owe any fiduciary duty to the holders of Senior Debt and shall not be liable to
any such holders if it shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other Person cash, property or
securities to which any holders of Senior Debt shall be entitled by virtue of
this Article or otherwise.
SECTION 14.13. Rights of Trustee as Holder of Senior Debt;
-------------------------------------------
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
- ---------------------------------
be entitled to all the rights set forth in this Article with respect to any
Senior Debt which may at any time be held by it, to the same extent as any other
holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder.
SECTION 14.14. Article Applicable to Paying Agents. In case at any
------------------------------------
time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this Article
shall in such case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee.
SECTION 14.15. Certain Conversions or Exchanges Deemed Payment. For
------------------------------------------------
purposes of this Article XIV only, (a) the issuance and delivery of junior
securities (as
<PAGE>
106
defined below) upon conversion or exchange of Securities shall
not be deemed to constitute a payment or distribution on account of the
principal of or interest (including any Additional Interest) on the Securities
or on account of the purchase or other acquisition of Securities, and (b) the
payment, issuance or delivery of cash, property or securities (other than junior
securities) upon conversion or exchange of a Security shall be deemed to
constitute payment on account of the principal of such Security. For the
purposes of this Section, the term "junior securities" means (i) shares of any
stock of any class of the Company and (ii) securities of the Company which are
subordinated in right of payment to all Senior Debt which may be outstanding at
the time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article.
<PAGE>
107
This instrument may be executed in any number of counterparts, each of
which when 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 hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first written above.
CENTRAL FIDELITY BANKS, INC.
by /s/ Charles W. Tysinger
-------------------------------
Name: Charles W. Tysinger
Title: Chief Financial
Officer and
Corporate Executive
Vice President
[Seal]
<PAGE>
THE BANK OF NEW YORK, as Trustee
by /s/ Paul J. Schmalzel
--------------------------------
Name: Paul J. Schmalzel
Title: Assistant
Treasurer
[Seal]
<PAGE>
EXHIBIT 4.2
CERTIFICATE OF TRUST
OF
CENTRAL FIDELITY CAPITAL TRUST I
This Certificate of Trust of Central Fidelity Capital Trust I (the
"Trust"), dated April 2, 1997 is being duly executed and filed by The Bank of
New York (Delaware), a Delaware banking corporation, as trustee, Charles W.
Tysinger, an individual, as trustee, John T. Percy, Jr., an individual, as
trustee, and William N. Stoyko, an individual, as trustee to form a business
trust under the Delaware Business Trust Act (12 Del. C. (S) 3801 et seq.).
1. Name. The name of the business trust being formed hereby is Central
Fidelity 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 is The Bank of
New York (Delaware), White Clay Center, Route 273, Newark, Delaware, 19711.
3. Effective Date. This Certificate of Trust shall be effective upon
filing with the Secretary of State of the State of Delaware.
<PAGE>
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
executed this Certificate of Trust as of the date first above written.
THE BANK OF NEW YORK
(DELAWARE), as Trustee
By: /s/ Frederick Clark
-----------------------
Name: Frederick Clark
Title: Authorized
Signatory
/s/ Charles W. Tysinger
-----------------------
Charles W. Tysinger,
as Trustee
/s/ John T. Percy, Jr.
-----------------------
John T. Percy, Jr.,
as Trustee
/s/ William N. Stoyko
------------------------
William N. Stoyko,
as Trustee
<PAGE>
EXHIBIT 4.3
DECLARATION OF TRUST
OF
CENTRAL FIDELITY CAPITAL TRUST I
This DECLARATION OF TRUST, dated as of April 2, 1997, between Central
Fidelity Banks, Inc., a Virginia corporation, as "Depositor" and Charles W.
Tysinger, John T. Percy, Jr. and William N. Stoyko as "Administrative Trustees"
and The Bank of New York (Delaware) as "Delaware Trustee" (the Delaware Trustee
and the Administrative Trustees together, the "Trustees"). The Depositor and
the Trustee hereby agree as follows:
1. The trust created hereby shall be known as Central Fidelity Capital
Trust I, in which name the Trustee, or the Depositor to the extent provided
herein, may engage in the transactions contemplated hereby, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustee the sum of $10. The Administrative Trustees hereby acknowledge receipt
of such amount in trust from the Depositor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the trust
estate in trust for the Depositor. It is the intention of the parties hereto
that the Trust created hereby constitute a business trust under Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. (S) 3801 et seq. (the "Business Trust
------ -- ---
Act"), and that this document constitute the governing instrument of the Trust.
The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in accordance with the
provisions of the Business Trust Act.
3. The Depositor and the Trustees shall enter into an amended and restated
Declaration of Trust, satisfactory to each such party, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Capital Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Declaration of Trust, the
Trustee (or Trustees, as may be applicable) shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain prior to such
execution and delivery any licenses, consents or approvals required by
applicable law or otherwise.
<PAGE>
4. The Depositor and the Administrative Trustees hereby authorize the
Depositor, as the sponsor of the Trust and at its sole discretion, (i) to take
-
such actions as each may deem necessary or appropriate, including the
preparation of a final offering memorandum, to make the Capital Securities
eligible to be offered pursuant to Rule 144A under the Securities Act of 1933,
as amended; (ii) to file with any exchange or trading facility located in the
--
United States of America or abroad (each, an "Exchange") and execute on behalf
of the Trust a registration or listing application or applications and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Capital Securities to be registered
or listed on any Exchange or trading facility; (iii) to file and execute on
---
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as the Depositor, on behalf of the Trust, may deem necessary or
desirable; (iv) to execute on behalf of the Trust such Purchase Agreements with
--
one or more underwriters relating to the offering of the Capital Securities as
the Depositor, on behalf of the Trust, may deem necessary or desirable; (v) to
-
execute on behalf of the Trust an application to the Depository Trust Company
("DTC") and any other documents that may be necessary to have the Capital
Securities held in global form for the benefit of DTC participants; and (vi) to
--
take or cause to be taken any and all acts that the Depositor, in its sole
discretion, may deem necessary or advisable to carry out the purpose of the
Trust. In the event that any filing referred to in clauses (ii) and (iii) above
is required, by the rules and regulations of any trading facility or Exchange,
state securities or Blue Sky laws, or any applicable federal or state laws or
regulations, to be executed on behalf of the Trust by a Trustee, any
Administrative Trustee is hereby authorized to join in any such filing and to
execute on behalf of the Trust any and all of the foregoing.
5. This Declaration of Trust may be executed in one or more counterparts.
6. The number of Trustees initially shall be four (4) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, the Delaware Trustee shall either be a natural person who is
a resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the
-2-
<PAGE>
State of Delaware and otherwise meets the requirements of applicable Delaware
law. Subject to the foregoing, the Depositor is entitled to appoint or remove
without cause any Trustee at any time. The Trustee may resign upon thirty days'
prior notice to the Depositor provided, however, such notice shall not be
-------- -------
required if it is waived by the Depositor.
7. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
[Remainder of Page Intentionally Blank]
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
CENTRAL FIDELITY BANKS, INC.,
as Depositor
By: /s/ William N. Stoyko
-----------------------
Name: William N. Stoyko
Title: Corporate
Executive Vice
President
THE BANK OF NEW YORK
(DELAWARE),
as Delaware Trustee
By: /s/ Frederick Clark
-----------------------
Name: Frederick Clark
Title: Authorized
Signatory
/s/ Charles W. Tysinger
-----------------------
Charles W. Tysinger,
as Administrative
Trustee
/s/ John T. Percy, Jr.
----------------------
John T. Percy, Jr.,
as Administrative
Trustee
/s/ William N. Stoyko
----------------------
William N. Stoyko,
as Administrative
Trustee
-4-
<PAGE>
EXECUTION COPY
EXHIBIT 4.4
AMENDED AND RESTATED
DECLARATION OF TRUST
among
CENTRAL FIDELITY BANKS, INC., as Depositor,
THE BANK OF NEW YORK,
as Property Trustee,
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of April 23, 1997
CENTRAL FIDELITY CAPITAL TRUST I
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
Defined Terms
-------------
<S> <C>
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
Continuation of the Trust
-------------------------
SECTION 2.01. Name. . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.02. Office of the Delaware Trustee;
Principal Place of Business . . . . . . . . . . . . 15
SECTION 2.03. Organizational
Expenses. . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.04. Issuance of the Capital Securities. . . . . . . . . . 15
SECTION 2.05. Issuance of the Common Securities;
Subscription and Purchase of
Junior Subordinated Debt
Securities. . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.06. Declaration of Trust. . . . . . . . . . . . . . . . . 16
SECTION 2.07. Authorization to Enter into Certain
Transactions. . . . . . . . . . . . . . . . . . . . 17
SECTION 2.08. Assets of Trust . . . . . . . . . . . . . . . . . . . 22
SECTION 2.09. Title to Trust Property . . . . . . . . . . . . . . . 22
ARTICLE III
Payment Account
---------------
SECTION 3.01. Payment Account . . . . . . . . . . . . . . . . . . . 22
ARTICLE IV
Distributions; Redemption
-------------------------
SECTION 4.01. Distributions . . . . . . . . . . . . . . . . . . . . 23
SECTION 4.02. Redemption. . . . . . . . . . . . . . . . . . . . . . 24
SECTION 4.03. Subordination of Common
Securities. . . . . . . . . . . . . . . . . . . . . 27
SECTION 4.04. Payment Procedures. . . . . . . . . . . . . . . . . . 28
SECTION 4.05. Tax Returns and Reports . . . . . . . . . . . . . . . 28
SECTION 4.06. Payment of Taxes, Duties, etc. of
The Trust . . . . . . . . . . . . . . . . . . . . . 29
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 4.07. Payments under Indenture. . . . . . . . . . . . . . . 29
ARTICLE V
Trust Securities Certificates
-----------------------------
SECTION 5.01. Initial Ownership . . . . . . . . . . . . . . . . . . 29
SECTION 5.02. Trust Securities Certificates . . . . . . . . . . . . 29
SECTION 5.03. Execution and Delivery of Trust
Securities Certificates . . . . . . . . . . . . . . 30
SECTION 5.04 Global Capital Security . . . . . . . . . . . . . . . 30
SECTION 5.05. Registration of Transfer and
Exchange Generally; Certain
Transfers and Exchanges; Capital
Securities Certificates;
Securities Act Legends. . . . . . . . . . . . . . . 33
SECTION 5.06. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates . . . . . . . . . . . 39
SECTION 5.07. Persons Deemed Securityholders. . . . . . . . . . . . 40
SECTION 5.08. Access to List of Securityholders'
Names and Addresses . . . . . . . . . . . . . . . . 40
SECTION 5.09. Maintenance of Office or Agency;
Transfer Agent. . . . . . . . . . . . . . . . . . . 40
SECTION 5.10. Appointment of Paying Agent . . . . . . . . . . . . . 41
SECTION 5.11. Ownership of Common Securities by
Depositor . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.12. Notices to Clearing Agency. . . . . . . . . . . . . . 42
SECTION 5.13. Rights of Securityholders . . . . . . . . . . . . . . 42
ARTICLE VI
Acts of Securityholders; Meetings; Voting
-----------------------------------------
SECTION 6.01. Limitations on Capital
Securityholders' Voting Rights. . . . . . . . . . . 45
SECTION 6.02. Notice of Meetings. . . . . . . . . . . . . . . . . . 46
SECTION 6.03. Meetings of Securityholders . . . . . . . . . . . . . 47
SECTION 6.04. Voting Rights . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.05. Proxies, etc. . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.06. Securityholder Action by Written
Consent . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.07. Record Date for Voting and Other
Purposes. . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.08. Acts of Securityholders . . . . . . . . . . . . . . . 48
SECTION 6.09. Inspection of Records . . . . . . . . . . . . . . . . 50
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
ARTICLE VII
Representations and Warranties
------------------------------
<S> <C>
SECTION 7.01. Representations and Warranties of
the Property Trustee and the
Delaware Trustee. . . . . . . . . . . . . . . . . . 50
SECTION 7.02. Representations and Warranties of
Depositor . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE VIII
The Trustees
------------
SECTION 8.01. Certain Duties and Responsibilities . . . . . . . . . 52
SECTION 8.02. Events of Default Notices; Deferral
of Interest Payment Notices . . . . . . . . . . . . 54
SECTION 8.03. Certain Rights of Property
Trustee . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8.04. Not Responsible for Recitals. . . . . . . . . . . . . 57
SECTION 8.05. May Hold Securities . . . . . . . . . . . . . . . . . 58
SECTION 8.06. Compensation, Indemnity, Fees . . . . . . . . . . . . 58
SECTION 8.07. Corporate Property Trustee Required;
Eligibility of Trustees . . . . . . . . . . . . . . 60
SECTION 8.08. Conflicting Interests . . . . . . . . . . . . . . . . 60
SECTION 8.09. Co-Trustees and Separate Trustee. . . . . . . . . . . 60
SECTION 8.10. Resignation and Removal; Appointment
of Successor. . . . . . . . . . . . . . . . . . . . 62
SECTION 8.11. Acceptance of Appointment by
Successor . . . . . . . . . . . . . . . . . . . . . 64
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . . . . . 65
SECTION 8.13. Preferential Collection of Claims
Against Depositor or Trust. . . . . . . . . . . . . 66
SECTION 8.14. Reports by Property Trustee . . . . . . . . . . . . . 67
SECTION 8.15. Reports to the Property Trustee . . . . . . . . . . . 67
SECTION 8.16. Evidence of Compliance with
Conditions Precedent. . . . . . . . . . . . . . . . 67
SECTION 8.17. Number of Trustees. . . . . . . . . . . . . . . . . . 68
SECTION 8.18. Delegation of Power . . . . . . . . . . . . . . . . . 68
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
ARTICLE IX
Termination, Liquidation and Merger
-----------------------------------
<S> <C>
SECTION 9.01. Termination Upon Expiration Date;
Termination Upon Special Event. . . . . . . . . . . 69
SECTION 9.02. Early Termination . . . . . . . . . . . . . . . . . . 69
SECTION 9.03. Termination . . . . . . . . . . . . . . . . . . . . . 69
SECTION 9.04. Liquidation . . . . . . . . . . . . . . . . . . . . . 70
SECTION 9.05. Mergers, Consolidations,
Amalgamations or Replacements of
the Trust . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE X
Miscellaneous Provisions
------------------------
SECTION 10.01. Limitation of Rights of
Securityholders . . . . . . . . . . . . . . . . . . 73
SECTION 10.02. Liability of the Depositor. . . . . . . . . . . . . . 74
SECTION 10.03. Amendment . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 10.04. Separability. . . . . . . . . . . . . . . . . . . . . 76
SECTION 10.05. Governing Law . . . . . . . . . . . . . . . . . . . . 76
SECTION 10.06. Payments Due on Non-Business Day. . . . . . . . . . . 76
SECTION 10.07. Successors. . . . . . . . . . . . . . . . . . . . . . 76
SECTION 10.08. Headings. . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 10.09. Reports, Notices and Demands. . . . . . . . . . . . . 76
SECTION 10.10. Agreement Not to Petition . . . . . . . . . . . . . . 77
SECTION 10.11. Trust Indenture Act; Conflict with
Trust Indenture Act . . . . . . . . . . . . . . . . 78
SECTION 10.12. Acceptance of Terms of Declaration
of Trust, Guarantee and
Indenture . . . . . . . . . . . . . . . . . . . . . 78
SECTION 10.13. Execution in Counterparts . . . . . . . . . . . . . . 79
</TABLE>
<PAGE>
CENTRAL FIDELITY CAPITAL TRUST I
Certain Sections of this Declaration of Trust relating
to Sections 310 through 318 of the Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Declaration of
Act Section Trust Section
- ---------------- --------------
<S> <C>
ss.310(a)(1) ............................................ 8.07
(a)(2)............................................. 8.07
(a)(3)............................................. 8.09
(a)(4)............................................. 2.07(a)(ii)
(b)................................................ 8.08
ss.311(a)................................................ 8.13
(b)................................................ 8.13
ss.312(a)................................................ 5.08
(b)................................................ 5.08
(c)................................................ 5.08
ss.313(a)................................................ 8.14(a)
(a)(4)............................................. 8.14(b)
(b)(1)............................................. 8.14(a)
(b)(2)............................................. 8.14(b)
(c)................................................ 10.09
(d)................................................ 8.14(c)
ss.314(a)................................................ 8.15
(b)................................................ Not Applicable
(c)(1)............................................. 8.16
(c)(2)............................................. 8.16
(c)(3)............................................. Not Applicable
(d)................................................ Not Applicable
(e)................................................ 1.01, 8.16
8.01(a),
ss.315(a)................................................ 8.03(a)
(b)................................................ 8.02, 10.10
(c)................................................ 8.01(a)
(d)................................................ 8.01, 8.03
(e)................................................ Not Applicable
ss.316(a)................................................ Not Applicable
(a)(1)(A).......................................... Not Applicable
(a)(1)(B).......................................... Not Applicable
(a)(2)............................................. Not Applicable
(b)................................................ 5.13
(c)................................................ 6.07
ss.317(a)(1)............................................. Not Applicable
(a)(2)............................................. Not Applicable
(b)................................................ 5.10
ss.318(a)................................................ 10.11
</TABLE>
- --------------
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Declaration of Trust.
<PAGE>
AMENDED AND RESTATED DECLARATION OF TRUST, dated as of
April 23, 1997, among (i) CENTRAL FIDELITY BANKS, INC., a
Virginia corporation (including any successors or assigns, the
"Depositor"), (ii) THE BANK OF NEW YORK, a New York banking
corporation, 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) THE
BANK OF NEW YORK (Delaware), a Delaware banking corporation, as
Delaware trustee (the "Delaware Trustee"), (iv) Charles W.
Tysinger, an individual, John T. Percy, Jr., an individual, and
William N. Stoyko, an individual, each of whose address is c/o
Central Fidelity Banks, Inc. (each an "Administrative Trustee"
and collectively the "Administrative Trustees") (the Property
Trustee, the Delaware Trustee and the Administrative Trustees
are referred to collectively herein as the "Trustees") and (v)
the several Holders, as hereinafter defined.
W I T N E S S E T H :
WHEREAS the Depositor, the Delaware Trustee and the Administrative
Trustees have heretofore duly declared and established a business trust pursuant
to the Delaware Business Trust Act by entering into a certain Declaration of
Trust, dated as of April 2, 1997 (the "Original Declaration of Trust"), and by
the execution and filing by the Delaware Trustee and the Administrative Trustees
with the Secretary of State of the State of Delaware of the Certificate of
Trust, filed on April 2, 1997 (the "Certificate of Trust"); and attached as
Exhibit A; and
WHEREAS the Depositor, the Delaware Trustee and the Administrative
Trustees desire to amend and restate the Original Declaration of Trust in its
entirety as set forth herein to provide for, among other things (i) the issuance
and sale of the Common Securities by the Trust to the Depositor, (ii) the
issuance and sale of the floating rate Capital Securities (the "Initial Capital
Securities") by the Trust pursuant to the Purchase Agreement, (iii) the issuance
pursuant to a registered exchange for the Initial Capital Securities of floating
rate Capital Securities (the "Exchange Capital Securities") (each of the Initial
Capital
<PAGE>
2
Securities and the Exchange Capital Securities hereinafter referred to as the
"Capital Securities"), (iv) the acquisition by the Trust from the Depositor of
all of the right, title and interest in the Junior Subordinated Debt Securities
and (v) the appointment of The Bank of New York, a New York banking corporation
(in such capacity, the "Property Trustee" and, in its separate corporate
capacity and not in its capacity as Property Trustee, the "Bank");
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, as hereinafter defined, hereby
amends and restates the Original Declaration of Trust in its entirety and agrees
as follows:
ARTICLE I
Defined Terms
-------------
SECTION 1.01. Definitions. For all purposes of this Declaration of
------------
Trust, except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) 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;
(c) 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 Declaration of Trust;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Declaration of Trust as a whole and not to any
particular Article, Section or other subdivision; and
(e) all references to the date the Capital Securities were originally
issued shall refer to the date the Initial Capital Securities were
originally issued.
<PAGE>
3
"Act" has the meaning specified in Section 6.08.
"Additional Distribution" has the meaning specified in Section
4.01(c).
"Administrative Action" has the meaning specified in the definition of
"Tax Event" in this Section 1.01.
"Administrative Trustee" means each of Charles W. Tysinger, John T.
Percy, Jr. and William N. Stoyko, solely in such Person's capacity as
Administrative Trustee of the Trust continued hereunder and not in such Person's
individual capacity, or such Administrative Trustee'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.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Capital Security or beneficial interest therein,
the rules and procedures of the depositary for such Capital Security, in each
case to the extent applicable to such transaction and as in effect from time to
time.
"Bank" has the meaning specified in the preamble to this Declaration
of Trust.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in
the premises adjudging 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
<PAGE>
4
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.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Trustees.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) 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 (c) a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of the
Debenture Trustee is closed for business.
"Capital Securities" means each of the Initial Capital Securities to
be issued on the date hereof and the Exchange Capital Securities (as defined in
the Registration Agreement), treated together as a single class of securities,
each representing an undivided beneficial interest in the assets of the Trust,
having a Liquidation Amount of $1,000 per Capital Security and having the rights
provided therefor in this Declaration of Trust, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
<PAGE>
5
"Capital Securities Certificate" means a certificate evidencing
ownership of Capital Securities, substantially in the form attached as Exhibit
B.
"Capital Securityholder" means a Person in whose name a Capital
Security or Capital Securities is registered in the Securities Register; and any
such Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act.
"Capital Treatment Event" has the meaning specified in Section 1.01 of
the Indenture.
"Cede" has the meaning specified in Section 5.02(b).
"Certificate of Trust" has the meaning specified in the preamble to
this Declaration of Trust.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934. The
Depository Trust Company shall 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" has the meaning specified in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, 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, then the body performing such duties at such time.
"Common Securities" means the floating rate Common Securities, each
representing 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
Declaration of Trust, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
<PAGE>
6
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means the principal office of the Property
Trustee located in New York City which at the time of the execution of this
Declaration of Trust is located at 101 Barclay Street, Floor 21 West, New York,
New York 10286.
"Declaration of Trust" means this Amended and Restated Declaration of
Trust, as the same may be modified, amended or supplemented in accordance with
the applicable provisions hereof, including all exhibits hereto, including, for
all purposes of this Amended and Restated Declaration of Trust, the provisions
of the Trust Indenture Act that are deemed to be a part of and govern this
Amended and Restated Declaration of Trust and any modification, amendment or
supplement of either, respectively.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Trustee" means The Bank of New York, a New York banking
corporation and any successor.
"Definitive Capital Securities Certificate" means Capital Securities
Certificates issued in certificated, fully registered form.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S)(S) 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 Declaration of Trust solely in its capacity as
Delaware Trustee of the Trust continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this
Declaration of Trust.
"Determination Date" has the meaning specified in Section 4.01(a).
"Distribution Date" has the meaning specified in Section 4.01(a).
<PAGE>
7
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"Early Termination Event" has the meaning specified in Section 9.02.
"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 Trust 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 Trust 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 Declaration of Trust
(other than a covenant or warranty, a default in the performance or breach
of which is addressed 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 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" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property
Trustee within 60 days thereof.
"Exchange Capital Securities" has the meaning specified in the second
paragraph of this Agreement.
"Expiration Date" has the meaning specified in Section 9.01.
<PAGE>
8
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Global Capital Securities" means a beneficial interest in the Capital
Securities, ownership and transfers of which shall be made through book entries
by a Clearing Agency as described in Section 5.11.
"Global Capital Securities Certificate" means a certificate evidencing
ownership of Global Capital Securities, substantially in the form attached as
Exhibit B.
"Guarantee" means the Guarantee Agreement executed and delivered by
the Depositor and The Bank of New York, as trustee, contemporaneously with the
execution and delivery of this Declaration of Trust, for the benefit of the
holders of the Trust Securities, as amended from time to time.
"Holder" or "Securityholder" 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 of such Trust Securities within
the meaning of the Delaware Business Trust Act; provided, however, that in
-------- -------
determining whether the Holders of the requisite amount of Capital Securities
have voted on any matter provided for in this Declaration of Trust, then for the
purpose of any such determination, so long as Definitive Capital Securities
Certificates have not been issued, the term Securityholders or Holders as used
herein shall refer to the Owners.
"Indenture" means the Junior Subordinated Indenture, dated as of April
23, 1997, between the Depositor and the Debenture Trustee, as trustee, (as
amended or supplemented from time to time) relating to the issuance of the
Junior Subordinated Debt Securities.
"Initial Capital Securities" has the meaning specified in the second
paragraph of this Agreement.
"Initial Purchasers" means Salomon Brothers Inc and Keefe, Bruyette &
Woods, Inc.
"Institutional Accredited Investor" means an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act.
"Junior Subordinated Debt Securities" means $103,093,000 the aggregate
principal amount of the Depositor's Floating Rate Junior Subordinated Debt
<PAGE>
9
Securities due April 15, 2027, issued pursuant to the Indenture.
"Junior Subordinated Debt Securities Redemption Date" means, with
respect to any Junior Subordinated Debt Securities to be redeemed under the
Indenture, the date fixed for redemption under the Indenture or pursuant to an
Officers' Certificate in accordance with the terms of the Indenture.
"Letter of Representations" means the agreement among the Trust, the
Property Trustee and The Depository Trust Company ("DTC"), as the initial
Clearing Agency, dated as of the Closing Date.
"LIBOR" has the meaning, with respect to quarterly interest periods,
specified in Section 2.02 of the Indenture.
"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 that portion
of the principal amount of Junior Subordinated Debt Securities to be
contemporaneously redeemed in accordance with the Indenture allocated to the
Trust Securities based upon their relative Liquidation Amounts and the proceeds
of which will be used to pay the Redemption Price of such Trust Securities, and
(b) with respect to a distribution of Junior Subordinated Debt Securities to
Holders in connection with a dissolution or liquidation of the Trust, Junior
Subordinated Debt Securities having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Junior Subordinated
Debt Securities are distributed.
"Liquidation Amount" means the stated amount of $1,000 per Trust
Security.
"Liquidation Date" means the date on which Junior Subordinated Debt
Securities 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).
<PAGE>
10
"1940 Act" means the Investment Company Act of 1940.
"Officers' Certificate" means a certificate signed by the Chairman and
Chief Executive Officer, President or a Vice President, and by the Treasurer, an
Associate Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the appropriate Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
8.16 shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to compliance with
a condition or covenant provided for in this Declaration of Trust 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
(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, but not an
employee of any thereof, and which opinion shall be reasonably acceptable to the
Property Trustee.
"Original Declaration of Trust" has the meaning specified in the
preamble to this Declaration of Trust.
"Other Capital Securities" means the Capital Securities sold by the
Initial Purchasers in the initial offering contemplated by the Purchase
Agreement to Institutional Accredited Investors in reliance on an exemption from
the registration requirements of the Securities Act other than Rule 144A.
<PAGE>
11
"Outstanding", with respect to Capital Securities, means, as of the
date of determination, all Capital Securities theretofore executed and delivered
under this Declaration of Trust, except;
------
(a) Capital Securities theretofore canceled by the Property Trustee
or delivered to the Property Trustee for cancellation;
(b) Capital 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 benefit of the Holders of such Capital
Securities; provided that if such Capital Securities are to be redeemed,
--------
notice of such redemption has been duly given pursuant to this Declaration
of Trust; and
(c) Capital Securities which have been paid or in exchange for or in
lieu of which other Capital Securities have been executed and delivered
pursuant to Sections 5.02, 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 a
Responsible Officer of such Trustee actually 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 Administrative Trustees 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 Global
Capital Security 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
<PAGE>
12
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
pursuant to Section 5.10 and shall initially be the Bank.
"Payment Account" means a segregated noninterest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Junior Subordinated Debt Securities will be held and from which
the Property Trustee 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.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Declaration of
Trust solely in its capacity as Property Trustee of the Trust 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 April
16, 1997, among the Trust, the Depositor and the Initial Purchasers.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Declaration
of Trust, provided, however, that each Junior Subordinated Debt Securities
-------- -------
Redemption Date and the Stated Maturity of the Junior Subordinated Debt
Securities shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accrued and unpaid Distributions
to the Redemption Date paid by the Depositor upon the concurrent redemption of a
Like Amount of Junior Subordinated Debt Securities, allocated on a pro rata
basis (based on Liquidation Amounts) among the Trust Securities.
<PAGE>
13
"Registration Agreement" means the Registration Agreement dated as of
April 23, 1997, among the Trust, the Depositor and the Initial Purchasers.
"Registration Exchange Offer" has the meaning specified in the
Registration Agreement.
"Registration Statement" has the meaning specified in the Registration
Agreement.
"Regulation D" means Regulation D under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer" means, when used with respect to the Property
Trustee, any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer to the Property Trustee
customarily performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration for
this Declaration of Trust, and also, with respect to a particular matter, any
other officer, to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Restricted Capital Securities" means all Capital Securities required
pursuant to Section 5.05(c) to bear a Restricted Capital Securities Legend.
Such term includes the Global Capital Securities Certificate.
"Restricted Capital Securities Certificate" means a certificate
substantially in the form set forth in Exhibit D.
"Restricted Capital Securities Legend" means a legend substantially in
the form of the legend required in Section 5.05(c).
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as may be amended from time to time.
"Rule 144A Capital Securities" means the Capital Securities purchased
by the Initial Purchasers from the Trust pursuant to the Purchase Agreement,
other than the Other Capital Securities.
<PAGE>
14
"Securities Act" means the Securities Act of 1933.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.05.
"Securityholder" or "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; provided, however, that in determining whether the
-------- -------
Holders of the requisite amount of Capital Securities have voted on any matter
provided for in this Declaration of Trust, then for the purpose of any such
determination, so long as Definitive Capital Securities Certificates have not
been issued, the term Securityholders or Holders as used herein shall refer to
the Owners.
"Stated Maturity" has the meaning specified in Section 1.01 of the
Indenture.
"Tax Event" has the meaning specified in Section 1.01 of the
Indenture.
"Transfer Agent" means the Bank as set forth in the preamble to this
Declaration of Trust.
"Trust" means Central Fidelity Capital Trust I.
"Trust Indenture Act" has the meaning specified in Section 1.01 of the
Indenture.
"Trust Property" means (a) the Junior Subordinated Debt Securities,
(b) the rights of the Property Trustee under the Guarantee, (c) any cash or
deposit in, or owing to, the Payment Account and (d) all proceeds and rights in
respect of the foregoing.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Capital Securities Certificates.
"Trust Security" means any one of the Common Securities or the Capital
Securities.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
<PAGE>
15
ARTICLE II
Continuation of the Trust
-------------------------
SECTION 2.01. Name. The Trust continued hereby shall be known as
-----
"Central Fidelity Capital Trust I", as such name may be modified from time to
time by the Administrative Trustees following written notice to the Holders 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.
SECTION 2.02. Office of the Delaware Trustee; Principal Place of
--------------------------------------------------
Business. The address of the Delaware Trustee in the State of Delaware is The
- ---------
Bank of New York (Delaware), White Clay Center, Route 273, Newark, Delaware
19711, Attention: Corporate Trust Administration, 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 in care of Central Fidelity Banks, Inc., 1021 East Cary Street, P.O. Box
27602, Richmond, Virginia 23261-7602; Attention: William N. Stoyko, Secretary.
SECTION 2.03. Organizational Expenses. The Depositor, as borrower on
------------------------
the Junior Subordinated Debt Securities, shall pay all 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.
SECTION 2.04. Issuance of the Capital Securities. The Capital
-----------------------------------
Securities to be issued will be limited to $100 million aggregate Liquidation
Amount outstanding at any one time.
On April 16, 1997, the Depositor, on behalf of the Trust, and pursuant
to the Original Declaration of Trust, and the Initial Purchasers executed and
delivered the Purchase Agreement. Contemporaneously with the execution and
delivery of this Declaration of Trust, an Administrative Trustee, on behalf of
the Trust, shall execute or cause to be executed in accordance with Section 5.02
and delivered to the Initial Purchasers, a Global Capital Securities Certificate
in book-entry form, registered in the name of the nominee of the initial
Clearing Agency, in an aggregate amount of Capital Securities having an
aggregate Liquidation Amount of $100 million against receipt of the aggregate
<PAGE>
16
purchase price of such Capital Securities equal to 99.134% of the Liquidation
Amount multiplied by the number of Capital Securities being purchased which
amount the Administrative Trustee shall promptly deliver to the Property
Trustee.
SECTION 2.05. Issuance of the Common Securities; Subscription and
---------------------------------------------------
Purchase of Junior Subordinated Debt Securities. Contemporaneously with the
- ------------------------------------------------
execution and delivery of this Declaration of Trust, an Administrative Trustee,
on behalf of the Trust, shall execute or cause to be executed in accordance with
Section 5.02(a) and delivered to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of 3,093
Common Securities having an aggregate Liquidation Amount of $3,093,000 against
payment by the Depositor of $3,093,000 to the Trust. Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust, shall subscribe to
and purchase from the Depositor Junior Subordinated Debt Securities, registered
in the name of the Property Trustee and held for the benefit of the holders of
the Capital Securities having an aggregate principal amount equal to
$103,093,000, and, in satisfaction of the purchase price for such Junior
Subordinated Debt Securities, the Trust shall deliver to the Depositor the sum
of $102,227,000.
SECTION 2.06. Declaration of Trust. The exclusive purposes and
---------------------
functions of the Trust are to (a) issue and sell Trust Securities, (b) use the
proceeds from the sale of Trust Securities to acquire the Junior Subordinated
Debt Securities, (c) receive payments to be made with respect to the Junior
Subordinated Debt Securities, and (d) engage in only those other activities
necessary or incidental thereto such as registering the transfer of the Capital
Securities and complying with the terms of the Registration Agreement. The
Depositor hereby appoints the Trustees as trustees of the Trust, to have all the
rights, powers and duties to the extent set forth herein, and the Trustees
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
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. 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 Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees
<PAGE>
17
of the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 2.07. Authorization to Enter into Certain Transactions. (a)
-------------------------------------------------
The Trustees shall conduct the affairs of the Trust in accordance with the terms
of this Declaration of Trust. 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
Declaration of Trust, and to perform all acts in furtherance thereof, including
without limitation, the following:
(i) As among the Trustees, each Administrative Trustee shall have
the power and authority to act on behalf of the Trust with respect to the
following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, the Purchase Agreement, the
Registration Agreement, the Letter of Representations and such other
agreements as may be necessary or desirable in connection with the
purposes and function of the Trust;
(C) assisting in the registration of the Capital Securities
under the Securities Act, and under state securities or blue sky laws,
and the qualification of this Declaration of Trust as a trust
indenture under the Trust Indenture Act;
(D) assisting in the listing, if any, of the Capital Securities
upon such securities exchange or exchanges as shall be determined by
the Depositor and the registration of the Capital Securities under the
Securities Exchange Act of 1934 (the "Exchange Act"), and the
preparation and filing of all periodic and other reports and other
documents pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Junior
<PAGE>
18
Subordinated Debt Securities to the Securityholders in accordance with
this Declaration of Trust;
(F) the appointment of a Paying Agent, Transfer Agent and
Securities Registrar in accordance with this Declaration of Trust;
(G) registering transfer of the Trust Securities in accordance
with this Declaration of Trust;
(H) to the extent provided in this Declaration of Trust, the
winding up of the affairs 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;
(I) unless otherwise determined by the Depositor, the Property
Trustee or the Administrative Trustees 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 Administrative Trustees) any documents that the Administrative
Trustees have the power to execute pursuant to this Declaration of
Trust; and
(J) the taking of any action incidental to the foregoing as the
Trustees may from time to time determine is necessary or advisable to
give effect to the terms of this Declaration of Trust for the benefit
of the Securityholders (without consideration of the effect of any
such action on any particular Securityholders).
(ii) 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:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debt Securities;
(C) the collection of interest, principal and any other
payments made in respect of the Junior Subordinated Debt Securities in
the Payment Account;
<PAGE>
19
(D) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of
a holder of the Junior Subordinated Debt Securities;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Junior Subordinated Debt
Securities to the Securityholders in accordance with this Declaration
of Trust;
(G) the distribution of the Trust Property in accordance with
the terms of this Declaration of Trust;
(H) to the extent provided in this Declaration of Trust, 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;
(I) after an Event of Default (other than an Event of Default
pursuant to 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 determine is necessary or
advisable to give effect to the terms of this Declaration of Trust 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
(J) except as otherwise provided in this Section 2.07(a)(ii),
the Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set forth in
Section 2.07(a)(i).
(b) So long as this Declaration of Trust remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transactions except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not
<PAGE>
20
authorized by this Declaration of Trust, (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) intentionally take any action that would cause the Trust to fail
or cease to qualify as a "grantor trust" or as other than an association taxable
as a corporation for United States federal income tax purposes, (iv) incur any
indebtedness for borrowed money or issue any other debt, (v) take or consent to
any action that would result in the placement of a Lien on any of the Trust
Property, (vi) invest any proceeds received by the Trust from holding the Junior
Subordinated Debt Securities, but shall distribute all such proceeds to Holders
pursuant to the terms of this Declaration of Trust and of the Trust Securities,
(vii) acquire any assets other than the Trust Property, (viii) possess any power
or otherwise act in such a way as to vary the Trust Property, (ix) possess any
power or otherwise act in such a way as to vary the terms of the Trust
Securities in any way whatsoever (except to the extent expressly authorized in
this Declaration of Trust or by the terms of the Trust Securities), (x) issue
any securities or other evidences of beneficial ownership of, or beneficial
interest in, the Trust other than the Trust Securities, or (xi) other than as
provided in this Declaration of Trust or by the terms of the Trust Securities,
so long as any Junior Subordinated Debt Securities are held by the Property
Trustee, (A) direct the time, method and place of exercising any trust or power
conferred upon the Debenture Trustee with respect to the Junior Subordinated
Debt Securities, (B) waive any past default that is waivable under the
Indenture, (C) exercise any right to rescind or annul any declaration that the
principal of all Junior Subordinated Debt Securities shall be due and payable,
or (D) consent to any amendment, modification, or termination of the Indenture
or the Junior Subordinated Debt Securities where such consent shall be required
unless the Trust shall have received an Opinion of Counsel of a nationally
recognized independent law firm to the effect that such amendment, modification
or termination will not cause more than an insubstantial risk that the Trust
will be deemed an Investment Company required to be registered under the
Investment Company Act, the Trust will not be classified as a grantor trust or
will be classified as an association taxable as a corporation for United States
federal income tax purposes or the Junior Subordinated Debt Securities will not
be classified as indebtedness for such purposes. The Administrative Trustees
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.
<PAGE>
21
(c) In connection with the issue and sale of the Trust 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
Declaration of Trust are hereby ratified and confirmed in all respects):
(i) the preparation by the Trust of an offering memorandum relating to
the Trust Securities 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 Trust Securities,
including any amendments thereto;
(ii) the determination of the states in which to take appropriate
action to qualify or register for sale all or part of the Trust Securities
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 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 states;
(iii) the preparation for filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on Form 8-
A relating to the registration of the Trust Securities under Section 12(b)
or 12(g) of the Exchange Act, including any amendments thereto;
(iv) the negotiation of the terms of, and the execution and delivery
of, the Registration Agreement, the Purchase Agreement providing for the
sale of the Trust Securities and such other agreements as may be necessary
or desirable in connection with the consummation of the transactions
contemplated thereby, all in its capacity as Depositor and on behalf of the
Trust; and
(v) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, each
Administrative Trustee is authorized and directed to conduct the affairs of the
Trust and to operate
<PAGE>
22
the Trust so that the Trust will not (i) be deemed to be an "investment company"
required to be registered under the Investment Company Act of 1940, or (ii) fail
to be classified as a grantor trust or as other than an association taxable as a
corporation for United States federal income tax purposes and so that the Junior
Subordinated Debt Securities will be treated as indebtedness of the Depositor
for United States federal income tax purposes. In this connection, the Depositor
and each of the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Declaration
of Trust, that each of the Depositor and each Administrative Trustee determines
in their 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 Trust Securities.
SECTION 2.08. Assets of Trust. The assets of the
----------------
Trust shall consist solely of the Trust Property.
SECTION 2.09. 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 Declaration
of Trust.
ARTICLE III
Payment Account
---------------
SECTION 3.01. Payment Account. (a) 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 Declaration of Trust. All moneys 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 or by applicable law.
(b) 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 Junior Subordinated Debt
<PAGE>
23
Securities. Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.
ARTICLE IV
Distributions; Redemption
-------------------------
SECTION 4.01. Distributions. (a) 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 accrue from April 23, 1997, and, except in the event (and to the extent)
that the Depositor exercises its right to defer the payment of interest on the
Junior Subordinated Debt Securities pursuant to the Indenture, shall be payable
quarterly in arrears on the 15th day of January, April, July and October of each
year, commencing on July 15, 1997. If any date on which a Distribution is
otherwise payable 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), 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 this Section 4.01(a), a "Distribution Date").
Accrued Distributions that are not paid on the applicable Distribution Date will
bear interest on the amount thereof (to the extent permitted by law) at a
variable annual rate equal to LIBOR plus 1.00%, compounded quarterly from the
relevant Distribution Date in accordance with Section 2.02 of the Indenture.
(b) The Trust Securities represent undivided beneficial ownership
interests in the Trust Property, and, assuming payments of interest on the
Junior Subordinated Debt Securities are made when due (and before giving effect
to Additional Distributions, defined below, if applicable), Distributions on the
Trust Securities shall be payable at a variable annual rate equal to LIBOR plus
1.00% of the Liquidation Amount of the Trust Securities in accordance with
Section 2.02 of the Indenture. The amount of Distributions payable for any
period shall be computed on the basis of the actual number of days elapsed in a
year of twelve 30-day months; except that the amount of interest payable for any
partial period shall be computed on the basis of the actual number of days
elapsed in a 360-day year. The amount of Distributions payable for any period
shall include the Additional Distributions, if any.
<PAGE>
24
(c) So long as no Debenture Event of Default has occurred and is
continuing, the Depositor has the right under the Indenture to defer the payment
of interest on the Junior Subordinated Debt Securities at any time and from time
to time for a period not exceeding 20 consecutive quarterly periods (an
"Extension Period"), provided that no Extension Period may extend beyond the
Stated Maturity of the Junior Subordinated Debt Securities. As a consequence of
any such deferral, quarterly Distributions on the Trust Securities by the Trust
will also be deferred during any Extension Period (and the amount of
Distributions to which Holders are entitled will accumulate additional
Distributions thereon at a variable annual rate equal to LIBOR plus 1.00%
thereof, compounded quarterly from the relevant payment date for such
Distributions during any such Extension Period, to the extent permitted by
applicable law, but not exceeding the interest rate then accruing on the Junior
Subordinated Debt Securities. No interest or other amounts shall be due and
payable during an Extension Period except at the end thereof. In addition, in
the event that a Registration Default (as defined in the Registration Agreement)
occurs, an additional amount will be payable, as special interest and additional
interest, on the Junior Subordinated Debt Securities and the Trust Securities,
respectively, at a rate of 0.25% per annum of the principal amount or the
Liquidation Amount, as applicable, from and including the next day following
each such Registration Default to but excluding the date on which such
Registration Default shall have been cured. The aggregate amount of such
additional amounts payable with respect to the preceding sentence shall not
exceed 0.50% per annum (each type of increase in Distribution, described in this
Section 4.01(c), an "Additional Distribution").
(d) 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.
(e) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders of record as they appear on
the Securities Register for the Trust Securities at the close of the Business
Day next preceding each 15th day of January, April, July and October.
SECTION 4.02. Redemption. (a) On each Junior Subordinated Debt
-----------
Securities Redemption Date and on the Stated Maturity of the Junior Subordinated
Debt Securities,
<PAGE>
25
the Trust will be required to redeem a Like Amount of Trust Securities at the
applicable Redemption Price.
(b) Other than on the Stated Maturity, notice of redemption shall be
given by the Property Trustee by first-class mail, postage prepaid, mailed not
less than 30 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 identify the Trust
Securities to be redeemed (including CUSIP numbers) and shall state:
(i) the Redemption Date;
(ii) the applicable Redemption Price;
(iii) 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
(iv) 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 accrue on and after said date.
The Trust in issuing the Trust Securities may use "CUSIP", and/or
"private placement" numbers (if then generally in use), and, if so, the Property
Trustee shall indicate the "CUSIP" or "private placement" numbers of the Trust
Securities in notices or redemption and related materials as a convenience to
Securityholders; provided that any such notice may state that no representation
--------
is made as to the correctness of such numbers either as printed on the Trust
Securities or as contained in any notice of redemption and related material.
The Depositor shall promptly notify the Property Trustee of any change in such
numbers.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the applicable Redemption Price with the proceeds from the
contemporaneous redemption of Junior Subordinated Debt Securities. Redemptions
of the Trust Securities shall be made and the applicable 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.
(d) If the Property Trustee gives a notice of redemption in respect
of any Trust Securities, then, by 12:00 noon, New York City time, on the
Redemption Date,
<PAGE>
26
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. With respect to
Capital Securities held in certificated 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 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 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 applicable Redemption Price and any Distribution
payable on or prior to the Redemption Date, but without interest, and such
Capital Securities will cease to be outstanding. In the event that any date on
which any applicable Redemption Price is payable is not a Business Day, then
payment of the applicable 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 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 applicable 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 accrue, at
the then applicable rate, from the Redemption Date originally established by the
Trust for such Trust Securities 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.
(e) Payment of the applicable Redemption Price on, and any
distributions of Junior Subordinated Debt Securities to Holders of, the Trust
Securities shall be made to the Holders thereof as they appear on the Securities
<PAGE>
27
Register on the relevant record date, and, with respect to Trust Securities held
in certificated form, upon surrender of such certificated Trust Securities to
the Paying Agent.
(f) 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 Trust Securities. The
particular Trust Securities to be redeemed shall be selected on a pro rata basis
(based upon Liquidation Amounts) not more than 60 days prior to the Redemption
Date by the Property Trustee from the Outstanding Trust Securities not
previously called for redemption, by such method 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, provided that the unredeemed portion of any Trust Security shall not be
--------
less than $100,000) of the Liquidation Amount of Trust Securities of a
denomination larger than $1,000. The Property Trustee shall promptly notify the
Security Registrar in writing of the Trust Securities selected for redemption
and, in the case of any Trust Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed. For all purposes of this Declaration
of Trust, unless the context otherwise requires, all provisions relating to the
redemption of Trust Securities shall relate in the case of any Trust Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Trust Securities that has been or is to be redeemed.
SECTION 4.03. Subordination of Common Securities. (a) Payment of
-----------------------------------
Distributions (including Additional Distributions, if applicable) on, and the
Redemption Price of the Trust Securities, as applicable, shall be made subject
to Section 4.02(f), pro rata to the holders of the Trust Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if on any
-------- -------
Distribution Date or Redemption Date any Debenture Event of Default (or other
event that, with notice or the passage of time or both, would become such an
Event of Default) or an Event of Default shall have occurred and be continuing,
no payment of any Distribution (including Additional Distributions, if
applicable) on, or Redemption Price of, any of the Common Securities, and no
other payment on account of the redemption, liquidation or other acquisition of
such Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional Distributions, if
applicable) on all outstanding Capital Securities for all Distribution Dates
<PAGE>
28
occurring on or prior thereto, or, in the case of payment of the applicable
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
Distributions, if applicable) on, or the Redemption Price of, Capital Securities
then due and payable.
(b) 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 Declaration of Trust until the effect of all such Events of Default
with respect to the Capital Securities have been cured, waived or otherwise
eliminated. Until all such Events of Default under this Declaration of Trust
with respect to the Capital Securities 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 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.
SECTION 4.04. Payment Procedures. In the event Definitive Capital
-------------------
Securities Certificates are issued, payments of Distributions (including
Additional Distributions, if applicable) in respect of the Capital Securities
shall be made by check mailed to the address of the Person entitled thereto at
such address as shall appear on the Securities Register. 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.
SECTION 4.05. Tax Returns and Reports. The Administrative Trustees
------------------------
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
Administrative Trustees shall (a) prepare and file (or cause to be prepared and
filed) the appropriate Internal Revenue Service forms 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 all
Internal Revenue
<PAGE>
29
Service forms required to be provided by the Trust. The Administrative Trustees
shall provide the Depositor and the Property Trustee with a copy of all such
returns and reports promptly after such filing or furnishing. The
Administrative Trustees shall comply with United States federal withholding and
backup withholding tax laws and information reporting requirements with respect
to any payments to Securityholders.
SECTION 4.06. Payment of Taxes; Duties, etc. of the Trust. Pursuant
--------------------------------------------
to Section 10.06 of the Indenture, the Depositor, as borrower on the Junior
Subordinated Debt Securities, has agreed to, and it shall, promptly pay any
taxes, duties or governmental charges of whatever nature (other than United
States withholding taxes) imposed on the Trust by the United States or any other
taxing authority.
SECTION 4.07. Payments Under Indenture. Any amount payable hereunder
-------------------------
to any Holder (and any Owner with respect thereto) shall be reduced by the
amount of any corresponding payment such Holder (and Owner) has directly
received pursuant to Section 5.08 of the Indenture or Section 5.13 of this
Declaration of Trust.
ARTICLE V
Trust Securities Certificates
-----------------------------
SECTION 5.01. Initial Ownership. Upon the formation of the Trust 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.
SECTION 5.02. Trust Securities Certificates. (a) The Capital
------------------------------
Securities Certificates shall be issued only in minimum denominations of
$100,000 Liquidation Amount (100 Capital Securities) and integral multiples of
$1,000 in excess 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
the manual or facsimile signature of at least one Administrative Trustee. Trust
Securities Certificates bearing the manual or facsimile 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 Declaration of Trust, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of
<PAGE>
30
such Trust Securities Certificates or did not hold such offices at the date of
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, 5.05 and 5.06.
(b) Upon their original issuance, Capital Securities Certificates
representing Rule 144A Capital Securities shall be issued in the form of a
Global Capital Securities Certificate registered in the name of Cede & Co.
("Cede") as DTC's nominee and deposited with or on behalf of DTC for credit by
DTC to the respective accounts of the Owners thereof (or such other accounts as
they may direct). Except as set forth herein, record ownership of the Global
Capital Security may be transferred, in whole or in part, only to another
nominee of DTC or to a successor of DTC or its nominee.
(c) Upon their original issuance, Capital Securities Certificates
representing Other Capital Securities shall be issued in definitive form and may
not be represented by the Global Security.
(d) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
SECTION 5.03. Execution and Delivery of Trust Securities
------------------------------------------
Certificates. At the Closing Date, the Administrative Trustees 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
the Property Trustee and upon such delivery the Property Trustee shall
countersign such Trust Securities Certificates and make available for delivery
such Trust Securities Certificates upon the written order of the Depositor,
signed by its chairman of the board, president, any executive vice president or
any vice president, treasurer or assistant treasurer or controller without
further corporate action by the Depositor, in authorized denominations.
SECTION 5.04. Global Capital Security. (a) The Global Capital
------------------------
Security issued under this Declaration of Trust shall be registered in the name
of Cede as nominee of the Clearing Agency and delivered to its custodian
therefor,
<PAGE>
31
and such Global Capital Security shall constitute a single Capital Security for
all purposes of this Declaration of Trust.
(b) Notwithstanding any other provision in this Declaration of Trust,
the Global Capital Security may not be exchanged in whole or in part for Capital
Securities registered, and no transfer of the Global Capital Security in whole
or in part may be registered, in the name of any Person other than the Clearing
Agency for such Global Capital Security, Cede, or other nominee thereof unless
(i) such Clearing Agency advises the Property Trustee in writing that such
Clearing Agency is no longer willing or able to properly discharge its
responsibilities as Clearing Agency with respect to such Global Capital
Security, and the Depositor is unable to locate a qualified successor, (ii) the
Trust at its sole option advises DTC in writing that it elects to terminate the
book-entry system through the Clearing Agency, or (iii) there shall have
occurred and be continuing a Debenture Event of Default. In addition,
beneficial interests in a Global Capital Security may be exchanged by or on
behalf of DTC for certificated Capital Securities upon request by DTC, but only
upon at least 20 days prior written notice given to the Property Trustee in
accordance with the Applicable Procedures.
(c) If the Global Capital Security is to be exchanged for Other
Capital Securities or canceled in whole, it shall be surrendered by or on behalf
of the Clearing Agency or its nominee to the Securities Registrar for exchange
or cancellation as provided in this Article V. If the Global Capital Security is
to be exchanged for Other Capital Securities or canceled in part, or if an Other
Capital Security is to be exchanged in whole or in part for a beneficial
interest in the Global Capital Security, then either (i) such Global Capital
Security shall be so surrendered for exchange or cancellation as provided in
this Article V or (ii) the aggregate Liquidation Amount thereof shall be
reduced, subject to Section 5.02, or increased by an amount equal to the portion
thereof to be so exchanged or canceled, or equal to the aggregate Liquidation
Amount of such Other Capital Security to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment made
on the records of the Security Registrar, whereupon the Property Trustee, in
accordance with the Applicable Procedures, shall instruct the Clearing Agency or
its authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of the Global Capital Security by the
Clearing Agency and Clearing Agency Participants, accompanied by registration
instructions executed by an
<PAGE>
32
Administrative Trustee on behalf of the Trust and, to the extent required in
Section 5.05(c), a Restricted Capital Securities Certificate in a form
substantially similar to that attached hereto as Exhibit D, the Property Trustee
shall, subject to this Article V, countersign and make available for delivery
any executed Capital Securities delivered to it issuable in exchange for such
Global Capital Security (or any portion thereof) in accordance with the
instructions of the Clearing Agency. The Property Trustee shall not be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be fully protected in relying on, such instructions.
(d) The Clearing Agency or its nominee, as the registered owner of
the Global Capital Security, shall be considered the Holder of the Capital
Securities represented by the Global Capital Security for all purposes under
this Declaration of Trust and the Capital Securities, and owners of beneficial
interests in the Global Capital Security shall hold such interests pursuant to
the Applicable Procedures and, except as otherwise provided herein, shall not be
entitled to have any of the individual Capital Securities represented by the
Global Capital Security registered in their names, shall not receive nor be
entitled to receive physical delivery of any such Capital Securities in
definitive form and shall not be considered the Holders thereof under this
Declaration of Trust. Accordingly, any such owner's beneficial interest in the
Global Capital Security shall he shown only on, and the transfer of such
interest shall be effected only through, records maintained by the Clearing
Agency or its nominee. The Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this Declaration
of Trust relating to the Global Capital Securities (including the payment of the
Liquidation Amount of and Distributions on the Global Capital Securities and the
giving of instructions or directions to Owners of Global Capital Securities) as
the sole Holder of Global Capital Securities and shall have no obligations to
the Owners thereof. Neither the Property Trustee nor the Securities Registrar
shall have any liability in respect of any transfers effected by the Clearing
Agency.
(e) The rights of Owners of beneficial interests in the Global
Capital Security 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. Neither the Clearing Agency nor its nominee will consent
or vote with respect to the Capital Securities. Under its usual procedures, the
Clearing Agency or its nominee would mail an Omnibus Proxy to the Trust as
<PAGE>
33
soon as possible after the relevant record date. The Omnibus Proxy assigns the
consenting or voting rights of the Clearing Agency or its nominee to those
Clearing Agency Participants, identified in a listing attached to such Omnibus
Proxy, to whose accounts the Capital Securities are credited on such record
date.
SECTION 5.05. Registration of Transfer and Exchange Generally;
------------------------------------------------
Certain Transfers and Exchanges; Capital Securities Certificates; Securities Act
- --------------------------------------------------------------------------------
Legends. (a) The Property Trustee shall keep or cause to be kept at its
- --------
Corporate Trust Office a register or registers for the purpose of registering
Capital Securities Certificates and Common Securities Certificates and transfers
and exchanges of Capital Securities Certificates and Common Securities
Certificates in which the registrar and transfer agent with respect to the
Capital Securities (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 5.11 in the case of Common Securities Certificates) and registration of
transfers and exchanges of Capital Securities Certificates and Common Securities
Certificates as herein provided. Such register is herein sometimes referred to
as the "Securities Register." The Property Trustee is hereby appointed
"Securities Registrar" for the purpose of registering Capital Securities and
transfers of Capital Securities as herein provided. The provisions of
Sections 8.01, 8.03 and 8.06 hereunder shall apply to the Property Trustee also
in its role as Securities Registrar.
Upon surrender for registration of transfer of any Capital Security at
the offices or agencies of the Property Trustee designated for that purpose, the
Administrative Trustees shall execute, and the Property Trustee shall
countersign and make available for delivery, in the name of the designated
transferee or transferees, one or more new Capital Securities of any authorized
denominations of like tenor and aggregate liquidation amount and bearing such
restrictive legends as may be required by this Declaration of Trust.
At the option of the Holder, Capital Securities may be exchanged for
other Capital Securities of any authorized denominations, of like tenor and
aggregate Liquidation Amount and bearing such restrictive legends as may be
required by this Declaration of Trust, upon surrender of the Capital Securities
to be exchanged at such office or agency. Whenever any securities are so
surrendered for exchange, an Administrative Trustee shall execute and the
<PAGE>
34
Property Trustee shall countersign and make available for delivery the Capital
Securities that the Holder making the exchange is entitled to receive.
All Capital Securities issued upon any transfer or exchange of Capital
Securities shall be the valid obligations of the Trust, entitled to the same
benefits under this Declaration of Trust as the Capital Securities surrendered
upon such transfer or exchange.
Every Capital Security presented or surrendered for transfer or
exchange shall (if so required by the Property Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Property Trustee and the Securities Registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Capital Securities, but the Property Trustee or the Securities
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Capital Securities.
Neither the Trust nor the Property Trustee shall be required, pursuant
to the provisions of this Section, (i) to issue, register the transfer of or
exchange any Capital Security during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of Capital
Securities pursuant to Article IV and ending at the close of business on the day
of such mailing of the notice of redemption, or (ii) to register the transfer of
or exchange any Capital Security so selected for redemption in whole or in part,
except, in the case of any such Capital Security to be redeemed in part, any
portion thereof not to be redeemed.
The Capital Securities will be issued, and may be transferred, only in
blocks having a Liquidation Amount of not less than $100,000 and integral
multiples of $1,000 in excess thereof. 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.
<PAGE>
35
(b) Certain Transfers and Exchanges. Subject to Section 5.04(c),
--------------------------------
but notwithstanding any other provision of this Declaration of Trust, transfers
and exchanges of Capital Securities and beneficial interests in a Global Capital
Security shall be made only in accordance with this Section 5.05(b) and
Section 5.04(c).
(i) Non-Global Capital Security to Global Capital Security. If the
-------------------------------------------------------
Holder of an Other Capital Security (other than the Global Capital
Security) wishes at any time to transfer all or any portion of such Other
Capital Security to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Global Capital Security, such transfer
may be effected only in accordance with the provisions of this
Clause (b)(i) and subject to the Applicable Procedures. Upon receipt by the
Securities Registrar of (A) such Other Capital Security as provided in
Section 5.05(a) and instructions satisfactory to the Securities Registrar
directing that a beneficial interest in the Global Capital Security in a
specified liquidation amount not greater than the liquidation amount of
such Other Capital Security to be credited to a specified Clearing Agency
Participant's account and (B) a Capital Securities Certificate duly
executed by such Holder or such Holder's attorney duly authorized in
writing, then the Securities Registrar shall cancel such Other Capital
Security (and issue a new Other Capital Security in respect of any
untransferred portion thereof) as provided in Section 5.01(a) and increase
the aggregate liquidation amount of the Global Capital Security by the
specified liquidation amount as provided in Section 5.04(c).
(ii) Non-Global Capital Security to Non-Global Capital Security. A
-----------------------------------------------------------
Capital Security that is not a Global Capital Security may be transferred,
in whole or in part, to a Person who takes delivery in the form of another
Capital Security that is not a Global Capital Security as provided in
--------
Section 5.05(a) provided that if the Capital Security to be transferred in
whole or in part is a Restricted Capital Security, the Securities Registrar
shall have received a Restricted Capital Securities Certificate duly
executed by the transferor Holder or such Holder's attorney duly authorized
in writing.
(iii) Exchanges Between Global Capital Security and Non-Global Capital
----------------------------------------------------------------
Security. A beneficial interest in the Global Capital Security may be
---------
exchanged for a
<PAGE>
36
Capital Security that is not a Global Capital Security as provided in
Section 5.04.
(iv) Limitations Relating to Liquidation Amount. Notwithstanding any
-------------------------------------------
other provision of this Declaration of Trust and unless otherwise specified
as permitted by this Declaration of Trust, Capital Securities or portions
thereof may be transferred or exchanged only in Liquidation Amounts of not
less than $100,000 and integral multiples of $1,000 in excess thereof. Any
transfer, exchange or other disposition of Capital Securities in
contravention of this Section 5.05(b)(iv) shall be deemed to be void and of
no legal effect whatsoever, any such transferee shall be deemed not to be
the Holder or owner of any beneficial interest in such Capital Securities
for any purpose, including but not limited to the receipt of interest
payable on such Capital Securities, and such transferee shall be deemed to
have no interest whatsoever in such Capital Securities.
(c) Restricted Securities Legend. (i) Except as set forth in this
-----------------------------
Section 5.05(c), all Capital Securities shall bear a restricted capital
securities legend substantially in the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR
ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH CENTRAL
FIDELITY BANKS, INC. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE
"RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE COMPANY, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN RELIANCE ON
<PAGE>
37
RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION
IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT
TO THE COMPANY'S AND THE PROPERTY TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM IN ACCORDANCE WITH THE DECLARATION OF TRUST, A COPY OF
WHICH MAY BE OBTAINED FROM THE COMPANY OR THE PROPERTY TRUSTEE. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTIONS
TERMINATION DATE."
(ii) Subject to Section 5.05(d) and the following paragraphs of this
Section 5.05(c), a new Capital Security (other than a Global Capital
Security) that does not bear a Restricted Capital Securities Legend may be
issued in exchange for or in lieu of a Restricted Capital Security or any
portion thereof that bears such a legend if, in the Depositor's judgment,
placing such a legend upon such new Capital Security is not necessary to
ensure compliance with the registration requirements of the Securities Act,
and the Property Trustee, at the written direction of the Trust in the form
of an Officers' Certificate, shall countersign and deliver such a new
Capital Security as provided in this Article V.
(iii) Notwithstanding the foregoing provisions of this Section
5.05(c), a successor Capital Security of a Capital Security that does not
bear a Restricted Capital Securities Legend shall not bear such form of
legend unless the Depositor has reasonable cause to believe that such
successor Capital Security is a "restricted security" within the meaning of
Rule 144 under the Securities Act, in which case the Property Trustee, at
the written direction of the Trust in the form of an Officers' Certificate,
shall countersign and deliver a new Capital Security bearing a Restricted
Capital Securities Legend in exchange for such successor Capital Security
as provided in this Article V.
<PAGE>
38
(iv) Upon any sale or transfer of a Restricted Capital Security
(including any Restricted Capital Security represented by a Global Capital
Security) pursuant to an effective registration statement under the
Securities Act or pursuant to Rule 144 under the Securities Act after such
registration ceases to be effective: (A) in the case of any Restricted
Capital Security that is a definitive Capital Security, the Securities
Registrar shall permit the Holder thereof to exchange such Restricted
Capital Security for a definitive Capital Security that does not bear the
Restricted Securities Legend and rescind any restriction on the transfer of
such Restricted Capital Security; and (B) in the case of any Restricted
Capital Security that is represented by a Global Capital Security, the
Securities Registrar shall permit the Holder of such Global Capital
Security to exchange such Global Capital Security for another Global
Capital Security that does not bear the Restricted Securities Legend.
(v) If Restricted Capital Securities are being presented or
surrendered for transfer or exchange then there shall be (if so required by
the Property Trustee), (A) if such Restricted Capital Securities are being
delivered to the Securities Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification from such Holder to
that effect; or (B) if such Restricted Capital Securities are being
transferred, (i) a certification from the transferor in a form
substantially similar to that attached hereto as Exhibit D, and (ii) if the
Trust or Securities Registrar so requests, evidence reasonably satisfactory
to them as to the compliance with the restrictions set forth in the
Restricted Capital Securities Legend.
(d) Exchange Offer. The Capital Securities may be exchanged for
---------------
Exchange Capital Securities (as defined in the Indenture) pursuant to the terms
set forth in the Registration Agreement and Article XII of the Indenture (the
"Exchange Offer"). The Property Trustee shall make the exchange as follows:
The Depositor shall present the Property Trustee with an Officers'
Certificate certifying the following:
(i) upon issuance of the Exchange Capital Securities, the
transactions contemplated by the Exchange Offer have been consummated; and
<PAGE>
39
(ii) the number of Capital Securities properly tendered in the
Exchange Offer that are represented by a Global Capital Security and the
number of Capital Securities properly tendered in the Exchange Offer that
are represented by Other Capital Securities, the name of such Holder of
such Other Capital Securities, the liquidation amount of Capital Securities
properly tendered in the Exchange Offer by each such Holder and the name
and address to which Other Capital Securities for Exchange Capital
Securities shall be registered and sent for each such Holder.
The Property Trustee, upon receipt of (i) such Officers' Certificate,
(ii) an Opinion of Counsel with respect to the matters set forth in Section 4(s)
of the Registration Agreement (including that the Exchange Capital Securities
have been registered under Section 5 of the Securities Act and the Indenture,
Declaration of Trust and Guarantee have been qualified under the Trust Indenture
Act) and (iii) a Company Order (as defined in the Indenture), shall authenticate
(A) a Global Capital Security representing Exchange Capital Securities in
aggregate liquidation amount equal to the aggregate liquidation amount of
Capital Securities represented by a Global Capital Security indicated in such
Officers' Certificate as having been properly tendered and (B) Capital
Securities Certificates representing Exchange Capital Securities registered in
the names of, and in the liquidation amounts indicated in such Officers'
Certificate.
If, upon consummation of the Exchange Offer, less than all the
outstanding Capital Securities shall have been properly tendered and not
withdrawn, the Property Trustee shall make an endorsement on the Global Capital
Security for Capital Securities indicating that reduction in the number and
aggregate liquidation amount represented thereby as a result of the Exchange
Offer.
The Trust shall deliver such Capital Securities Certificates for
Exchange Capital Securities to the Holders thereof as indicated in such
Officers' Certificate.
SECTION 5.06. Mutilated, Destroyed, Lost or Stolen Trust Securities
-----------------------------------------------------
Certificates. Provided Definitive Capital Securities Certificates are issued,
- -------------
if (a) 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 (b) there shall be delivered to the Securities Registrar and the
Administrative Trustees such
<PAGE>
40
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 Administrative Trustees, 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 Administrative Trustees 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 assets
of the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Trust Securities Certificate shall be found at any time.
SECTION 5.07. Persons Deemed Securityholders. The Trustees or the
-------------------------------
Securities Registrar shall treat the Person in whose name any Trust Securities
are issued as the owner of such Trust Securities for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither the Trustees
nor the Securities Registrar shall be bound by any notice to the contrary.
SECTION 5.08. Access to List of Securityholders' Names and Addresses.
-------------------------------------------------------
Each Owner of Trust Securities acknowledges that the Depositor, the Property
Trustee, the Delaware Trustee or the Administrative Trustees may from time to
time make reasonable use of information consisting of such Owner's name and
address, including the furnishing of a list of such names and addresses as
contemplated hereunder, and each Owner shall be deemed to have agreed not to
hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.09. Maintenance of Office or Agency; Transfer Agent. The
------------------------------------------------
Administrative Trustees shall maintain an office or offices or agency or
agencies where Definitive Capital Securities Certificates, if issued, 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 may be
served. The Administrative Trustees initially designate The Bank of New York,
101 Barclay Street, Floor 21 West, New York, New York 10286, as its corporate
trust office for such purposes. The
<PAGE>
41
Administrative Trustees 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. The Bank shall act as initial transfer agent for the
Trust Securities.
SECTION 5.10. 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 Administrative
Trustees. 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 Administrative Trustees may revoke such power and remove any Paying
Agent if such Administrative Trustees determine in their sole discretion that
such Paying Agent shall have failed to perform its obligations under this
Declaration of Trust 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
Administrative Trustees and the Depositor. Any Person acting as Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Administrative Trustees, 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 Administrative Trustees
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
Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees 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 8.01, 8.03 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 Declaration of Trust to the Paying Agent shall include any co-paying
agent unless the context requires otherwise.
<PAGE>
42
SECTION 5.11. Ownership of Common Securities by Depositor. 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
corporation, or any conveyance, transfer or lease by the Depositor of its
properties and assets substantially as an entirety to any Person, pursuant to
Section 8.01 of the Indenture, any attempted transfer of the Common Securities
shall be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE".
SECTION 5.12. Notices to Clearing Agency. To the extent that a
---------------------------
notice or other communication to the Owners is required under this Declaration
of Trust, for so long as Capital Securities are represented by a Global
Securities Certificate, 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 give duplicates thereof to the Owners.
SECTION 5.13. Rights of Securityholders. (a) The legal title to the
--------------------------
Trust 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 ownership
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 Declaration of Trust. The Trust Securities shall have no preemptive or
singular rights and when issued and delivered to Securityholders against payment
of the purchase price therefor will be fully paid and nonassessable. The
Holders, 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.
(b) 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 Junior Subordinated
Debt Securities fail to declare the principal amount of all of the Junior
Subordinated Debt Securities to be immediately due and payable, the Holders of
at least 25% in Liquidation
<PAGE>
43
Amount of the Capital Securities then Outstanding shall have such right by a
notice in writing to the Depositor and the Debenture Trustee with a copy to the
Property Trustee; and upon any such declaration such principal amount of and the
accrued interest on all of the Junior Subordinated Debt Securities shall become
immediately due and payable; provided that the payment of principal and interest
--------
on such Junior Subordinated Debt Securities shall remain subordinated to the
extent provided in the Indenture.
At any time after such a declaration of acceleration with respect to
the Junior Subordinated Debt Securities 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 principal amount of
the outstanding Junior Subordinated Debt Securities, by written notice to the
Property Trustee, the Depositor and the Debenture Trustee, may rescind and annul
such declaration and its consequences if:
(i) the Depositor has paid or deposited with the Debenture Trustee a
sum sufficient to pay
(A) all overdue installments of interest (including any Additional
Interest (as defined in the Indenture)) on all of the Junior
Subordinated Debt Securities,
(B) the principal of any Junior Subordinated Debt Securities
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Junior
Subordinated Debt Securities, and
(C) all sums paid or advanced by the Debenture Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Debenture Trustee, its agents and counsel; and
(ii) all Events of Default with respect to the Junior Subordinated
Debt Securities, other than the non-payment of the principal of the Junior
Subordinated Debt Securities which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13 of the
Indenture.
If such holders of the Junior Subordinated Debt Securities fail to
annul any such declaration and waive such default, the Holders of Capital
Securities representing a
<PAGE>
44
majority in aggregate Liquidation Amount of all the Outstanding Capital
Securities shall also have the right to rescind and annul such declaration and
its consequences by written notice to the Depositor, the Property Trustee and
the Debenture Trustee, subject to the satisfaction of the conditions set forth
in Clause (i) and (ii) of this Section 5.13(b).
Should the holders of a majority in aggregate principal amount of the
outstanding Junior Subordinated Debt Securities fail to take such actions, the
Holders of a majority in aggregate Liquidation Amount 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 Junior
Subordinated Debt Security. 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 Global Capital Securities, 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
<PAGE>
45
event a new record date shall be established pursuant to the provisions of this
Section 5.13(b).
(c) For so long as any Capital Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Declaration of
Trust and the Indenture, upon a Debenture Event of Default specified in Section
5.01(1) or 5.01(2) of the Indenture, any Holder of Capital Securities shall have
the right to institute a proceeding directly against the Depositor, pursuant to
Section 5.08 of the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest (including any Additional Interest) on Junior
Subordinated Debt Securities having a principal amount equal to the aggregate
Liquidation Amount of the Capital Securities held by such Holder (a "Direct
Action"). Except as set forth in Sections 5.13(b) and 5.13(c) hereof, the
Holders of Capital Securities shall have no right to exercise directly any right
or remedy available to the holders or, or in respect of, the Junior Subordinated
Debt Securities.
(d) A Securityholder may institute a legal proceeding directly
against the Guarantor under the Guarantee to enforce its rights under the
Guarantee without first instituting a legal proceeding against the Trust or any
person or entity.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
-----------------------------------------
SECTION 6.01. Limitations on Capital Securityholder's Voting Rights.
------------------------------------------------------
(a) Except as provided in this Declaration of Trust 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 Capital Securityholders from
time to time as partners or members of an association. Unless a Debenture Event
of Default shall have occurred and be continuing, any Trustee may be removed at
any time by the vote of the Common Securityholder. The right to vote to
appoint, remove or replace the Administrative Trustees is vested exclusively in
the Depositor as the Holder of the Common Securities.
(b) So long as any Junior Subordinated Debt Securities are held by
the Property Trustee, the Trustees
<PAGE>
46
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 Property Trustee with respect to such Junior Subordinated Debt
Securities, (ii) waive any past default which is waivable under Section 5.13 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Junior Subordinated Debt Securities shall be due and
payable or (iv) consent to any amendment, modification or termination of the
Indenture or the Junior Subordinated Debt Securities, where such consent shall
be required, without, in each case, obtaining the prior approval of the Holders
of at least 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 Debt Securities
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. 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 Junior Subordinated Debt Securities. 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 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 as a result of such
action and such action would not cause the Trust to be classified as other than
a grantor trust.
(c) If any proposed amendment to the Declaration of Trust provides
for, or the Trustees otherwise propose to effect, (i) any action that would
adversely affect in any material respect the interests, powers, preferences or
special rights of the Trust Securities, whether by way of amendment to the
Declaration of Trust or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of this Declaration
of Trust, then the Holders of Outstanding Trust Securities as a class will be
entitled to vote on such amendment or proposal.
SECTION 6.02. Notice of Meetings. Notice of all meetings of the
-------------------
Securityholders, stating the time, place and purpose of the meeting, shall be
given by the Property
<PAGE>
47
Trustee pursuant to Section 10.09 to each 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.
SECTION 6.03. Meetings of Securityholders. No annual meeting of
----------------------------
Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Securityholders of record of 25% of the Securities (based upon
their Liquidation Amount) and the Administrative Trustees or the Property
Trustee may, at any time in their discretion, call a meeting of Securityholders
to vote on any matters as to which Securityholders are entitled to vote.
Securityholders of record of 50% of the Outstanding Securities (based
upon their Liquidation Amount), present in person or represented by proxy, shall
constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the
Securityholders of record present, in person or by proxy, holding more than a
majority of the Securities (based upon their Liquidation Amount) held by the
Securityholders of record present, either in person or by proxy, at such meeting
shall constitute the action of the Securityholders, unless this Declaration of
Trust requires a greater number of affirmative votes.
SECTION 6.04. Voting Rights. Securityholders shall be entitled to
--------------
one vote for each $1,000 of Liquidation Amount represented by their Outstanding
Trust Securities in respect of any matter as to which such Securityholders are
entitled to vote.
SECTION 6.05. 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 Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. 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
<PAGE>
48
person or by proxy in respect of such 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 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.
SECTION 6.06. 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
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 Declaration of Trust) shall consent to the action in
writing.
SECTION 6.07. 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
in respect of which a record date is not otherwise provided for in this
Declaration of Trust, or for the purpose of any other action, the Administrative
Trustees 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.
SECTION 6.08. Acts of Securityholders. Any request, demand,
------------------------
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Declaration of Trust to be given, made or taken by
Securityholders or Owners may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders or
Owners 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 Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners 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 Declaration of Trust and (subject to
<PAGE>
49
Section 8.01) conclusive in favor of the Trustees, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be provided 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 Trust Securities shall be proved by the Securities
Registrar.
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
Administrative Trustees 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 VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
A Holder may institute a legal proceeding directly against the
Depositor under the Guarantee Agreement to
<PAGE>
50
enforce its rights under the Guarantee Agreement without first instituting a
legal proceeding against the Guarantee Trustee (as defined in the Guarantee
Agreement), the Trust, any Trustee or any person or entity.
SECTION 6.09. Inspection of Records. Upon reasonable notice to the
----------------------
Administrative Trustees 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.
ARTICLE VII
Representations and Warranties
------------------------------
SECTION 7.01. Representations and Warranties of the Property Trustee
------------------------------------------------------
and the Delaware Trustee. The Property Trustee and the 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:
(a) The Property Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of New
York, with trust power and authority to execute and deliver, and to carry
out and perform its obligations under the terms of this Declaration.
(b) The execution, delivery and performance by the Property Trustee
of the Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee; and the Declaration has been
duly executed and delivered by the Property Trustee, and constitutes a
legal, valid and binding obligation of the Property Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(c) The execution, delivery and performance of the Declaration by the
Property Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Property Trustee.
<PAGE>
51
(d) At the Closing Date, the Property Trustee has not knowingly
created any liens or encumbrances on such Trust Securities.
(e) No consent, approval or authorization of, or registration with or
notice to, any New York State or federal banking authority is required for
the execution, delivery or performance by the Property Trustee, of the
Declaration.
(f) The Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with trust power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of, the Declaration.
(g) The execution, delivery and performance by the Delaware Trustee
of the Declaration has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee; and the Declaration has been
duly executed and delivered by the Delaware Trustee, and constitutes a
legal, valid and binding obligation of the Delaware Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' right generally and to general principles of equity and the
discretion of the court regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(h) The execution, delivery and performance or the Declaration by the
Delaware Trustee does not conflict with or constitute a breach of the
certificate of incorporation or by-laws of the Delaware Trustee.
(i) No consent, approval or authorization of, or registration with or
notice to, any state or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of this
Declaration.
(j) The Delaware Trustee is an entity which has its principal place
of business in the State of Delaware.
SECTION 7.02. Representations and Warranties of Depositor. The
--------------------------------------------
Depositor hereby represents and warrants for the benefit of the Securityholders
that the Trust Securities Certificates issued at the Closing Date on behalf of
the Trust have been duly authorized and will have been duly and
<PAGE>
52
validly executed, issued and delivered by an Administrative Trustee pursuant to
the terms and provisions of, and in accordance with the requirements of, this
Declaration of Trust, and the Securityholders will be, as of each such date,
entitled to the benefits of this Declaration of Trust.
ARTICLE VIII
The Trustees
------------
SECTION 8.01. Certain Duties and Responsibilities. (a) The duties
------------------------------------
and responsibilities of the Trustees shall be as provided by this Declaration of
Trust and, in the case of the Property Trustee, by the Trust Indenture Act;
provided, however, that the Property Trustee shall not be subject to the
- -------- -------
provisions of the Trust Indenture Act until such time as this Declaration of
Trust becomes qualified under the Trust Indenture Act upon the effectiveness of
a registration statement pursuant to the Registration Agreement.
Notwithstanding the foregoing, no provisions of this Declaration of Trust 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 indemnity satisfactory to
it against such risk or liability is not reasonably assured to it. Whether or
not herein expressly so provided, every provision of this Declaration of Trust
relating to the conduct or affecting the liability of or affording protection to
the Trustees shall be subject to the provisions of this Article. Nothing in
this Declaration of Trust shall be construed to release an Administrative
Trustee from liability for his own grossly negligent action, his own grossly
negligent failure to act, or his own wilful misconduct. To the extent that, at
law or in equity, an Administrative Trustee has duties (including fiduciary
duties) and liabilities relating thereto to the Trust or to the Securityholders,
such Administrative Trustee shall not be liable to the Trust or to any
Securityholder for such Trustee's good faith reliance on the provisions of this
Declaration of Trust. The provisions of this Declaration of Trust, to the
extent that they restrict the duties and liabilities of the Administrative
Trustees otherwise existing at law or in equity, are agreed by the Depositor
and the Securityholders to replace such other duties and liabilities of the
Administrative Trustees.
(b) 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
<PAGE>
53
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 Section 8.01(b)
does not limit the liability of the Trustees expressly set forth elsewhere in
this Declaration of Trust or, in the case of the Property Trustee, in the Trust
Indenture Act, if applicable.
(c) No provision of this Declaration of Trust shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own wilful misconduct, except that:
(i) 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;
(ii) 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 Declaration of Trust;
(iii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Junior Subordinated Debt
Securities 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 projections and limitations on liability
afforded to the Property Trustee under this Declaration of Trust and the
Trust Indenture Act;
(iv) 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
<PAGE>
54
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
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their
respective duties under this Declaration of Trust nor shall the Property
Trustee be liable for the default or misconduct of the Administrative
Trustees or the Depositor.
SECTION 8.02. Events of Default Notices; Deferral of Interest Payment
-------------------------------------------------------
Notices. Within five Business Days after the occurrence of any Event of Default
- --------
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.09, notice of such Event of Default to the Securityholders, the
Administrative Trustees and the Depositor, unless such Event of Default shall
have been cured or waived. The Depositor and the Administrative Trustees 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 Declaration.
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 Junior
Subordinated Debt Securities pursuant to the Indenture, the Administrative
Trustee shall transmit, in the manner and to the extent provided in Section
10.09, notice of such exercise to the Securityholders and the Property Trustee,
unless such exercise shall have been revoked.
SECTION 8.03. Certain Rights of Property Trustee. Subject to the
-----------------------------------
provisions of Section 8.01:
(a) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in good faith upon any
resolution, Opinion 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;
<PAGE>
55
(b) if (i) in performing its duties under this Declaration of Trust
the Property Trustee is required to decide between alternative courses of
action or (ii) in construing any of the provisions of this Declaration of
Trust 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 Declaration of Trust,
then, except as to any matter as to which the Securityholders are entitled
to vote under the terms of this Declaration of Trust, 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
Declaration of Trust 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 wilful misconduct;
(c) any direction or act of the Depositor or the Administrative
Trustee contemplated by this Declaration of Trust shall be sufficiently
evidenced by an Officers' Certificate;
(d) whenever in the administration of this Declaration of Trust, 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 conclusively rely
upon an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Depositor or the Administrative Trustees (which
Officers' Certificate will be evidence only for purposes of determining
entitlement to indemnification of the Property Trustee from the Depositor
but not with respect to any liability to Securityholders);
<PAGE>
56
(e) 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;
(f) the Property Trustee may consult with counsel of its selection
(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, such counsel may be counsel to
the Depositor or any of its Affiliates, and may include any of its
employees; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration of Trust
from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Declaration of Trust at the
request or direction of any of the Securityholders pursuant to this
Declaration of Trust, unless such Securityholders shall have offered to the
Property Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(h) 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;
(i) the Property Trustee may execute any of its trusts or powers
hereunder or perform any of its duties hereunder either directly or by or
through its agents or attorneys, and 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 by it with due care
hereunder;
<PAGE>
57
(j) whenever in the administration of this Declaration of Trust 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 fully
protected in acting in accordance with instructions;
(k) except as otherwise expressly provided by this Declaration of
Trust, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Declaration of
Trust;
(l) when the Property Trustee incurs expenses or renders services in
connection with a Bankruptcy Event, such expenses (including the fees and
expenses of its counsel) and the compensation for such services are
intended to constitute expenses of administration under any bankruptcy law
or law relating to creditors rights generally; and
(m) the Property Trustee shall not be charged with knowledge or an
Event of Default unless a Responsible Officer of the Property Trustee
obtains actual knowledge of such event or the Property Trustee receives
written notice of such event from Securityholders holding at least 25% of
the Outstanding Trust Securities (based upon Liquidation Amount).
No provision of this Declaration of Trust 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.
SECTION 8.04. Not Responsible for Recitals. The recitals contained
-----------------------------
herein and in the Trust Securities
<PAGE>
58
Certificates shall be taken as the statements of 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
Junior Subordinated Debt Securities.
SECTION 8.05. May Hold Securities. Except as provided in the
--------------------
definition of the term "Outstanding" in Article I, 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, may otherwise deal with the Trust with the same rights it would if it
were not a Trustee or such other agent.
SECTION 8.06. Compensation, Indemnity, Fees. Pursuant to
------------------------------
Section 10.06 of the Indenture, the Depositor, as borrower on the Junior
Subordinated Debt Securities, agrees:
(a) to pay to the Trustees from time to time such compensation as
shall from time to time be agreed to in writing by the Depositor and the
respective Trustees 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 Declaration of Trust (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 wilful misconduct;
(c) to the fullest extent permitted by applicable law, to indemnify
and hold harmless each Trustee and any employee or agent of the Trust or
its Affiliates (each 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 by such Indemnified Person by reason
of the creation, operation or termination of the Trust or any act or
omission performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of authority conferred on such Indemnified
Person by this
<PAGE>
59
Declaration of Trust, except that no Indemnified Person shall be entitled
to be indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence or wilful misconduct with
respect to such acts or omissions; and
(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, from time to time,
prior to the final disposition of such claim, demand action, suit or
proceeding upon receipt by the Depositor of (i) 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 8.06 and
(ii) 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 8.06 shall survive the termination of
this Declaration of Trust or the earlier resignation or removal of any Trustee.
No Trustee may claim any lien or charge on any Trust Property as a
result of any amount due pursuant to this Section 8.06.
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 none of the Trust, the
Holders, the Depositor or any such Trustee shall have any rights by virtue of
this Declaration of Trust 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
<PAGE>
60
holders of, securities or other obligations of the Depositor or its Affiliates.
SECTION 8.07. Corporate Property Trustee Required; Eligibility of
---------------------------------------------------
Trustees. (a) 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
a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least $50
million. 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, 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; provided, however, that the Property Trustee need not qualify under the
-------- -------
Trust Indenture Act until such time as this Declaration of Trust is qualified
under the Trust Indenture Act.
(b) There shall at all times be one or more Administrative Trustees
hereunder. Each Administrative Trustee 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.
(c) There shall at all times be a Delaware Trustee. 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.
SECTION 8.08. 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 Declaration of Trust.
SECTION 8.09. Co-Trustees and Separate Trustee. Unless an Event of
---------------------------------
Default shall have occurred and be continuing, at any time or times, for the
purpose of meeting
<PAGE>
61
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 Administrative Trustees, by agreed action of the majority of such
Trustees, shall have power to appoint, and upon the written request of the
Administrative Trustees, the Depositor shall for such purpose join with the
Administrative Trustees 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.
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.
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:
(a) The Trust Securities shall be executed and made available for
delivery 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.
(b) 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
<PAGE>
62
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.
(c) 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. A successor to any co-trustee or separate trustee so
resigned or removed may be appointed in the manner provided in this Section.
(d) 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.
(e) The Property Trustee shall not be required to supervise any co-
trustee or separate trustee nor shall it be liable by reason of any act of a co-
trustee or separate trustee or any employees or agents of a co-trustee or
separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
SECTION 8.10. 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, a Relevant Trustee may
resign at any time by giving written
<PAGE>
63
notice thereof to the Securityholders. If the instrument of acceptance by the
successor Trustee required by Section 8.11 shall not have been delivered to the
Relevant Trustee within 30 days after the giving of such notice of resignation
or removal, the Relevant Trustee may petition, at the expense of the Trust, any
court of competent jurisdiction for the appointment of a successor Relevant
Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Outstanding Capital Securities, delivered to the Relevant Trustee
(in its individual capacity and on behalf of the Trust). An Administrative
Trustee may be removed by Act of the Common Securityholder at any time.
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 Capital Securityholders of a majority in Liquidation Amount of the
Capital Securities then Outstanding delivered to the retiring Relevant Trustee,
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 Administrative Trustee shall resign, be removed or become incapable of
acting as Administrative Trustee, at a time when a Debenture Event of Default
shall have occurred and be continuing, the Common Securityholder, by Act of the
Common Securityholder delivered to the Administrative Trustee, shall promptly
appoint a successor Administrative Trustee or Administrative Trustees and such
successor Administrative Trustee or Trustees 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,
<PAGE>
64
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 10.08 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
Declaration of Trust, in the event any Administrative Trustee or a Delaware
Trustee who is a natural person dies, or becomes, in the opinion of the
Depositor, incompetent or incapacitated, or, in the case of an Administrative
Trustee, ceases to be an employee of the Depositor, the vacancy created by such
death, incompetence or incapacity may be filled by (a) the unanimous act of
remaining Administrative Trustees 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 Administrative Trustees or
Delaware Trustee, as the case may be, set forth in Section 8.07).
SECTION 8.11. Acceptance of Appointment by Successor. In the case of
---------------------------------------
the appointment hereunder of a successor Trustee, such successor Trustee so
appointed shall execute, acknowledge and deliver to the Trust and to the
retiring Trustee any instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with the rights, powers, trusts and duties of the retiring Trustee, but,
on the request of the Depositor or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and if the Property Trustee is the resigning Trustee the
Property Trustee shall duly assign, transfer and deliver to the successor
Property Trustee all Trust Property and money held by such retiring Property
Trustee hereunder.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee with respect
to the
<PAGE>
65
Trust Securities shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which (a) 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 and (b) shall add to or change any of the
provisions of this Declaration of Trust as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees if the same trust and that each such Relevant
Trustee shall be Trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Relevant Trustee;
and 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 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 written request of any such successor Relevant Trustee, the Trust
shall 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.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business. Any Person into which the Property Trustee, the Delaware Trustee or
- ---------
any Administrative Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any corporation 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,
<PAGE>
66
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.
SECTION 8.13. Preferential Collection of Claims Against Depositor or
------------------------------------------------------
Trust. 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 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 Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions 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
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute to 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.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Trust Securities or the rights of any Holder
<PAGE>
67
thereof or to authorize the Property Trustee to vote in respect of the claim of
any Holder in any such proceeding.
SECTION 8.14. Reports by Property Trustee. Upon qualification of
----------------------------
this Declaration of Trust under the Trust Indenture Act,
(a) Not later than the last calendar day in February of each year
commencing with the last calendar day in February of 1998, the Property Trustee
shall transmit to all Securityholders in accordance with Section 10.09, and to
the Depositor, a brief report dated as of the prior December 31 with respect to:
(i) its eligibility under Section 8.07 or, in lieu thereof, if to the
best of its knowledge it has continued to be eligible under said Section, a
written statement to such effect; and
(ii) any change in the property and funds in its possession as Property
Trustee since the date of its last report and any action taken by the
Property Trustee in the performance of its duties hereunder which it has
not previously reported and which in its opinion materially affects the
Trust Securities.
(b) In addition, the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Declaration of Trust as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to the Holders, by filed with the Commission and with the
Depositor.
SECTION 8.15. Reports to the Property Trustee. Upon qualification of
--------------------------------
this Indenture under the Trust Indenture Act, the Depositor and the
Administrative Trustees 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) of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
SECTION 8.16. Evidence of Compliance with Conditions Precedent. Upon
-------------------------------------------------
qualification of this Indenture under the Trust Indenture Act, each of the
Depositor and the Administrative Trustees on behalf of the Trust shall provide
to the Property Trustee such evidence of compliance with any
<PAGE>
68
conditions precedent, if any, provided for in this Declaration of Trust 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.
SECTION 8.17. Number of Trustees. (a) 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 Administrative Trustees. The
Property Trustee and the Delaware Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number
of Administrative Trustees 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 shall
occur. The vacancy shall be filed with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to annul the Trust. Whenever a vacancy in the number of Administrative Trustee
shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
Provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Declaration of Trust.
SECTION 8.18. Delegation of Power. (a) Any Administrative Trustee
--------------------
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), including any registration
statement or amendment thereto filed with the Commission, or making any other
governmental filing; and
(b) The Administrative Trustee 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 Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or
<PAGE>
69
contrary to the provisions of this Declaration of Trust, as set forth herein.
ARTICLE IX
Termination, Liquidation and Merger
-----------------------------------
SECTION 9.01. Termination Upon Expiration Date; Termination Upon
--------------------------------------------------
Special Event. Unless earlier terminated, the Trust shall automatically
- --------------
terminate on April 15, 2037 (the "Expiration Date"), following the distribution
of the Trust Property in accordance with Section 9.04.
SECTION 9.02. Early Termination. The first to occur of any of the
-----------------
following events is an "Early Termination Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation of, the Depositor or the Holder of the Common
Securities;
(b) the written direction to the Property Trustee from the Depositor,
as borrower with respect to the Junior Subordinated Debt Securities, at any
time (which direction is optional and wholly within the discretion of the
Depositor subject to receipt of prior approval of the Federal Reserve if
then required under applicable capital guidelines or policies of the
Federal Reserve (including upon the occurrence and continuation of a Tax
Event or a Capital Treatment Event in respect of the Trust)) to terminate
the Trust and, after satisfaction of liabilities to creditors of the Trust
as provided by applicable law, distribute a Like Amount of the Junior
Subordinated Debt Securities to Securityholders;
(c) the redemption of all of the Trust Securities in connection with
the redemption of all the Junior Subordinated Debt Securities (including
upon the occurrence and continuation of a Tax Event or a Capital Treatment
Event pursuant to Section 11.07(b) of the Indenture); and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
SECTION 9.03. 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 payment of
any
<PAGE>
70
expenses owed by the Trust, (b) 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, and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
SECTION 9.04. Liquidation. (a) If an Early Termination Event
------------
specified in clause (a), (b) or (d) 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 Junior Subordinated Debt Securities, 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 30 nor more than 90
days prior to the Liquidation Date to each Holder at such Holder's address
appearing in the Securities Register. All notices of liquidation shall:
(i) state the Liquidation Date (which in the case of any liquidation
following the occurrence of a Special Event shall not be more than 90 days
following such occurrence);
(ii) 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
represent a Like Amount of Junior Subordinated Debt Securities; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Junior Subordinated
Debt Securities, or if Section 9.04(d) applies receive a Liquidation
Distribution, as the Administrative Trustees or the Property Trustee shall
deem appropriate.
(b) Except where Section 9.02(c) or 9.04(d) applies, in order to
effect the liquidation of the Trust and distribution of the Junior Subordinated
Debt Securities to Securityholders, the Property Trustee shall establish a
record date for such distribution (which shall be not more than 45 days prior to
the Liquidation Date) and, either
<PAGE>
71
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 Junior Subordinated Debt Securities in exchange for
the Outstanding Trust Securities Certificate.
(c) 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 Junior Subordinated
Debt Securities will be issued to Holders, upon surrender of such certificates
to the Administrative Trustees or their agent for exchange, (iii) any Trust
Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Junior Subordinated Debt Securities accruing interest
at the rate provided for in the Junior Subordinated Debt Securities from the
last Distribution Date on which a Distribution was made on such Trust Securities
Certificates until such certificates are so surrendered (or until such
certificates are so surrendered, no payments of interest or principal will be
made to the Holders of Trust Securities Certificates with respect to such Junior
Subordinated Debt Securities) and (iv) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
Junior Subordinated Debt Securities upon surrender of Trust Securities
Certificates.
(d) 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 Junior Subordinated
Debt Securities 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 aggregate of
the Liquidation Amount 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
<PAGE>
72
shall be paid on a pro rata basis (based upon Liquidation Amounts). Holders of
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, and no payments shall be made with respect
to the Common Securities until Holders of Capital Securities have been paid in
full. Any such determination and liquidation by the Property Trustee shall be
conclusive upon the Securityholders and the Property Trustee shall have no
liability in connection therewith.
SECTION 9.05. 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 Person, except pursuant
to this Section 9.05. At the request of the Depositor, with the consent of the
Administrative Trustees 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, however, 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 Junior
Subordinated Debt Securities, (iii) the Successor Securities (if Capital
Securities) are listed or traded, or any Successor Securities will be listed or
traded 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,
<PAGE>
73
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 identical and limited 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 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 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 an association taxable as a corporation or
as other than a grantor trust for United States federal income tax purposes.
ARTICLE X
Miscellaneous Provisions
------------------------
SECTION 10.01. Limitation of Rights of Securityholders. The death,
----------------------------------------
incapacity, liquidation, dissolution, termination or bankruptcy of any Person
having an interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Declaration of Trust, 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.
<PAGE>
74
SECTION 10.02. Liability of the Depositor. The Depositor, as
---------------------------
borrower with respect to the Junior Subordinated Debt Securities, shall be
liable for all the debts and obligations of the Trust (other than with respect
to payments of principal, interest, or premium, if any, on the Trust Securities)
to the extent not satisfied out of the Trust's assets.
SECTION 10.03. Amendment. (a) This Declaration of Trust may be
----------
amended from time to time by the Property Trustee, the Administrative Trustees
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 Declaration of Trust, which shall not be
inconsistent with the other provisions of this Declaration of Trust; (ii) to
modify, eliminate or add to any provisions of this Declaration of Trust 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 or as other than an
association taxable as a corporation 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; or (iii) to modify, correct or supplement
in any respect the provisions relating to the exchange of the Trust Securities
for identical securities pursuant to the Registration Rights Agreement;
provided, however, that in the case of clauses (i) and (iii), such action shall
- -------- -------
not adversely affect in any material respect the interests of any
Securityholder, and any amendments of this Declaration of Trust shall become
effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.02(c) hereof, any provision of
this Declaration of Trust may be amended by the Trustees and the Depositor with
(i) the consent of 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 or as
other than an association taxable as a corporation for United States federal
income tax purposes or the Trust's exemption from status of an investment
company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this
Declaration of Trust, without the consent
<PAGE>
75
of each affected Securityholder (such consent being obtained in accordance with
Section 6.03 or 6.08 hereof), this Declaration of Trust 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 Section 6.03 or 6.08 hereof), this paragraph (c) of
this Section 10.02 may not be amended.
(d) Notwithstanding any other provisions of this Declaration of
Trust, no Trustee shall enter into or consent to any amendment to this
Declaration of Trust 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 or as other than an association
taxable as a corporation for United States federal income tax purposes.
(e) Notwithstanding anything in this Declaration of Trust to the
contrary, without the consent of the Depositor this Declaration of Trust may not
be amended in a manner which imposes any additional obligation on the Depositor.
(f) Notwithstanding any other provision of this Declaration of Trust,
no amendment to this Declaration of Trust may be made if, as a result of such
amendment, it would cause the Trust to fail to be classified as a grantor trust
or as other than an association taxable as a corporation for United States
federal income tax purposes.
(g) In the event that any amendment to this Declaration of Trust is
made, the Administrative Trustees shall promptly provide to the Depositor a copy
of such amendment.
(h) Neither the Property Trustee nor the Delaware Trustee shall be
required to enter into any amendment to this Declaration of Trust which affects
its own rights, duties or immunities under this Declaration of Trust or would
otherwise expose the Property Trustee to any liability or be contrary to
applicable law. The Property Trustee shall be entitled to receive an Officers'
Certificate stating that any amendment to this Declaration of Trust is in
compliance with this Declaration of Trust.
<PAGE>
76
SECTION 10.04. Separability. In case any provision in this
-------------
Declaration of Trust 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.
SECTION 10.05. Governing Law. This Declaration of Trust and the
--------------
rights and obligations of each of the Securityholders, the Trust and the
Trustees with respect to this Declaration of Trust and the Trust Securities
shall be construed in accordance with and governed by the laws of the State of
Delaware without regard to its conflict of laws principles. The provisions of
Sections 3540 and 3561 of Title 12 of the Delaware Code shall not apply to this
Trust.
SECTION 10.06. 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 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.
SECTION 10.07. Successors. This Declaration of Trust 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 VI 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.
SECTION 10.08. Headings. The Article and Section headings are for
---------
convenience only and shall not affect the construction of this Declaration of
Trust.
SECTION 10.09. Reports, Notices and Demands. Any report, notice,
-----------------------------
demand or other communication which by any provision of this Declaration of
Trust 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
<PAGE>
77
Securityholder or the Depositor, to Central Fidelity Banks, Inc., 1021 East Cary
Street, P.O. Box 27602, Richmond, Virginia 23261-7602, Attention: William N.
Stoyko, Secretary, facsimile no.: (809) 697-6936. Any notice to Capital
Securityholders may also be given to such owners as have, within two years
preceding the giving of such notice, filed their names and addresses with the
Property Trustee for that purpose. 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 Declaration of Trust is required or permitted to be given or served to or
upon the Trust, the Property Trustee, the Delaware Trustee or the Administrative
Trustees shall be given in writing addressed (until another address is published
by the Trust) as follows: (a) with respect to the Property Trustee to The Bank
of New York, 100 Barclay Street, Floor 21 West, New York, New York 10286; (b)
with respect to the Delaware Trustee to The Bank of New York (Delaware), White
Clay Center, Route 273, Newark, Delaware 19711; and (c) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of Central Fidelity
Capital Trust I". Such notice, demand or other communication to or upon the
Trust or the Property Trustee shall be deemed to have been sufficiently given or
made only upon actual receipt of the writing by the Trust or the Property
Trustee.
SECTION 10.10. 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 IX, 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 Laws. In the event the
Depositor takes action in violation of this Section 10.10, 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 estopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust
<PAGE>
78
may assert. The provisions of this Section 10.09 shall survive the termination
of this Declaration of Trust.
SECTION 10.11. Trust Indenture Act; Conflict with Trust Indenture
--------------------------------------------------
Act. This Declaration of Trust will not be qualified under the Trust Indenture
- ----
Act except upon the effectiveness of a registration statement and the
consummation of an exchange offer pursuant to the Registration Agreement. By
its terms, however, this Declaration of Trust incorporates certain provisions of
the Trust Indenture Act. Upon the consummation of an exchange offer pursuant to
the Registration Agreement, clauses (a), (b), (c) and (d), below, shall apply to
this Declaration of Trust.
(a) This Declaration of Trust is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration of Trust
and shall, to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Declaration of
Trust by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Declaration of Trust 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 Declaration of
Trust as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Declaration of
Trust shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
SECTION 10.12. Acceptance of Terms of Declaration of Trust, 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 DECLARATION OF TRUST
AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE
AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST,
<PAGE>
79
SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS
DECLARATION OF TRUST SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE
TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
SECTION 10.13. Execution in Counterparts. 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.
<PAGE>
THIS AMENDED AND RESTATED DECLARATION OF TRUST is executed as of the
day and year first above written.
CENTRAL FIDELITY BANKS, INC.,
as Depositor
by /s/ William N. Stoyko
--------------------------------
Name: William N. Stoyko
Title: Executive Corporate
Vice President
<PAGE>
THE BANK OF NEW YORK, as
Property Trustee
by /s/ Frederick Clark
----------------------------
Name: Frederick Clark
Title: Authorized
Signatory
<PAGE>
THE BANK OF NEW YORK (DELAWARE), as Delaware
Trustee and not in its individual capacity
by /s/ Frederick Clark
------------------------------
Name: Frederick Clark
Title: Authorized
Signatory
<PAGE>
/s/ Charles W. Tysinger
------------------------------
Charles W. Tysinger,
as Administrative Trustee
/s/ John T. Percy, Jr.
------------------------------
John T. Percy, Jr.,
as Administrative Trustee
/s/ William N. Stoyko
------------------------------
William N. Stoyko,
as Administrative Trustee
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST OF
CENTRAL FIDELITY CAPITAL TRUST I
THIS CERTIFICATE OF TRUST of Central Fidelity Capital Trust I (the
"Trust"), dated as of April 2, 1997, is being duly executed and filed by The
Bank of New York (Delaware), a Delaware banking corporation, as trustee, Charles
W. Tysinger, an individual, as trustee, John T. Percy, Jr., an individual, as
trustee and William N. Stoyko, an individual, as trustee to form a business
trust under the Delaware Business Trust Act (12 Del. C. Section 3801 et seq.).
-- ---
1. Name. The name of the business trust formed hereby is Central
----
Fidelity 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 as
follows: The Bank of New York (Delaware), White Clay Center, Route 273, Newark,
Delaware 19711.
3. Effective Date. This Certificate of Trust shall be effective upon
--------------
filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first written above.
THE BANK OF NEW YORK (DELAWARE), not in its
individual capacity but solely as trustee
by
-------------------------------------------
Name: Frederick Clark
Title: Authorized Signatory
<PAGE>
2
-------------------------
Charles W. Tysinger,
as Trustee
-------------------------
John T. Percy, Jr.,
as Trustee
-------------------------
William N. Stoyko,
as Trustee
<PAGE>
EXHIBIT B
IF THE CAPITAL SECURITY IS A RESTRICTED SECURITY,
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER
OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH CENTRAL
FIDELITY BANKS, INC. (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE
"RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE COMPANY, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH,
ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE PROPERTY TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE DECLARATION
OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY OR THE PROPERTY
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
RESALE RESTRICTIONS TERMINATION DATE.]
IF THE CAPITAL SECURITIES CERTIFICATE IS TO BE A GLOBAL SECURITIES
CERTIFICATE, INSERT--[This Capital Securities Certificate is a Global Capital
Securities
<PAGE>
2
Certificate within the meaning of the Declaration of Trust hereinafter referred
to and is registered in the name of The Depository Trust Company (the
"Depositary") or a nominee of the Depositary. This Capital Securities
Certificate is exchangeable for Capital Securities Certificates registered in
the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Declaration of Trust and no transfer of
this Capital Securities Certificate (other than a transfer of this Capital
Securities Certificate 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 the limited circumstances
described in the Declaration of Trust.
Unless this Capital Securities Certificate is presented by an
authorized representative of The Depository Trust Company (55 Water Street, New
York) to Central Fidelity Capital Trust I or its agent for registration of
transfer, exchange or payment, and any Capital Securities Certificate 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 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.]
The Capital Securities are issued, any may be transferred, only in blocks having
a Liquidation Amount of not less than $100,000 and integral multiples of $1,000
in excess thereof. 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.
NO EMPLOYEE BENEFIT OR OTHER PLAN SUBJECT TO TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (EACH, A "PLAN"), NO ENTITY WHOSE
UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT IN
THE ENTITY (A "PLAN ASSET ENTITY"), AND NO PERSON INVESTING "PLAN ASSETS" OF ANY
PLAN, MAY ACQUIRE OR HOLD THIS CAPITAL SECURITIES CERTIFICATE OR ANY INTEREST
HEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF
AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION
("PTCE") 96-23,
<PAGE>
3
95-60, 91-38, 90-1 OR 84-14 WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY
PURCHASER OR HOLDER OF THIS CAPITAL SECURITIES CERTIFICATE OR ANY INTEREST
HEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING HEREOF
THAT IT EITHER (A) IS NOT A PLAN OR A PLAN ASSET ENTITY AND IS NOT PURCHASING
SUCH SECURITIES ON BEHALF OF OR WITH "PLAN ASSETS" OF ANY PLAN, OR (B) IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER PTCE 96-23, 95-60, 91-38, 90-1
OR 84-14 WITH RESPECT TO SUCH PURCHASE OR HOLDING.
<PAGE>
4
Liquidation Amount of
Capital Securities
Certificate Number
CUSIP NO. [ ]
Certificate Evidencing Capital Securities
of
Central Fidelity Capital Trust I
Floating Rate Capital Trust Pass-through Securities /SM/
(TruPS)/SM/
(Liquidation Amount $1,000 per Capital Security)
Central Fidelity Capital Trust I, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Cede & Co. (the "Holder") is the registered owner of _________ ( ) Capital
Securities of the Trust in an aggregate liquidation amount of $_________,
representing an undivided beneficial interest in the assets of Trust and
designated Central Fidelity Capital Trust I Floating Rate Capital Trust Pass-
through Securities/SM/ (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 5.05 of the Declaration of Trust (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 presented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Declaration of Trust of
the Trust dated as of April 23, 1997, as the same may be amended from time to
time (the "Declaration of Trust") among Central Fidelity Banks, Inc., as
Depositor, The Bank of New York, as Property Trustee, The Bank of New York
(Delaware), as Delaware Trustee, and the Administrative Trustees named therein,
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 Central Fidelity Banks, Inc., a Virginia corporation, and The
Bank of New York, as Guarantee Trustee, dated as of April 23, 1997 (the
"Guarantee"), to the extent provided therein. The Trust will furnish a copy of
the Declaration of Trust and the Guarantee to the Holder without charge upon
written request to the Trust at its principal place of business or registered
office.
<PAGE>
5
Terms used but not defined herein have the meanings set forth in the
Declaration of Trust. The Declaration of Trust and this Capital Security shall
be governed by and construed in accordance with the laws of the State of
Delaware without regard to conflicts of laws principles thereof.
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this Certificate this _____ day of __________________.
CENTRAL FIDELITY CAPITAL TRUST I
by
------------------------------------
Name:
Title: Administrative Trustee
COUNTERSIGNED AND REGISTERED:
THE BANK OF NEW YORK, as
Property Trustee
by
--------------------------------------
Authorized Signatory
Dated:
<PAGE>
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
----------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Capital
Security Certificate)
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 SEC Rule 17Ad-15.
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Liquidation Amount of
Certificate Number Common Securities
Certificate Evidencing Common Securities
of
Central Fidelity Capital Trust I
Floating Rate Common Securities
(Liquidation Amount $1,000 per Common Security)
Central Fidelity Capital Trust I, a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Central Fidelity Banks, Inc. (the "Holder") is the registered owner of
_____________________________( ) common securities of the Trust representing
beneficial interests of the Trust and designated the Floating Rate Common
Securities (Liquidation Amount $1,000 per Common Security) (the "Common
Securities"). Except as provided in Section 5.11 of the Declaration of Trust
(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 Declaration of Trust of the Trust
dated as of April 23, 1997, as the same may be amended from time to time (the
"Declaration of Trust"), among Central Fidelity Banks, Inc., as Depositor, The
Bank of New York, as Property Trustee, The Bank of New York (Delaware), as
Delaware Trustee, and the Administrative Trustees named therein, including the
designation of the terms of the Common Securities as set forth therein. The
Trust will furnish a copy of the Declaration of Trust to the Holder without
charge upon written request to the Trust at its principal place of business or
registered office.
Terms used but not defined herein have the meanings set forth in the
Declaration of Trust. The Declaration of Trust and this Common Security shall
be governed by and construed in accordance with the laws of the State of
Delaware without regard to conflicts of laws principles thereof.
<PAGE>
2
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust
has executed this certificate this _____ day of __________________.
CENTRAL FIDELITY CAPITAL TRUST I
by
---------------------------------
Name:
Title: Administrative Trustee
COUNTERSIGNED AND REGISTERED:
THE BANK OF NEW YORK, as Property Trustee
by
---------------------------------
Authorized Signatory
Dated:
<PAGE>
EXHIBIT D
[Form of Restricted Securities Certificate]
RESTRICTED CAPITAL SECURITIES CERTIFICATE
(For transfers pursuant to (S) 5.05(b)
of the Declaration of Trust)
[__________________________________],
as Security Registrar
[address]
Re: Floating Rate Capital Securities of
Central Fidelity Capital Trust I (the "Trust")
(the "Capital Securities")
----------------------------------------------
Reference is made to the Amended and Restated Declaration of Trust,
dated as of April 23, 1997 (the "Declaration of Trust"), among Central Fidelity
Banks, Inc., as Depositor, The Bank of New York, as Property Trustee, The Bank
of New York (Delaware), as Delaware Trustee, and the Administrative Trustees
named therein. Terms used herein and defined in the Declaration of Trust or in
Regulation D, Rule 144A or Rule 144 under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), are used herein as so defined.
This certificate relates to $_______________ aggregate Liquidation
Amount of Capital Securities, which are evidenced by the following
certificate(s) (the "Specified Securities"):
CUSIP No(s).________________________________________
CERTIFICATE No(s).__________________________________
CURRENTLY IN BOOK-ENTRY FORM: __Yes __No (check one)
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Capital Securities
Certificate, they are held through the Clearing Agency or a Clearing Agency
Participant in the name of the Undersigned, as or on behalf of the Owner. If
the Specified Securities are not represented by a Global Capital Securities
<PAGE>
2
Certificate, they are registered in the name of the Undersigned, as or on behalf
of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take delivery in the form of a Restricted
Capital Security. In connection with such transfer, the Owner hereby certifies
that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with one of the following (CHECK ONE):
__(1) transferred to the Depositor; or
__(2) exchanged for the undersigned's own account without transfer; or
__(3) transferred pursuant to and in compliance with Rule 144A under the
Securities Act; or
__(4) to an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the
Securities Act of 1933 that is acquiring the Capital Securities for
its own account, or for the account of such an institutional
"accredited investor," for investment purposes and not with a view
to, or for offer or sale in connection with, any distribution in
violation of the Securities Act; or
__(5) transferred pursuant to another available exemption from the
registration requirements of the Securities Act.
Unless such transfer is being effected in accordance with one of the above, the
Transfer Agent will refuse to register any of the Capital Securities evidenced
by this certificate in the name of any person other than the Holder thereof;
provided, however, that if (4) or (5) is applicable, the Transfer Agent may
- -------- -------
require, prior to registering any such transfer of the Capital Securities such
legal opinions, certifications and other information as the Trust has reasonably
requested 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, such as the exemption provided by Rule 144 under such Act;
provided, further, that if (3) is applicable, the transferee must also certify
- -------- -------
that it is a qualified institutional buyer as defined in Rule 144A.
<PAGE>
3
This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor, the Trust and the Initial Purchaser.
Dated:
----------------------------------------
(Print the name of the Undersigned, as
such term is defined in the second
paragraph of this certificate.)
By:
-------------------------------------
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of
the person signing on behalf of the
Undersigned must be stated.)
<PAGE>
Exhibit 4.6
================================================================================
GUARANTEE AGREEMENT
Between
CENTRAL FIDELITY BANKS, INC.
(as Guarantor)
and
THE BANK OF NEW YORK
(as Trustee)
Dated as of
_________________, 1997
================================================================================
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
- ------------------- -------------------
<S> <C>
310(a) ................................................ 4.01(a)
310(b) ................................................ 4.01(c), 2.08
310(c) ................................................ Inapplicable
311(a) ................................................ 2.02(b)
311(b) ................................................ 2.02(b)
311(c) ................................................ Inapplicable
312(a) ................................................ 2.02(a)
312(b) ................................................ 2.02(b)
313(a) ................................................ 2.03
313(b) ................................................ 2.03
313(c) ................................................ 2.03
313(d) ................................................ 2.03
314(a) ................................................ 2.04
314(b) ................................................ Inapplicable
314(c) ................................................ 2.05
314(d) ................................................ Inapplicable
314(e) ................................................ 1.01, 2.05,
3.02
314(f) ................................................ 2.01, 3.02
315(a) ................................................ 3.01(d)
315(b) ................................................ 2.07
315(c) ................................................ 3.01(c)
315(d) ................................................ 3.01(d)
316(a) ................................................ 1.01, 2.06,
5.04
316(b) ................................................ 5.03, 5.04
316(c) ................................................ 8.02
317(a) ................................................ Inapplicable
317(b) ................................................ Inapplicable
318(a) ................................................ 2.01(b)
</TABLE>
- --------------------
* This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
-i-
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
Definitions
-----------
<S> <C> <C>
SECTION 1.01. Definitions................................................. 2
ARTICLE II
Trust Indenture Act
-------------------
SECTION 2.01. Trust Indenture Act; Application............................ 6
SECTION 2.02. List of Holders............................................. 6
SECTION 2.03. Reports by the Guarantee Trustee............................ 7
SECTION 2.04. Periodic Reports to Guarantee
Trustee.................................................. 7
SECTION 2.05. Evidence of Compliance with Conditions
Precedent................................................ 7
SECTION 2.06. Events of Default; Waiver................................... 7
SECTION 2.07. Event of Default; Notice.................................... 8
SECTION 2.08. Conflicting Interests....................................... 8
ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee
--------------------------------------------------
SECTION 3.01. Powers and Duties of the Guarantee
Trustee.................................................. 8
SECTION 3.02. Certain Rights of Guarantee Trustee......................... 8
SECTION 3.03. Indemnity................................................... 12
SECTION 3.04. Expenses.................................................... 12
ARTICLE IV
Guarantee Trustee
-----------------
SECTION 4.01. Guarantee Trustee; Eligibility................................ 13
SECTION 4.02. Appointment, Removal and Resignation of
the Guarantee Trustee.................................... 13
</TABLE>
-ii-
<PAGE>
ARTICLE V
<TABLE>
<CAPTION>
Guarantee
---------
<S> <C> <C>
SECTION 5.01. Guarantee................................................... 14
SECTION 5.02. Waiver of Notice and Demand................................. 14
SECTION 5.03. Obligations Not Affected.................................... 14
SECTION 5.04. Rights of Holders........................................... 16
SECTION 5.05. Guarantee of Payment........................................ 16
SECTION 5.06. Subrogation................................................. 16
SECTION 5.07. Independent Obligations..................................... 16
ARTICLE VI
Covenants and Subordination
---------------------------
SECTION 6.01. Subordination............................................... 17
SECTION 6.02. Pari Passu Guarantees....................................... 17
ARTICLE VII
Termination
-----------
SECTION 7.01. Termination................................................. 17
ARTICLE VIII
Miscellaneous
-------------
SECTION 8.01. Successors and Assigns...................................... 17
SECTION 8.02. Amendments.................................................. 18
SECTION 8.03. Notices..................................................... 18
SECTION 8.04. Benefit..................................................... 19
SECTION 8.05. Interpretation.............................................. 19
SECTION 8.06. Governing Law............................................... 20
</TABLE>
-iii-
<PAGE>
GUARANTEE AGREEMENT, dated as of ________________, 1997,
executed and delivered by CENTRAL FIDELITY BANKS, INC., a bank
holding company (the "Guarantor") having its principal office at
1021 East Cary Street, P.O. Box 27602, Richmond, Virginia 23261-
7602, and THE BANK OF NEW YORK, 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 Trust Securities (as
defined herein) of CENTRAL FIDELITY CAPITAL TRUST I, a Delaware
statutory business trust (the "Issuer").
WHEREAS pursuant to an Amended and Restated Declaration of Trust (the
"Declaration of Trust"), dated as of April 23, 1997, among the Trustees named
therein, the Guarantor, as Depositor, and the Holders from time to time of
undivided beneficial ownership interests in the assets of the Issuer, the Issuer
issued $100,000,000 aggregate Liquidation Amount of its floating rate Capital
Trust Pass-through Securities, Liquidation Amount $1,000 per security (the "Old
Capital Securities"), and $3,093,000 aggregate Liquidation Amount of its Common
Securities, Liquidation Amount $1,000 per security (the "Common Securities"),
representing undivided beneficial ownership interests in the assets of the
Issuer and having the terms set forth in the Declaration of Trust in a
transaction not subject to the registration requirements of the Securities Act
of 1933, as amended (the "Act");
WHEREAS the Old Capital Securities and the Common Securities were
issued by the Issuer and the proceeds thereof were used by the Issuer to
purchase $103,093,000 aggregate principal amount of the floating rate Junior
Subordinated Debt Securities, due April 15, 2027 (the "Old Junior Subordinated
Debt Securities") of the Guarantor, which have been exchanged for $103,093,000
aggregate principal amount of the floating rate Junior Subordinated Debt
Securities, Series A, due April 15, 2027 of the Guarantor (the "New Junior
Subordinated Debt Securities", and together with the Old Junior Subordinated
Debt Securities, collectively the "Junior Subordinated Debt Securities"), which
New Junior Subordinated Debt Securities will be held by The Bank of New York, as
Property Trustee under the Declaration of Trust, as trust assets;
<PAGE>
WHEREAS as incentive for the Holders to purchase the Old Capital
Securities and the Common Securities the Guarantor desired irrevocably and
unconditionally to agree, to the extent set forth herein, to pay to the Holders
the Guarantee Payments (as defined herein) and to make certain other payments on
the terms and conditions set forth herein;
WHEREAS, the Guarantor and the Issuer agreed to conduct an exchange
offer pursuant to which the Old Capital Securities would be exchanged for up to
$100,000,000 aggregate Liquidation Amount of the Issuer's floating rate Capital
Trust Pass-through Securities, Series A, Liquidation Amount $1,000 per security
(the "New Capital Securities", and together with the Old Capital Securities,
collectively the "Capital Securities") of the Issuer representing identical
preferred individual beneficial interests in the assets of the Issuer that have
been registered under the Act and the Guarantor agreed to exchange its guarantee
of the Old Capital Securities and Common Securities for a guarantee of the New
Capital Securities registered under the Act and Common Securities (the Capital
Securities and the Common Securities collectively referred to herein as the
"Trust Securities"); and
WHEREAS, the guarantees provided by this Guarantee Agreement with
respect to the New Capital Securities have been registered under the Act.
NOW, THEREFORE, in consideration of the purchase by each Holder of Old
Capital Securities and Common Securities, which purchase the Guarantor agreed
shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the Trust
Securities.
ARTICLE I
Definitions
-----------
SECTION 1.01. 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
Declaration of Trust as in effect on the date hereof.
"Act" shall have the meaning specified in the recitals of this
Guarantee Agreement.
-2-
<PAGE>
"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 include the Issuer. 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.
"Capital Securities" shall have the meaning specified in the recitals
of this Guarantee Agreement.
"Common Securities" shall have the meaning specified in the recitals
of this Guarantee Agreement.
"Declaration of Trust" shall have the meaning specified in the
recitals of this Guarantee Agreement.
"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 and shall not have cured such
default within 60 days after receipt of such notice; provided, further, that no
-------- -------
Event of Default shall occur unless an Event of Default (as defined in the
Indenture or the Declaration of Trust) shall have occurred and be continuing.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Trust Securities, to the extent not
paid or made by or on behalf of the Issuer: (i) any accrued and unpaid
Distributions required to be paid on the Trust 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 the Trust 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, winding-up or liquidation of the Issuer, unless Junior Subordinated
Debt Securities are distributed to the Holders or all of the Capital Securities
are redeemed, the lesser of (a) the aggregate of the Liquidation Amount of
$1,000 per Trust Security plus accrued and unpaid Distributions on the Trust
Securities to the date of payment to the extent the Issuer shall have funds on
hand
-3-
<PAGE>
available to make such payment at such time and (b) the amount of assets of the
Issuer remaining available for distribution to Holders in liquidation of the
Issuer after satisfaction of liabilities to creditors of the Issuer as required
by applicable law (in either case, the "Liquidation Distribution"). If an Event
of Default under the Declaration of Trust has occurred and is continuing, no
Guarantee Payments with respect to the Common Securities or any guarantee
payment under any Other Guarantees (as defined in the Indenture) with respect to
Common Securities of any other Central Fidelity Capital Trust (as defined in the
Indenture), if any, shall be made until the Holders of Capital Securities shall
be paid in full the Guarantee Payments to which they are entitled under this
Guarantee. Subordination of Guarantee Payments on the Common Securities
following such an Event of Default under the Declaration of Trust shall be
analogous to the subordination of the Common Securities provided for in Section
4.03 of the Declaration of Trust.
"Guarantee Trustee" means The Bank of New York, 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.
"Guarantor" shall have the meaning specified in the first recital of
this Guarantee Agreement.
"Holder" means a person in whose name a Trust Security or Trust
Securities is registered on the books and records of the Issuer; provided,
--------
however, that in determining whether the holders of the requisite percentage of
- -------
Trust 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 Junior Subordinated Indenture dated as of April
23, 1997, as supplemented and amended between the Guarantor and The Bank of New
York, as trustee, relating to the issuance of the Junior Subordinated Debt
Securities.
"Issuer" shall have the meaning specified in the recitals of this
Guarantee Agreement.
"Junior Subordinated Debt Securities" shall have the meaning specified
in the recitals of this Guarantee Agreement.
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<PAGE>
"List of Holders" has the meaning specified in Section 2.02(a).
"Majority in Liquidation Amount of the Securities" means, except as
provided by the Trust Indenture Act, a vote by the Holder(s), of more than 50%
of the aggregate Liquidation Amount of all then Outstanding Capital Securities.
"New Capital Securities" shall have the meaning specified in the
recitals of this Guarantee Agreement.
"New Junior Subordinated Debt Securities" shall have the meaning
specified in the recitals of this Guarantee Agreement.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman and Chief Executive Officer, President or a
Vice President, and by the Treasurer, an Associate Treasurer, an Assistant
Treasurer, the Controller, the Secretary or an 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 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) 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.
"Old Capital Securities" shall have the meaning specified in the
recitals of this Guarantee Agreement.
"Old Junior Subordinated Debt Securities" shall have the meaning
specified in the recitals of this Guarantee Agreement.
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<PAGE>
"Responsible Officer" when used with respect to the Guarantee Trustee
means any officer assigned to the Corporate Trust Office, including any managing
director, vice president, assistant vice president, assistant treasurer,
assistant secretary or any other officer of the Guarantee Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of this
Guarantee Agreement, and also, with respect to a particular matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
"Senior Debt" shall have the meaning specified in the Indenture.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.01.
"Trust Securities" shall have the meaning specified in the recitals of
this Guarantee Agreement.
ARTICLE II
Trust Indenture Act
-------------------
SECTION 2.01. Trust Indenture Act; Application. (a) As a matter of
---------------------------------
contract, this Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) 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 2.02. List of Holders. (a) The Guarantor shall furnish or
----------------
cause to be furnished to the Guarantee Trustee (i) semiannually, not more than
15 days after May 15 and November 15 of each year, 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 (ii) 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
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<PAGE>
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 its obligations under
Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Guarantee Trustee. Not later than the
---------------------------------
last calendar day in February of each calendar year, commencing with the last
calendar day in February 1998, the Guarantee Trustee shall provide to the
Holders such reports, if any, as are required by Section 313 of the Trust
Indenture Act 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 2.04. 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
required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.05. 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 any officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.06. Events of Default; Waiver. The Holders of a Majority
--------------------------
in Liquidation Amount of the 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.
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<PAGE>
SECTION 2.07. 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 Events of Default 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 a Responsible
Officer 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 a Responsible Officer charged with the
administration of the Declaration of Trust shall have received written notice of
such Event of Default.
SECTION 2.08. Conflicting Interests. The Declaration of Trust 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.
ARTICLE III
Powers, Duties and Rights of the
--------------------------------
Guarantee Trustee
-----------------
SECTION 3.01. 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 5.04(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.
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<PAGE>
(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 2.06), 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 wilful 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 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
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<PAGE>
negligent in ascertaining the pertinent facts upon which such judgment was
made;
(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 Securities relating to the time, method and place of conducting any
proceeding for any remedy available to 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 assured to it under the terms of this Guarantee Agreement
or indemnity satisfactory to it against such risk or liability is not
reasonably assured to it.
SECTION 3.02. Certain Rights of Guarantee Trustee. (a) Subject to the
-----------------------------------
provisions of Section 3.01:
(i) The Guarantee Trustee may conclusively 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 all 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 conclusively rely upon an Officers' Certificate which, upon
receipt of such request from the Guarantee Trustee, shall be promptly
delivered by the Guarantor.
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<PAGE>
(iv) The Guarantee Trustee may consult with legal counsel, and the
advice or written 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 security and indemnity reasonably
satisfactory to it, 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 3.02(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 Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts 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
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<PAGE>
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 fully protected in acting in accordance with such
instructions.
(ix) the Guarantee 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 Guarantee 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.
(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 3.03. Indemnity. The Guarantor agrees to indemnify the
---------
Guarantee Trustee and to hold it harmless against, any loss, liability or
expense including taxes (other than taxes based upon, measured by or determined
by the income of the Guarantee Trustee) 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.
This indemnity shall survive the termination of this Guarantee Agreement or the
resignation or removal of the Guarantee Trustee.
SECTION 3.04. Expenses. The Guarantor, as obligor on the Junior
---------
Subordinated Debt Securities, shall from time to time reimburse the Guarantee
Trustee for such expenses and costs incurred in connection with the performance
of its duties hereunder as shall be agreed to in writing from time to time by
the Guarantor and the Guarantee Trustee.
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<PAGE>
ARTICLE IV
Guarantee Trustee
-----------------
SECTION 4.01. Guarantee Trustee; Eligibility. (a) There shall at all
------------------------------
times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(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(c) 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 4.10(a), the Guarantee Trustee shall immediately resign
in the manner and with the effect set out in Section 4.02(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.
SECTION 4.02. Appointment, Removal and Resignation of the Guarantee
-----------------------------------------------------
Trustee. (a) Subject to Section 4.02(b), in the absence of the existence of an
- --------
Event of Default, 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
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<PAGE>
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 4.02 within 30 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 5.01. 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. The Guarantor shall give written notice to the Guarantee Trustee as
promptly as practicable in the event it makes any direct payment hereunder.
SECTION 5.02. 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 5.03. Obligations Not Affected. The obligations, covenants,
-------------------------
agreements and duties of the Guarantor under this Guarantee Agreement shall in
no way be
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<PAGE>
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 Trust 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 any extension of time for payment
of Distributions that results from the extension of any interest payment
period on the Junior Subordinated Debt Securities as so provided in the
Indenture), Redemption Price, Liquidation Distribution or any other sums
payable under the terms of the Trust Securities or the extension of time
for the performance of any other obligation under, arising out of, or in
connection with, the Trust 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 Trust
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 Trust
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 5.03 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.
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<PAGE>
SECTION 5.04. 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 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; and (iv) 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
Issuer or any other Person.
SECTION 5.05. 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 Junior Subordinated Debt Securities to Holders as provided in
the Declaration of Trust.
SECTION 5.06. 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 5.01; 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 5.07. Independent Obligations. The Guarantor acknowledges
------------------------
that its obligations hereunder are independent of the obligations of the Issuer
with respect to the Trust 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 5.03 hereof.
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ARTICLE VI
Covenants and Subordination
---------------------------
SECTION 6.01. Subordination. This Guarantee Agreement will
--------------
constitute an unsecured obligation of the Guarantor and will rank subordinate
and junior in right of payment to all Senior Debt of the Guarantor, to the same
extent and in the same manner that the Junior Subordinated Debt Securities are
subordinated to Senior Debt pursuant to the Indenture, it being understood that
the terms of Article XIV of the Indenture shall apply to the obligations of the
Guarantor under this Guarantee Agreement as if (x) such Article XIV were set
forth herein in full and (y) such obligations were substituted for the term
"Securities" appearing in such Article XIV.
SECTION 6.02. Pari Passu Guarantees. This Guarantee Agreement shall
----------------------
rank pari passu with any similar guarantee agreements issued by the Guarantor on
---- -----
behalf of the holders of trust securities issued by a trust created by the
Guarantor similar to Central Fidelity Capital Trust I.
ARTICLE VII
Termination
-----------
SECTION 7.01. Termination. This Guarantee Agreement shall terminate
------------
and be of no further force and effect upon (i) full payment of the Redemption
Price of all Trust Securities, (ii) the distribution of Junior Subordinated Debt
Securities to the Holders in exchange for all of the Trust Securities or (iii)
full payment of the amounts payable in accordance with the Declaration of Trust
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 repay any sums paid with respect to Trust
Securities or this Guarantee Agreement.
ARTICLE VIII
Miscellaneous
-------------
SECTION 8.01. 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 then outstanding.
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<PAGE>
Except in connection with a consolidation, merger or sale involving the
Guarantor that is permitted under Article VIII of the Indenture and pursuant to
which the assignee agrees in writing to perform the Guarantor's obligations
hereunder, the Guarantor shall not assign its obligations hereunder.
SECTION 8.02. 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 the Securities. The provisions of Article VI
of the Declaration of Trust concerning meetings of the Holders shall apply to
the giving of such approval.
SECTION 8.03. Notices. Any notice, request or other communication
--------
required or permitted to be given hereunder shall be in writing, duty signed by
the party giving such notice, and delivered, telecopied (confirmed by delivery
of the original) 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:
CENTRAL FIDELITY BANKS, INC.
1021 East Cary Street
P.O. Box 27602
Richmond, Virginia 23261-7602
Facsimile No.: (804) 697-6936
Attention: William N. Stoyko, Secretary
(b) if given to the Issuer, in care of the Guarantee Trustee, at the
Issuer's (and the Guarantee Trustee's) address set forth below or such
other address as the Guarantee Trustee on behalf of the Issuer may give
notice to the Holders:
CENTRAL FIDELITY CAPITAL TRUST I
c/o CENTRAL FIDELITY BANKS, INC.
1021 East Cary Street
P.O. Box 27602
Richmond, Virginia 23261-7602
Facsimile No.: (804) 697-6936
Attention: William N. Stoyko, Secretary
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<PAGE>
with a copy to:
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Facsimile No.: (212) 815-5915
Attention: Corporate Trust Administration
(c) if given to the Guarantee Trustee:
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Facsimile No.: (212) 815-5915
Attention: Corporate Trust 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 8.04. Benefit. This Guarantee Agreement is solely for the
--------
benefit of the Holders and is not separately transferable from the Trust
Securities.
SECTION 8.05. Interpretation. 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 1.01;
(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;
-19-
<PAGE>
(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 8.06 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.
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.
-20-
<PAGE>
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
CENTRAL FIDELITY BANKS, INC.
by
---------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Guarantee Trustee
by
---------------------------------
Name:
Title:
-21-
<PAGE>
EXHIBIT 4.8
CENTRAL FIDELITY CAPITAL TRUST I
$100,000,000
Floating Rate Capital Trust
Pass-through Securities/sm/
(TruPS/sm/)
(Liquidation Amount $1,000 per Capital Security)
Fully and Unconditionally Guaranteed
by
CENTRAL FIDELITY BANKS, INC.
REGISTRATION AGREEMENT
New York, New York
April 23, 1997
Salomon Brothers Inc
Keefe, Bruyette & Woods, Inc.
Seven World Trade Center
New York, NY 10048
Ladies and Gentlemen:
Central Fidelity Capital Trust I, a Delaware statutory business trust
(the "Trust"), proposes to issue and sell to Salomon Brothers Inc and Keefe
Bruyette & Woods, Inc. (the "Purchasers"), upon the terms set forth in a
purchase agreement dated as of April 16, 1997 (the "Purchase Agreement"),
100,000 of the Trust's floating rate Capital Trust Pass-through Securities,
Liquidation Amount $1,000 per Capital Trust Pass-through Security (the "Capital
Securities"). The Capital Securities will by guaranteed by Central Fidelity
Banks, Inc., a Virginia corporation (the "Company"), as guarantor (the Capital
Securities together with the guarantee by the Company of the payment of
distributions on, and as to payments on or liquidation or redemption of the
Capital Securities to the extent set forth in the Guarantee, the "Pass-through
Securities") (the "Initial Placement"). The proceeds of the sale by the Trust
of the Pass-through Securities and its floating rate Common Securities,
Liquidation Amount $1,000 per Common Security (the "Common Securities"), are to
be invested in the floating rate Junior Subordinated Debt Securities of the
Company having an aggregate principal amount equal to the
<PAGE>
2
aggregate Liquidation Amount of the Capital Securities and the Common Securities
(the "Junior Subordinated Debt Securities"). As an inducement to the Purchasers
to enter into the Purchase Agreement and in satisfaction of a condition to your
obligations thereunder, the Trust and the Company agree with you, (i) for your
benefit and (ii) for the benefit of the holders from time to time (each of the
foregoing a "Holder" and together the "Holders") of the Securities (as defined
herein) or the Exchange Securities (as defined herein), as follows:
1. Definitions. Capitalized terms used herein without definition
-----------
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" means the Securities Act of 1933, and the rules and regulations
---
of the Commission promulgated thereunder.
"Additional Distributions" has the meaning given such term in Section
------------------------
7(a) hereof.
"Affiliate" of any specified person means any other person which,
---------
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii)
------------
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 (iii) a day on which the
principal office of the Trustee is closed for business.
"Capital Securities" has the meaning set forth in the first paragraph
------------------
to this Agreement.
"Closing Date" has the meaning given such term in the Purchase
------------
Agreement.
"Commission" means the Securities and Exchange Commission.
----------
"Common Securities" has the meaning set forth in the first paragraph
-----------------
to this Agreement.
"Company" has the meaning set forth in the first paragraph to this
-------
Agreement.
<PAGE>
3
"Declaration" means the Amended and Restated Declaration of Trust
-----------
relating to the Capital Securities, the Common Securities and the Exchange
Capital Securities, dated as of April 23, 1997, among the Company, as Depositor,
Charles W. Tysinger, John T. Percy, Jr. and William N. Stoyko, as administrative
trustees, the Property Trustee and The Bank of New York (Delaware), a Delaware
corporation, as Delaware trustee, as the same may be amended from time to time
in accordance with the terms thereof.
"Distribution Event" shall mean the distribution of Junior
------------------
Subordinated Debt Securities or Exchange Junior Subordinated Debt Securities, as
the case may be, to the holders of Capital Securities or Exchange Capital
Securities, as the case may be, as provided in the Declaration.
"Exchange Act" means the Securities Exchange Act of 1934, and the
------------
rules and regulations of the Commission promulgated thereunder.
"Exchange Capital Securities" means securities of the Trust to be
---------------------------
issued under the Declaration and which are identical in all material respects to
the Capital Securities (except that the distribution rate step-up provisions and
the transfer restrictions will be eliminated).
"Exchange Guarantee" means the guarantee by the Company with respect
------------------
to the Exchange Capital Securities, identical in all material respects to the
Guarantee.
"Exchange Junior Subordinated Debt Securities" means debt securities
--------------------------------------------
of the Company to be issued under the Junior Subordinated Indenture and which
are identical in all material respects to the Junior Subordinated Debt
Securities (except that the interest rate step-up provisions and the transfer
restrictions will be eliminated).
"Exchange Offer Registration Period" means the one year period
----------------------------------
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration statement
-------------------------------------
of the Trust and the Company on an appropriate form under the Act with respect
to the Registered Exchange Offer, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus
<PAGE>
4
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Exchange Pass-through Securities" means the Exchange Capital
--------------------------------
Securities together with the Exchange Guarantee.
"Exchange Securities" means (i) if a Distribution Event shall not have
-------------------
occurred prior to the Registered Exchange Offer, (a) the Exchange Pass-through
Securities and (b) if the Company shall elect to include the Junior Subordinated
Debt Securities held by the Property Trustee on behalf of the Trust in the
Registered Exchange Offer pursuant to Section 2(g) hereof, the Exchange Junior
Subordinated Debt Securities or (ii) if a Distribution Event shall have occurred
prior to the Registered Exchange Offer, the Exchange Junior Subordinated Debt
Securities.
"Exchanging Dealer" means any Holder (which may include any Purchaser)
-----------------
which is a broker-dealer electing to exchange Securities acquired for its own
account as a result of market-making activities or other trading activities for
Exchange Securities.
"Final Memorandum" has the meaning set forth in the Purchase
----------------
Agreement.
"Guarantee" means the guarantee by the Company with respect to the
---------
Capital Securities and the Common Securities pursuant to the Guarantee Agreement
dated as of April 23, 1997 between the Company and the Guarantee Trustee.
"Guarantee Trustee", "Indenture Trustee" and "Property Trustee" each
----------------- ----------------- ----------------
mean The Bank of New York, a New York banking corporation.
"Holder" has the meaning set forth in the first paragraph to this
------
Agreement.
"Initial Placement" has the meaning set forth in the first paragraph
-----------------
to this Agreement.
"Junior Subordinated Debt Securities" has the meaning set forth in the
-----------------------------------
first paragraph to this Agreement.
"Junior Subordinated Indenture" means the Junior Subordinated
-----------------------------
Indenture relating to the Junior Subordinated Debt Securities and the Exchange
Junior Subordinated Debt Securities dated as of April 23, 1997 between the
Company and the Indenture Trustee.
<PAGE>
5
"Letter of Transmittal" has the meaning given to such term in Section
---------------------
2(c) hereof.
"Majority Holders" means the Holders of a majority of the aggregate
----------------
liquidation amount or of the aggregate principal amount, as applicable, of
Securities registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment
---------------------
bankers and manager or managers that shall administer an underwritten offering.
"Pass-through Securities" has the meaning set forth in the first
-----------------------
paragraph to this Agreement.
"Prospectus" means the prospectus included in any Registration
----------
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Securities or the Exchange Securities, covered by such Registration
Statement, and all amendments and supplements to the Prospectus, including post-
effective amendments.
"Purchase Agreement" has the meaning set forth in the first paragraph
------------------
to this Agreement.
"Purchasers" has the meaning set forth in the first paragraph to this
----------
Agreement.
"Registration Default" has the meaning given to such term in Section
--------------------
7(a) hereof.
"Registered Exchange Offer" means the proposed offer to the Holders to
-------------------------
issue and deliver to such Holders a like liquidation amount or principal amount,
as the case may be, of the Exchange Securities, in exchange for (i) if a
Distribution Event shall not have occurred, (a) the Pass-Through Securities and
(b) if the Company shall elect to include the Junior Subordinated Debt
Securities held by the Property Trustee on behalf of the Trust in the Registered
Exchange Offer pursuant to Section 2(g) hereof, the Junior Subordinated Debt
Securities or (ii) if a Distribution Event shall have occurred, the Junior
Subordinated Debt Securities.
"Registration Statement" means any Exchange Offer Registration
----------------------
Statement or Shelf Registration Statement that covers any of the Securities or
the Exchange Securities
<PAGE>
6
pursuant to the provisions of this Agreement, and amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Securities" means (i) if a Distribution Event shall not have
----------
occurred, (a) the Pass-through Securities and (b) if the Company shall elect to
include the Junior Subordinated Debt Securities held by the Property Trustee on
behalf of the Trust in the Registered Exchange Offer pursuant to Section 2(g)
hereof, the Junior Subordinated Debt Securities or (ii) if a Distribution Event
shall have occurred, the Junior Subordinated Debt Securities.
"Shelf Registration" means a registration effected pursuant to Section
------------------
3 hereof.
"Shelf Registration Period" has the meaning given such term in Section
-------------------------
3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration statement
----------------------------
of the Trust and the Company pursuant to the provisions of Section 3 hereof
which covers some or all of the Securities or the Exchange Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, and amendments and supplements to
such registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Trust" has the meaning set forth in the first paragraph to this
-----
Agreement.
"Trustee" means the Guarantee Trustee, the Indenture Trustee or the
-------
Property Trustee, as applicable.
"Underwriter" means any underwriter of Securities or Exchange
-----------
Securities, as applicable, in connection with an offering thereof under a Shelf
Registration Statement.
2. Registered Exchange Offer; Resales of Exchange Securities by
------------------------------------------------------------
Exchanging Dealers. (a) The Trust and the Company shall prepare and, not later
- -------------------
than 120 days following the Closing Date, shall file with the Commission the
Exchange Offer Registration Statement. The Trust and the Company shall use
their reasonable best efforts to cause the Exchange Offer Registration Statement
to become effective under the Act within 180 days following the Closing Date.
<PAGE>
7
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Trust and the Company shall use their reasonable best efforts to
promptly commence the Registered Exchange Offer, it being the objective of such
Registered Exchange Offer to enable each Holder electing to exchange Securities
for Exchange Securities (assuming that such Holder is not an affiliate of the
Trust or the Company within the meaning of the Act, acquires the Exchange
Securities in the ordinary course of such Holder's business and has no
arrangements or understandings with any person to participate in the
distribution (within the meaning of the Act) of the Exchange Securities) to
transfer such Exchange Securities from and after their receipt without any
limitations or restrictions on transfer under the Act and without material
restrictions on transfer under the securities laws of at least two-thirds of the
several states of the United States.
(c) In connection with the Registered Exchange Offer, the Trust and
the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal (a "Letter of Transmittal") and related documents;
(ii) use their reasonable best efforts to keep the Registered Exchange
Offer open for not less than 30 days after the date notice thereof is mailed
to the Holders (or longer if required by applicable law);
(iii) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York; and
(iv) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Trust and the Company shall:
(i) accept for exchange all Securities validly tendered and not
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the applicable Trustee for cancelation all Securities
so accepted for exchange; and
<PAGE>
8
(iii) cause the applicable Trustee promptly to authenticate and deliver
to each Holder of tendered Securities, Exchange Securities equal in
liquidation amount or principal amount, as the case may be, to the
Securities of such Holder so accepted for exchange therefor.
(e) The Purchasers and the Trust and the Company acknowledge that,
pursuant to interpretations by the Commission's staff of Section 5 of the Act,
and in the absence of an applicable exemption therefrom, each Exchanging Dealer
is required to deliver a Prospectus in connection with a sale of any Exchange
Securities received by such Exchanging Dealer pursuant to the Registered
Exchange Offer in exchange for Securities acquired for its own account as a
result of market-making activities or other trading activities. Accordingly,
the Trust and the Company shall:
(i) include information substantially similar to that set forth in
Annex A hereto on the cover of the Exchange Offer Registration Statement, in
Annex B hereto in the forepart of the Exchange Offer Registration Statement
in a section setting forth details of the Registered Exchange Offer, and in
Annex C hereto in the underwriting or plan of distribution section of the
Prospectus forming a part of the Exchange Offer Registration Statement, and
include the information set forth in Annex D hereto in the Letter of
Transmittal delivered pursuant to the Registered Exchange Offer; and
(ii) use their reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during the
Exchange Offer Registration Period for delivery of the Prospectus forming a
part thereof by Exchanging Dealers in connection with sales of Exchange
Securities received pursuant to the Registered Exchange Offer, as
contemplated by Section 4(h) below.
(f) In the event that the Purchasers determine that they are not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of their initial unsold
allotment, at the request of the Purchasers, the Company and the Trust, as
applicable, shall issue and deliver to the Purchasers, in exchange for such
Securities, Exchange Securities equal in liquidation amount or principal amount,
as the case may be, to such Securities (provided that such Exchange Securities
shall include legends with respect to restrictions on
<PAGE>
9
transfer), and the Company shall, starting on the date of effectiveness of the
Exchange Offer Registration Statement and ending on the close of business on the
first anniversary following such date, make available as many copies of the
Exchange Offer Registration Statement Prospectus, as amended or supplemented, as
reasonably requested by the Purchasers. The Trust and the Company shall seek to
cause the CUSIP Service Bureau to issue the same CUSIP number for such Exchange
Securities as for Exchange Securities issued pursuant to the Registered Exchange
Offer. The Purchasers agree to promptly notify the Company in writing following
the resale of their initial allotment of Securities or Exchange Securities, as
applicable.
(g) Notwithstanding anything in this Agreement to the contrary, if a
Distribution Event shall not have occurred prior to the Registered Exchange
Offer, the Company may offer to, and the Trust shall agree to, exchange the
Junior Subordinated Debt Securities held by the Property Trustee on behalf of
the Trust for an identical principal amount of Exchange Junior Subordinated Debt
Securities as part of the Registered Exchange Offer; provided, however that,
-------- -------
until a Distribution Event shall have occurred, such Exchange Junior
Subordinated Debt Securities shall include appropriate legends with respect to
transfer restrictions.
3. Shelf Registration. If, (i) because of any change in law or in
-------------------
currently prevailing interpretations thereof by the Commission's staff
(including oral interpretations), the Trust and the Company determine upon
advice of their outside counsel that they are not permitted to effect the
Registered Exchange Offer as contemplated by Section 2 hereof, (ii) for any
other reason the Registered Exchange Offer is not consummated within 210 days of
the Closing Date, (iii) as a result of the consummation of the Registered
Exchange Offer, in the opinion of a nationally recognized independent tax
counsel to the Company experienced in such matters to the effect that there is
more than an insubstantial risk that (A) if the Junior Subordinated Debt
Securities are held by or on behalf of the Trust, (x) 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 interest accrued or received on the Junior
Subordinated Debt Securities or subject to more than a de minimis amount of
----------
other taxes, duties or other governmental charges as determined by such counsel,
or (y) any portion of interest payable by the Company to the Trust on the Junior
Subordinated Debt Securities is not, or within 90 days of the date of such
opinion will not be, deductible by the Company in whole of in part for United
States federal income tax purposes or (B) with respect to
<PAGE>
10
Junior Subordinated Debt Securities which are no longer held by or on behalf of
the Trust, any portion of interest payable by the Company on the Junior
Subordinated Debt Securities 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 (iv) in the event that the Purchasers
participate in the Registered Exchange Offer or acquire Exchange Securities
pursuant to Section 2(f) hereof and the Purchasers do not receive freely
tradeable Exchange Securities in exchange for Securities constituting any
portion of an unsold allotment (it being understood that, for purposes of this
Section 3, (x) the requirement that the Purchasers deliver a Prospectus
containing the information required by Items 507 and/or 508 of Regulation S-K
under the Act in connection with sales of Exchange Securities acquired in
exchange for such Securities shall result in such Exchange Securities being not
"freely tradeable" but (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of Exchange Securities acquired in the
Registered Exchange Offer in exchange for Securities acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Securities being not "freely tradeable"), the following provisions
shall apply:
(a) The Trust and the Company shall, as promptly as practicable (but
in no event more than 60 days after so required or requested pursuant to this
Section 3), file with the Commission and thereafter use their reasonable best
efforts to cause to be declared effective under the Act a Shelf Registration
Statement relating to the offer and sale of the Securities or the Exchange
Securities, as applicable, by the Holders from time to time in accordance with
the methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement; provided, however, that with respect to Exchange
-------- -------
Securities received by the Purchasers in exchange for Securities constituting
any portion of an unsold allotment, the Trust and the Company may, if permitted
by current interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507 and/or 508, as applicable, in
satisfaction of their obligations under this paragraph (a) with respect thereto,
and any such Exchange Offer Registration Statement, as so amended, shall be
referred to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement.
(b) The Trust and the Company shall use their reasonable best efforts
to keep the Shelf Registration Statement continuously effective in order to
permit the
<PAGE>
11
Prospectus forming part thereof to be usable by Holders for a period of (i) two
years or (ii) one year in the event that the Shelf Registration Statement is
requested by the Purchasers pursuant to Section 3(iii), from the Closing Date or
such shorter period that will terminate when all the Securities or Exchange
Securities, as applicable, covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period").
4. Registration Procedures. In connection with any Shelf
------------------------
Registration Statement and, to the extent specified, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Trust and the Company shall furnish to each Purchaser, prior
to the filing thereof with the Commission, a copy of any Shelf Registration
Statement and any Exchange Offer Registration Statement, and each amendment
thereof and each amendment or supplement, if any, to the Prospectus included
therein and shall use their best efforts to reflect in each such document,
when so filed with the Commission, such comments as you reasonably may
propose.
(b) The Trust and the Company shall take such actions as may be
necessary so that (i) any Registration Statement and any amendment thereto
and any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act and the rules and
regulations thereunder, (ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and (iii)
any Prospectus forming part of any Registration Statement, and any amendment
or supplement to such Prospectus, does not, during the period when delivery
thereof is required, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements, in the
light of the circumstances under which they were made, not misleading.
(c) (1) The Trust and the Company shall advise the Purchasers and, in
the case of a Shelf Registration Statement, the Holders of Securities
covered thereby to the extent specified in (i) below, and, if requested by
you or any such Holder, confirm such advice in writing:
<PAGE>
12
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus included
therein or for additional information.
(2) The Trust and the Company shall advise the Purchasers and, in the
case of a Shelf Registration Statement, the Holders of Securities covered
thereby, and, in the case of an Exchange Offer Registration Statement, any
Exchanging Dealer which has provided in writing to the Trust and the
Company a telephone or facsimile number and address for notices, and, if
requested by you or any such Holder or Exchanging Dealer, confirm such
advice in writing:
(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Company or the Trust of any
notification with respect to (a) the suspension of the qualification
of the securities included therein for sale in any jurisdiction or (b)
the initiation or threatening of any proceeding for such purpose; and
(iii) of the suspension of the use of the Prospectus.
(d) The Trust and the Company shall use their best efforts to obtain
the withdrawal of any order suspending the effectiveness or use of any
Registration Statement at the earliest possible time.
(e) The Trust and the Company shall furnish to each Holder of
Securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing, all
exhibits (including those incorporated by reference).
<PAGE>
13
(f) The Trust and the Company shall, during the Shelf Registration
Period, deliver to each Holder of Securities included within the coverage
of any Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such
Holder may reasonably request; and the Trust and the Company consent to the
use of the Prospectus or any amendment or supplement thereto as to which no
notice has been given pursuant to paragraph 4(c)(2) above by each of the
selling Holders of Securities in connection with the offering and sale of
the Securities covered by the Prospectus or any amendment or supplement
thereto during the Shelf Registration Period.
(g) The Trust and the Company shall furnish to each Exchanging Dealer
which so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, any documents incorporated by reference
therein, and, if the Exchanging Dealer so requests in writing, all exhibits
(including those incorporated by reference).
(h) The Trust and the Company shall, during the Exchange Offer
Registration Period, deliver as promptly as practicable to each Exchanging
Dealer without charge, as many copies of the Prospectus included in such
Exchange Offer Registration Statement and any amendment or supplement
thereto as such Exchanging Dealer may reasonably request for delivery by
such Exchanging Dealer in connection with a sale of Exchange Securities
received by it pursuant to the Registered Exchange Offer; and the Trust and
the Company consent to the use of the Prospectus or any amendment or
supplement thereto as to which no notice has been given pursuant to
paragraph 4(c)(2) above by any such Exchanging Dealer, as aforesaid during
the Exchange Offer Registration Period.
(i) Prior to the Registered Exchange Offer or the effectiveness of a
Registration Statement with respect to any other offering of Securities,
the Trust and the Company shall, if required by applicable law, register or
qualify or cooperate with the Holders of Securities included therein and
their respective counsel in connection with the registration or
qualification of such Securities for offer and sale under the securities or
blue sky laws of such jurisdictions in the United States as any such
Holders reasonably request in
<PAGE>
14
writing and do any and all other acts or things necessary or advisable to
enable the offer and sale in such United States jurisdictions of the
securities covered by such Registration Statement; provided, however, that
-------- --------
neither the Trust nor the Company will be required to qualify generally to
do business in any jurisdiction where it is not then so qualified, to take
any action which would subject it to general service of process or to
taxation in any such jurisdiction where it is not then so subject, to
consent to the service of process under the laws of any such state or to
make any change to its articles of incorporation or bylaws, or the
Declaration, as applicable.
(j) Unless the applicable securities shall be in book-entry only
form, the Trust and the Company shall cooperate with the Holders of
Securities to facilitate the timely preparation and delivery of
certificates representing Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request prior to
sales of securities pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraphs
4(c)(1)(ii) or 4(c)(2)(iii) above, the Trust and the Company shall prepare
as soon as possible a post-effective amendment to any Registration
Statement or an amendment or supplement to the related Prospectus or file
any other required document so that, as thereafter delivered to purchasers
of the securities included therein, the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except, in each case, for an
untrue statement of a material fact or omission of a material fact made in
reliance on and in conformity with written information furnished to the
Company or the Trust by or on behalf of the Holders specifically for use
therein).
(l) The Trust and the Company shall use their best efforts to cause
The Depository Trust Company ("DTC") on the first business day following
the effective date of any Shelf Registration Statement hereunder or as soon
as possible thereafter to remove (i) from any existing CUSIP number
assigned to the Pass-through Securities or Junior Subordinated Debt
Securities, as the case may be, any designation indicating that such
securities are "restricted
<PAGE>
15
securities", which efforts shall include delivery to DTC of a letter
executed by the Trust and the Company substantially in the form of Annex E
hereto and (ii) any other stop or restriction on DTC's system with respect
to such securities. In the event the Trust and the Company are unable to
cause DTC to take the actions described in the immediately preceding
sentence, the Company shall take such actions as Salomon Brothers Inc may
reasonably request to provide, as soon as practicable, a CUSIP number for
the Pass-through Securities or Junior Subordinated Debt Securities, as the
case may be, registered under such Registration Statement and to cause such
CUSIP number to be assigned to such securities (or to the maximum aggregate
principal amount of such securities to which such number may be assigned).
Upon compliance with the foregoing requirements of this Section 4(l), the
Trust and the Company shall provide the applicable Trustee with printed
certificates for such securities, in a form eligible for deposit with DTC.
(m) The Trust and the Company shall use their best efforts to comply
with all applicable rules and regulations of the Commission and shall make
generally available to the Trust's security holders as soon as practicable
after the effective date of the applicable Registration Statement an
earnings statement satisfying the provisions of Section 11(a) of the Act.
(n) The Trust and the Company shall cause the Junior Subordinated
Indenture, the Declaration and the Guarantee to be qualified under the
Trust Indenture Act in a timely manner.
(o) The Trust and the Company may require each Holder of securities
to be sold pursuant to any Shelf Registration Statement to furnish to the
Trust and the Company such information regarding such Holder and the
distribution of such securities by such Holder as the Trust and the Company
may from time to time reasonably require for inclusion in such Registration
Statement, and Securities of a Holder which does not provide information
necessary for inclusion in such Registration Statement within a reasonable
time after receiving such request may be omitted from any Shelf
Registration Statement.
(p) The Trust and the Company shall, if reasonably requested, and in
no event more than three times, promptly incorporate in a Prospectus
supplement or post-effective amendment to a Shelf Registration
<PAGE>
16
Statement, such information as the Managing Underwriters reasonably agree
should be included therein and shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as notified of
the matters to be incorporated in such Prospectus supplement or post-
effective amendment.
(q) In the case of any Shelf Registration Statement, the Trust and
the Company shall enter into such agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite or
facilitate the registration or the disposition of the Securities or the
Exchange Securities, as the case may be, as the Holders of at least a
majority in aggregate principal amount or liquidation amount, as
applicable, of outstanding Securities that have not been registered shall
reasonably request in writing and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set
forth in Section 6 (or such other provisions and procedures acceptable to
the Majority Holders and the Managing Underwriters, if any) with respect to
all parties to be indemnified pursuant to Section 6; provided that the
--------
Company and the Trust shall not be required to enter into any such
agreement more than once with respect to the Securities or the Exchange
Securities and may delay entering into such agreement until the
consummation of any underwritten public offering which the Company shall
have undertaken; and provided, further that such delay shall in no event be
-------- -------
for more than 75 days from the date such written notice is received by the
Company.
(r) In the case of any Shelf Registration Statement, the Trust and
the Company shall (i) make reasonably available for inspection by the
Holders of securities to be registered thereunder, subject to their
acceptance of the provisions of this Section 4(r), any underwriter
participating in any distribution pursuant to such Registration Statement,
and any attorney, accountant or other agent retained by the Holders or any
such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Trust or the Company and its
subsidiaries as shall reasonably be required in connection with the
discharge of their due diligence obligations; (ii) cause the Company's
officers, directors and employees and any relevant trustee to supply all
relevant information reasonably requested by the Holders or any such
underwriter, attorney,
<PAGE>
17
accountant or agent in connection with any such Registration Statement as
is customary for similar due diligence examinations; provided, however,
-------- -------
that in the case of clauses (i) and (ii) above, any information that is
designated in writing by the Trust or the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by the Holders and any such underwriter, attorney, accountant
or agent, unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes available to the
public generally or through a third party without an accompanying
obligation of confidentiality; and provided further, however, that the
-------- ------- -------
foregoing inspection and information gathering shall be coordinated on
behalf of the Holders and the other parties entitled thereto by one counsel
designated by and on behalf of such Holders and other parties and
reasonably acceptable to the Company and the Trust; (iii) make such
representations and warranties to the Holders of securities registered
thereunder and the underwriters, if any, in form, substance and scope as
are customarily made by issuers to underwriters in primary underwritten
offerings and covering such matters as are customarily covered in
representations and warranties requested in primary underwritten offerings;
(iv) obtain opinions of counsel to the Trust and the Company (who may be
general counsel of the Company) and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to
the Managing Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters and with such exceptions as are
customarily covered or taken in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such
Holders and underwriters (it being agreed that the matters to be covered by
such counsel shall include, without limitation, as of the date of the
opinions and as of the effective date of the Registration Statement or most
recent post-effective amendment thereto, as the case may be, a statement by
such counsel regarding the absence from such Registration Statement and the
final Prospectus included therein, as then amended or supplemented,
including the documents incorporated by reference therein, of an untrue
statement of a material fact or the omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading); (v) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the Company
<PAGE>
18
(and, if necessary, any other independent certified public accountants of
any subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to each selling
Holder of securities registered thereunder and the underwriters, if any, in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with primary underwritten offerings;
and (vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if any,
including those to evidence compliance with Section 4(k) and with any
customary conditions contained in the underwriting agreement or other
agreement entered into by the Trust and the Company. The foregoing actions
set forth in clauses (iii) and (v) of this Section 4(r) shall be performed
at (A) the effectiveness of such Registration Statement and each post-
effective amendment thereto and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(s) In the case of any Exchange Offer Registration Statement, if
requested by the Purchasers, the Trust and the Company shall (i) make
reasonably available for inspection by the Purchasers, and any attorney,
accountant or other agent retained by the Purchasers, all relevant
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries or the Trust as shall reasonably be
required in connection with the discharge of their due diligence
obligations; (ii) cause the Company's officers, directors and employees and
any relevant trustee to supply all relevant information reasonably
requested by the Purchasers or any such attorney, accountant or agent in
connection with any such Registration Statement as is customary for similar
due diligence examinations; provided, however, that, in the case of clauses
-------- -------
(i) and (ii) above, any information that is designated in writing by the
Company or the Trust, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the Purchasers
and any such attorney, accountant or agent, unless such disclosure is made
in connection with a court proceeding or required by law, or such
information becomes available to the public generally or through a third
party without an accompanying obligation of confidentiality; (iii) make
such representations and warranties to the Purchasers, in form, substance
and scope as are customarily made by
<PAGE>
19
issuers to underwriters in primary underwritten offerings and covering such
matters; (iv) obtain opinions of counsel to the Trust and the Company (who
may be the general counsel of the Company) and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the Purchasers and their counsel), addressed to the
Purchasers, covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by the Purchasers or their counsel (it being agreed
that the matters to be covered by such counsel shall include, without
limitation, as of the date of the opinions and as of the effective date of
the Registration Statement or most recent post-effective amendment thereto,
as the case may be, a statement by such counsel regarding the absence from
such Registration Statement and the final Prospectus included therein, as
then amended or supplemented, including the documents incorporated by
reference therein, of an untrue statement of a material fact or the
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading); (v) obtain "cold
comfort" letters and updates thereof from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to the Purchasers, in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings, or if requested by the
Purchasers or their counsel in lieu of a "cold comfort" letter, an agreed-
upon procedures letter under Statement on Auditing Standards No. 35,
covering matters requested by the Purchasers or their counsel; and (vi)
deliver such documents and certificates as may be reasonably requested by
the Majority Holders and the Purchasers, including those to evidence
compliance with Section 4(k) and with conditions customarily contained in
underwriting agreements. The foregoing actions set forth in clauses (iii)
and (v) of this Section 4(s) shall be performed, if requested by the
Purchasers, at the closing of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
<PAGE>
20
5. Registration Expenses. The Trust and the Company shall bear all
----------------------
expenses incurred in connection with the performance of their obligations
under Sections 2, 3 and 4 hereof and, in the event of any Shelf
Registration Statement, will reimburse the Holders for the reasonable fees
and disbursements of one firm or counsel designated by the Majority Holders
and reasonably acceptable to the Company to act as counsel for the Holders
in connection therewith, and, in the case of any Exchange Offer
Registration Statement, will reimburse the Purchasers for the reasonable
fees and disbursements of one firm or counsel reasonably acceptable to the
Company acting as counsel to the Purchasers.
6. Indemnification and Contribution. (a) In connection with any
---------------------------------
Registration Statement, the Company agrees to indemnify and hold harmless
each Holder of securities covered thereby (including any Purchaser and,
with respect to any Prospectus delivery as contemplated in Section 4(h)
hereof, each Exchanging Dealer), the directors, officers, employees and
agents of each such Holder and each person who controls any such Holder
within the meaning of either the Act or the Exchange Act against any and
all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
--------
however, that (i) the Company will not be liable in any case to the extent
-------
that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Trust and the Company by or on behalf
of any such Holder specifically for inclusion therein and (ii) such
indemnity with respect to any preliminary Prospectus relating to a Shelf
Registration Statement shall
<PAGE>
21
not inure to the benefit of any Holder or Purchaser (or the directors,
officers, employees and agents of such Holder or Purchaser and any person
controlling such Holder or Purchaser) from whom the person asserting any
such loss, claim, damage or liability purchased the securities that are the
subject thereof, if a copy of the final Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of the
Purchasers or such Holder, if such is required by law, at or prior to the
written confirmation of the sale of such securities to such person and if
the final Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage or liability. This indemnity
agreement will be in addition to any liability which the Trust and the
Company may otherwise have.
The Company also agrees to indemnify or contribute to Losses (as
defined below) of, as provided in Section 6(d), any underwriters of
securities registered under a Shelf Registration Statement and each person
who controls such underwriters on substantially the same basis as that of
the indemnification of the Purchasers and the selling Holders provided in
this Section 6(a) and shall, if requested by any underwriter and required
by Section 4(q) hereof, enter into an underwriting agreement reflecting
such agreement.
(b) Each Underwriter or Holder of securities covered by a
Registration Statement (including the Purchasers and, with respect to any
Prospectus delivery as contemplated in Section 4(h) hereof, each Exchanging
Dealer) shall be required to severally agree to indemnify and hold harmless
(i) the Trust and the Company, (ii) each of the Company's directors, (iii)
each of the Company's officers or any trustee who signs such Registration
Statement and (iv) each person who controls the Company or the Trust within
the meaning of either the Act or the Exchange Act to the same extent as the
foregoing indemnity from the Company to each such Underwriter or Holder,
but only with reference to written information relating to such Underwriter
or Holder furnished to the Trust or the Company by or on behalf of such
Underwriter or Holder specifically for inclusion in the documents referred
to in the foregoing indemnity. This indemnity agreement will be in addition
to any liability which any such Underwriter or Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
<PAGE>
22
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above or
paragraph (d) below unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than obligations provided under this Section 6. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
-------- -------
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel) (it
being understood that the indemnifying party shall not be liable for the
fees, costs and expenses of more than one separate counsel (and, to the
extent necessary, one local counsel in each jurisdiction)), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel (and local counsel) if (i) the use of counsel chosen
by the indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the indemnified
party to represent the indemnified party within a reasonable time after
notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without
the prior written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such
<PAGE>
23
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party,
in lieu of indemnifying such indemnified party, shall have a joint and
several obligation to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending the same) (collectively
"Losses") to which such indemnified party may be subject in such proportion
as is appropriate to reflect the relative benefits received by such
indemnifying party, on the one hand, and such indemnified party, on the
other hand, from the Initial Placement and the Registration Statement which
resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party
and the indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Trust and the Company
shall be deemed to be equal to the total net proceeds from the Initial
Placement (before deducting expenses) as set forth on the cover page of the
Final Memorandum. Benefits received by the Purchasers shall be deemed to be
equal to the total purchase discounts, commissions or compensation as set
forth on the cover page of the Final Memorandum, and benefits received by
any other Holders shall be deemed to be equal to the excess, if any, of the
value to such Holder of receiving Securities or Exchange Securities, as
applicable, registered under the Act over the value to such Holder of
holding Securities not registered under the Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts
and commissions, as set forth on the cover page of the Prospectus forming a
part of the Registration Statement which resulted in such Losses. Relative
fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the indemnifying
party, on the one hand, or by the indemnified party, on the other hand. The
parties agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which
does not take account of
<PAGE>
24
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 6, each person who controls a Holder within the meaning
of either the Act or the Exchange Act and each director, officer, employee and
agent of such Holder shall have the same rights to contribution as such Holder,
and each person who controls the Company or the Trust within the meaning of
either the Act or the Exchange Act, each officer of the Company and each trustee
of the Trust who shall have signed the Registration Statement and each director
of the Company and each trustee of the Trust shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder, the
Company or the Trust or any of the officers, directors, trustees or controlling
persons referred to in Section 6 hereof, and will survive the sale by a Holder
of securities covered by a Registration Statement.
7. Special Interest and Additional Distributions Under Certain
-----------------------------------------------------------
Circumstances. (a) Special Interest ("Special Interest") shall become payable
- --------------
in respect of the Junior Subordinated Debt Securities (including in respect of
amounts accruing during any Extension Period (as defined in the Junior
Subordinated Indenture)), and corresponding additional distributions (the
"Additional Distributions") shall become payable on the Capital Securities as
follows if any of the following events occur (each such event in clauses (i)
through (iv) below, a "Registration Default"):
(i) if an Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 120th day following the Closing Date, unless
such failure to file is permitted pursuant to Section 3 hereof and the
Shelf Registration Statement is filed on or prior to such 120th day;
(ii) if the Exchange Offer Registration Statement is not declared
effective on or prior to the 180th day following the Closing Date, unless
such Exchange Offer Registration Statement is not required to be declared
effective pursuant to Section 3 hereof;
<PAGE>
25
(iii) if the Registered Exchange Offer is not consummated on or prior
to the 210th day following the Closing Date, unless a Registered Exchange
Offer is not required to be consummated pursuant to Section 3 hereof and
the Shelf Registration Statement has been declared effective on or prior to
such 210th day; or
(iv) if, after the 210th day following the Closing Date and after the
Shelf Registration Statement is declared effective (if a Shelf Registration
Statement is required to be filed pursuant to Section 3 hereof), such Shelf
Registration Statement ceases to be effective prior to the end of the Shelf
Registration Period (except as permitted in paragraph (b) of this Section
7).
Special Interest and Additional Distributions shall accrue on the
Junior Subordinated Debt Securities and the Capital Securities, respectively,
over and above the interest rate or distribution rate, as the case may be, set
forth in the title to the Junior Subordinated Debt Securities and the Capital
Securities, respectively, following the occurrence of each Registration Default
set forth in clauses (i), (ii), (iii) and (iv) above from and including the next
day following each such Registration Default, in each case at a rate equal to
0.25% per annum of the principal amount or liquidation amount, as applicable,
(to be increased to 0.50% if and when the Shelf Registration Statement is no
longer effective for 60 days or more), without prejudice to any other claim that
any Holder may have for any failure by the Company to obtain or maintain
continuous effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration Statement in accordance with the terms of this Registration
Agreement; provided, however, that the aggregate amount of Special Interest and
-------- -------
Additional Distributions, respectively, payable pursuant this Section 7(a) will
in no event exceed 0.50% per annum of the principal amount or liquidation
amount, as applicable. The Special Interest and the Additional Distributions
attributable to each Registration Default shall cease to accrue from the date
such Registration Default is cured, and the interest rate and the distribution
rate payable on the Junior Subordinated Debt Securities and the Capital
Securities, respectively, will each be reduced to the rate set forth in the
titles to such Junior Subordinated Debt Securities and Capital Securities.
(b) A Registration Default referred to in Section 7(a)(iv) shall be
deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default
<PAGE>
26
has occurred solely as a result of (x) the filing of a post-effective amendment
to such Shelf Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related Prospectus or (y) the occurrence of other material events or
developments with respect to the Trust or the Company that would need to be
described in such Registration Statement or the related Prospectus and (ii) in
the case of clause (y), the Trust and the Company are proceeding promptly and in
good faith to amend or supplement such Registration Statement and related
Prospectus to describe such events.
(c) Any amounts of Special Interest and Additional Distributions due
pursuant to the foregoing paragraphs will be payable in cash on the 15th day of
January, April, July and October of each year to the holders of record at the
close of business on the Business Day next preceding each such date. In the
event that any date on which Special Interest and Additional Interest is payable
is not a Business Day, payment of the Special Interest and Additional Interest
payable on such date will be made on the next succeeding day that is a Business
Day (and without any Special Interest and Additional Interest or other payments
in respect to any such delay) with the same force and effect as if made on the
date such payment was originally payable.
8. Miscellaneous.
--------------
(a) No Inconsistent Agreements. Each of the Trust and the Company has
--------------------------
not, as of the date hereof, entered into, nor shall it, on or after the
date hereof, enter into, any agreement with respect to the Securities that
is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Trust and the Company have
obtained the written consent of the Holders of at least a majority of the
then outstanding aggregate liquidation amount or principal amount, as the
case may be, of Securities (or, after the consummation of any Exchange
Offer in accordance with Section 2 hereof, of Exchange Securities);
provided, however, that, with respect to any matter that affects the rights
-------- -------
of any Purchaser hereunder, the
<PAGE>
27
Trust and the Company shall obtain the written consent of the Purchasers.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by the Majority Holders,
determined on the basis of securities being sold rather than registered under
such Registration Statement.
(c) Notices. All notices and other communications provided for or
--------
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such
holder to the Company in accordance with the provisions of this
Section 8(c), which address initially is, with respect to each Holder,
the address of such Holder maintained by the Registrar under the
Indenture, with a copy in like manner to Salomon Brothers Inc;
(2) if to you, initially at the address set forth in the Purchase
Agreement; and
(3) if to the Company or the Trust, initially at the address set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Purchasers, the Trust or the Company by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the
-----------------------
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company or the Trust thereto, subsequent Holders of Securities and/or
Exchange Securities. The Trust and the Company hereby agree to extend the
benefits of this Agreement to any Holder of Securities and/or Exchange
Securities and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
<PAGE>
28
(e) Counterparts. This Agreement may be executed in any number of
-------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
---------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed
--------------
in accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State.
(h) Severability. In the event that any one or more of the
-------------
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Trust or the Company, etc. Whenever the
-------------------------------------------------
consent or approval of Holders of a specified percentage of liquidation amount
or principal amount, as the case may be, of Securities or Exchange Securities is
required hereunder, Securities or Exchange Securities, as applicable, held by
the Trust or the Company or their respective Affiliates (other than subsequent
Holders of Securities or Exchange Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities or
Exchange Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(j) Underwritten Offerings.
-----------------------
(i) If any of the Securities or Exchange Securities covered by the
Shelf Registration are to be sold pursuant to an underwritten offering, the
Managing Underwriter or Managing Underwriters thereof shall be designated
by the Holders of at least a majority in aggregate principal amount or
liquidation amount, as applicable, to be included in such offering,
provided that such designated Managing Underwriter(s) is or are reasonably
acceptable to the Company.
<PAGE>
29
(ii) Each Holder of Securities or Exchange Securities hereby agrees
with each other such Holder that no such Holder may participate in any
underwritten offering hereunder unless such Holder agrees to sell such
Holder's Securities or Exchange Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other
documents reasonably required under the terms of such underwriting
arrangements.
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
among the Trust, the Company and you.
Very truly yours,
CENTRAL FIDELITY CAPITAL TRUST I
by: /s/ John T. Percy, Jr.
-------------------------------
Name: John T. Percy, Jr.
Title: Executive Corporate
Vice President
CENTRAL FIDELITY BANKS, INC.
by: /s/ Charles W. Tysinger
-------------------------------
Name: Charles W. Tysinger
Title: Executive Corporate
Vice President
<PAGE>
Accepted in New York, New York
April 23, 1997
SALOMON BROTHERS INC
KEEFE, BRUYETTE & WOODS, INC.
by: SALOMON BROTHERS INC
on behalf of the Initial Purchasers
by: /s/ Charles R. Fendig
-----------------------
Name: Charles R. Fendig
Title: Vice President
<PAGE>
ANNEX A
Annex A
-------
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange 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. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Trust and the Company have agreed
that, ending on the close of business on the first anniversary following the
Expiration Date (as defined herein), it will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See "Plan of
Distribution".
<PAGE>
ANNEX B
Annex B
-------
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such 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 Securities. See "Plan of Distribution".
<PAGE>
ANNEX C
Plan of Distribution
--------------------
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired by such broker-
dealer as a result of market-making activities or other trading activities. The
Trust and the Company have agreed that, starting on the Expiration Date and
ending on the close of business on the first anniversary following the
Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until , 199 , all dealers effecting transactions in the
Exchange Securities may be required to deliver a prospectus.
The Trust and the Company will not receive any proceeds from any sale
of Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
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 commissions or concessions from any such broker-dealer and/or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to the
Exchange Offer and any broker or dealer that participates in a distribution of
such Exchange Securities may be deemed to be an "underwriter" within the meaning
of the Securities Act and any profit of any such resale of Exchange 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.
For a period of one year after the Expiration Date, the Trust and the
Company will promptly send
<PAGE>
2
additional copies of this Prospectus and any amendment or supplement to this
Prospectus to any broker-dealer that requests such documents in the Letter of
Transmittal. The Trust and the Company have agreed to pay all expenses incident
to the Exchange Offer (including the expenses of one counsel for the holders of
the Securities) other than commissions or concessions of any brokers or dealers
and will indemnify the holders of the Securities (including any broker-dealers)
against certain liabilities, including liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
<PAGE>
ANNEX D
Rider A
-------
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:_________________________________________________________________
Address:______________________________________________________________
______________________________________________________________
Rider B
-------
If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities. If the undersigned is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for Exchange Securities were
acquired by it as a result of market-making activities or other trading
activities and acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act.
<PAGE>
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
Central Fidelity Capital Trust I
Central Fidelity Banks, Inc.
1021 East Cary Street
P.O. Box 27602
Richmond, Virginia 23261-7602
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, NY 10004
Re: Floating Rate Capital Trust Pass-through Securities/sm/
(TruPS/sm/) (the "Securities") of Central Fidelity Capital Trust
I, fully and unconditionally guaranteed by Central Fidelity
Banks, Inc.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission has
declared effective a Registration Statement on Form S-3 under the Securities Act
of 1933 with regard to all of the Securities referenced above. Accordingly,
there is no longer any restriction as to whom such Securities may be sold and
any restrictions on the CUSIP designation are no longer appropriate and may be
removed. The undersigned understand that upon receipt of this letter, DTC will
remove any stop or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of further
assistance.
CENTRAL FIDELITY CAPITAL TRUST I,
by:
-----------------------------
Authorized Officer
CENTRAL FIDELITY BANKS, INC.,
by:
-----------------------------
Authorized Officer
<PAGE>
Exhibit 5.1
June 10, 1997
Central Fidelity Banks, Inc.,
1021 East Cary Street,
P.O. Box 27602,
Richmond, Virginia 23261.
Central Fidelity Capital Trust I,
1021 East Cary Street,
P.O. Box 27602,
Richmond, Virginia 23261.
Dear Sirs:
In connection with the registration under the Securities Act of 1933 (the
"Act") of (i) $100,000,000 aggregate Liquidation Amount of Floating Rate Capital
Trust Pass-through Securities, Series A, Liquidation Amount $1,000 per security
(the "Capital Securities") to be issued by Central Fidelity Capital Trust I, a
statutory business trust created under the laws of the State of Delaware (the
"Issuer"), (ii) the guarantee with respect to the Capital Securities (the
"Guarantee") to be executed and delivered by
<PAGE>
Central Fidelity Banks, Inc.
Central Fidelity Capital Trust I -2-
Central Fidelity Banks, Inc., a Virginia corporation (the "Company"), and (iii)
$100,000,000 aggregate principal amount of Floating Rate Junior Subordinated
Debt Securities, Series A (the "Junior Subordinated Debt Securities") of the
Company, we, as your special counsel, have examined such trust and corporate
records, certificates and other documents, and such questions of law, as we have
considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our opinion,
when:
(i) the Registration Statement relating to the Capital Securities, the
Guarantee and the Junior Subordinated Debt Securities (the "Registration
Statement") has become effective under the Act;
(ii) the terms of the Guarantee and of its issuance and delivery have
been duly established so as not to violate any applicable law or result in a
default under or breach of any agreement or instrument binding upon the
Company and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company, and the
Guarantee Agreement relating to the Guarantee
<PAGE>
Central Fidelity Banks, Inc.
Central Fidelity Capital Trust I -3-
has been duly executed and delivered as contemplated in the Registration
Statement;
(iii) the terms of the Junior Subordinated Debt Securities and of their
issuance and delivery have been duly established in conformity with the
Junior Subordinated Indenture relating to the Junior Subordinated Debt
Securities (the "Indenture") so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument binding
upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the
Company, and the Junior Subordinated Debt Securities have been duly
executed and authenticated in accordance with the Indenture and issued and
delivered as contemplated in the Registration Statement; and
(iv) the terms of the Capital Securities and of their issuance and
delivery have been duly established in conformity with the Amended and
Restated Declaration of Trust of the Issuer (the "Declaration") so as not
to violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon
<PAGE>
Central Fidelity Banks, Inc.
Central Fidelity Capital Trust I -4-
the Issuer and so as to comply with any requirement or restriction imposed
by any court or governmental body having jurisdiction over the Issuer, and
the Capital Securities have been duly executed and authenticated in
accordance with the Declaration and issued and delivered as contemplated in
the Registration Statement;
the Guarantee and the Junior Subordinated Debt Securities will constitute valid
and legally binding obligations of the Company, 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.
The foregoing opinion is limited to the Federal laws of the United States
and the laws of the States of New York and Virginia, and we are expressing no
opinion as to the effect of the laws of any other jurisdiction. With respect to
all matters of Virginia law, we have relied upon the opinion, dated as of the
date hereof, of Williams, Mullen, Christian & Dobbins, and our opinion is
subject to the same assumptions, qualifications and limitations with respect to
such matters as are contained in the opinion of
<PAGE>
Cental Fidelity Banks, Inc.
Central Fidelity Capital Trust I -5-
Williams, Mullen, Christian & Dobbins. We believe you and we are justified in
relying on such opinion for such matters.
We understand that you have received an opinion, dated as of the date
hereof, regarding the Capital Securities from Richards, Layton & Finger, LLP,
special Delaware counsel for the Company and the Issuer. We are expressing no
opinion with respect to the matters contained in such opinion.
Also, we have relied as to certain matters on information obtained from
public officials, officers of the Company and the Issuer and other sources
believed by as to be responsible, and we have assumed that the Indenture has
been duly authorized, executed and delivered by the Trustee thereunder, an
assumption which we have not independently verified.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Validity of
New Securities" in the Prospectus. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Act.
<PAGE>
Central Fidelity Banks, Inc.
Central Fidelity Capital Trust I -6-
Very truly yours,
/s/ Sullivan & Cromwell
<PAGE>
Exhibit 5.2
June 10, 1997
Central Fidelity Capital Trust I
c/o Central Fidelity Banks, Inc.
1021 East Cary Street
P.O. Box 27602
Richmond, VA 23261
Re: Central Fidelity Capital Trust I
--------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Central Fidelity Banks,
Inc., a Virginia corporation (the "Depositor") and Central Fidelity 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 April 2, 1997 (the
"Certificate"), as filed in the office of the Secretary of State of the State of
Delaware (the "Secretary of State") on April 2, 1997;
(b) The Trust Agreement of the Trust, dated as of April 2, 1997,
between the Depositor and the trustees of the Trust named therein;
(c) The Amended and Restated Declaration of Trust of the Trust,
dated as of April 23, 1997 (the "Declaration"), among the Depositor, The Bank of
New York, a New York banking corporation, as property trustee (the "Property
Trustee"), The Bank of New York (Delaware), a Delaware banking corporation, as
Delaware trustee (the "Delaware
<PAGE>
Central Fidelity Capital Trust I
June 10, 1997
Page 2
Trustee"), and the administrative trustees of the Trust named therein (the
"Administration Trustees");
(d) The Registration Statement (the "Registration Statement") on
Form S-4, including a preliminary prospectus (the "Prospectus") relating to the
Floating Rate Capital Trust Pass-through Securities, Series A of the Trust
representing undivided beneficial interests in the assets of the Trust (each, a
"New Capital Security" and collectively, the "New Capital Securities"), as
proposed to be filed by the Depositor and the Trust with the Securities and
Exchange Commission on or about June 10, 1997;
(e) The Purchase Agreement;
(f) The Registration Agreement dated April 23, 1997, among the
Trust, the Depositor and the Initial Purchasers (the "Registration Agreement");
(g) a Certificate of Good Standing for the Trust, dated June __,
1997, obtained from the Secretary of State; and
(h) the form of the New Capital Securities.
Initially capitalized terms used herein and not otherwise defined
are used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (h) above. In
particular, we have not reviewed any document (other than the documents listed
in paragraphs (a) through (h) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that 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
Declaration and the Certificate constitute the entire agreement among the
parties thereto with respect to the subject matter thereof, and that such
agreements are in full force and effect, have not been amended
<PAGE>
Central Fidelity Capital Trust I
June 10, 1997
Page 3
and no amendment of such agreements is pending or has been proposed, (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 New Capital Security is to be issued by the Trust (collectively, the "Capital
Security Holders") of a Capital Securities Certificate for such New Capital
Security and the payment for the Capital Security acquired by it, in accordance
with the Declaration, the Registration Statement and the Prospectus and by it,
in accordance with the Declaration, the Registration Statement and the
Prospectus and (vii) that the New Capital Securities are issued in accordance
with the Declaration and delivered to the Capital Security Holders in the
exchange offer as contemplated by the Registration Statement and the Prospectus.
We have not participated in the preparation of the Registration Statement or the
Prospectus and assume no responsibility for their 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 that 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:
1. The Trust has bee duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The New Capital Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interest in the assets of the Trust.
3. The Capital Securities 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 Capital Securities
Holders may be obligated to make payments as set forth in the Declaration.
<PAGE>
Central Fidelity Capital Trust I
June 10, 1997
Page 4
This opinion may be relied upon by you and your permitted transferees in
connection with the matters set forth herein, subject to the understanding that
the opinions rendered herein are given on the date hereof and such opinions are
rendered only with respect to laws, rules and regulations thereunder in effect
as of such date. We also consent to Sullivan & Cromwell relying as to matters of
Delaware law upon this opinion in connection with opinions to be rendered by it
on the date hereof. We consent to the filing of this opinion with the Securities
and Exchange Commission 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 Securities and Exchange Commission 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,
/s/Richards, Layton & Finger
<PAGE>
EXHIBIT 8
June 10, 1997
Central Fidelity Capital Trust I,
c/o Central Fidelity Banks, Inc.,
1021 East Cary Street,
P. O. Box 27602,
Richmond, Virginia 23261.
Ladies and Gentlemen:
As special tax counsel to Central Fidelity Capital Trust I (the "Issuer
Trust") and Central Fidelity Banks, Inc., a Virginia corporation, in connection
with the exchange offer by the Issuer Trust of $100,000,000 of its Floating Rate
Capital Trust Pass-through Securities, Series A (the "Securities") pursuant to
the Prospectus forming a part of the Registration Statement to which this
opinion is filed as an exhibit (the "Prospectus"), and assuming the operative
documents for the Securities described in the Prospectus will be performed in
accordance with the terms described therein, we hereby confirm to you our
opinion as set forth under the heading "Certain United States Federal Income Tax
Consequences" in the Prospectus, subject to the limitations set forth therein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement relating to the Prospectus and the reference to us under
the heading "Certain United States Federal Income Tax Consequences" in the
Prospectus. By giving the foregoing consent, 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
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Sullivan & Cromwell
<PAGE>
EXHIBIT 12
CENTRAL FIDELITY BANKS, INC.
RATIO OF EARNINGS TO FIXED CHARGES
FOR THE PERIODS INDICATED
<TABLE>
<CAPTION>
Three Months Ended
March 31, Year Ended December 31,
1997 1996 1996 1995 1994 1993 1992
<S> <C> <C> <C> <C> <C> <C> <C>
Net Income $30,393 $27,981 $112,702 $105,370 $84,864 $102,917 $78,516
Income tax expenses 14,619 13,058 52,674 49,052 39,056 44,334 30,782
------- -------- --------- -------- -------- -------- --------
Pre-tax Income $45,012 $41,039 $165,376 $154,422 $123,920 $147,251 $109,298
======= ======== ========= ======== ======== ======== ========
Fixed charges:
Interest on borrowings $20,616 $24,987 $91,166 $122,570 $87,059 $50,553 $33,364
Amortiziation of debt issuance expenses 23 27 134 132 123 125 44
Interest portion of rental expense 1,004 973 3,972 3,735 3,454 3,377 3,253
-------- -------- --------- -------- -------- -------- --------
Excluding interest on deposits 21,643 25,987 95,272 116,437 90,636 54,055 36,661
Interest on deposits 77,510 81,336 322,187 319,725 243,632 239,178 252,333
-------- -------- --------- -------- -------- -------- --------
Including interest on deposits $99,153 $107,323 $417,459 $436,162 $334,268 $239,233 $288,994
Ratio of Earnings to Fixed Charges:
Excluding interest on deposits 3.08 2.58 2.74 2.33 2.37 3.72 3.98
Including interest on deposits 1.45 1.38 1.40 1.35 1.37 1.50 1.38
</TABLE>
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Central Fidelity Banks, Inc.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Accountants" in the prospectus.
/s/ KPMG Peat Marwick LLP
Richmond, Virginia
June 10, 1997
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned, a director and
officer of Central Fidelity Banks, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints each of Charles W. Tysinger, William N. Stoyko
and James F. Campbell, any of whom may act individually, as my attorney-in-fact,
each with power of substitution and resubstitution, for me in my name, place and
stead, in any and all capacities, to execute and file with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3 (or
other appropriate form), with any and all schedules, exhibits and other
documents pertaining thereto or in connection therewith, and any and all
amendments and supplements thereto, relating to the registration under the
Securities Act of 1933, as amended, of the following securities and/or an
exchange offer for such securities (collectively, the "Securities"): (a)
unsecured junior subordinated debt securities (the "Debt Securities") of the
Company not to exceed an aggregate principal amount of $100,000,000, (b) common
securities and preferred securities (the "Trust Securities") of one or more
business trusts (the "Trust(s)") formed by the Company in an aggregate amount of
up to $100,000,000, the proceeds of the sale of such Trust Securities to be used
to by the Trusts(s) to purchase the Debt Securities and (c) guarantees issued by
the Company for the payment of amounts payable by the Trust(s) on the Trust
Securities. The attorneys-in-fact are further authorized to execute and deliver
all documents, instruments, agreements and regulatory or governmental filings to
the Commission and any applicable securities or Blue Sky authorities of any
state or other jurisdiction in connection with the offer and sale of the
Securities. The undersigned hereby ratifies and confirms all that each said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
/s/ Lewis N. Miller, Jr.
-------------------------------------
Lewis N. Miller, Jr.
Date: March 6, 1997
<PAGE>
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned, a director and
officer of Central Fidelity Banks, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints each of Charles W. Tysinger, William N. Stoyko
and James F. Campbell, any of whom may act individually, as my attorney-in-fact,
each with power of substitution and resubstitution, for me in my name, place and
stead, in any and all capacities, to execute and file with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3 (or
other appropriate form), with any and all schedules, exhibits and other
documents pertaining thereto or in connection therewith, and any and all
amendments and supplements thereto, relating to the registration under the
Securities Act of 1933, as amended, of the following securities and/or an
exchange offer for such securities (collectively, the "Securities"): (a)
unsecured junior subordinated debt securities (the "Debt Securities") of the
Company not to exceed an aggregate principal amount of $100,000,000, (b) common
securities and preferred securities (the "Trust Securities") of one or more
business trusts (the "Trust(s)") formed by the Company in an aggregate amount of
up to $100,000,000, the proceeds of the sale of such Trust Securities to be used
to by the Trusts(s) to purchase the Debt Securities and (c) guarantees issued by
the Company for the payment of amounts payable by the Trust(s) on the Trust
Securities. The attorneys-in-fact are further authorized to execute and deliver
all documents, instruments, agreements and regulatory or governmental filings to
the Commission and any applicable securities or Blue Sky authorities of any
state or other jurisdiction in connection with the offer and sale of the
Securities. The undersigned hereby ratifies and confirms all that each said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
/s/ Charles W. Tysinger
-------------------------------
Charles W. Tysinger
Date: May 12, 1997
<PAGE>
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned, a director and
officer of Central Fidelity Banks, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints each of Charles W. Tysinger, William N. Stoyko
and James F. Campbell, any of whom may act individually, as my attorney-in-fact,
each with power of substitution and resubstitution, for me in my name, place and
stead, in any and all capacities, to execute and file with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3 (or
other appropriate form), with any and all schedules, exhibits and other
documents pertaining thereto or in connection therewith, and any and all
amendments and supplements thereto, relating to the registration under the
Securities Act of 1933, as amended, of the following securities and/or an
exchange offer for such securities (collectively, the "Securities"): (a)
unsecured junior subordinated debt securities (the "Debt Securities") of the
Company not to exceed an aggregate principal amount of $100,000,000, (b) common
securities and preferred securities (the "Trust Securities") of one or more
business trusts (the "Trust(s)") formed by the Company in an aggregate amount of
up to $100,000,000, the proceeds of the sale of such Trust Securities to be used
to by the Trusts(s) to purchase the Debt Securities and (c) guarantees issued by
the Company for the payment of amounts payable by the Trust(s) on the Trust
Securities. The attorneys-in-fact are further authorized to execute and deliver
all documents, instruments, agreements and regulatory or governmental filings to
the Commission and any applicable securities or Blue Sky authorities of any
state or other jurisdiction in connection with the offer and sale of the
Securities. The undersigned hereby ratifies and confirms all that each said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
/s/ James F. Betts
-------------------------------
James F. Betts
Date: March 5, 1997
<PAGE>
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned, a director and
officer of Central Fidelity Banks, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints each of Charles W. Tysinger, William N. Stoyko
and James F. Campbell, any of whom may act individually, as my attorney-in-fact,
each with power of substitution and resubstitution, for me in my name, place and
stead, in any and all capacities, to execute and file with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3 (or
other appropriate form), with any and all schedules, exhibits and other
documents pertaining thereto or in connection therewith, and any and all
amendments and supplements thereto, relating to the registration under the
Securities Act of 1933, as amended, of the following securities and/or an
exchange offer for such securities (collectively, the "Securities"): (a)
unsecured junior subordinated debt securities (the "Debt Securities") of the
Company not to exceed an aggregate principal amount of $100,000,000, (b) common
securities and preferred securities (the "Trust Securities") of one or more
business trusts (the "Trust(s)") formed by the Company in an aggregate amount of
up to $100,000,000, the proceeds of the sale of such Trust Securities to be used
to by the Trusts(s) to purchase the Debt Securities and (c) guarantees issued by
the Company for the payment of amounts payable by the Trust(s) on the Trust
Securities. The attorneys-in-fact are further authorized to execute and deliver
all documents, instruments, agreements and regulatory or governmental filings to
the Commission and any applicable securities or Blue Sky authorities of any
state or other jurisdiction in connection with the offer and sale of the
Securities. The undersigned hereby ratifies and confirms all that each said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
/s/ Alvin R. Clements
-------------------------------
Alvin R. Clements
Date: March 5, 1997
<PAGE>
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned, a director and
officer of Central Fidelity Banks, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints each of Charles W. Tysinger, William N. Stoyko
and James F. Campbell, any of whom may act individually, as my attorney-in-fact,
each with power of substitution and resubstitution, for me in my name, place and
stead, in any and all capacities, to execute and file with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3 (or
other appropriate form), with any and all schedules, exhibits and other
documents pertaining thereto or in connection therewith, and any and all
amendments and supplements thereto, relating to the registration under the
Securities Act of 1933, as amended, of the following securities and/or an
exchange offer for such securities (collectively, the "Securities"): (a)
unsecured junior subordinated debt securities (the "Debt Securities") of the
Company not to exceed an aggregate principal amount of $100,000,000, (b) common
securities and preferred securities (the "Trust Securities") of one or more
business trusts (the "Trust(s)") formed by the Company in an aggregate amount of
up to $100,000,000, the proceeds of the sale of such Trust Securities to be used
to by the Trusts(s) to purchase the Debt Securities and (c) guarantees issued by
the Company for the payment of amounts payable by the Trust(s) on the Trust
Securities. The attorneys-in-fact are further authorized to execute and deliver
all documents, instruments, agreements and regulatory or governmental filings to
the Commission and any applicable securities or Blue Sky authorities of any
state or other jurisdiction in connection with the offer and sale of the
Securities. The undersigned hereby ratifies and confirms all that each said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
/s/ Phyllis L. Cothran
-------------------------------
Phyllis L. Cothran
Date: March 5, 1997
<PAGE>
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned, a director and
officer of Central Fidelity Banks, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints each of Charles W. Tysinger, William N. Stoyko
and James F. Campbell, any of whom may act individually, as my attorney-in-fact,
each with power of substitution and resubstitution, for me in my name, place and
stead, in any and all capacities, to execute and file with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3 (or
other appropriate form), with any and all schedules, exhibits and other
documents pertaining thereto or in connection therewith, and any and all
amendments and supplements thereto, relating to the registration under the
Securities Act of 1933, as amended, of the following securities and/or an
exchange offer for such securities (collectively, the "Securities"): (a)
unsecured junior subordinated debt securities (the "Debt Securities") of the
Company not to exceed an aggregate principal amount of $100,000,000, (b) common
securities and preferred securities (the "Trust Securities") of one or more
business trusts (the "Trust(s)") formed by the Company in an aggregate amount of
up to $100,000,000, the proceeds of the sale of such Trust Securities to be used
to by the Trusts(s) to purchase the Debt Securities and (c) guarantees issued by
the Company for the payment of amounts payable by the Trust(s) on the Trust
Securities. The attorneys-in-fact are further authorized to execute and deliver
all documents, instruments, agreements and regulatory or governmental filings to
the Commission and any applicable securities or Blue Sky authorities of any
state or other jurisdiction in connection with the offer and sale of the
Securities. The undersigned hereby ratifies and confirms all that each said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
/s/ Jack H. Ferguson
-------------------------------
Jack H. Ferguson
Date: March 5, 1997
<PAGE>
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned, a director and
officer of Central Fidelity Banks, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints each of Charles W. Tysinger, William N. Stoyko
and James F. Campbell, any of whom may act individually, as my attorney-in-fact,
each with power of substitution and resubstitution, for me in my name, place and
stead, in any and all capacities, to execute and file with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3 (or
other appropriate form), with any and all schedules, exhibits and other
documents pertaining thereto or in connection therewith, and any and all
amendments and supplements thereto, relating to the registration under the
Securities Act of 1933, as amended, of the following securities and/or an
exchange offer for such securities (collectively, the "Securities"): (a)
unsecured junior subordinated debt securities (the "Debt Securities") of the
Company not to exceed an aggregate principal amount of $100,000,000, (b) common
securities and preferred securities (the "Trust Securities") of one or more
business trusts (the "Trust(s)") formed by the Company in an aggregate amount of
up to $100,000,000, the proceeds of the sale of such Trust Securities to be used
to by the Trusts(s) to purchase the Debt Securities and (c) guarantees issued by
the Company for the payment of amounts payable by the Trust(s) on the Trust
Securities. The attorneys-in-fact are further authorized to execute and deliver
all documents, instruments, agreements and regulatory or governmental filings to
the Commission and any applicable securities or Blue Sky authorities of any
state or other jurisdiction in connection with the offer and sale of the
Securities. The undersigned hereby ratifies and confirms all that each said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
/s/ James F. Campbell
-------------------------------
James F. Campbell
Date: June 3, 1997
<PAGE>
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned, a director and
officer of Central Fidelity Banks, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints each of Charles W. Tysinger, William N. Stoyko
and James F. Campbell, any of whom may act individually, as my attorney-in-fact,
each with power of substitution and resubstitution, for me in my name, place and
stead, in any and all capacities, to execute and file with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3 (or
other appropriate form), with any and all schedules, exhibits and other
documents pertaining thereto or in connection therewith, and any and all
amendments and supplements thereto, relating to the registration under the
Securities Act of 1933, as amended, of the following securities and/or an
exchange offer for such securities (collectively, the "Securities"): (a)
unsecured junior subordinated debt securities (the "Debt Securities") of the
Company not to exceed an aggregate principal amount of $100,000,000, (b) common
securities and preferred securities (the "Trust Securities") of one or more
business trusts (the "Trust(s)") formed by the Company in an aggregate amount of
up to $100,000,000, the proceeds of the sale of such Trust Securities to be used
to by the Trusts(s) to purchase the Debt Securities and (c) guarantees issued by
the Company for the payment of amounts payable by the Trust(s) on the Trust
Securities. The attorneys-in-fact are further authorized to execute and deliver
all documents, instruments, agreements and regulatory or governmental filings to
the Commission and any applicable securities or Blue Sky authorities of any
state or other jurisdiction in connection with the offer and sale of the
Securities. The undersigned hereby ratifies and confirms all that each said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
/s/ G. Bruce Miller
-------------------------------
G. Bruce Miller
Date: March 5, 1997
<PAGE>
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned, a director and
officer of Central Fidelity Banks, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints each of Charles W. Tysinger, William N. Stoyko
and James F. Campbell, any of whom may act individually, as my attorney-in-fact,
each with power of substitution and resubstitution, for me in my name, place and
stead, in any and all capacities, to execute and file with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3 (or
other appropriate form), with any and all schedules, exhibits and other
documents pertaining thereto or in connection therewith, and any and all
amendments and supplements thereto, relating to the registration under the
Securities Act of 1933, as amended, of the following securities and/or an
exchange offer for such securities (collectively, the "Securities"): (a)
unsecured junior subordinated debt securities (the "Debt Securities") of the
Company not to exceed an aggregate principal amount of $100,000,000, (b) common
securities and preferred securities (the "Trust Securities") of one or more
business trusts (the "Trust(s)") formed by the Company in an aggregate amount of
up to $100,000,000, the proceeds of the sale of such Trust Securities to be used
to by the Trusts(s) to purchase the Debt Securities and (c) guarantees issued by
the Company for the payment of amounts payable by the Trust(s) on the Trust
Securities. The attorneys-in-fact are further authorized to execute and deliver
all documents, instruments, agreements and regulatory or governmental filings to
the Commission and any applicable securities or Blue Sky authorities of any
state or other jurisdiction in connection with the offer and sale of the
Securities. The undersigned hereby ratifies and confirms all that each said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
/s/ T. Justin Moore, III
-------------------------------
T. Justin Moore, III
Date: March 5, 1997
<PAGE>
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned, a director and
officer of Central Fidelity Banks, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints each of Charles W. Tysinger, William N. Stoyko
and James F. Campbell, any of whom may act individually, as my attorney-in-fact,
each with power of substitution and resubstitution, for me in my name, place and
stead, in any and all capacities, to execute and file with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3 (or
other appropriate form), with any and all schedules, exhibits and other
documents pertaining thereto or in connection therewith, and any and all
amendments and supplements thereto, relating to the registration under the
Securities Act of 1933, as amended, of the following securities and/or an
exchange offer for such securities (collectively, the "Securities"): (a)
unsecured junior subordinated debt securities (the "Debt Securities") of the
Company not to exceed an aggregate principal amount of $100,000,000, (b) common
securities and preferred securities (the "Trust Securities") of one or more
business trusts (the "Trust(s)") formed by the Company in an aggregate amount of
up to $100,000,000, the proceeds of the sale of such Trust Securities to be used
to by the Trusts(s) to purchase the Debt Securities and (c) guarantees issued by
the Company for the payment of amounts payable by the Trust(s) on the Trust
Securities. The attorneys-in-fact are further authorized to execute and deliver
all documents, instruments, agreements and regulatory or governmental filings to
the Commission and any applicable securities or Blue Sky authorities of any
state or other jurisdiction in connection with the offer and sale of the
Securities. The undersigned hereby ratifies and confirms all that each said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
/s/ Richard L. Morrill
-------------------------------
Richard L. Morrill
Date: March 5, 1997
<PAGE>
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned, a director and
officer of Central Fidelity Banks, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints each of Charles W. Tysinger, William N. Stoyko
and James F. Campbell, any of whom may act individually, as my attorney-in-fact,
each with power of substitution and resubstitution, for me in my name, place and
stead, in any and all capacities, to execute and file with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3 (or
other appropriate form), with any and all schedules, exhibits and other
documents pertaining thereto or in connection therewith, and any and all
amendments and supplements thereto, relating to the registration under the
Securities Act of 1933, as amended, of the following securities and/or an
exchange offer for such securities (collectively, the "Securities"): (a)
unsecured junior subordinated debt securities (the "Debt Securities") of the
Company not to exceed an aggregate principal amount of $100,000,000, (b) common
securities and preferred securities (the "Trust Securities") of one or more
business trusts (the "Trust(s)") formed by the Company in an aggregate amount of
up to $100,000,000, the proceeds of the sale of such Trust Securities to be used
to by the Trusts(s) to purchase the Debt Securities and (c) guarantees issued by
the Company for the payment of amounts payable by the Trust(s) on the Trust
Securities. The attorneys-in-fact are further authorized to execute and deliver
all documents, instruments, agreements and regulatory or governmental filings to
the Commission and any applicable securities or Blue Sky authorities of any
state or other jurisdiction in connection with the offer and sale of the
Securities. The undersigned hereby ratifies and confirms all that each said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
/s/ Lloyd U. Noland, III
-------------------------------
Lloyd U. Noland, III
Date: March 5, 1997
<PAGE>
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned, a director and
officer of Central Fidelity Banks, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints each of Charles W. Tysinger, William N. Stoyko
and James F. Campbell, any of whom may act individually, as my attorney-in-fact,
each with power of substitution and resubstitution, for me in my name, place and
stead, in any and all capacities, to execute and file with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3 (or
other appropriate form), with any and all schedules, exhibits and other
documents pertaining thereto or in connection therewith, and any and all
amendments and supplements thereto, relating to the registration under the
Securities Act of 1933, as amended, of the following securities and/or an
exchange offer for such securities (collectively, the "Securities"): (a)
unsecured junior subordinated debt securities (the "Debt Securities") of the
Company not to exceed an aggregate principal amount of $100,000,000, (b) common
securities and preferred securities (the "Trust Securities") of one or more
business trusts (the "Trust(s)") formed by the Company in an aggregate amount of
up to $100,000,000, the proceeds of the sale of such Trust Securities to be used
to by the Trusts(s) to purchase the Debt Securities and (c) guarantees issued by
the Company for the payment of amounts payable by the Trust(s) on the Trust
Securities. The attorneys-in-fact are further authorized to execute and deliver
all documents, instruments, agreements and regulatory or governmental filings to
the Commission and any applicable securities or Blue Sky authorities of any
state or other jurisdiction in connection with the offer and sale of the
Securities. The undersigned hereby ratifies and confirms all that each said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
/s/ William G. Reynolds, Jr.
-------------------------------
William G. Reynolds, Jr.
Date: March 5, 1997
<PAGE>
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned, a director and
officer of Central Fidelity Banks, Inc. (the "Company"), a Virginia corporation,
hereby constitutes and appoints each of Charles W. Tysinger, William N. Stoyko
and James F. Campbell, any of whom may act individually, as my attorney-in-fact,
each with power of substitution and resubstitution, for me in my name, place and
stead, in any and all capacities, to execute and file with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form S-3 (or
other appropriate form), with any and all schedules, exhibits and other
documents pertaining thereto or in connection therewith, and any and all
amendments and supplements thereto, relating to the registration under the
Securities Act of 1933, as amended, of the following securities and/or an
exchange offer for such securities (collectively, the "Securities"): (a)
unsecured junior subordinated debt securities (the "Debt Securities") of the
Company not to exceed an aggregate principal amount of $100,000,000, (b) common
securities and preferred securities (the "Trust Securities") of one or more
business trusts (the "Trust(s)") formed by the Company in an aggregate amount of
up to $100,000,000, the proceeds of the sale of such Trust Securities to be used
to by the Trusts(s) to purchase the Debt Securities and (c) guarantees issued by
the Company for the payment of amounts payable by the Trust(s) on the Trust
Securities. The attorneys-in-fact are further authorized to execute and deliver
all documents, instruments, agreements and regulatory or governmental filings to
the Commission and any applicable securities or Blue Sky authorities of any
state or other jurisdiction in connection with the offer and sale of the
Securities. The undersigned hereby ratifies and confirms all that each said
attorney-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
/s/ Kenneth S. White
-------------------------------
Kenneth S. White
Date: March 5, 1997
<PAGE>
Exhibit 99.1
Letter of Transmittal
CENTRAL FIDELITY CAPITAL TRUST I
OFFER TO EXCHANGE ITS
FLOATING RATE CAPITAL TRUST PASS-THROUGH SECURITIES, SERIES A
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ITS OUTSTANDING
FLOATING RATE CAPITAL TRUST PASS-THROUGH SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
PURSUANT TO THE PROSPECTUS
DATED , 1997
-------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON , 1997, UNLESS THE OFFER IS EXTENDED.
---------------
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
THE BANK OF NEW YORK
BY MAIL/OVERNIGHT DELIVERY/HAND:
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Reorganization Section
George Johnson
TO CONFIRM BY TELEPHONE OR FOR INFORMATION:
(212) 571-3780
FACSIMILE TRANSMISSIONS:
(212) 815-3687
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein shall have the same
meaning given them in the Prospectus (as defined below). As used herein, the
term "holder" means a holder of Old Capital Securities (as defined below),
including any participant ("DTC Participant") in the book-entry transfer
facility system of The Depository Trust Company ("DTC"), whose name appears on a
security position listing as the owner of the Old Capital Securities. As used
herein, the term "Certificates" means physical certificates representing Old
Capital Securities.
To participate in the Exchange Offer (as defined below), holders must
tender by (a) book-entry transfer pursuant to the procedures set forth in the
Prospectus under "The Exchange Offer -- Procedures for Tendering Old Capital
Securities" or (b) forwarding Certificates herewith. Holders who are DTC
Participants tendering by book-entry transfer must
<PAGE>
such tender through the Automated Tender Offer Program ("ATOP") of DTC. A holder
using ATOP should transmit its acceptance to DTC on or prior to the Expiration
Date (as defined in the Prospectus). DTC will verify such acceptance, execute a
book-entry transfer of the tendered Old Capital Securities into the account of
The Bank of New York (the "Exchange Agent") at DTC and then send to the Exchange
Agent a book-entry confirmation (as defined below), including an Agent's Message
(as defined below) confirming that DTC has received an express acknowledgment
from such holder that such holder has received and agrees to be bound by this
Letter of Transmittal and that the Issuer (as defined below) and the Corporation
(as defined below) may enforce this Letter of Transmittal against such holder.
The book-entry confirmation must be received by the Exchange Agent in order for
the tender relating thereto to be effective. Book-entry transfer to DTC in
accordance with DTC's procedures does not constitute delivery of the book-entry
confirmation to the Exchange Agent.
If the tender is not made through ATOP, Certificates, 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 in order for
such tender to be effective.
Holders of Old Capital Securities whose 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 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
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD CAPITAL SECURITIES TENDERED
- -------------------------------------------------------------------------------------------------------------------------
LIQUIDATION LIQUIDATION
AMOUNT OF AMOUNT OF OLD NUMBER OF
OLD CAPITAL CAPITAL BENEFICIAL HOLDERS
NAME AND ADDRESS OF SECURITIES SECURITIES TENDERED FOR WHICH OLD
REGISTERED HOLDER CERTIFICATE TENDERED (IF ALL (IF LESS THAN ALL ARE CAPITAL SECURITIES
(PLEASE FILL IN IF BLANK) NUMBERS* ARE TENDERED) TENDERED)** ARE HELD
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
$ $
- -------------------------------------------------------------------------------------------------------------------------
$ $
- -------------------------------------------------------------------------------------------------------------------------
$ $
- -------------------------------------------------------------------------------------------------------------------------
TOTAL AMOUNT TENDERED $ $
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed by book-entry holders.
** Old Capital Securities may be tendered in the Liquidation Amount of
$100,000 and integral multiples of $1,000 in excess thereof, provided that
if fewer than all of the Old Capital Securities of a holder are tendered
for exchange, the untendered Liquidation Amount of the holder's remaining
Old Capital Securities 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.
- -------------------------------------------------------------------------------
2
<PAGE>
(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:
--------------------------------------------------
[_] 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):
--------------------------------------------
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 OLD CAPITAL SECURITIES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER AND NON-EXCHANGED OR UNTENDERED 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 ITS 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:
----------- -----------
3
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Central Fidelity Capital Trust I, a
Delaware business trust (the "Issuer"), and Central Fidelity Banks, Inc., a
Virginia corporation, as Depositor (the "Corporation"), the above-described
aggregate Liquidation Amount of the Issuer's Floating Rate Capital Trust
Pass-through Securities, Liquidation Amount $1,000 per security (the "Old
Capital Securities"), in exchange for a like aggregate Liquidation Amount of the
Issuer's Floating Rate Capital Trust Pass-through Securities, Series A,
Liquidation Amount $1,000 per security (the "New 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
__________, 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, constitute 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
Corporation 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 New 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 CORPORATION, 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 ANY OBLIGATIONS IT MAY HAVE UNDER THE REGISTRATION 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 aggregate Liquidation Amount of 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 of
such non-exchanged or untendered 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.
4
<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 Corporation's and the Issuer's acceptance for
exchange of such tendered Old Capital Securities, constitute a binding agreement
between the undersigned, the Corporation 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 Corporation
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 New 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 New 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, the undersigned hereby directs that the
New Capital Securities be delivered 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 CORPORATION OR THE ISSUER WITHIN THE
MEANING OF RULE 405 UNDER THE SECURITIES ACT, (II) ANY NEW 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 NEW 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 NEW 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 THAT
WILL RECEIVE NEW CAPITAL SECURITIES FOR ITS OWN ACCOUNT IN EXCHANGE FOR OLD
CAPITAL SECURITIES REPRESENTS AND AGREES, CONSISTENT WITH CERTAIN INTERPRETIVE
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 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 NEW
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 CORPORATION AND THE ISSUER HAVE AGREED THAT, SUBJECT TO THE
PROVISIONS OF THE REGISTRATION 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 NEW 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 ON THE CLOSE OF
BUSINESS ON THE FIRST ANNIVERSARY FOLLOWING THE EXPIRATION DATE (SUBJECT TO
EXTENSION UNDER CERTAIN LIMITED CIRCUMSTANCES DESCRIBED IN THE PROSPECTUS) OR,
IF EARLIER, WHEN ALL SUCH NEW CAPITAL SECURITIES HAVE BEEN DISPOSED OF BY SUCH
PARTICIPATING BROKER-DEALER. ANY PERSON, INCLUDING ANY PARTICIPATING
BROKER-DEALER, WHO IS AN AFFILIATE MAY NOT RELY ON SUCH INTERPRETIVE LETTERS AND
MUST COMPLY WITH THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF THE
SECURITIES ACT IN CONNECTION
5
<PAGE>
WITH ANY RESALE TRANSACTION. IN THAT REGARD, EACH PARTICIPATING BROKER-DEALER
WHO ACQUIRED OLD CAPITAL SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-
MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES, BY TENDERING SUCH OLD CAPITAL
SECURITIES AND EXECUTING THIS LETTER OF TRANSMITTAL, AGREES THAT, UPON RECEIPT
OF NOTICE FROM THE CORPORATION OR THE ISSUER OF THE OCCURRENCE OF ANY EVENT OR
THE DISCOVERY OF ANY FACT WHICH MAKES 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 THE LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING OR OF THE OCCURRENCE OF
CERTAIN OTHER EVENTS SPECIFIED IN THE REGISTRATION AGREEMENT, SUCH PARTICIPATING
BROKER-DEALER WILL SUSPEND THE SALE OF NEW CAPITAL SECURITIES PURSUANT TO THE
PROSPECTUS UNTIL THE CORPORATION 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 CORPORATION OR THE ISSUER HAS GIVEN NOTICE THAT THE SALE OF THE NEW 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 on such Old Capital Securities prior to the
original issue date of the New Capital Securities or, if no such Distributions
have been paid, will not receive any accumulated Distributions on such Old
Capital Securities, and the undersigned hereby waives the right to receive any
Distributions on such Old Capital Securities accumulated from and after such
Distribution Date or, if no such Distributions have been paid or duly provided
for, from and after April 23, 1997.
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.
6
<PAGE>
- --------------------------------------------------------------------------------
HOLDERS SIGN HERE
(SEE INSTRUCTIONS 2, 5 AND 6)
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON PAGE 14)
(NOTE: SIGNATURES MUST BE GUARANTEED IF REQUIRED BY INSTRUCTION 2)
Must be signed by the registered holder exactly as name appears on
Certificates 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
Corporation, the Issuer or the Exchange Agent 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)
Date: , 1997
--------------------
Name:
-------------------------------------------------------------------------
(PLEASE PRINT)
Capacity (full title):
--------------------------------------------------------
Address:
----------------------------------------------------------------------
- -------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
-----------------------------------------------
Tax Identification or Social Security Number:
---------------------------------
GUARANTEE OF SIGNATURE
(SEE INSTRUCTIONS 2 AND 5)
.
-----------------------------------------------------------------------------
(AUTHORIZED SIGNATURE)
Date: , 1997
--------------------
Name of Firm:
-----------------------------------------------------------------
(PLEASE PRINT)
Capacity (full title):
--------------------------------------------------------
Address:
----------------------------------------------------------------------
- -------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
-----------------------------------------------
- --------------------------------------------------------------------------------
7
<PAGE>
- --------------------------------------------------------------------------------
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if the New Capital Securities and/or any Old Capital
Securities that are not tendered are to be issued in the name of someone other
than the registered holder of the Old Capital Securities whose name appears
above.
Issue
[_] New Capital Securities
[_] Old Capital Securities not tendered
to:
Name:
-------------------------------------------------------------------------
Address:
----------------------------------------------------------------------
- -------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
-----------------------------------------------
Tax Identification or Social Security Number:
---------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5 AND 6)
To be completed ONLY if the New Capital Securities and/or any Old Capital
Securities that are not tendered are to be sent to someone other than the
registered holder of the Old Capital Securities whose name appears above, or to
such registered holder at an address other than that shown above.
Mail
[_] New Capital Securities
[_] Old Capital Securities not tendered
to:
Name:
-------------------------------------------------------------------------
Address:
----------------------------------------------------------------------
- -------------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
-----------------------------------------------
Tax Identification or Social Security Number:
---------------------------------
- --------------------------------------------------------------------------------
8
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. BOOK-ENTRY TRANSFER; DELIVERY OF LETTER OF TRANSMITTAL AND
CERTIFICATES; GUARANTEED DELIVERY PROCEDURES. To tender in the Exchange Offer,
holders must tender by (a) forwarding Certificates herewith or (b) book-entry
transfer pursuant to the procedures set forth in "The Exchange Offer --
Procedures for Tendering Old Capital Securities" in the Prospectus. Holders who
are DTC Participants tendering by book-entry transfer must execute such tender
through DTC's ATOP system. A holder using ATOP should transmit its acceptance to
DTC on or prior to the Expiration Date. DTC will verify such acceptance, execute
a book-entry transfer of the tendered Old Capital Securities into the Exchange
Agent's account at DTC and then send to the Exchange Agent a book-entry
confirmation, including an Agent's Message confirming that DTC has received an
express acknowledgment from such holder that such holder has received and agrees
to be bound by this Letter of Transmittal and that the Issuer and the
Corporation may enforce this Letter of Transmittal against such holder. The
book-entry confirmation must be received by the Exchange Agent in order for the
tender relating thereto to be effective. Book-entry transfer to DTC in
accordance with DTC's procedures does not constitute delivery of the book-entry
confirmation to the Exchange Agent.
If the tender is not made through ATOP, Certificates, 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 in order for
such tender to be effective. 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 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 the Letter of
Transmittal (including the representations contained herein) and that the Issuer
and the Corporation may enforce the Letter of Transmittal against such
participant. Old Capital Securities may be tendered in the Liquidation Amount of
$100,000 (100 Old Capital Securities) and integral multiples of $1,000 in excess
thereof, provided that, if fewer than all of the Old Capital Securities of a
holder are tendered for exchange, the untendered Liquidation Amount of the
holder's remaining Old Capital Securities must be $100,000 (100 Old Capital
Securities) or any integral multiple of $1,000 in excess thereof.
Holders who wish to tender their Old Capital Securities and (i) whose
Certificates for Old Capital Securities are not immediately available, (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 in "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 Corporation 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 properly completed and duly executed
Letter of Transmittal (or facsimile thereof), 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 must be delivered by hand, overnight
courier or mail, or transmitted by facsimile transmission, to the Exchange Agent
on or prior to the Expiration Date, 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,
9
<PAGE>
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.
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 DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
EXCHANGE AGENT. AN OVERNIGHT DELIVERY SERVICE IS RECOMMENDED OR, IF DELIVERY IS
BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY ON OR PRIOR TO THE EXPIRATION DATE.
Neither the Corporation nor the Issuer will accept any alternative,
conditional or contingent tenders. Each tendering holder, by book-entry transfer
through ATOP or execution of a Letter of Transmittal (or facsimile 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 Old
Capital Securities) and integral multiples of $1,000 in excess thereof, provided
that if fewer than all of the Old Capital Securities of a holder are tendered or
exchanged, the untendered Liquidation Amount of the holder's remaining Old
Capital Securities must be $100,000 (100 Old Capital Securities) or any integral
multiple of $1,000 in excess thereof. If less than all 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 are Tendered)." 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, telex or facsimile
transmission of such notice of withdrawal must be 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
principal 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 Certificates 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,
10
<PAGE>
then prior to the physical release of such Certificates, the tendering holder
must submit the serial numbers shown on the particular Certificates for the 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, telex 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 Corporation and
the Issuer, in their sole discretion, whose determination shall be final and
binding on all parties. Neither the Corporation, the Issuer, any affiliates or
assigns of the Corporation or the Issuer, the Exchange Agent nor any other
person shall not 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 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) 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 Corporation and the Issuer, in their sole
discretion, of such persons' authority to so act.
When this Letter of Transmittal is signed by the registered holder of
the Old Capital Securities listed and transmitted hereby, no endorsement of
Certificates or separate bond powers are required unless New 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 holder of the Old Capital Securities, the Certificates must be
endorsed or accompanied by appropriate bond powers, signed exactly as the name
of the registered holder appears on the Certificates, and also must be
accompanied by such opinions of counsel, certifications and other information as
the Corporation, the Issuer or the Exchange Agent 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 New Capital
Securities are to be issued in the name of a person other than the registered
holder, or if New Capital Securities are to be sent to someone other than the
registered holder 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
11
<PAGE>
transfer, by crediting the account indicated above maintained at DTC
unless the appropriate boxes on this Letter of Transmittal are completed. See
Instruction 4.
7. IRREGULARITIES. The Corporation 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 Corporation 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
Corporation or the Issuer, be unlawful. The Corporation 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 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 Corporation's 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 Corporation, the Issuer, any Affiliates or
assigns of the Corporation or the Issuer, the Exchange Agent or any other person
shall not be under any 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 this
Letter of Transmittal may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
9. 31% BACKUP WITHHOLDING; SUBSTITUTE FORM W-9. Under U.S. Federal
income tax law, a holder whose tendered Old Capital Securities are accepted for
exchange is required to provide the Exchange Agent with such holder's correct
taxpayer identification number ("TIN") on the Substitute Form W-9 below. If the
Exchange Agent is not provided with the correct TIN, the Internal Revenue
Service (the "IRS") may subject the holder or other payee to a $50 penalty. In
addition, payments to such holders or other payees with respect to Old Capital
Securities exchanged pursuant to the Exchange Offer may be subject to 31% backup
withholding.
The box in Part 3 of the Substitute Form W-9 may be checked if the
tendering holder has not been issued a TIN and has applied for a TIN or intends
to apply for a TIN in the near future. If the box in Part 3 is checked, the
holder or other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60 day period following the date of the Substitute Form W-9.
If the holder furnishes the Exchange Agent with its TIN within 60 days after the
date of the Substitute Form W-9, the amounts retained during the 60 day period
will be remitted to the holder and no further amounts shall be retained or
withheld from payments made to the holder thereafter. If, however, the holder
has not provided the Exchange Agent with its TIN within such 60 day period,
amounts withheld will be remitted to the IRS as backup withholding. In addition,
31% of all payments made thereafter will be withheld and remitted to the IRS
until a correct TIN is provided.
The holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered owner of
the Old Capital Securities or of the last transferee appearing on the transfers
attached to, or endorsed on, the Old Capital Securities. If the Old Capital
Securities are registered in more than one name or are 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.
Certain holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to these backup
withholding and reporting requirements. Such holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" on the face
thereof, to avoid possible erroneous backup withholding. A
12
<PAGE>
foreign person may qualify as an exempt recipient by submitting a properly
completed IRS Form W-8, signed under penalties of perjury, attesting to that
holder's exempt status. Please consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which holders are exempt from backup withholding.
Backup withholding is not an additional U.S. Federal income tax.
Rather, the U.S. Federal income tax liability of a person 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.
10. 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.
11. 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, New 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 OR AGENT'S
MESSAGE IN LIEU THEREOF) AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY
THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
13
<PAGE>
- --------------------------------------------------------------------------------
PAYER'S NAME: The Bank of New York
<TABLE>
<S> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE Part 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT Social security number OR
RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. Employer identification number
Form W-9
------------------------------
Department of the Treasury ------------------------------------------------------------------------------------------------
Internal Revenue Service
Part 2 -- CERTIFICATION -- Under penalties of perjury, I certify that:
Payer's Request for
Taxpayer (1) The number shown on this form is my correct Taxpayer Identification Number (or I am waiting
Identification for a number to be issued to me) and
Number (TIN)
(2) I am not subject to backup withholding either because: (a) I am exempt from backup
withholding, or (b) 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 (c) the IRS has notified me that I am no longer subject to backup withholding.
-------------------------------------------------------------------------------------------------
CERTIFICATION INSTRUCTIONS -- You must cross out item (2) Part 3 --
above if you have been notified by the IRS that you are
currently subject to backup withholding because of under Awaiting TIN [ ]
reporting interest or dividends on your tax return.
However, if after being notified by the IRS that you are
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).
THE INTERNAL REVENUE SERVICE DOES NOT REQUIRE YOUR
CONSENT TO ANY PROVISION OF THIS DOCUMENT OTHER THAN
THE CERTIFICATIONS REQUIRED TO AVOID BACKUP WITHHOLDING.
SIGNATURE DATE
----------------------------- ---------------
NAME (Please Print)
----------------------------------------
ADDRESS (Please Print)
--------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE
OFFER. 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 (1) 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 (2)
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
sixty (60) days.
Signature Date
--------------------------------------- ------------------------
Name (Please Print)
-----------------------------------------------------------
Address (Please Print)
--------------------------------------------------------
- -------------------------------------------------------------------------------
14
<PAGE>
Exhibit 99.2
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
FLOATING RATE CAPITAL TRUST PASS-THROUGH SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF
CENTRAL FIDELITY CAPITAL TRUST I
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) Floating Rate Capital Trust
Pass-through Securities, Liquidation Amount $1,000 per security (the "Old
Capital Securities"), are not immediately available, (ii) Old Capital
Securities, the Letter of Transmittal and all other required documents cannot
delivered to The Bank of New York (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 EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
THE BANK OF NEW YORK
BY MAIL/OVERNIGHT DELIVERY/HAND:
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Reorganization Section
George Johnson
TO CONFIRM BY TELEPHONE OR FOR INFORMATION:
(212) 571-3780
FACSIMILE TRANSMISSIONS:
(212) 815-3687
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA
FACSIMILE TO A NUMBER 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.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Central Fidelity Capital Trust I, a
Delaware business trust (the "Issuer"), and Central Fidelity Banks, Inc., a
Virginia corporation, as Depositor (the "Corporation"), upon the terms and
subject to the conditions set forth in the Prospectus dated _____________, 1997
(as the same may be amended or supplemented from time to time, the
"Prospectus"), and the related Letter of Transmittal (which, together with the
Prospectus, 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 -- Procedures 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
<PAGE>
GUARANTEE
(NOT TO BE 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 or government securities 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 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 Agent's Message in lieu thereof) and the Old Capital Securities
tendered hereby to the Exchange Agent within the time period set forth above and
that failure to do so could result in 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.
