AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 15, 1997
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNITED DOMINION REALTY TRUST, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
VIRGINIA 54-0857512
(STATE OR OTHER (I.R.S. EMPLOYER
JURISDICTION OF INCORPORATION IDENTIFICATION NO.)
OR ORGANIZATION)
</TABLE>
10 SOUTH 6TH STREET, SUITE 203
RICHMOND, VIRGINIA 23219-3802
(804) 780-2691
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
KATHERYN E. SURFACE, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
UNITED DOMINION REALTY TRUST, INC.
10 SOUTH 6TH STREET
RICHMOND, VIRGINIA 23219-3802
(804) 780-2691
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
JAMES W. FEATHERSTONE, III, ESQ. HOWARD G. GODWIN, JR., ESQ.
HUNTON & WILLIAMS BROWN & WOOD LLP
951 EAST BYRD STREET ONE WORLD TRADE CENTER
RICHMOND, VIRGINIA 23219-4074 NEW YORK, NEW YORK 10048-0557
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement in light of
market conditions and other factors.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(b)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
[CAPTION]
<TABLE>
<S> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE AMOUNT OFFERING PRICE AGGREGATE OFFERING
SECURITIES TO BE REGISTERED(1) TO BE REGISTERED(2) PER UNIT(3) PRICE(2)(3)
<S> <C> <C> <C>
Debt Securities
Preferred Stock $600,000,000 (4) $600,000,000
Common Stock
<CAPTION>
AMOUNT OF
TITLE OF EACH CLASS OF REGISTRATION
SECURITIES TO BE REGISTERED(1) FEE(5)(6)
<S> <C>
Debt Securities
Preferred Stock $181,818.18
Common Stock
</TABLE>
(1) This registration statement also covers delayed delivery contracts that may
be issued by the registrant under which the party purchasing such contracts
may be required to purchase Debt Securities, Preferred Stock or Common
Stock. Such contracts may be issued together with the specific Offered
Securities to which they relate. In addition, Offered Securities registered
hereunder may be sold either separately or as units comprising more than one
type of Offered Security registered hereunder.
(2) In U.S. dollars or the equivalent thereof in one or more foreign currencies
or units of two or more foreign currencies or composite currencies (such as
European Currency Units).
(3) Estimated solely for purposes of calculating the registration fee. No
separate consideration will be received for Common Stock or Preferred Stock
as may from time to time be issued upon conversion of Debt Securities or
Preferred Stock.
(4) Omitted pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933.
(5) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act of 1933.
(6) Pursuant to Rule 429 under the Securities Act of 1933, $74,842,500 of
Offered Securities are being carried forward from registration statement No.
33-64275. The amount of the registration fee associated with such Offered
Securities that was previously paid with registration statement No. 33-64275
is $25,807.76.
THE PROSPECTUS INCLUDED IN THIS REGISTRATION STATEMENT IS A COMBINED
PROSPECTUS RELATING ALSO TO REGISTRATION STATEMENT NO. 33-64275. THIS
REGISTRATION STATEMENT ALSO CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT NO. 33-64275 AND SUCH POST-EFFECTIVE AMENDMENT SHALL
HEREAFTER BECOME EFFECTIVE CONCURRENTLY WITH THE EFFECTIVENESS OF THIS
REGISTRATION STATEMENT AND IN ACCORDANCE WITH SECTION 8(C) OF THE SECURITIES ACT
OF 1933. THIS REGISTRATION STATEMENT AND THE REGISTRATION STATEMENT AMENDED
HEREBY ARE COLLECTIVELY REFERRED TO HEREIN AS THE "REGISTRATION STATEMENT."
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 THIS 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>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED MAY 15, 1997
PROSPECTUS
$674,842,500
[LOGO]
United Dominion Realty Trust
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
------------------------
United Dominion Realty Trust, Inc. (the "Company") intends to issue from
time to time its (i) unsecured senior or subordinated debt securities (the "Debt
Securities"), (ii) shares of Preferred Stock, no par value ("Preferred Stock"),
and (iii) shares of Common Stock, $1 par value ("Common Stock"), having an
aggregate initial public offering price not to exceed $674,842,500 or the
equivalent thereof in one or more foreign currencies or composite currencies,
including European Currency Units, on terms to be determined at the time of
sale. The Debt Securities, the Preferred Stock and the Common Stock offered
hereby (collectively, the "Offered Securities") may be offered, separately or as
units with other Offered Securities, in separate series in amounts, at prices
and on terms to be determined at the time of sale and to be set forth in a
supplement to this Prospectus (a "Prospectus Supplement").
The Debt Securities will be direct unsecured obligations of the Company and
may be either senior Debt Securities ("Senior Securities") or subordinated Debt
Securities ("Subordinated Securities"). The Senior Securities will rank equally
with all other unsecured and unsubordinated indebtedness of the Company. The
Subordinated Securities will be subordinated to all existing and future Senior
Debt of the Company, as defined. See "Description of Debt Securities."
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable, (i) in the case of Debt
Securities, the specific designation, aggregate principal amount, currency,
denominations, maturity, priority, interest rate, time of payment of interest,
terms of redemption at the option of the Company or repayment at the option of
the holder or for sinking fund payments, terms for conversion into or exchange
for other Offered Securities and the initial public offering price; (ii) in the
case of Preferred Stock, the series designation and number of shares and the
dividend, liquidation, redemption, conversion, voting and other rights and the
initial public offering price; (iii) in the case of Common Stock, the initial
public offering price; and (iv) in the case of all Offered Securities, whether
such Offered Securities will be offered separately or as a unit with other
Offered Securities. In addition, such specific terms may include limitations on
direct or beneficial ownership and restrictions on transfer of the Offered
Securities, in each case as may be appropriate to preserve the status of the
Company as a qualified real estate investment trust ("REIT") under the Internal
Revenue Code of 1986, as amended (the "Code").
The applicable Prospectus Supplement will also contain information, where
applicable, concerning certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Offered Securities
covered thereby.
The Offered Securities may be offered directly, through agents designated
from time to time by the Company or to or through underwriters or dealers. If
any designated agents or any underwriters are involved in the sale of Offered
Securities, they will be identified and their compensation will be described in
the applicable Prospectus Supplement. See "Plan of Distribution." No Offered
Securities may be sold without delivery of the applicable Prospectus Supplement
describing such Offered Securities and the method and terms of the offering
thereof.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE 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 MAY , 1997.
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.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
its Regional Offices at Suite 1400, 500 West Madison Street, Chicago, Illinois
60661 and Suite 1300, 7 World Trade Center, New York, New York 10048, and can
also be inspected and copied at the offices of The New York Stock Exchange (the
"NYSE"), 20 Broad Street, New York, New York 10005. Copies of such material can
be obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, upon payment of the prescribed fees. The
Commission maintains a Web site that contains reports, proxy and information
statements and other information regarding the Company and other registrants
that file electronically with the Commission. The address of such site is
http://www.sec.gov.
This Prospectus is part of a registration statement on Form S-3 (together
with all amendments and exhibits, the "Registration Statement") filed by the
Company with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all the information set
forth in the Registration Statement, certain parts of which are omitted in
accordance with the rules of the Commission. For further information, reference
is made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents (File No. 1-10524) filed by the Company with the
Commission under the Exchange Act are hereby incorporated by reference in this
Prospectus: (i) the Company's annual report on Form 10-K for the year ended
December 31, 1996, filed on March 31, 1997; (ii) the Company's quarterly report
on Form 10-Q for the quarter ended March 31, 1997, filed on May 15, 1997; (iii)
the Company's current report on Form 8-K dated August 15, 1996, filed on August
30, 1996; (iv) the Company's current report on Form 8-K dated October 31, 1996,
filed on November 15, 1996; (v) the Company's current report on Form 8-K dated
December 31, 1996, filed on January 15, 1997, including the Company's Form 8K/A
No. 1 filed on March 17, 1997; (vi) the Company's current report on Form 8-K
dated January 21, 1997, filed on January 21, 1997; and (vii) the descriptions of
the Common Stock and the Preferred Stock contained in the Company's registration
statements on Form 8-A dated April 19, 1990 and April 24, 1995, respectively,
filed under the Exchange Act, including any amendment or reports filed for the
purpose of updating such descriptions. All documents filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering of all of the Offered Securities shall be deemed to
be incorporated by reference herein.
Any statement contained herein or in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
in any accompanying Prospectus Supplement relating to a specific offering of
Offered Securities or in any other subsequently filed document, as the case may
be, 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 or any accompanying Prospectus Supplement.
The Company will provide on request and without charge to each person to
whom this Prospectus is delivered a copy (without exhibits) of any or all
documents incorporated by reference into this Prospectus. Requests for such
copies should be directed to United Dominion Realty Trust, Inc., 10 South 6th
Street, Richmond, Virginia 23219-3802, Attention: Investor Relations (telephone
804/780-2691).
2
<PAGE>
THE COMPANY
United Dominion Realty Trust, Inc. is a self-administered equity REIT
formed in 1972 which acquires, repositions, develops, manages and selectively
sells apartment homes for its own portfolio in the Sunbelt region of the United
States.
The Company is an owner and operator of primarily middle income apartment
communities across the Sunbelt region, which it believes will enjoy population
and job growth above the national average. The Company operates in 22 major
markets, dispersed throughout a 15-state area extending from Delaware to Nevada,
where it seeks to be a market leader by operating a sufficiently sized portfolio
of apartments within each market. The Company believes this market
diversification increases investment opportunities and decreases the risks
associated with concentration in cyclical local markets. At May 9, 1997, the
Company's largest apartment market was Dallas, Texas, where it owned 13% of its
apartment homes. Excluding Dallas, Texas, the Company did not own more than 6%
of its apartment homes in any one market. At May 9, 1997, the Company owned 217
apartment communities containing 59,021 completed apartment homes (including 11
apartment communities containing 2,556 apartment homes classified as real estate
held for disposition) and 1,196 apartment homes under development.
The Company has experienced significant growth during the past several
years, increasing the number of apartment homes owned by 327% since 1992. During
1996, the Company completed a record number of apartment acquisitions, adding a
total of 22,032 apartment homes at a total cost of approximately $881 million.
The 1996 acquisitions included the statutory merger with South West Property
Trust Inc. (the "South West Merger"), which added 44 apartment communities
containing 14,320 completed apartment homes and 675 under development, at an
aggregate cost of approximately $560 million. Another acquisition added a
portfolio of 18 apartment communities containing 4,508 apartment homes, at an
aggregate cost of approximately $182 million.
The Company's current objective is to be a major apartment owner in the
larger Sunbelt markets by focusing on the following strategies:
ACQUISITIONS. The Company's investment strategy hinges on acquiring
apartment communities where it can add value. The Company focuses on
acquiring two types of apartment communities: (i) Class B+ to near Class
A properties built since 1980 where the investment (purchase price plus
planned improvements) represents a significant discount to replacement
cost; and (ii) well located, pre-1980s communities that can be upgraded
and repositioned for the longer term.
PORTFOLIO ACQUISITIONS AND MERGERS. The Company has been a major
participant in consolidation within the apartment industry, having
acquired apartment portfolios in each of the last three years and
completed the South West Merger on December 31, 1996. The Company
expects to continue to participate in the consolidation process as an
acquirer of other apartment portfolios and/or apartment REITs when such
transactions are accretive to earnings and can enhance dividend growth
and shareholder value.
DEVELOPMENT. Consistent with the Company's acquisition strategy,
apartment home development activity will be primarily focused in its
major markets through investments in site locations favorable for new
development and additions to existing apartment communities. The
capability to develop is another resource for growth in the Company's
major markets.
EXISTING COMMUNITIES. The Company seeks to achieve income growth
from its portfolio of mature apartment communities by increasing rental
revenues while maintaining occupancy and controlling operating expenses.
The Company also has a program to upgrade its older apartment
communities. These upgrades are designed to enhance rent growth and add
value to the apartment communities.
SALES. The Company continually assesses its real estate portfolio
in order to make hold, upgrade or sell decisions on each of its
apartment communities. The Company's strategy is to selectively sell
certain apartment communities that no longer meet the long term
investment objectives that have been established for its apartment
portfolio due to size, location, age or projected earnings potential.
FINANCINGS. The Company intends to maintain what management
believes is a conservative capital structure. Prior to 1996, the Company
generally managed its debt at levels at or below 40% of total market
capitalization (debt and equity). However, in 1996, management decided
to increase the proportion of debt in its capital structure to
approximately 45% in order to take advantage of long term borrowing
rates which were at historical lows.
3
<PAGE>
In 1995, the Company organized United Dominion Realty, L.P. (the "Operating
Partnership") to assist the Company in competing for acquisitions of properties
that meet the Company's investment strategies from seller partnerships, some or
all of whose partners may wish to defer taxation of gain realized on sale
through an exchange of partnership interests. As of May 15. 1997, the Company
had acquired three apartment communities and land to develop an additional
apartment community using the Operating Partnership and had transferred seven of
its Tennessee properties into the Operating Partnership, and the Operating
Partnership was 98% owned by the Company.
The Company has an Eastern Division and a Western Division to divide
apartment operations, acquisitions and development geographically. Because the
company operated only in the Southeast and Mid-Atlantic prior to the South West
Merger, its Eastern Division today represents approximately 75% of its revenues
and apartment homes. The Eastern Division is divided into three regions,
Northern, Southern and Florida, respectively headquartered in Richmond, Atlanta
and Orlando. Management believes that a region can operate approximately 30,000
apartment homes. The largest region today, the Northern Region, operates
approximately 18,000 apartment homes. The management team in each region
includes a director of apartment operations, a manager of property improvements,
an asset manager and a senior acquisitions analyst. Regional teams were first
organized in 1995 to move decision making closer to the community and customer
level. The Company believes that the regional concept can allow the Company to
effectively operate 200,000 apartment homes or more. As the Western Division
grows, it will also be divided into regions.
The Company seeks to provide its shareholders with regularly increasing
distributions and stock price appreciation. The Company has paid quarterly
distributions to its shareholders continuously since 1973 and has increased
common stock distributions each year for the past 21 years. The declared common
stock distribution was last increased in March 1997, and the current indicated
annual distribution is $1.01 per share. In past years, a portion of the
Company's distribution to its shareholders has been designated a non-taxable
return of capital for income tax purposes. During the past 15 years, the Company
provided its shareholders with an average annual return of 20%.
The Company, a Virginia corporation, has its principal office at 10 South
6th Street, Richmond, Virginia 23219-3802. Its telephone number is (804)
780-2691 and its E-mail address is [email protected]. Unless the context indicates
otherwise, the term "Company," as used herein, includes the Company and its
subsidiaries.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement, the net
proceeds from the sale of the Offered Securities will be used for general
corporate purposes, which may include repayment of indebtedness, making
improvements to properties and the acquisition and development of additional
properties.
CERTAIN RATIOS
The following table sets forth the Company's consolidated ratios of
earnings to fixed charges and earnings to combined fixed charges and Preferred
Stock dividends for the periods shown and for the year ended December 31, 1996
supplemental pro forma.
<TABLE>
<CAPTION>
SUPPLEMENTAL
YEAR ENDED DECEMBER 31, PRO FORMA(1)
---------------------------------------------- ------------
1992 1993 1994 1995 1996 1996
------ ------ ------ ------ ------ ------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges................................... 1.54x 1.64x 1.69x 1.81x 1.73x 1.67x
Ratio of earnings to combined fixed
charges and Preferred Stock dividends..... 1.54 1.64 1.69 1.56 1.45 1.48
<CAPTION>
THREE MONTHS ENDED
MARCH 31, 1997
------------------
<S> <C>
Ratio of earnings to fixed
charges................................... 1.84x
Ratio of earnings to combined fixed
charges and Preferred Stock dividends..... 1.64
</TABLE>
- ---------------
(1) Assumes (i) the consummation of the South West Merger and (ii) the
acquisition of 20 apartment communities containing 5,157 apartment homes, as
if the transactions had occurred on January 1, 1996.
The ratio of earnings to fixed charges was computed by dividing earnings by
fixed charges. The ratio of earnings to combined fixed charges and Preferred
Stock dividends was computed by dividing earnings by the total of fixed charges
and Preferred Stock dividends. For purposes of computing these ratios, earnings
consist of income before extraordinary items plus fixed charges other than
capitalized interest, and fixed charges consist of interest on borrowed funds
(including capitalized interest) and amortization of debt discount and expense.
The Company did not issue any shares of Preferred Stock until
4
<PAGE>
April 1995; therefore, only the ratios of earnings to combined fixed charges and
Preferred Stock dividends for the years ended December 31, 1995 and 1996, the
year ended December 31, 1996 supplemental pro forma and the three months ended
March 31, 1996 and 1997 include Preferred Stock dividends.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The Senior Securities are to be issued under an indenture dated as of
November 1, 1995, as supplemented from time to time (the "Senior Indenture"),
between the Company and First Union National Bank of Virginia (the "Senior
Indenture Trustee"), and the Subordinated Securities are to be issued under an
indenture dated as of August 1, 1994, as supplemented from time to time (the
"Subordinated Indenture"), between the Company and Crestar Bank (the
"Subordinated Indenture Trustee"). The term "Trustee," as used herein, shall
refer to the Senior Indenture Trustee or the Subordinated Indenture Trustee, as
appropriate. The forms of the Senior Indenture and the Subordinated Indenture
(being sometimes referred to herein collectively as the "Indentures" and
individually as an "Indenture") are filed as exhibits to the Registration
Statement and will be respectively available for inspection at the Corporate
Trust Office (as such term is defined in the Indentures) of the Senior Indenture
Trustee and the Subordinated Indenture Trustee, or as described under "Available
Information." The Indentures are subject to, and governed by, the Trust
Indenture Act of 1939, as amended (the "TIA"). The statements made hereunder
relating to the Indentures and the Debt Securities are summaries of certain
provisions thereof, do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all provisions of the Indentures
and the Debt Securities. All section references appearing herein are to sections
of the Indentures, and capitalized terms used but not defined herein have the
respective meanings set forth in the Indentures and the Debt Securities.
TERMS
The Debt Securities will be direct, unsecured obligations of the Company.
The indebtedness represented by the Senior Securities will rank equally with all
other unsecured and unsubordinated indebtedness of the Company. The indebtedness
represented by the Subordinated Securities will be subordinated in right of
payment to the prior payment in full of the Senior Debt of the Company, as
described under "Subordination."
Each Indenture provides that the Debt Securities may be issued without
limit as to aggregate principal amount, in one or more series, in each case as
established from time to time in or pursuant to authority granted by a
resolution of the Board of Directors of the Company or as established in one or
more indentures supplemental to such Indenture. Debt Securities may be issued
with terms different from those of Debt Securities previously issued. All Debt
Securities of one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the Holders
of the Debt Securities of such series, for issuances of additional Debt
Securities of such series (Section 301 of each Indenture).
Each Indenture provides that there may be more than one Trustee thereunder,
each with respect to one or more series of Debt Securities. Any Trustee under
either Indenture may resign or be removed with respect to one or more series of
Debt Securities, and a successor Trustee may be appointed to act with respect to
such series (Section 608 of each Indenture). In the event that two or more
persons are acting as Trustee with respect to different series of Debt
Securities, each such Trustee shall be a Trustee of a trust under the applicable
Indenture separate and apart from the trust administered by any other Trustee
(Sections 101 and 609 of each Indenture), and, except as otherwise indicated
herein, any action described herein to be taken by the Company may be taken by
each such Trustee with respect to, and only with respect to, the one or more
series of Debt Securities for which it is Trustee under the applicable
Indenture.
Reference is made to the Prospectus Supplement relating to the series of
Debt Securities being offered for the specific terms thereof, including:
(1) the title of such Debt Securities and whether such Debt Securities
are Senior Securities or Subordinated Securities;
(2) the aggregate principal amount of such Debt Securities and any
limit on such principal amount;
(3) the percentage of the principal amount at which such Debt
Securities will be issued and, if other than the principal amount thereof,
the portion of the principal amount payable upon declaration of
acceleration of the maturity thereof, or (if applicable) the portion of the
principal amount of such Debt Securities that is convertible into Capital
Stock of the Company, or the method by which any such portion will be
determined;
5
<PAGE>
(4) if convertible, in connection with the preservation of the
Company's status as a REIT, any applicable limitations on the ownership or
transferability of the Capital Stock of the Company into which such Debt
Securities are convertible;
(5) the date or dates, or the method by which such date or dates will
be determined, on which the principal of such Debt Securities will be
payable and the amount of principal payable thereon;
(6) the rate or rates (which may be fixed or variable) at which such
Debt Securities will bear interest, if any, or the method by which such
rate or rates will be determined, the date or dates from which such
interest will accrue or the method by which such date or dates will be
determined, the Interest Payment Dates on which any such interest will be
payable and the Regular Record Dates for such Interest Payment Dates or the
method by which such Dates will be determined, and the basis upon which
interest will be calculated if other than that of a 360-day year consisting
of twelve 30-day months;
(7) the place or places where the principal of (and premium or
Make-Whole Amount (as defined in each Indenture), if any), interest, if
any, on, and Additional Amounts, if any, payable in respect of, such Debt
Securities will be payable, where such Debt Securities may be surrendered
for registration of transfer or exchange and where notices or demands to or
upon the Company in respect of such Debt Securities and the applicable
Indenture may be served;
(8) the period or periods within which, the price or prices (including
premium or Make-Whole Amount, if any) at which, the currency or currencies,
currency unit or units or composite currency or currencies in which and
other terms and conditions upon which such Debt Securities may be redeemed
in whole or in part, at the option of the Company, if the Company is to
have the option;
(9) the obligation, if any, of the Company to redeem, repay or
purchase such Debt Securities pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods
within which or the date or dates on which, the price or prices at which,
the currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which such Debt
Securities will be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
(10) whether such Debt Securities will be in registered or bearer form
and terms and conditions relating thereto, and, if other than $1,000 and
any integral multiple thereof, the denominations in which any registered
Debt Securities will be issuable and, if other than $5,000, the
denomination or denominations in which any bearer Debt Securities will be
issuable;
(11) if other than United States dollars, the currency or currencies
in which such Debt Securities will be denominated and payable, which may be
a foreign currency or units of two or more foreign currencies or a
composite currency or currencies;
(12) whether the amount of payments of principal of (and premium or
Make-Whole Amount, if any) or interest, if any, on such Debt Securities may
be determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or more
currencies, currency units, composite currencies, commodities, equity
indices or other indices), and the manner in which such amounts will be
determined;
(13) whether the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on such Debt Securities are
to be payable, at the election of the Company or a Holder thereof, in a
currency or currencies, currency unit or units or composite currency or
currencies other than that in which such Debt Securities are denominated or
stated to be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made, and the time and manner
of, and identity of the exchange rate agent with responsibility for,
determining the exchange rate between the currency or currencies, currency
unit or units or composite currency or currencies in which such Debt
Securities are denominated or stated to be payable and the currency or
currencies, currency unit or units or composite currency or currencies in
which such Debt Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
such Debt Securities upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to such Debt
Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth in the
applicable Indenture;
(16) whether such Debt Securities will be issued in certificated or
book-entry form;
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(17) the applicability, if any, of the defeasance and covenant
defeasance provisions of Article Fourteen of the applicable Indenture;
(18) whether and under what circumstances the Company will pay
Additional Amounts as contemplated in the applicable Indenture on such Debt
Securities in respect of any tax, assessment or governmental charge and, if
so, whether the Company will have the option to redeem such Debt Securities
rather than pay such Additional Amounts (and the terms of any such option);
and
(19) any other terms of such Debt Securities not inconsistent with the
provisions of the applicable Indenture (Section 301 of each Indenture).
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities") (Section 502 of each Indenture). Special
United States federal income tax, accounting and other considerations applicable
to Original Issue Discount Securities will be described in the applicable
Prospectus Supplement.
DENOMINATIONS, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise specified in the applicable Prospectus Supplement, the
Debt Securities of any series issued in registered form will be issuable in
denominations of $1,000 and integral multiples thereof. Unless otherwise
specified in the applicable Prospectus Supplement, the Debt Securities of any
series issued in bearer form will be issuable in denominations of $5,000
(Section 302 of each Indenture).
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and premium or Make-Whole Amount, if any) and interest on any
series of Senior Securities will be payable at the corporate trust office of the
Senior Indenture Trustee located at 230 South Tryon Street, Charlotte, North
Carolina 28288 and the principal of (and premium or Make-Whole Amount, if any)
and interest on any series of Subordinated Securities will be payable at the
corporate trust office of the Subordinated Indenture Trustee located at 919 East
Main Street, Richmond, Virginia 23219; provided that at the option of the
Company payment of interest on any series of Debt Securities may be made by
check mailed to the address of the Person entitled thereto as it appears in the
Security Register for such series or by wire transfer of funds to such Person at
an account maintained within the United States (Sections 301, 305, 306, 307 and
1002 of each Indenture).
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the applicable Regular Record
Date and may either be paid to the Person in whose name such Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Company, notice whereof shall be given to the Holder of such Debt Security not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner, all as more completely described in the applicable
Indenture (Section 307 of each Indenture).
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations upon surrender of such
Debt Securities at the corporate trust office of the applicable Trustee referred
to above. In addition, subject to certain limitations imposed upon Debt
Securities issued in book-entry form, the Debt Securities of any series may be
surrendered for conversion or registration of transfer thereof at the corporate
trust office of the applicable Trustee referred to above. Every Debt Security
surrendered for conversion, registration of transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer. No service charge
will be made for any registration or transfer or exchange of any Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith (Section 305 of
each Indenture). If the applicable Prospectus Supplement refers to any transfer
agent (in addition to the applicable Trustee) initially designated by the
Company with respect to any series of Debt Securities, the Company may at any
time rescind the designation of any such transfer agent or approve a change in
the location through which such transfer agent acts, except that the Company
will be required to maintain a transfer agent in each Place of Payment for such
series. The Company may at any time designate additional transfer agents with
respect to any series of Debt Securities (Section 1002 of each Indenture).
Neither the Company nor either Trustee shall be required to (i) issue,
register the transfer of or exchange Debt Securities of any series during a
period beginning at the opening of business 15 days before any selection of Debt
Securities of that series to be redeemed and ending at the close of business on
the day of mailing of the relevant notice of redemption; (ii) register the
transfer of or exchange any Debt Security, or portion thereof, called for
redemption, except the unredeemed portion of any Debt Security being redeemed in
part; or (iii) issue, register the transfer of or exchange any Debt Security
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which has been surrendered for repayment at the option of the Holder, except the
portion, if any, of such Debt Security not to be so repaid (Section 305 of each
Indenture).
MERGER, CONSOLIDATION OR SALE
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into, any other entity,
provided that (a) either the Company shall be the continuing entity, or the
successor entity (if other than the Company) formed by or resulting from any
such consolidation or merger or which shall have received the transfer of such
assets is a Person organized and existing under the laws of the United States or
any State thereof and shall expressly assume payment of the principal of (and
premium or Make-Whole Amount, if any) and interest on all of the Debt Securities
and the due and punctual performance and observance of all of the covenants and
conditions contained in each Indenture; (b) immediately after giving effect to
such transaction and treating any indebtedness which becomes an obligation of
the Company or any Subsidiary as a result thereof as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default
under an Indenture, and no event which, after notice or the lapse of time, or
both, would become such an Event of Default, shall have occurred and be
continuing; and (c) an Officers' Certificate and legal opinion covering such
conditions shall be delivered to the Company (Sections 801 and 803 of each
Indenture).
CERTAIN COVENANTS
SENIOR INDENTURE LIMITATIONS ON INCURRENCE OF DEBT. The Senior Indenture
provides that the Company will not, and will not permit any Subsidiary to, incur
any Debt (as defined below) if, immediately after giving effect to the
incurrence of such Debt and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Debt of the Company and its
Subsidiaries on a consolidated basis determined in accordance with generally
accepted accounting principles is greater than 60% of the sum of (without
duplication) (i) the Company's Total Assets as of the end of the calendar
quarter covered in the Company's Annual Report on Form 10-K or Quarterly Report
on Form 10-Q, as the case may be, most recently filed with the Commission (or,
if such filing is not permitted under the Exchange Act, with the Company) prior
to the incurrence of such additional Debt and (ii) the purchase price of any
real estate assets or mortgages receivable acquired, and the amount of any
securities offering proceeds received (to the extent such proceeds were not used
to acquire real estate assets or mortgages receivable or used to reduce Debt),
by the Company or any Subsidiary since the end of such calendar quarter,
including those proceeds obtained in connection with the incurrence of such
additional Debt (Section 1004 of the Senior Indenture). The Subordinated
Indenture does not limit the incurrence of Debt.
In addition to the foregoing limitation on the incurrence of Debt, the
Senior Indenture provides that the Company will not, and will not permit any
Subsidiary to, incur any Debt secured by any mortgage, lien, charge, pledge,
encumbrance or security interest of any kind upon any of the property of the
Company or any Subsidiary if, immediately after giving effect to the incurrence
of such Debt and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Debt of the Company and its Subsidiaries on
a consolidated basis which is secured by any mortgage, lien, charge, pledge,
encumbrance or security interest on property of the Company or any Subsidiary is
greater than 40% of the Company's Total Assets (Section 1004 of the Senior
Indenture).
In addition to the foregoing limitations on the incurrence of Debt, the
Senior Indenture provides that the Company will not, and will not permit any
Subsidiary to, incur any Debt if the ratio of Consolidated Income Available for
Debt Service (as defined below) to the Annual Service Charge (as defined below)
for the four consecutive fiscal quarters most recently ended prior to the date
on which such additional Debt is to be incurred shall have been less than 1.5,
on a pro forma basis after giving effect thereto and to the application of the
proceeds therefrom, and calculated on the assumption that (i) such Debt and any
other Debt incurred by the Company and its Subsidiaries since the first day of
such four-quarter period and the application of the proceeds therefrom,
including to refinance other Debt, had occurred at the beginning of such period;
(ii) the repayment or retirement of any other Debt by the Company and its
Subsidiaries since the first day of such four-quarter period had been incurred,
repaid or retired at the beginning of such period (except that, in making such
computation, the amount of Debt under any revolving credit facility shall be
computed based upon the average daily balance of such Debt during such period);
(iii) in the case of Acquired Debt (as defined below) or Debt incurred in
connection with any acquisition since the first day of such four-quarter period,
the related acquisition had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition being included in such
pro forma calculation; and (iv) in the case of any acquisition or disposition by
the Company or its Subsidiaries of any asset or group of assets since the first
day of such four-quarter period, whether by merger, stock purchase or sale, or
asset purchase or sale, such acquisition or disposition or any related repayment
of Debt had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition being included in
such pro forma calculation (Section 1004 of the Senior Indenture).
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As used herein,
"ACQUIRED DEBT" means Debt of a Person (i) existing at the time such Person
becomes a Subsidiary or (ii) assumed in connection with the acquisition of
assets from such Person, in each case, other than Debt incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary or such
acquisition. Acquired Debt shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Subsidiary.
"ANNUAL SERVICE CHARGE" as of any date means the maximum amount which is
payable in any period for interest on, and original issue discount of, Debt of
the Company and its Subsidiaries and the amount of dividends which are payable
in respect of any Disqualified Stock (as defined below).
"CAPITAL STOCK" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"CONSOLIDATED INCOME AVAILABLE FOR DEBT SERVICE" for any period means Funds
from Operations (as defined below) of the Company and its Subsidiaries plus
amounts which have been deducted for interest on Debt of the Company and its
Subsidiaries.
"DEBT" of the Company or any Subsidiary means any indebtedness of the
Company, or any Subsidiary, whether or not contingent, in respect of (without
duplication) (i) borrowed money or evidenced by bonds, notes, debentures or
similar instruments, (ii) indebtedness secured by any mortgage, pledge, lien,
charge, encumbrance or any security interest existing on property owned by the
Company or any Subsidiary, (iii) the reimbursement obligations, contingent or
otherwise, in connection with any letters of credit actually issued or amounts
representing the balance deferred and unpaid of the purchase price of any
property or services, except any such balance that constitutes an accrued
expense or trade payable, or all conditional sale obligations or obligations
under any title retention agreement, (iv) the principal amount of all
obligations of the Company or any Subsidiary with respect to redemption,
repayment or other repurchase of any Disqualified Stock or (v) any lease of
property by the Company or any Subsidiary as lessee which is reflected on the
Company's consolidated balance sheet as a capitalized lease in accordance with
generally accepted accounting principles to the extent, in the case of items of
indebtedness under (i) through (iii) above, that any such items (other than
letters of credit) would appear as a liability on the Company's consolidated
balance sheet in accordance with generally accepted accounting principles, and
also includes, to the extent not otherwise included, any obligation of the
Company or any Subsidiary to be liable for, or to pay, as obligor, guarantor or
otherwise (other than for purposes of collection in the ordinary course of
business), Debt of another Person (other than the Company or any Subsidiary) (it
being understood that Debt shall be deemed to be incurred by the Company or any
Subsidiary whenever the Company or such Subsidiary shall create, assume,
guarantee or otherwise become liable in respect thereof).
"DISQUALIFIED STOCK" means, with respect to any Person, any Capital Stock
of such Person which by the terms of such Capital Stock (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, (ii)
is convertible into or exchangeable or exercisable for Debt or Disqualified
Stock or (iii) is redeemable at the option of the holder thereof, in whole or in
part, in each case on or prior to the Stated Maturity of the series of Debt
Securities.
"FUNDS FROM OPERATIONS" for any period means income before gains (losses)
on investments and extraordinary items plus amounts which have been deducted,
and minus amounts which have been added, for the following items (without
duplication): (a) provision for Preferred Stock dividends, (b) provision for
property depreciation and amortization and (c) the effect of any adjustments for
significant non-recurring items, including any noncash charge resulting from a
change in accounting principles in determining income before gains (losses) on
investments and extraordinary items for such period, as reflected in the
financial statements of the Company and its Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles.
"TOTAL ASSETS" as of any date means the sum of (i) the Company's
Undepreciated Real Estate Assets and (ii) all other assets of the Company
determined in accordance with generally accepted accounting principles (but
excluding intangibles).
"UNDEPRECIATED REAL ESTATE ASSETS" as of any date means the cost (original
cost plus capital improvements) of real estate assets of the Company and its
Subsidiaries on such date, before depreciation and amortization determined on a
consolidated basis in accordance with generally accepted accounting principles.
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Except as described above, the Indentures do not contain any provisions
that would limit the ability of the Company to incur indebtedness or that would
afford Holders of the Debt Securities protection in the event of a highly
leveraged or similar transaction involving the Company or in the event of a
change of control. However, the Articles of Incorporation of the Company include
provisions for mandatory redemption and stopping transfer of its Common Stock
designed to preserve the Company's status as a REIT. The Code provides that
concentration of more than 50% in value of direct or indirect ownership of
Common Stock in five or fewer individual shareholders during the last six months
of any year will result in disqualification of the Company as a REIT.
Enforcement of the provisions of the Company's Articles of Incorporation would
prevent such concentration and, therefore, prevent or hinder a change of
control. Reference is made to the applicable Prospectus Supplement for
information with respect to any deletions from, modifications of or additions to
the Events of Default or covenants of the Company that are described herein,
including any addition of a covenant or other provision providing event risk or
similar protection.
EXISTENCE. Except as described above under " -- Merger, Consolidation or
Sale," the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect the existence, rights (charter and statutory)
and franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any right or franchise if it
determines that the preservation thereof is no longer desirable in the conduct
of the business of the Company and its Subsidiaries as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders of the
Debt Securities of any series (Section 1005 of each Indenture).
MAINTENANCE OF PROPERTIES. The Company will cause all of its properties
used or useful in the conduct of its business or the business of any Subsidiary
to be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that the Company and its Subsidiaries shall not be prevented
from selling or otherwise disposing of for value their properties in the
ordinary course of business (Section 1006 of each Indenture).
INSURANCE. The Company will, and will cause each of its Subsidiaries to,
keep all of its insurable properties insured against loss or damage in an amount
at least equal to their then full insurable value with financially sound and
reputable insurance companies (Section 1007 of each Indenture).
PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay or discharge or
cause to be paid or discharged, before the same become delinquent, (i) all
taxes, assessments and governmental charges levied or imposed upon it or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, and (ii) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a lien upon the property of the Company or any
Subsidiary; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings (Section 1008 of each Indenture).
PROVISION OF FINANCIAL INFORMATION. Whether or not the Company is subject
to Section 13 or 15(d) of the Exchange Act, the Company will, to the extent
permitted under the Exchange Act, file with the Commission the annual reports,
quarterly reports and other documents which the Company would have been required
to file with the Commission pursuant to such Section 13 and 15(d) if the Company
were so subject, such documents to be filed with the Commission on or prior to
the respective dates (the "Required Filing Dates") by which the Company would
have been required so to file such documents if the Company were so subject. The
Company will also in any event (x) within 15 days of each Required Filing Date
(i) transmit by mail to all Holders of Debt Securities, as their names and
addresses appear in the Security Register, without cost to such Holders, copies
of the annual reports and quarterly reports which the Company would have been
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act if the Company were subject to such Sections and (ii) file with the
Company copies of the annual reports, quarterly reports and other documents
which the Company would have been required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act if the Company were subject to such
Sections and (y) if filing such documents by the Company with the Commission is
not permitted under the Exchange Act, promptly upon written request and payment
of the reasonable cost of duplication and delivery, supply copies of such
documents to any prospective Holder (Section 1009 of each Indenture).
EVENTS OF DEFAULT, NOTICE AND WAIVER
Each Indenture provides that the following events are "Events of Default"
with respect to any series of Debt Securities issued thereunder: (a) default for
30 days in the payment of any installment of interest or Additional Amounts
payable on any
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Debt Security of such series; (b) default in the payment of the principal of (or
premium or Make-Whole Amount, if any, on) any Debt Security of such series at
its Maturity; (c) default in making any sinking fund payment as required for any
Debt Security of such series; (d) default in the performance of any other
covenant of the Company contained in the Indenture (other than a covenant added
to the Indenture solely for the benefit of a series of Debt Securities issued
thereunder other than such series), continued for 60 days after written notice
as provided in the Indenture; (e) default under any bond, debenture, note,
mortgage, indenture or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed by the
Company (or by any Subsidiary, the repayment of which the Company has guaranteed
or for which the Company is directly responsible or liable as obligor or
guarantor) having an aggregate principal amount outstanding of at least
$10,000,000, whether such indebtedness now exists or shall hereafter be created,
which default shall have resulted in such indebtedness being declared due and
payable prior to the date on which it would otherwise have become due and
payable, without such acceleration having been rescinded or annulled within 10
days after written notice as provided in the Indenture; (f) the entry by a court
of competent jurisdiction of one or more judgments, orders or decrees against
the Company or any Subsidiary in an aggregate amount (excluding amounts fully
covered by insurance) in excess of $10,000,000 and such judgments, orders or
decrees remain undischarged, unstayed and unsatisfied in an aggregate amount
(excluding amounts fully covered by insurance) in excess of $10,000,000 for a
period of 30 consecutive days; (g) certain events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver, liquidator or trustee of the
Company or any Significant Subsidiary or for all or substantially all of either
of its property; and (h) any other Event of Default provided with respect to
such series of Debt Securities (Section 501 of each Indenture). The term
"Significant Subsidiary" means each significant subsidiary (as defined in
Regulation S-X promulgated under the Securities Act) of the Company.
If an Event of Default under either Indenture with respect to Debt
Securities of any series at the time Outstanding occurs and is continuing, then
in every such case the Company or the Holders of not less than 25% in principal
amount of the Outstanding Debt Securities of that series may declare the
principal amount (or, if the Debt Securities of that series are Original Issue
Discount Securities or Indexed Securities, such portion of the principal amount
as may be specified in the terms thereof) of, and premium or Make-Whole Amount,
if any, on, all of the Debt Securities of that series to be due and payable
immediately by written notice thereof to the Company (and to the Company if
given by the Holders). However, at any time after such declaration of
acceleration with respect to Debt Securities of such series (or of all Debt
Securities then Outstanding under the applicable Indenture, as the case may be)
has been made, but before a judgment or decree for payment of the money due has
been obtained by the Company, the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of such series (or of all
Debt Securities then Outstanding under the applicable Indenture, as the case may
be) may rescind and annul such declaration and its consequences if (a) the
Company shall have deposited with the Company all required payments of the
principal of (and premium or Make-Whole Amount, if any) and interest, and any
Additional Amounts, on the Debt Securities of such series (or of all Debt
Securities then Outstanding under the applicable Indenture, as the case may be),
plus certain fees, expenses, disbursements and advances of the Company and (b)
all Events of Default, other than the nonpayment of accelerated principal (or
specified portion thereof and the premium or Make-Whole Amount, if any) or
interest, with respect to the Debt Securities of such series (or of all Debt
Securities then Outstanding under the applicable Indenture, as the case may be)
have been cured or waived as provided in the Indenture (Section 502 of each
Indenture). Each Indenture also provides that the Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of any series
(or of all Debt Securities then Outstanding under the applicable Indenture, as
the case may be) may waive any past default with respect to such series and its
consequences, except a default (x) in the payment of the principal of (or
premium or Make-Whole Amount, if any) or interest or Additional Amounts payable
on any Debt Security of such series or (y) in respect of a covenant or provision
contained in the applicable Indenture that cannot be modified or amended without
the consent of the Holder of each Outstanding Debt Security affected thereby
(Section 513 of each Indenture).
Each Trustee is required to give notice to the Holders of Debt Securities
within 90 days of a default under the applicable Indenture; provided, however,
that such Trustee may withhold notice to the Holders of any series of Debt
Securities of any default with respect to such series (except a default in the
payment of the principal of (or premium or Make-Whole Amount, if any) or
interest or Additional Amounts payable on any Debt Security of such series or in
the payment of any sinking fund installment in respect of any Debt Security of
such series) if the Responsible Officers of such Trustee consider such
withholding to be in the interest of such Holders (Section 601 of each
Indenture).
Each Indenture provides that no Holders of Debt Securities of any series
may institute any proceedings, judicial or otherwise, with respect to such
Indenture or for any remedy thereunder, except in the case of failure of the
Company, for 60 days, to act after it has received a written request to
institute proceedings in respect of an Event of Default from the Holders of not
less than 25% in principal amount of the Outstanding Debt Securities of such
series, as well as an offer of reasonable
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indemnity (Section 507 of each Indenture). This provision will not prevent,
however, any Holder of Debt Securities from instituting suit for the enforcement
of payment of the principal of (and premium or Make-Whole Amount, if any),
interest on and Additional Amounts payable with respect to, such Debt Securities
at the respective due dates thereof (Section 508 of each Indenture).
MODIFICATION OF THE INDENTURES
Modifications and amendments of either Indenture may be made with the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Debt Securities issued under such Indenture that are affected by
such modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the Holder of each such Debt Security
affected thereby, (a) change the Stated Maturity of the principal of (or premium
or Make-Whole Amount, if any), or any installment of principal of or interest or
Additional Amounts payable on, any such Debt Security; (b) reduce the principal
amount of, or the rate or amount of interest on, or any premium or Make-Whole
Amount payable on redemption of, or any Additional Amounts payable with respect
to, any such Debt Security, or reduce the amount of principal of an Original
Issue Discount Security or Make-Whole Amount, if any, that would be due and
payable upon declaration of acceleration of the maturity thereof or would be
provable in bankruptcy, or adversely affect any right of repayment of the Holder
of any such Debt Security; (c) change the Place of Payment, or the coin or
currency, for payment of principal of (and premium or Make-Whole Amount, if
any), or interest on, or any Additional Amounts payable with respect to, any
such Debt Security; (d) impair the right to institute suit for the enforcement
of any payment on or with respect to any such Debt Security; (e) reduce the
percentage of Outstanding Debt Securities of any series necessary to modify or
amend the applicable Indenture, to waive compliance with certain provisions
thereof or certain defaults and consequences thereunder or to reduce the quorum
or voting requirements set forth in the Indenture; or (f) modify any of the
foregoing provisions or any of the provisions relating to the waiver of certain
past defaults or certain covenants, except to increase the required percentage
to effect such action or to provide that certain other provisions may not be
modified or waived without the consent of the Holder of such Debt Security
(Section 902 of each Indenture).
The Holders of not less than a majority in principal amount of Outstanding
Debt Securities issued under either Indenture have the right to waive compliance
by the Company with certain covenants in such Indenture (Section 1012 of each
Indenture).
SUBORDINATION
Upon any distribution to creditors of the Company in a liquidation,
dissolution or reorganization, the payment of the principal of and interest on
the Subordinated Securities will be subordinated to the extent provided in the
Subordinated Indenture in right of payment to the prior payment in full of all
Senior Debt (Sections 1601 and 1602 of the Subordinated Indenture), but the
obligation of the Company to make payment of the principal and interest on the
Subordinated Securities will not otherwise be affected (Section 1608 of the
Subordinated Indenture). No payment of principal or interest may be made on the
Subordinated Securities at any time if a default on Senior Debt exists that
permits the holders of such Senior Debt to accelerate its maturity and the
default is the subject of judicial proceedings or the Company receives notice of
the default (Section 1603 of the Subordinated Indenture). After all Senior Debt
is paid in full and until the Subordinated Securities are paid in full, holders
will be subrogated to the rights of holders of Senior Debt to the extent that
distributions otherwise payable to holders have been applied to the payment of
Senior Debt (Section 1607 of the Subordinated Indenture). By reason of such
subordination, in the event of a distribution of assets upon insolvency, certain
general creditors of the Company may recover more, ratably, than holders of the
Subordinated Securities.
Senior Debt is defined in the Subordinated Indenture as the principal of
and interest on, or substantially similar payments to be made by the Company in
respect of, the following, whether outstanding at the date of execution of the
Subordinated Indenture or thereafter incurred, created or assumed: (a)
indebtedness of the Company for money borrowed or represented by purchase-money
obligations, (b) indebtedness of the Company evidenced by notes, debentures, or
bonds, or other securities issued under the provisions of an indenture, fiscal
agency agreement or other instrument, (c) obligations of the Company as lessee
under leases of property either made as part of any sale and leaseback
transaction to which the Company is a party or otherwise, (d) indebtedness of
partnerships and joint ventures that is included in the consolidated financial
statements of the Company, (e) indebtedness, obligations and liabilities of
others in respect of which the Company is liable contingently or otherwise to
pay or advance money or property or as guarantor, endorser or otherwise or which
the Company has agreed to purchase or otherwise acquire, and (f) any binding
commitment of the Company to fund any real estate investment or to fund any
investment in any entity making such real estate investment, in each case other
than (1) any such indebtedness, obligation or liability referred to in clauses
(a) through (f) above as to which, in the instrument creating or
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evidencing the same pursuant to which the same is outstanding, it is provided
that such indebtedness, obligation or liability is not superior in right of
payment to the Subordinated Securities or ranks pari passu with the Subordinated
Securities, (2) any such indebtedness, obligation or liability which is
subordinated to indebtedness of the Company to substantially the same extent as
or to a greater extent than the Subordinated Securities are subordinated and (3)
the Subordinated Securities (Section 101 of the Subordinated Indenture). At
March 31, 1997, Senior Debt aggregated approximately $1.1 billion. There are no
restrictions in the Subordinated Indenture upon the creation of additional
Senior Debt. However, the Senior Indenture contains limitations on incurrence of
indebtedness by the Company. See " -- Certain Covenants -- Senior Indenture
Limitations on Incurrence of Debt."
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Under each Indenture, the Company may discharge certain obligations to
Holders of any series of Debt Securities issued thereunder that have not already
been delivered to the applicable Trustee for cancellation and that either have
become due and payable or will become due and payable within one year (or
scheduled for redemption within one year) by irrevocably depositing with the
applicable Trustee, in trust, funds in such currency or currencies, currency
unit or units or composite currency or currencies in which such Debt Securities
are payable in an amount sufficient to pay the entire indebtedness on such Debt
Securities in respect of principal (and premium or Make-Whole Amount, if any)
and interest and any Additional Amounts payable to the date of such deposit (if
such Debt Securities have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be (Section 401 of each Indenture).
Each Indenture provides that, if the provisions of Article Fourteen thereof
are made applicable to the Debt Securities of or within any series pursuant to
Section 301 of such Indenture, the Company may elect either (a) to defease and
be discharged from any and all obligations with respect to such Debt Securities
(except for the obligation to pay Additional Amounts, if any, upon the
occurrence of certain events of tax, assessment or governmental charge with
respect to payments on such Debt Securities and the obligations to register the
transfer or exchange of such Debt Securities, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities, to maintain an office or agency in
respect of such Debt Securities and to hold moneys for payment in trust)
("defeasance") (Section 1402 of each Indenture) or (b) to be released from its
obligations with respect to such Debt Securities under provisions of each
Indenture described under " -- Certain Covenants," or, if provided pursuant to
Section 301 of each Indenture, its obligations with respect to any other
covenant, and any omission to comply with such obligations shall not constitute
a default or an Event or Default with respect to such Debt Securities ("covenant
defeasance") (Section 1403 of each Indenture), in either case upon the
irrevocable deposit by the Company with the applicable Trustee, in trust, of an
amount, in such currency or currencies, currency unit or currency units or
composite currency or currencies in which such Debt Securities are payable at
Stated Maturity, or Government Obligations (as defined below), or both,
applicable to such Debt Securities which through the scheduled payment of
principal and interest in accordance with their terms will provide money in an
amount sufficient to pay the principal of (and premium or Make-Whole Amount, if
any) and interest on such Debt Securities, and any mandatory sinking fund or
analogous payments thereon, on the scheduled due dates therefor.
Such a trust may only be established if, among other things, the Company
has delivered to the applicable Trustee an Opinion of Counsel (as specified in
each Indenture) to the effect that the Holders of such Debt Securities will not
recognize income, gain or loss for United States federal income tax purposes as
a result of such defeasance or covenant defeasance and will be subject to United
States federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance or covenant defeasance
had not occurred, and such Opinion of Counsel, in the case of defeasance, must
refer to and be based upon a ruling of the Internal Revenue Service or a change
in applicable United States federal income tax laws occurring after the date of
such Indenture (Section 1404 of each Indenture).
"GOVERNMENT OBLIGATIONS" means securities which are (i) direct obligations
of the United States of America or the government which issued the Foreign
Currency in which the Debt Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or the government which issued the Foreign
Currency in which the Debt Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt
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from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt (Section 101 of each Indenture).
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to Debt Securities of any series,
(a) the Holder of a Debt Security of such series is entitled to, and does, elect
pursuant to Section 301 of either Indenture or the terms of such Debt Security
to receive payment in a currency, currency unit or composite currency other than
that in which such deposit has been made in respect of such Debt Security, or
(b) a Conversion Event (as defined below) occurs in respect of the currency,
currency unit or composite currency in which such deposit has been made, the
indebtedness represented by such Debt Security shall be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of
(and premium or Make-Whole Amount, if any) and interest on such Debt Security as
they become due out of the proceeds yielded by converting the amount so
deposited in respect of such Debt Security into the currency, currency unit or
composite currency in which such Debt Security becomes payable as a result of
such election or such cessation of usage based on the applicable market exchange
rate (Section 1405 of each Indenture). "Conversion Event" means the cessation of
use of (i) a currency, currency unit or composite currency (other than the ECU
or other currency unit) both by the government of the country that issued such
currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking community, (ii) the
ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities or
(iii) any currency unit or composite currency other than the ECU for the
purposes for which it was established. Unless otherwise provided in the
applicable Prospectus Supplement, all payments of principal of (and premium or
Make-Whole Amount, if any) and interest on any Debt Security that is payable in
a Foreign Currency that ceases to be used by its government of issuance shall be
made in United States dollars (Section 101 of each Indenture).
In the event the Company effects covenant defeasance with respect to any
Debt Securities and such Debt Securities are declared due and payable because of
the occurrence of any Event of Default other than the Event of Default described
in clause (d) under " -- Events of Default, Notice and Waiver" with respect to
Sections 1004 to 1009, inclusive, of either Indenture (which Sections would no
longer be applicable to such Debt Securities) or described in clause (g) under
"Events of Default, Notice and Waiver" with respect to a covenant as to which
there has been covenant defeasance, the amount in such currency, currency unit
or composite currency in which such Debt Securities are payable, and Government
Obligations on deposit with the Company, will be sufficient to pay amounts due
on such Debt Securities at the time of their Stated Maturity but may not be
sufficient to pay amounts due on such Debt Securities at the time of the
acceleration resulting from such Event of Default. However, the Company would
remain liable to make payment of such amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the provisions,
if any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
CONVERSION RIGHTS
The terms and conditions, if any, upon which the Debt Securities are
convertible into Capital Stock of the Company will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms will include
whether such Debt Securities are convertible into Capital Stock of the Company,
the conversion price (or manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the Holders or the
Company, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of such Debt
Securities.
BOOK-ENTRY SYSTEM
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of a depository (the "Depository") identified in
the Prospectus Supplement relating to such series. Global Securities, if any,
are expected be deposited with The Depository Trust Company, as Depository.
Global Securities may be issued in fully registered form and may be issued in
either temporary or permanent form. Unless and until it is exchanged in whole or
in part for the individual Debt Securities represented thereby, a Global
Security may not be transferred except as a whole by the Depository for such
Global Security to a nominee of such Depository or by a nominee of such
Depository to such Depository or another nominee of such Depository or by such
Depository or any nominee of such Depository to a successor Depository or any
nominee of such successor.
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The specific terms of the depository arrangement with respect to a series
of Debt Securities will be described in the Prospectus Supplement relating to
such series. The Company expects that unless otherwise indicated in the
applicable Prospectus Supplement the following provisions will apply to
depository arrangements.
Upon the issuance of a Global Security, the Depository for such Global
Security or its nominee will credit on its book-entry registration and transfer
system the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depository ("Participants"). Such accounts shall be
designated by the underwriters, dealers or agents with respect to such Debt
Securities or by the Company if such Debt Securities are offered directly by the
Company. Ownership of beneficial interests in such Global Security will be
limited to Participants or persons that may hold interests through Participants.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the Depository for such Global Security or its nominee (with respect to
beneficial interests of Participants) and records of Participants (with respect
to beneficial interests of persons who hold through Participants). The laws of
some states require that certain purchasers of securities take physical delivery
of such securities in definitive form. Such limits and laws may impair the
ability to own, pledge or transfer beneficial interest in a Global Security.
So long as the Depository for a Global Security or its nominee is the
registered owner of such Global Security, such Depository or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as described below or in the applicable Prospectus
Supplement, owners of beneficial interest in a Global Security will not be
entitled to have any of the individual Debt Securities represented by such
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of any such Debt Securities in definitive form and
will not be considered the owners or holders thereof under the applicable
Indenture.
Payments of principal of, any premium or Make-Whole Amount and any interest
on, or any Additional Amounts payable with respect to, individual Debt
Securities represented by a Global Security registered in the name of a
Depository or its nominee will be made to the Depository or its nominee, as the
case may be, as the registered owner of the Global Security. None of the
Company, the Trustee, any Paying Agent or the Security Registrar for such Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in the Global Security for such Debt Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company expects that the Depository for any Debt Securities or its
nominee, upon receipt of any payment of principal, premium, Make-Whole Amount,
interest or Additional Amounts in respect of the Global Security representing
such Debt Securities will immediately credit Participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Security as shown on the records of such
Depository or its nominee. The Company also expects that payments by
Participants to owners of beneficial interests in such Global Security held
through such Participants will be governed by standing instructions and
customary practices, as is the case with securities held for the account of
customers in bearer form or registered in street name. Such payments will be the
responsibility of such Participants.
If a Depository for any Debt Securities is at any time unwilling, unable or
ineligible to continue as depository and a successor depository is not appointed
by the Company within 90 days, the Company will issue individual Debt Securities
in exchange for the Global Security representing such Debt Securities. In
addition, the Company may at any time and in its sole discretion, subject to any
limitations described in the Prospectus Supplement relating to such Debt
Securities, determine not to have any of such Debt Securities represented by one
or more Global Securities and in such event will issue individual Debt
Securities in exchange for the Global Security or Securities representing such
Debt Securities. Individual Debt Securities so issued will be issued in
denominations of $1,000 and integral multiples thereof.
TRUSTEES
First Union National Bank of Virginia is the Trustee under the Senior
Indenture. Crestar Bank is the Trustee under the Subordinated Indenture. Both
First Union National Bank of Virginia and Crestar Bank have lending
relationships with the Company.
DESCRIPTION OF CAPITAL STOCK
GENERAL
The Company is authorized to issue 150,000,000 shares of Common Stock, $1
par value, and 25,000,000 shares of Preferred Stock, no par value. At May 9,
1997, there were outstanding 86,484,586 shares of Common Stock and 4,200,000
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shares of Preferred Stock, consisting exclusively of the Company's 9 1/4% Series
A Cumulative Redeemable Preferred Stock (the "Series A Preferred").
The following statements with respect to the capital stock of the Company
are subject to the detailed provisions of the Company's Restated Articles of
Incorporation, as amended (the "Articles"), and bylaws (the "Bylaws") as
currently in effect. These statements do not purport to be complete, or to give
full effect to the terms of the provisions of statutory or common law, and are
subject to, and are qualified in their entirety by reference to, the terms of
the Articles and Bylaws, which are filed as exhibits to the Registration
Statement.
COMMON STOCK
Holders of Common Stock are entitled to receive dividends when and as
declared by the Board of Directors after payment of, or provision for, full
cumulative dividends on and any required redemptions of shares of Preferred
Stock then outstanding. Holders of Common Stock have one vote per share and
non-cumulative voting rights, which means that holders of more than 50% of the
shares voting can elect all of the directors if they choose to do so, and, in
such event, the holders of the remaining shares will not be able to elect any
directors. In the event of any voluntary or involuntary liquidation or
dissolution of the Company, holders of Common Stock are entitled to share
ratably in the distributable assets of the Company remaining after satisfaction
of the prior preferential rights of the Preferred Stock and the satisfaction of
all debts and liabilities of the Company. Holders of Common Stock do not have
preemptive rights.
The dividend and liquidation rights of holders of the Common Stock are
specifically limited by the terms of the Series A Preferred as described below
in " -- Series A Preferred."
The transfer agent for the Common Stock is Chase Mellon Shareholder
Services, L.L.C., Ridgefield Park, New Jersey. The Common Stock is traded on the
NYSE under the symbol "UDR."
PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which a
Prospectus Supplement may relate. Specific terms of any series of Preferred
Stock offered by a Prospectus Supplement will be described in that Prospectus
Supplement. The description set forth below is subject to and qualified in its
entirety by reference to the Articles of Amendment to the Articles fixing the
preferences, limitations and relative rights of a particular series of Preferred
Stock.
GENERAL. Under the Articles, the Board of Directors of the Company is
authorized, without further shareholder action, to provide for the issuance of
up to 25,000,000 shares of Preferred Stock, in one or more series, with such
voting powers and with such designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions, as the Board of Directors shall approve.
The Preferred Stock will have the dividend, liquidation, redemption,
conversion and voting rights set forth below unless otherwise provided in the
Prospectus Supplement relating to a particular series of Preferred Stock.
Reference is made to the Prospectus Supplement relating to the particular series
of Preferred Stock offered thereby for specific terms, including: (i) the title
and liquidation preference per share of such Preferred Stock and the number of
shares offered; (ii) the price at which such series will be issued; (iii) the
dividend rate (or method of calculation), the dates on which dividends shall be
payable and the dates from which dividends shall commence to accumulate; (iv)
any redemption or sinking fund provisions of such series; (v) any conversion
provisions of such series; and (vi) any additional dividend, liquidation,
redemption, sinking fund and other rights, preferences, privileges, limitations
and restrictions of such series.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a particular
series of Preferred Stock, each series will rank on a parity as to dividends and
distributions in the event of a liquidation with each other series of Preferred
Stock and, in all cases, will be senior to the Common Stock.
DIVIDEND RIGHTS. Holders of Preferred Stock of each series will be entitled
to receive, when, as and if declared by the Board of Directors, out of assets of
the Company legally available therefor, cash dividends at such rates and on such
dates as are set forth in the Prospectus Supplement relating to such series of
Preferred Stock. Such rate may be fixed or variable or both and may be
cumulative, noncumulative or partially cumulative.
If the applicable Prospectus Supplement so provides, as long as any shares
of Preferred Stock are outstanding, no dividends will be declared or paid or any
distributions be made on the Common Stock, other than a dividend payable in
Common
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Stock, unless the accrued dividends on each series of Preferred Stock have been
fully paid or declared and set apart for payment and the Company shall have set
apart all amounts, if any, required to be set apart for all sinking funds, if
any, for each series of Preferred Stock.
If the applicable Prospectus Supplement so provides, when dividends are not
paid in full upon any series of Preferred Stock and any other series of
Preferred Stock ranking on a parity as to dividends with such series of
Preferred Stock, all dividends declared upon such series of Preferred Stock and
any other series of Preferred Stock ranking on a parity as to dividends will be
declared pro rata so that the amount of dividends declared per share on such
series of Preferred Stock and such other series will in all cases bear to each
other the same ratio that accrued dividends per share on such series of
Preferred Stock and such other series bear to each other.
Each series of Preferred Stock will be entitled to dividends as described
in the Prospectus Supplement relating to such series, which may be based upon
one or more methods of determination. Different series of Preferred Stock may be
entitled to dividends at different dividend rates or based upon different
methods of determination. Except as provided in the applicable Prospectus
Supplement, no series of Preferred Stock will be entitled to participate in the
earnings or assets of the Company.
RIGHTS UPON LIQUIDATION. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the holders of each
series of Preferred Stock will be entitled to receive out of the assets of the
Company available for distribution to shareholders the amount stated or
determined on the basis set forth in the Prospectus Supplement relating to such
series, which may include accrued dividends, if such liquidation, dissolution or
winding up is involuntary or may equal the current redemption price per share
(otherwise than for the sinking fund, if any, provided for such series) provided
for such series set forth in such Prospectus Supplement, if such liquidation,
dissolution or winding up is voluntary, and on such preferential basis as is set
forth in such Prospectus Supplement. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the amounts payable with
respect to Preferred Stock of any series and any other shares of stock of the
Company ranking as to any such distribution on a parity with such series of
Preferred Stock are not paid in full, the holders of Preferred Stock of such
series and of such other shares will share ratably in any such distribution of
assets of the Company in proportion to the full respective preferential amounts
to which they are entitled or on such other basis as is set forth in the
applicable Prospectus Supplement. The rights, if any, of the holders of any
series of Preferred Stock to participate in the assets of the Company remaining
after the holders of other series of Preferred Stock have been paid their
respective specified liquidation preferences upon any liquidation, dissolution
or winding up of the Company will be described in the Prospectus Supplement
relating to such series.
REDEMPTION. A series of Preferred Stock may be redeemable, in whole or in
part, at the option of the Company, and may be subject to mandatory redemption
pursuant to a sinking fund, in each case upon terms, at the times, the
redemption prices and for the types of consideration set forth in the Prospectus
Supplement relating to such series. The Prospectus Supplement relating to a
series of Preferred Stock which is subject to mandatory redemption shall specify
the number of shares of such series that shall be redeemed by the Company in
each year commencing after a date to be specified, at a redemption price per
share to be specified, together with an amount equal to any accrued and unpaid
dividends thereon to the date of redemption.
If, after giving notice of redemption to the holders of a series of
Preferred Stock, the Company deposits with a designated bank funds sufficient to
redeem such Preferred Stock, then from and after such deposit, all shares called
for redemption will no longer be outstanding for any purpose, other than the
right to receive the redemption price and the right to convert such shares into
other classes of capital stock of the Company. The redemption price will be
stated in the Prospectus Supplement relating to a particular series of Preferred
Stock.
Except as indicated in the applicable Prospectus Supplement, the Preferred
Stock is not subject to any mandatory redemption at the option of the holder.
SINKING FUND. The Prospectus Supplement for any series of Preferred Stock
will state the terms, if any, of a sinking fund for the purchase or redemption
of that series.
CONVERSION RIGHTS. The Prospectus Supplement for any series of Preferred
Stock will state the terms, if any, on which shares of that series are
convertible into shares of Common Stock or another series of Preferred Stock.
The Preferred Stock will have no preemptive rights.
VOTING RIGHTS. Except as indicated in the Prospectus Supplement relating to
a particular series of Preferred Stock, or except as expressly required by
Virginia law, a holder of Preferred Stock will not be entitled to vote. Except
as indicated in the Prospectus Supplement relating to a particular series of
Preferred Stock, in the event the Company issues full shares of
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any series of Preferred Stock, each such share will be entitled to one vote on
matters on which holders of such series of Preferred Stock are entitled to vote.
Under Virginia law, the affirmative vote of the holders of a majority of
the outstanding shares of all series of Preferred Stock, voting as a separate
voting group, will be required for (i) the authorization of any class of stock
ranking prior to or on parity with Preferred Stock or the increase in the number
of authorized shares of any such stock, (ii) any increase in the number of
authorized shares of Preferred Stock and (iii) certain amendments to the
Articles that may be adverse to the rights of Preferred Stock outstanding.
TRANSFER AGENT AND REGISTRAR. The transfer agent, registrar and dividend
disbursement agent for a series of Preferred Stock will be selected by the
Company and be described in the applicable Prospectus Supplement. The registrar
for shares of Preferred Stock will send notices to shareholders of any meetings
at which holders of Preferred Stock have the right to vote on any matter.
SERIES A PREFERRED
The Board of Directors has designated 4,600,000 shares of Preferred Stock
as the "9 1/4% Series A Cumulative Redeemable Preferred Stock." At March 31,
1997, there were 4,200,000 shares of Series A Preferred outstanding. The Board
of Directors may redesignate any unissued shares of Series A Preferred as all or
a part of a different series of Preferred Stock. Holders of shares of Series A
Preferred are entitled to receive, when and as declared by the Board of
Directors, out of funds legally available for the payment of dividends,
cumulative preferential cash dividends at the rate of 9 1/4% of the liquidation
preference per annum (equivalent to $2.3125 per share). In the event of any
liquidation, dissolution or winding up of the Company, the holders of shares of
Series A Preferred are entitled to be paid out of the assets of the Company
legally available for distribution to its stockholders a liquidation preference
of $25.00 per share, plus an amount equal to any accrued and unpaid dividends to
the date of payment, before any distribution of assets is made to holders of
Common Stock or any other capital stock that ranks junior to the Series A
Preferred as to liquidation rights. The Series A Preferred is not redeemable
prior to April 24, 2000. On and after April 24, 2000, the Company, at its option
upon not less than 30 nor more than 60 days' written notice, may redeem shares
of the Series A Preferred, in whole or in part, at any time or from time to
time, for cash at a redemption price of $25.00 per share, plus accrued
dividends. The Series A Preferred has no stated maturity and will not be subject
to any sinking fund or mandatory redemption (except as provided under
"Description of Capital Stock -- Redemption and Restrictions on Transfer").
The transfer agent, registrar and dividend disbursing agent for the Series
A Preferred is Chase Mellon Shareholder Services, L.L.C., Ridgefield Park, New
Jersey. The Series A Preferred is traded on the NYSE under the symbol "UDRpfA."
DIVIDEND RESTRICTIONS
Covenants in its loan agreements with certain lenders restrict the payment
of distributions in excess of the sum of (i) current "cash flow," (ii) varying
additional amounts and (iii) the proceeds of capital stock offerings subsequent
to various dates, all as defined in the particular loan agreement. The covenants
do not prohibit the Company from paying distributions in order to continue its
qualification as a REIT under the Code.
AFFILIATED TRANSACTIONS
The Virginia Stock Corporation Act contains provisions governing
"Affiliated Transactions" designed to deter uninvited takeovers of Virginia
corporations. These provisions, with several exceptions discussed below, require
approval of material acquisition transactions between a Virginia corporation and
any holder of more than 10% of any class of its outstanding voting shares (an
"Interested Shareholder") by the holders of at least two-thirds of the remaining
voting shares. For three years following the time that the Interested
Shareholder becomes an owner of 10% of the outstanding voting shares, Virginia
corporations cannot engage in an Affiliated Transaction with such Interested
Shareholder without approval of two-thirds of the voting shares other than those
shares beneficially owned by the Interested Shareholder, and majority approval
of the "Disinterested Directors." At the expiration of the three year period,
the statute requires approval of Affiliated Transactions by two-thirds of the
voting shares other than those beneficially owned by the Interested Shareholder
absent an exception. The principal exceptions to the special voting requirement
apply to transactions proposed after the three year period has expired and
require either that the transaction be approved by a majority of the
corporation's Disinterested Directors or that the transaction satisfy the
fair-price requirements of the law.
The Virginia Stock Corporation Act also provides that shares acquired in a
transaction that would cause the acquiring person's voting strength to cross any
of three thresholds (20%, 33% or 50%) have no voting rights unless granted by a
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majority vote of shares not owned by the acquiring person or any officer or
employee-director of the Company. An acquiring person may require the Company to
hold a special meeting of shareholders to consider the matter within 50 days of
its request.
REDEMPTION AND RESTRICTIONS ON TRANSFER
In order to preserve the Company's status as a REIT as defined in the Code,
the Company can redeem or stop the transfer of its shares. The Articles provide
that the Company is organized to qualify as a REIT. Because the Code provides
that the concentration of more than 50% in value of the direct or indirect
ownership of its shares in five or fewer individual shareholders during the last
six months of any year would result in the disqualification of the Company as a
REIT, the Articles provide that the Company shall have the power (i) to redeem
that number of concentrated shares sufficient in the opinion of the Board of
Directors of the Company to maintain or bring the direct or indirect ownership
of shares into conformity with the requirements of the Code, and (ii) to stop
the transfer of shares to any person whose acquisition thereof would, in the
opinion of the Company's Board of Directors, result in such disqualification.
The per share redemption price of any shares redeemed by the Company pursuant to
this provision shall be the last reported sale price for the shares as of the
business day preceding the day on which notice of redemption is given. The Board
of Directors of the Company can require shareholders to disclose in writing to
the Company such information with respect to ownership of its shares as it deems
necessary to comply with the REIT provisions of the Code.
REIT QUALIFICATION
The Company operates in a manner intended to qualify for treatment as a
REIT under the Code. In general, a REIT which distributes to its shareholders at
least 95% of its taxable income (other than net capital gain) for a taxable year
and which meets certain other conditions will not be subject to federal income
taxation on income (including net capital gain) distributed for that year. If
the Company fails to qualify in any taxable year, it will be taxed for federal
income tax purposes as a corporation for that year and distributions to
shareholders will not be deductible by the Company in computing its taxable
income. Under such circumstances, the Company also will be disqualified from
being treated as a REIT under the Code for the ensuing four fiscal years.
Failure to qualify could result in the Company's incurring indebtedness and
perhaps liquidating investments in order to pay the resultant taxes.
PLAN OF DISTRIBUTION
The Company may sell Offered Securities to or through underwriters or may
sell Offered Securities to investors directly or through designated agents. Any
such underwriter or agent involved in the offer and sale of the Offered
Securities will be named in the applicable Prospectus Supplement.
Underwriters may offer and sell the Offered Securities at a fixed price or
prices, which may be changed, or from time to time at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Company also may, from time to time, authorize
underwriters acting as agents to offer and sell the Offered Securities upon the
terms and conditions set forth in any Prospectus Supplement. In connection with
the sale of Offered Securities, underwriters may be deemed to have received
compensation from the Company in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of Offered
Securities for whom they may act as agent. Underwriters may sell Offered
Securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions (which may be changed from
time to time) from the underwriters and/or from the purchasers for whom they may
act as agent.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Offered Securities and any discounts,
concessions or commissions allowed by underwriters to participating dealers will
be set forth in the applicable Prospectus Supplement. Underwriters, dealers and
agents participating in the distribution of the Offered Securities may be deemed
to be underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of the Offered Securities may be deemed to be
underwriting discounts and commissions under the Securities Act. Underwriters,
dealers and agents may be entitled, under agreements entered into with the
Company, to indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize dealers acting as the Company's agents to solicit offers by certain
institutions to purchase Offered Securities from the Company at the public
offering price set forth in such Prospectus Supplement pursuant to Delayed
Delivery Contracts ("Contracts") providing for payment and delivery on the date
or dates stated in such Prospectus Supplement. Each Contract will be for an
amount not less than, and the
19
<PAGE>
principal amount of Offered Securities sold pursuant to Contracts shall not be
less nor more than, the respective amounts stated in such Prospectus Supplement.
Institutions with which Contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions and other institutions, but
will in all cases be subject to the approval of the Company. Contracts will not
be subject to any conditions except (i) the purchase by an institution of the
Offered Securities covered by its Contract shall not at the time of delivery be
prohibited under the laws of any jurisdiction in the United States to which such
institution is subject and (ii) the Company shall have sold to such underwriters
the total principal amount of the Offered Securities less the principal amount
thereof covered by Contracts. A commission indicated in the Prospectus
Supplement will be paid to agents and underwriters soliciting purchases of
Offered Securities pursuant to Contracts accepted by the Company. Agents and
underwriters shall have no responsibility in respect of the delivery or
performance of Contracts.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with and perform services for the Company in the ordinary
course of business.
LEGAL OPINIONS
The validity of the Offered Securities will be passed upon for the Company
by Hunton & Williams, Richmond, Virginia. Brown & Wood LLP, New York, New York,
will act as counsel to any underwriters, dealers or agents.
EXPERTS
The consolidated financial statements and schedules of the Companyappearing
in the annual report (Form 10-K) of United Dominion Realty Trust, Inc. for the
year ended December 31, 1996 have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon included therein and incorporated
herein by reference. Such consolidated financial statements are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
The consolidated financial statements of South West Property Trust Inc. at
December 31, 1996 and 1995, and for each of the three years ended in the period
ended December 31, 1996, appearing in the Company's current report on Form 8-K
dated December 31, 1996, incorporated herein by reference, have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
The statements of rental operations of Steeplechase Apartments and Westland
Park Apartments, included in the Company's current report on Form 8-K, dated
October 31, 1996, incorporated herein by reference, have been incorporated
herein in reliance upon the reports respectively dated June 20, 1996 and June
18, 1996 of L. P. Martin & Company, P.C., independent auditors, also
incorporated herein by reference, and upon the authority of such firm as experts
in accounting and auditing.
The combined statement of rental operations of the Properties, included in
the Company's Current Report on Form 8-K, dated August 15, 1996, incorporated
herein by reference, has been incorporated herein in reliance upon the report
dated May 16, 1996, of Dixon, Odom & Co., L.L.P., independent public
accountants, also incorporated herein by reference, and upon the authority of
such firm as experts in accounting and auditing.
20
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with the offering are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee....................................... $181,818
Accounting fees and expenses.............................................................. 150,000
Legal fees and expenses................................................................... 170,000
Trustees' fees and expenses............................................................... 30,000
Rating agency fees........................................................................ 100,000
Printing.................................................................................. 75,000
Miscellaneous............................................................................. 43,182
--------
Total................................................................................ $750,000
--------
--------
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Directors and officers of the Company may be indemnified against
liabilities, fines, penalties, and claims imposed upon or asserted against them
as provided in the Virginia Stock Corporation Act and the Company's Articles of
Incorporation. Such indemnification covers all costs and expenses reasonably
incurred by a director or officer. The Board of Directors, by a majority vote of
a quorum of disinterested directors or, under certain circumstances, independent
counsel appointed by the Board of Directors, must determine that the director or
officer seeking indemnification was not guilty of willful misconduct or a
knowing violation of the criminal law. In addition, the Virginia Stock
Corporation Act and the Company's Articles of Incorporation may under certain
circumstances eliminate the liability of directors and officers in a shareholder
or derivative proceeding.
If the person involved is not a director or officer of the Company, the
Board of Directors may cause the Company to indemnify to the same extent allowed
for directors and officers of the Company such person who was or is a party to a
proceeding, by reason of the fact that he is or was an employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
<S> <C> <C>
1(a) -- Form of Underwriting Agreement for Debt Securities
1(b) -- Form of Underwriting Agreement for Preferred Stock and Common Stock
4(i)(a) -- Specimen Common Stock certificate (filed as Exhibit 4 (i) to the Company's annual report on Form 10-K for the
year ended December 31, 1993 (File No. 1-10524), and incorporated by reference herein)
4(i)(b) -- Form of Preferred Stock certificate (filed as Exhibit 4(i)(b) to the Company's Form S-3 registration
statement (File No. 33-55159) filed with the Commission on August 19, 1994, and incorporated by reference
herein)
4(i)(1) -- Form of certificate for 9 1/4% Series A Cumulative Redeemable Preferred Stock (filed as Exhibit 1(e) to the
Company's Form 8-A registration statement dated April 24, 1995 (File No. 1-10524), and incorporated by
reference herein)
4(i)(c) -- Restated Articles of Incorporation (filed as Exhibit 4(i)(c) to the Company's Form S-3 registration statement
(File No. 33-64275) filed with the Commission on November 15, 1995, and incorporated by reference herein)
4(i)(d) -- Amendment to restated Articles of Incorporation (filed as Exhibit 6(a)(4) to the Company's Form 8-A
registration statements dated April 19, 1990 and April 24, 1995 (File No. 1-10524), and incorporated by
reference herein)
4(i)(e) -- Restated Bylaws (filed as Exhibit 3(b) to the Company's quarterly report on Form 10-Q for the quarter ended
March 31, 1997 (File No. 1-10524), and incorporated by reference herein)
4(i)(h) -- Loan Agreement dated as of November 7, 1991, between the Company and Aid Association for Lutherans (filed as
Exhibit 6(c)(1) to the Company's Form 8-A registration statement dated April 19, 1990 (File No. 1-10524), and
incorporated by reference herein)
</TABLE>
II-1
<PAGE>
<TABLE>
<S> <C> <C>
4)(i) -- Note Purchase Agreement dated as of January 15, 1993, between the Company and CIGNA Property and Casualty
Insurance Company, Connecticut General Life Insurance Company, Connecticut General Life Insurance Company,
on behalf of one or more separate accounts, Insurance Company of North America, Principal Mutual Life
Insurance Company and Aid Association for Lutherans (filed as Exhibit 6(c)(5) to the Company's Form 8-A
registration statement dated April 19, 1990 (File No. 1-10524), and incorporated by reference herein)
4(i)(j) -- Credit Agreement dated as of December 15, 1994, between the Company and First Union National Bank of Virginia
(filed as Exhibit 6(c)(6) to the Company's Form 8-A registration statement dated April 19, 1990 (File No.
1-10524), and incorporated by reference herein)
4(i)(k) -- Senior Indenture dated as of November 1, 1995, between the Company and First Union National Bank of Virginia,
as Trustee (filed as Exhibit 4(ii)(h)(1) to the Company's quarterly report on Form 10-Q for the quarter ended
June 30, 1996 (File No. 1-10524), and incorporated by reference herein)
4(i)(l) -- Form of Subordinated Indenture dated as of August 1, 1994, between the Company and Crestar Bank, as Trustee
(filed as Exhibit 4(i)(m) to the Company's Form S-3 registration statement (File
No. 33-64275) filed with the Commission on November 15, 1995, and incorporated by reference herein)
4(i)(m) -- Form of Senior Security (filed as Exhibit 4(i)(n) to the Company's Form S-3 registration statement (File No.
33-64275) filed with the Commission on November 15, 1995, and incorporated by reference herein)
4(i)(n) -- Form of Subordinated Security (filed as Exhibit 4(i)(p) to the Company's Form S-3 registration statement
(File No. 33-55159) filed with the Commission on August 19, 1994, and incorporated by reference herein)
5 -- Opinion of Hunton & Williams
12 -- Statement regarding computation of ratios (filed as Exhibit 12 to the Company's annual report on Form 10-K
for the year ended December 31, 1996 (File No. 1-10524), and Exhibit 12 to the Company's quarterly report on
Form 10-Q for the quarter ended March 31, 1977. (File No. 1-10524), and incorporated by reference herein)
23 (a) -- Consent of Ernst & Young LLP
23 (b) -- Consent of Ernst & Young LLP
23 (c) -- Consent of L. P. Martin & Company, P.C.
23 (d) -- Consent of Dixon, Odom & Co., L.L.P.
23 (e) -- Consent of Hunton & Williams (included in Exhibit 5)
24 -- Power of Attorney (included on signature page)
25 (a) -- Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of First Union National Bank of
Virginia, as Trustee under the Senior Indenture
25 (b) -- Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of Crestar Bank, as Trustee under
the Subordinated Indenture
</TABLE>
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
registration statement
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; provided, however, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement; provided, however, that the undertakings set forth in
subparagraphs (i) and (ii) above do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
this registration statement;
II-2
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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;
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this 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; and
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above or
otherwise, the registrant has been advised that the in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted against the registrant by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in the form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to file an application for
purposes of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Act.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Richmond, Commonwealth of Virginia on the
15th day of May, 1997.
UNITED DOMINION REALTY TRUST, INC.
By /s/ JOHN P. MCCANN
----------------------------------
JOHN P. MCCANN
PRESIDENT, CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on May 15, 1997. Each of the undersigned officers and
directors of the registrant hereby constitutes John P. McCann, James Dolphin and
Katheryn E. Surface, any of whom may act, his true and lawful attorneys-in-fact
with full power to sign for him and in his name in the capacities indicated
below and to file any and all amendments to the registration statement filed
herewith, making such changes in the registration statement as the registrant
deems appropriate, and generally to do all such things in his name and behalf in
his capacity as an officer and director to enable the registrant to comply with
the provisions of the Securities Act of 1933 and all requirements of the
Securities and Exhchange Commission.
<TABLE>
<CAPTION>
SIGNATURE TITLE AND CAPACITY
- ------------------------------------------------------ ------------------------------------------------------------------
<S> <C>
/s/ JOHN P. MCCANN President, Chairman and Chief Executive Officer (Principal
- ----------------------------------------------------- Executive Officer) and Director
JOHN P. MCCANN
/s/ JAMES DOLPHIN Executive Vice President, Chief Financial Officer (Principal
- ----------------------------------------------------- Financial Officer) and Director
JAMES DOLPHIN
/s/ JERRY A. DAVIS Vice President and Corporate Controller (Principal Accounting
- ----------------------------------------------------- Officer)
JERRY A. DAVIS
- ----------------------------------------------------- Director
JEFF C. BANE
/s/ R. TOMS DALTON, JR. Director
- -----------------------------------------------------
R. TOMS DALTON, JR.
/s/ BARRY M. KORNBLAU Director
- -----------------------------------------------------
BARRY M. KORNBLAU
/s/ JOHN C. LANFORD Director
- -----------------------------------------------------
JOHN C. LANFORD
- ----------------------------------------------------- Director
H. FRANKLIN MINOR
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE AND CAPACITY
- ------------------------------------------------------ ------------------------------------------------------------------
<S> <C>
/s/ LYNNE B. SAGALYN Director
- -----------------------------------------------------
LYNNE B. SAGALYN
/s/ MARK J. SANDLER Director
- -----------------------------------------------------
MARK J. SANDLER
/s/ ROBERT W. SCHARAR Director
- -----------------------------------------------------
ROBERT W. SCHARAR
- ----------------------------------------------------- Director
JOHN S. SCHNEIDER
/s/ C. HARMON WILLIAMS, JR. Director
- -----------------------------------------------------
C. HARMON WILLIAMS, JR.
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
-------
<S> <C>
1 (a) -- Form of Underwriting Agreement for Debt Securities
1 (b) -- Form of Underwriting Agreement for Preferred Stock and Common Stock
4(i)(a) -- Specimen Common Stock certificate
4(i)(b) -- Form of Preferred Stock certificate
4(i)(b)(1) -- Form of certificate for 9 1/4% Series A Cumulative Redeemable Preferred Stock
4(i)(c) -- Restated Articles of Incorporation
4(i)(d) -- Amendment of restated Articles of Incorporation
4(i)(e) -- Restated Bylaws
4(i)(h) -- Loan Agreement dated as of November 7, 1991, between the Company and Aid Association for Lutherans (filed as
Exhibit 6(c)(1) to the Company's Form 8-A Registration Statement dated April 19, 1990 (File No. 1-10524), and
incorporated by reference herein)
4(i)(i) -- Note Purchase Agreement dated as of January 15, 1993, between the Company and CIGNA Property and Casualty
Insurance Company, Connecticut General Life Insurance Company, Connecticut General Life Insurance Company, on
behalf of one or more separate accounts, Insurance Company of North America, Principal Mutual Life Insurance
Company and Aid Association for Lutherans
4(i)(j) -- Credit Agreement dated as of December 15, 1994, between the Company and First Union National Bank of Virginia
4(i)(k) -- Senior Indenture dated as of November 1, 1995, between the Company and First Union National Bank of Virginia,
as Trustee
4(i)(l) -- Form of Subordinated Indenture dated as of August 1, 1994, between the Company and Crestar Bank, as Trustee
4(i)(m) -- Form of Senior Security
4(i)(n) -- Form of Subordinated Security
5 -- Opinion of Hunton & Williams
12 -- Statement regarding computation of ratios
23(a) -- Consent of Ernst & Young LLP
23(b) -- Consent of Ernst & Young LLP
23(c) -- Consent of L. P. Martin & Company, P.C.
23(d) -- Consent of Dixon, Odom & Co., L.L.P.
23(e) -- Consent of Hunton & Williams
24 -- Power of Attorney
25(a) -- Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of First Union National Bank of
Virginia, as Trustee under the Senior Indenture
25(b) -- Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of Crestar Bank, as Trustee under
the Subordinated Indenture
</TABLE>
II-6
Exhibit 1(a)
United Dominion Realty Trust, Inc.
Debt Securities
Underwriting Agreement
__________ , 199__
[To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.]
Ladies and Gentlemen:
From time to time United Dominion Realty Trust, Inc., a Virginia
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its debt securities (the "Securities")
specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to an Underwriter or Underwriters who act without any firm
being designated as its or their representatives. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities
<PAGE>
specified therein. Each Pricing Agreement shall specify the aggregate principal
amount of such Designated Securities, the initial public offering price of such
Designated Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Two registration statements on Form S-3 (File Nos. 33-64275 and
33-____) (the "Initial Registration Statements") in respect of the
Securities have been filed with the Securities and Exchange Commission
(the "Commission"); the Initial Registration Statements and any
post-effective amendment thereto, each in the form heretofore delivered
or to be delivered to the Representatives and, excluding exhibits to
such registration statements, but including all documents incorporated
by reference in the prospectus contained in the latest registration
statement, to the Representatives for each of the other Underwriters,
have been declared effective by the Commission in such form; other than
a registration statement, if any, increasing the size of the offering
(a "Rule 462(b) Registration Statement"), filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act), which became
effective upon filing, no other document with respect to the Initial
Registration Statements or document incorporated by reference therein
has heretofore been filed or transmitted for filing with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act each in the form heretofore
delivered to the Representatives); and no stop order suspending the
effectiveness of the Initial Registration Statements, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, has been issued and no proceeding for that purpose
has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statements or filed
with the Commission
2
<PAGE>
pursuant to Rule 424(a) under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statements and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the Initial Registration
Statements at the time such part of the registration statements became
effective but excluding Form T-1, each as amended at the time such part
of the Initial Registration Statements became effective or such part of
the Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities, in
the form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement,
is hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
the applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Sections 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration
Statement; any reference to the Prospectus as amended or supplemented
shall be deemed to refer to the Prospectus as amended or supplemented
in relation to the applicable Designated Securities in the form in
which it is filed with the Commission pursuant to Rule 424(b) under the
Act in accordance with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of such filing; and if
the Company elects to rely on Rule 434 under the Act, any reference to
the Prospectus shall be deemed to include, without limitation, the form
of prospectus and the abbreviated term sheet, taken together, provided
to the Underwriters by the Company in reliance on Rule 434 under the
Act (the "Rule 434 Prospectus"));
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case
may be, conformed in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission
3
<PAGE>
thereunder, and none of such documents contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of
the applicable filing date as to the Prospectus and any amendment or
supplement thereto, 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Securities;
(d) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the Commonwealth of
Virginia, with full power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus; and
the Company is duly qualified to transact business in all jurisdictions
in which the conduct of its business requires such qualification except
where the failure to so qualify would not have a material
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adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company;
(e) Each subsidiary of the Company has been duly organized and is
validly existing as a corporation, limited liability company, limited
partnership or real estate investment trust in good standing under the
laws of the jurisdiction of its incorporation or organization, with
power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus except where the
failure to so be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise; each such subsidiary is
duly qualified to transact business in all jurisdictions in which the
conduct of its business requires such qualification, or in which the
failure to qualify would have a materially adverse effect upon the
business of such subsidiary; all of the issued and outstanding capital
stock of each such corporate subsidiary and all of the issued and
outstanding shares of beneficial interest of each such real estate
investment trust subsidiary have been duly authorized and validly
issued, are fully paid and non-assessable and are owned by the Company
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; and the Company and one such corporate
subsidiary are the only members of the Company's limited liability
company or limited partnership subsidiaries and own the entire
membership or general partnership interest in each such subsidiary free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity;
(f) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock, total assets or long-term debt of the Company or any of
its subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, shareholders' equity
or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus;
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(g) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(h) The Securities have been duly and validly authorized, and, when
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement; the Indenture has
been duly authorized and duly qualified under the Trust Indenture Act
and, at the Time of Delivery for such Designated Securities (as defined
in Section 4 hereof), the Indenture will constitute a valid and legally
binding instrument, enforceable in accordance with its terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture conforms,
and the Designated Securities will conform, to the descriptions thereof
contained in the Prospectus as amended or supplemented with respect to
such Designated Securities;
(i) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture,
this Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company is
a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the Articles of
Incorporation or By-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Company of
the transactions contemplated by this Agreement or any Pricing
Agreement or the Indenture, except such as have been, or will have been
prior to the Time of Delivery, obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
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securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(j) The statements set forth in the Prospectus under the captions
"Description of Debt Securities" and "Description of Notes", insofar as
they purport to constitute a summary of the terms of the Securities,
and under the captions "Description of Capital Stock," "Plan of
Distribution" and "Underwriting", insofar as they purport to describe
the provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(k) Neither the Company nor any of its subsidiaries is in violation
of its Articles of Incorporation or By-laws or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
(l) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(m) The financial statements together with related notes and
schedules of the Company and its subsidiaries as set forth or
incorporated by reference in the Registration Statement present fairly
the financial position and the results of operations of the Company and
its subsidiaries at the indicated dates and for the indicated periods.
Such financial statements have been prepared in accordance with
generally accepted principles of accounting, consistently applied
throughout the periods involved, and all adjustments necessary for a
fair presentation of results for such periods have been made. The
summary financial and statistical data included in the Prospectus
present fairly the information shown therein and have been compiled on
a basis consistent with the financial statements presented therein;
(n) The Company and its subsidiaries have good and marketable title
to, or valid and enforceable leasehold estates in, all items of real
and personal property referred
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<PAGE>
to in the Prospectus as owned or leased by them, in each case free and
clear of all liens, encumbrances, claims, security interests and
defects, other than those referred to in the Prospectus or which are
not material in amount. Each lease of real property by the Company or
any of its subsidiaries as lessor requiring annual lease payments in
excess of $100,000 is the legal, valid and binding obligation of the
lessee in accordance with its terms (except that the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought and to the Bankruptcy Act)
and the rents which at present have remained due and unpaid for more
than 30 days are not payable under leases such that, were no further
rental payments to be received under such leases, the financial
condition or results of operations of the Company and its subsidiaries
would be materially adversely affected thereby. The Company has no
reason to believe that the lessee under any lease (excluding leases for
which rent payments due for the remainder of such lease are less than
$500,000) calling for annual lease payments in excess of $500,000 is
not financially capable of performing its obligations thereunder;
(o) The Company has filed all Federal, local and foreign income tax
returns which have been required to be filed and has paid all taxes
indicated by said returns and all assessments received by it to the
extent that such taxes have become due and are not being contested in
good faith;
(p) The Company and each of its subsidiaries hold all material
licenses, certificates and permits from governmental authorities which
are necessary to the conduct of their respective businesses; and
neither the Company nor any of its subsidiaries has infringed any
patents, patent rights, trade names, trademarks or copyrights, which
infringement is material to the business of the Company or any of its
subsidiaries;
(q) With respect to all tax periods regarding which the Internal
Revenue Service is or will be entitled to assert any claim, the Company
has met the requirements for qualification as a real estate investment
trust under Sections 856 through 860 of the Internal Revenue Code of
1986, as amended (the "Code"), and the Company's present and
contemplated operations, assets and income continue to meet such
requirements;
(r) The conditions for use of registration statements on Form S-3
set forth in the General Instructions on Form S-3 have been satisfied
and the Company is entitled to use such form for the transaction
contemplated herein;
8
<PAGE>
(s) The Company has no knowledge of (a) the unlawful presence of
any hazardous substances, hazardous materials, toxic substances or
waste materials (collectively, "Hazardous Materials") on any of the
properties owned by it or any of its subsidiaries, or of (b) any
unlawful spills, releases, discharges or disposal of Hazardous
Materials that have occurred or are presently occurring off such
properties as a result of any construction on or operation and use of
such properties which presence or occurrence would materially adversely
affect the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company or any of its
subsidiaries. In connection with the construction on or operation and
use of the properties owned by the Company or any of its subsidiaries,
the Company represents that it has no knowledge of any material failure
to comply with all applicable local, state and federal environmental
laws, regulations, ordinances and administrative and judicial orders
relating to the generation, recycling, reuse, sale, storage, handling,
transport and disposal of any Hazardous Materials;
(t) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an
entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(v) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, [and list of other
accountants whose reports appear or are incorporated by reference in
the Registration Statement or the Prospectus, who have certified
certain financial statements of [names of all other applicable
entities]] are [each] independent public accountants as required by the
Act and the rules and regulations of the Commission thereunder.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of such
Designated Securities, the several Underwriters propose to offer such Designated
Securities for sale upon the terms and conditions set forth in the Prospectus as
amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least twenty-four hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against
9
<PAGE>
payment by such Underwriter or on its behalf of the purchase price therefor by
certified or official bank check or checks, payable to the order of the Company
in the funds specified in such Pricing Agreement, all in the manner and at the
place and time and date specified in such Pricing Agreement or at such other
place and time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) If the Company does not elect to rely on Rule 434 under the
Act, immediately following execution and delivery of the applicable
Pricing Agreement, to prepare the Prospectus as amended or supplemented
in relation to the applicable Designated Securities in a form approved
by the Representatives and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of business
on the business day following the execution and delivery of the Pricing
Agreement relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by Rule 424(b), or if
the Company elects to rely on Rule 434 under the Act, immediately
following execution and delivery of the applicable Pricing Agreement,
to prepare an abbreviated term sheet relating to the Designated
Securities in a form approved by the Representatives that complies with
the requirements of Rule 434 under the Act and to file such form of
Rule 434 Prospectus complying with Rule 434(c)(2) of the Act pursuant
to Rule 424(b) under the Act not later than the Commission's close of
business on the business day following the execution and delivery of
the Pricing Agreement relating to the applicable Designated Securities
or if applicable, such earlier time as may be required by Rule 424(b);
to make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Securities and prior to the Time
of Delivery for such Securities which shall be disapproved by the
Representatives for such Securities promptly after reasonable notice
thereof; to advise the Representatives promptly of any such amendment
or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of such Securities,
and during such same period to advise the Representatives, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or
10
<PAGE>
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any prospectus relating to the Securities, of the suspension
of the qualification of such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or for
additional information; and, in the event of the issuance of any such
stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) If applicable, promptly from time to time to take such action
as the Representatives may reasonably request to qualify such
Securities for offering and sale under the securities laws of such
jurisdictions as the Representatives may request and to comply with
such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m. New York City time on the New York business
day next succeeding the date of the applicable Pricing Agreement and
from time to time, to furnish the Underwriters with copies of the
Prospectus in New York City as amended or supplemented in such
quantities as the Representatives may reasonably request, and, if the
delivery of a prospectus is required at any time in connection with the
offering or sale of the Securities and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify
the Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a
11
<PAGE>
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose
of any debt securities of the Company which mature more than one year
after such Time of Delivery and which are substantially similar to such
Designated Securities, without the prior written consent of the
Representatives;
(f) To use the net proceeds received by it from the sale of the
Securities in the manner specified in the Prospectus under the caption
"Use of Proceeds"; and
(g) To continue to elect to qualify as a "real estate investment
trust" under the Code, and to use its best efforts to continue to meet
the requirements to qualify as a "real estate investment trust".
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto (including each abbreviated term sheet delivered by the
Company pursuant to Rule 434 under the Act) and the mailing and delivering of
copies thereof to the Underwriters and dealers; (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Indenture, any Blue Sky and Legal Investment Surveys, closing
documents (including any compilation thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) if applicable, all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b)
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<PAGE>
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and Legal
Investment Surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vi) the cost of preparing the Securities; (vii) the
fees and expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise specifically
provided for in this Section. It is understood, however, that, except as
provided in this Section, and Sections 8 and 11 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities by them, and any advertising
expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; no stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Brown & Wood LLP, counsel for the Underwriters, shall have
furnished to the Representatives such opinion or opinions, dated the
Time of Delivery for such Designated Securities, with respect to the
matters covered in paragraphs (i), (vi), (vii), (viii), (x), (xi) and
(xiv) of subsection
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<PAGE>
(c) below as well as such other related matters as the Representatives
may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Hunton & Williams, counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Time
of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
(i) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of
the Commonwealth of Virginia, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of
the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable;
(iii) The Company is duly qualified to transact business
in all jurisdictions in which the conduct of its business
requires such qualification, or in which the failure to
qualify would have a materially adverse effect upon the
business of the Company;
(iv) Each subsidiary of the Company has been duly
organized and is validly existing as a corporation, limited
liability company, limited partnership or real estate
investment trust in good standing under the laws of the
jurisdiction of its incorporation or organization, with power
and authority to own its properties and conduct its business
as described in the Prospectus as amended or supplemented
except where the failure to so be in good standing would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as
one enterprise; each such subsidiary is duly qualified to
transact business in all jurisdictions in which the conduct of
its business requires such qualification, or in which the
failure to qualify would have a materially adverse effect upon
the business of such subsidiary; all of the issued and
outstanding capital stock of each such corporate subsidiary
and all of the issued and outstanding shares of beneficial
interest of each such real estate investment trust subsidiary
have been duly
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authorized and validly issued, are fully paid and
non-assessable and are owned by the Company free and clear of
any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; and the Company and one such corporate
subsidiary are the only members of the Company's limited
liability company or limited partnership subsidiaries and own
the entire membership or general partnership interest in each
such subsidiary free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity;
(v) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the
best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(vi) This Agreement and the Pricing Agreement with respect
to the Designated Securities have been duly authorized,
executed and delivered by the Company;
(vii) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute
valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture; and the Designated
Securities and the Indenture conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(viii) The Indenture has been duly authorized, executed
and delivered by the parties thereto and constitutes a valid
and legally binding instrument, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and
to general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(ix) The issue and sale of the Designated Securities being
delivered at such Time of Delivery and the compliance by the
Company with all of the provisions of
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the Designated Securities, the Indenture, this Agreement and
the Pricing Agreement with respect to the Designated
Securities and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which the Company is a party or by which
the Company is bound or to which any of the property or assets
of the Company is subject, nor will such actions result in any
violation of the provisions of the Articles of Incorporation
or By-laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of
its properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Designated Securities being delivered at such Time of
Delivery or the consummation by the Company of the
transactions contemplated by this Agreement or such Pricing
Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution
of the Designated Securities by the Underwriters;
(xi) The statements set forth in the Prospectus under the
captions "Description of Debt Securities" and "Description of
Notes", insofar as they constitute a summary of documents
referred to therein or matters of law are accurate summaries
and fairly and correctly present the information called for
with respect to such documents and matters;
(xii) The Company is not required to be registered under
the Investment Company Act;
(xiii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder;
and they have no reason to believe
16
<PAGE>
that any of such documents, when they became effective or were
so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act,
an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, or, in the case of
other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material
fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed,
not misleading; and
(xiv) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations
thereunder; if applicable, the Rule 434 Prospectus complies as
to form in all material respects with the requirements of Rule
434 under the Act; although they do not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in
subsection (xi) of this Section 7(c), they have no reason to
believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Company
prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the
Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or that, as of the Time
of Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment
or supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and
17
<PAGE>
related schedules therein, as to which such counsel need
express no opinion) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and they do not know of
any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required;
(d) Hunton & Williams, counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Time
of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that the Company has
qualified to be taxed as a real estate investment trust pursuant to
Sections 856 through 860 of the Code for its most recently ended fiscal
year and for the four fiscal years immediately preceding such year, and
the Company's organization and contemplated method of operation are
such as to enable it to continue to so qualify for its current fiscal
year;
(e) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement
with respect to such Designated Securities and at the Time of Delivery
for such Designated Securities, the independent accountants of the
Company who have certified the financial statements of the Company and
its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives a
letter, dated the effective date of the Registration Statement or the
date of the most recent report filed with the Commission containing
financial statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such effective
date, and a letter dated such Time of Delivery, respectively, to the
effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(f) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended
prior to the date of the Pricing Agreement relating to the Designated
Securities any loss or
18
<PAGE>
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated
Securities, and (ii) since the respective dates as of which information
is given in the Prospectus as amended prior to the date of the Pricing
Agreement relating to the Designated Securities there shall not have
been any change in the capital stock, total assets or long-term debt of
the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus as amended prior to
the date of the Pricing Agreement relating to the Designated
Securities, the effect of which, in any such case described in Clause
(i) or (ii), is in the judgment of the Representatives so material and
adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the
terms and in the manner contemplated in the Prospectus as first amended
or supplemented relating to the Designated Securities;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities or
preferred stock;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York
State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the
19
<PAGE>
manner contemplated in the Prospectus as amended or supplemented;
(i) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New
York business day next succeeding the date of the applicable Pricing
Agreement; and
(j) The Company shall have furnished or caused to be furnished to
the Representatives at the Time of Delivery for the Designated
Securities a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f) of
this Section and as to such other matters as the Representatives may
reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto (including the information deemed to be a part
of the Registration Statement pursuant to Rule 434 under the Act, if
applicable), 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 not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to the Securities, or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities.
20
<PAGE>
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto (including
the information deemed to be a part of the Registration Statement pursuant to
Rule 434 under the Act, if applicable), 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 not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or
21
<PAGE>
consent to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified party is an actual or potential
party to such action or claim) unless such settlement, compromise or judgment
(i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
22
<PAGE>
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the Underwriters
of Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement
23
<PAGE>
or the Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in the opinion
of the Representatives may thereby be made necessary. The term "Underwriter" as
used in this Agreement shall include any person substituted under this Section
with like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
24
<PAGE>
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any
25
<PAGE>
of the Securities from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us [one for the Company and each of the Representatives plus one
for each counsel] counterparts hereof.
Very truly yours,
United Dominion Realty Trust,
Inc.
By:..................................
Name:
Title:
Accepted as of the date hereof:
[Name of Representative]
26
<PAGE>
ANNEX I
Pricing Agreement
[Names of Representative(s)]
As Representatives of the several
Underwriters named in Schedule I hereto,
[Name and Address of Representative]
__________, 19__
Dear Sirs:
United Dominion Realty Trust, Inc., a Virginia corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated ___________, 199_ (the "Underwriting Agreement"),
between the Company on the one hand and [names of Representatives named therein]
on the other hand, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
<PAGE>
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us [one for the Company and each of the Representatives plus one for
each counsel] counterparts hereof, and upon acceptance hereof by you, on behalf
of each of the Underwriters, this letter and such acceptance hereof, including
the provisions of the Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the Underwriters and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is or will be pursuant to the authority set forth in a form
of Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
United Dominion Realty Trust,
Inc.
By:............................
Name:
Title:
Accepted as of the date hereof:
......................................
[(Name(s) of Co-Representative(s)]
On behalf of each of the Underwriters
2
<PAGE>
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
----------- ---------
$
----------
Total $
==========
<PAGE>
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
[$]
Price to Public:
% of the principal amount of the Designated Securities, plus
accrued interest from to [and
accrued amortization, if any, from to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus
accrued interest from to [and accrued
amortization, if any, from to ]
Form of Designated Securities:
Specified funds for payment of purchase price:
[New York] Clearing House funds
Indenture:
Indenture dated , 199_, between the Company
and ________________________________, as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than
through the sinking fund, in whole or in part at the option of
the Company, in the amount of [$ ] or an integral
multiple thereof,
[on or after , at the following redemption prices
(expressed in percentages of principal amount). If [redeemed
1
<PAGE>
on or before , %, and if] redeemed during the
12-month period beginning ,
Redemption
Year Price
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.] [on any interest payment
date falling on or after , , at the election of the Company,
at a redemption price equal to the principal amount thereof, plus
accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire [$ ] principal amount of Designated Securities
on in each of the years through at 100% of their
principal amount plus accrued interest] [, together with [cumulative]
[noncumulative] redemptions at the option of the Company to retire an
additional [$ ] principal amount of Designated Securities in the
years through at 100% of their principal amount plus accrued
interest].
[If Securities are extendable Debt Securities, insert--
Extendable provisions:
Securities are repayable on , [insert date and years], at the
option of the holder, at their principal amount with accrued interest.
Initial annual interest rate will be %, and thereafter annual
interest rate will be adjusted on , and to a rate not less than %
of the effective annual interest rate on U.S. Treasury obligations with
-year maturities as of the [insert date 15 days prior to maturity
date] prior to such [insert maturity date].]
[If Securities are Floating Rate debt Securities, insert--
2
<PAGE>
Floating rate provisions:
Initial annual interest rate will be % through [and thereafter
will be adjusted [monthly] [on each , , and ]
[to an annual rate of % above the average rate for -year
[month][securities][certificates of deposit] issued by and [insert
names of banks].] [and the annual interest rate [thereafter] [from
through ] will be the interest yield equivalent of the weekly
average per annum market discount rate for -month Treasury bills
plus % of Interest Differential (the excess, if any, of (i) then
current weekly average per annum secondary market yield for -month
certificates of deposit over (ii) then current interest yield
equivalent of the weekly average per annum market discount rate for
-month Treasury bills); [from and thereafter the rate will be
the then current interest yield equivalent plus % of Interest
Differential].]
Defeasance provisions:
Time of Delivery:
Closing Location for Delivery of Securities:
Names and addresses of Representatives:
Designated Representatives:
Address for Notices, etc.:
[Other Terms]*:
* A description of particular tax, accounting or other unusual features
(such as the addition of event risk provisions) of the Securities should be set
forth, or referenced to an attached and accompanying description, if necessary
to ensure agreement as to the terms of the Securities to be purchased and sold.
Such a description might appropriately be in the form in which such features
will be described in the Prospectus Supplement for the offering.
3
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ANNEX II
Pursuant to Section 7(e) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and included
or incorporated by reference in the Registration Statement or the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the related
published rules and regulations thereunder; and, if applicable, they have made a
review in accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial forecasts
and/or condensed financial statements derived from audited financial statements
of the Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been separately furnished to the
representative or representatives of the Underwriters (the "Representatives")
such term to include an Underwriter or Underwriters who act without any firm
being designated as its or their representatives;
(iii) They have made a review in accordance with standards established by
the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus and/or included
in the Company's quarterly report on Form 10-Q incorporated by reference into
the Prospectus as indicated in their reports thereon copies of which have been
separately furnished to the Representatives; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that caused
them to believe that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published rules and
regulations;
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(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for the
five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on Form 10-K
for the most recent fiscal year agrees with the corresponding amounts (after
restatement where applicable) in the audited consolidated financial statements
for five such fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under selected
captions with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to their attention as a
result of the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Items 301, 302, 402 and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an examination in
accordance with generally accepted auditing standards, consisting of a reading
of the unaudited financial statements and other information referred to below, a
reading of the latest available interim financial statements of the Company and
its subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus, inquiries of officials of the
Company and its subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference
in the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange
Act and the related published rules and regulations, or (ii) any
material modifications should be made to the unaudited condensed
consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus or
included in the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree
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with the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by reference
in the Company's Annual Report on Form 10-K for the most recent fiscal
year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited income
statement data and balance sheet items included in the Prospectus and
referred to in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements included
or incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than three days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders' equity or
other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes, increases
or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the
specified date referred to in Clause (E) there were any decreases in
consolidated net revenues, rental income or operating profit or the
total or per share amounts
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of consolidated net income or income before gains (losses) on
investments and extraordinary items or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(vii) In addition to the audit referred to in their report(s) included or
incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally accepted
auditing standards, with respect to certain amounts, percentages and financial
information specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part II of, or
in exhibits and schedules to, the Registration Statement specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
4
Exhibit 1(b)
UNITED DOMINION REALTY TRUST, INC.
(a Virginia corporation)
Common Stock and Preferred Stock
UNDERWRITING AGREEMENT
______________, 199__
[Name[s] of Representative[s]]
Dear Sirs:
United Dominion Realty Trust, Inc., a Virginia corporation (the
"Company"), proposes to issue and sell shares of common stock, par value $1.00
per share (the "Common Stock"), and shares of preferred stock without par value
(the "Preferred Stock") from time to time, in one or more offerings on terms to
be determined at the time of sale. Each series of Preferred Stock may vary as to
the specific number of shares, title, stated value, liquidation preference,
issuance price, ranking, dividend rate or rates (or method of calculation),
dividend payment dates, any redemption or sinking fund requirements, any
conversion provisions and any other variable terms as set forth in the
applicable Articles of Amendment to the Company's Articles of Incorporation
(each, the "Articles of Amendment") relating to such series of Preferred Stock.
As used herein, "Securities" shall mean the Common Stock and the Preferred
Stock. As used herein, "you" and "your", unless the context otherwise requires,
shall mean the parties to whom this Agreement is addressed together with the
other parties, if any, identified in the applicable Terms Agreement (as
hereinafter defined) as additional co-managers with respect to Underwritten
Securities (as hereinafter defined) purchased pursuant thereto.
Whenever the Company determines to make an offering of Securities
through you or through an underwriting syndicate managed by you, the Company
will enter into an agreement (the "Terms Agreement") providing for the sale of
such Securities (the "Underwritten Securities") to, and the purchase and
offering
<PAGE>
thereof by, you and such other underwriters, if any, selected by you as have
authorized you to enter into such Terms Agreement on their behalf (the
"Underwriters", which term shall include you whether acting alone in the sale of
the Underwritten Securities or as a member of an underwriting syndicate and any
Underwriter substituted pursuant to Section 10 hereof). The Terms Agreement
relating to the offering of Underwritten Securities shall specify the number of
Underwritten Securities of each class or series to be initially issued (the
"Initial Underwritten Securities"), the names of the Underwriters participating
in such offering (subject to substitution as provided in Section 10 hereof), the
number of Initial Underwritten Securities which each such Underwriter severally
agrees to purchase, the names of such of you or such other Underwriters acting
as co-managers, if any, in connection with such offering, the price at which the
Initial Underwritten Securities are to be purchased by the Underwriters from the
Company, the initial public offering price, the time, date and place of delivery
and payment, any delayed delivery arrangements and any other variable terms of
the Initial Underwritten Securities (including, but not limited to, current
ratings (in the case of Preferred Stock only), designations, liquidation
preferences, conversion provisions, redemption provisions and sinking fund
requirements). In addition, each Terms Agreement shall specify whether the
Company has agreed to grant to the Underwriters an option to purchase additional
Underwritten Securities to cover over-allotments, if any, and the number of
Underwritten Securities subject to such option (the "Option Securities"). As
used herein, the term "Underwritten Securities" shall include the Initial
Underwritten Securities and all or any portion of the Option Securities agreed
to be purchased by the Underwriters as provided herein, if any. The Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, may
take the form of an exchange of any standard form of written telecommunication
between you and the Company. Each offering of Underwritten Securities through
you or through an underwriting syndicate managed by you will be governed by this
Agreement, as supplemented by the applicable Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-_______) (which also
constitutes post-effective amendment No. 1 to registration statement No.
33-64275) for the registration of the Securities (including the Underwritten
Securities) and certain of the Company's debt securities under the Securities
Act of 1933, as amended (the "1933 Act"), and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"), and the Company has filed such
amendments thereto as may have been required prior to the execution of the
applicable Terms Agreement. Such registration
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statement (as amended, if applicable) has been declared effective by the
Commission. Such registration statement (as amended, if applicable), on the one
hand, and the prospectus constituting a part thereof and each prospectus
supplement relating to the offering of Underwritten Securities provided to the
Underwriters for use (whether or not such prospectus supplement is required to
be filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations)
(the "Prospectus Supplement"), on the other hand, including in each case all
documents incorporated therein by reference and the information, if any, deemed
to be a part thereof pursuant to Rule 430A(b) or Rule 434 of the 1933 Act
Regulations, as from time to time amended or supplemented pursuant to the 1933
Act, the Securities Exchange Act of 1934, as amended (the "1934 Act"), or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus", respectively; provided, however, that a Prospectus Supplement
shall be deemed to have supplemented the Prospectus only with respect to the
offering of Underwritten Securities to which it relates. All references in this
Agreement to financial statements and schedules and other information which is
"contained," "included" or "stated" in the Registration Statement or the
Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
is or is deemed to be incorporated by reference in the Registration Statement or
the Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement or the Prospectus shall
be deemed to mean and include, without limitation, any document filed under the
1934 Act which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be. If the Company
elects to rely on Rule 434 under the 1933 Act Regulations, all references to the
Prospectus shall be deemed to include, without limitation, the form of
prospectus and the abbreviated term sheet, taken together, provided to the
Underwriters by the Company in reliance on Rule 434 under the 1933 Act (the
"Rule 434 Prospectus"). If the Company files a registration statement to
register a portion of the Securities and relies on Rule 462(b) for such
registration statement to become effective upon filing with the Commission (the
"Rule 462 Registration Statement"), then any reference to "Registration
Statement" herein shall be deemed to be to both the registration statement
referred to above (No. 33-_____) and the Rule 462 Registration Statement, as
each such registration statement may be amended pursuant to the 1933 Act.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to you, as of the date hereof,
and to you and each other Underwriter named in the applicable Terms Agreement,
as of the date thereof (such latter
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<PAGE>
date being referred to herein as a "Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective, complied, and as of the
applicable Representation Date will comply, in all material respects
with the requirements of the 1933 Act and 1933 Act Regulations; the
Registration Statement, at the time the Registration Statement became
effective, did not and as of the applicable Representation Date will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; the Prospectus, as of the date
hereof does not, and as of the applicable Representation Date and at
Closing Time (as hereinafter defined) will not, include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any Underwriter
through you expressly for use in the Registration Statement or the
Prospectus.
(ii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus pursuant to Item 12 of Form S-3 under the
1933 Act, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the "1934 Act Regulations"), and, when
read together with the other information in the Prospectus, at the time
the Registration Statement became effective and as of the applicable
Representation Date or Closing Time or during the period specified in
Section 3(f), did not and will not include 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, in light of the
circumstances under which they were made, not misleading.
(iii) The accountants who certified the financial statements and
supporting schedules included in, or incorporated by reference into,
the Registration Statement and the Prospectus are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
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(iv) The financial statements and supporting schedules included in,
or incorporated by reference into, the Registration Statement and the
Prospectus present fairly in all material respects the financial
position of the Company and its subsidiaries as of the dates indicated
and the results of their operations for the periods specified; except
as otherwise stated in the Registration Statement and the Prospectus,
said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis;
and the supporting schedules included or incorporated by reference in
the Registration Statement and the Prospectus present fairly in all
material respects the information required to be stated therein.
(v) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change or
development involving a prospective material adverse change in or
affecting the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not occurring in
the ordinary course of business, (B) there have been no transactions or
acquisitions entered into by the Company or any of its subsidiaries
other than those arising in the ordinary course of business, and (C)
except for regular quarterly dividends on the Company's shares of
common stock, or dividends declared, paid or made in accordance with
the terms of any series of the Company's preferred stock, there has
been no dividend or distribution of any kind declared, paid or made by
the Company on any series of its common stock or preferred stock.
(vi) The Company has been duly organized and is validly existing as
a corporation in good standing under the laws of the Commonwealth of
Virginia, with full power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus; and
the Company is duly qualified to transact business in all jurisdictions
in which the conduct of its business requires such qualification except
where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company.
(vii) Each subsidiary of the Company has been duly organized and is
validly existing as a corporation, limited liability company, limited
partnership or real estate investment trust in good standing under the
laws of the jurisdiction of its incorporation or organization, with
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<PAGE>
power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus except where the
failure to so be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise; each such subsidiary is
duly qualified to transact business in all jurisdictions in which the
conduct of its business requires such qualification, or in which the
failure to qualify would have a materially adverse effect upon the
business of such subsidiary; all of the issued and outstanding capital
stock of each such corporate subsidiary and all of the issued and
outstanding shares of beneficial interest of each such real estate
investment trust subsidiary have been duly authorized and validly
issued, are fully paid and non-assessable and are owned by the Company
free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; and the Company and one such corporate
subsidiary are the only members of the Company's limited liability
company or limited partnership subsidiaries and own the entire
membership or general partnership interest in each such subsidiary free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(viii) The authorized, issued and outstanding shares of common and
preferred stock of the Company are as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, pursuant to
reservations, agreements or the conversion of convertible securities
referred to in the Registration Statement including, without
limitation, the exercise or grant of stock options pursuant to the
Company's stock option plan or the issuance of shares pursuant to the
Company's dividend reinvestment plan, stock purchase and loan plan or
employees' stock purchase plan); and such shares of common stock and
preferred stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable and are not subject to
preemptive or other similar rights.
(ix) The applicable Underwritten Securities have been duly
authorized by the Company for issuance and sale pursuant to this
Agreement and, when issued and delivered pursuant to this Agreement
against payment of the consideration therefor specified in the
applicable Terms Agreement or any Delayed Delivery Contract (as
hereinafter defined), such Underwritten Securities will be duly and
validly issued, fully paid and non-assessable; the Preferred Stock, if
applicable, conforms to the provisions of the Articles of Amendment;
such Underwritten Securities conform
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<PAGE>
in all material respects to all statements relating thereto contained
in the Prospectus; and the issuance of such Underwritten Securities is
not subject to preemptive or other similar rights.
(x) If applicable, the shares of Common Stock issuable upon
conversion of any of the Preferred Stock will have been duly and
validly authorized and reserved for issuance upon such conversion or
exercise by all necessary corporate action and such shares, when issued
upon such conversion or exercise, will be duly and validly issued,
fully paid and non-assessable, and the issuance of such shares upon
such conversion or exercise will not be subject to preemptive or other
similar rights; the Common Stock so issuable conforms in all material
respects to all statements relating thereto contained in the
Prospectus.
(xi) Neither the Company nor any of its subsidiaries is in
violation of its Articles of Incorporation or By-Laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease (other than as disclosed in the Prospectus) or
other instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any of its subsidiaries is
subject and which default is of material significance in respect of the
business or financial condition of the Company and its subsidiaries
considered as one enterprise; and the execution, delivery and
performance of this Agreement and the applicable Terms Agreement and
the consummation of the transactions contemplated herein and therein
and compliance by the Company with its obligations hereunder and
thereunder have been duly authorized by all necessary corporate action
on the part of the Company, and will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
them may be bound, or to which any property or assets of the Company or
any of its subsidiaries is subject, or result in any violation of the
Articles of Incorporation or By-Laws of the Company or any law,
administrative regulation or administrative or court decree.
(xii) With respect to all tax periods regarding which the
Internal Revenue Service is or will be entitled to
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assert any claim, the Company has met the requirements for
qualification as a real estate investment trust under Sections 856
through 860 of the Internal Revenue Code of 1986, as amended (the
"Code"), and the Company's present and contemplated operations, assets
and income continue to meet such requirements.
(xiii) The Company is not and, after giving effect to the
offering and sale of the Underwritten Securities, will not be an
"investment company" or an entity "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "1940 Act").
(xiv) The conditions for use of registration statements on
Form S-3 set forth in the General Instructions on Form S-3 have been
satisfied and the Company is entitled to use such form for the
transaction contemplated herein and in any applicable Terms Agreement.
(xv) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against the Company or
any of its subsidiaries which is required to be disclosed in the
Prospectus (other than as disclosed therein) or which might result in
any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, or which
might materially and adversely affect the properties or assets thereof
or which might materially and adversely affect the consummation of this
Agreement or the applicable Terms Agreement or the transactions
contemplated herein and therein; all pending legal or governmental
proceedings to which the Company or any of its subsidiaries is a party
or of which any of their respective property is the subject which are
not described in the Prospectus, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not
material; and there are no contracts or documents of the Company or any
of its subsidiaries which would be required to be filed as exhibits to
the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been filed as exhibits to the Registration
Statement.
(xvi) No authorization, approval or consent of any
governmental authority or agency is necessary in connection with the
consummation by the Company of the transactions contemplated by this
Agreement or the applicable Terms Agreement, except such as may be
required under the 1933 Act
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or the 1933 Act Regulations or state securities or Blue Sky laws.
(xvii) The Company has full right, power and authority to
enter into this Agreement, the applicable Terms Agreement and the
Delayed Delivery Contracts, if any, and this Agreement has been, and as
of the applicable Representation Date, the applicable Terms Agreement
and the Delayed Delivery Contracts, if any, will have been, duly
authorized, executed and delivered by the Company.
(xviii) The Company and its subsidiaries have good and
marketable title to, or valid and enforceable leasehold estates in, all
items of real and personal property referred to in the Prospectus as
owned or leased by them, in each case free and clear of all liens,
encumbrances, claims, security interests and defects, other than those
referred to in the Prospectus or which are not material in amount. Each
lease of real property by the Company or any of its subsidiaries as
lessor requiring annual lease payments in excess of $100,000 is the
legal, valid and binding obligation of the lessee in accordance with
its terms (except that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought and to the Bankruptcy Act) and the
rents which at present have remained due and unpaid for more than 30
days are not payable under leases such that, were no further rental
payments to be received under such leases, the financial condition or
results of operations of the Company and its subsidiaries would be
materially adversely affected thereby. The Company has no reason to
believe that the lessee under any lease (excluding leases for which
rent payments due for the remainder of such lease are less than
$500,000) calling for annual lease payments in excess of $500,000 is
not financially capable of performing its obligations thereunder.
(xix) The Company has filed all Federal, local and foreign
income tax returns which have been required to be filed and has paid
all taxes indicated by said returns and all assessments received by it
to the extent that such taxes have become due and are not being
contested in good faith.
(xx) The Company and each of its subsidiaries hold all
material licenses, certificates and permits from governmental
authorities which are necessary to the conduct of their respective
businesses; and neither the Company nor any of its subsidiaries has
infringed any patents, patent
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rights, trade names, trademarks or copyrights, which infringement is
material to the business of the Company or any of its subsidiaries.
(xxi) The Company has no knowledge of (a) the unlawful
presence of any hazardous substances, hazardous materials, toxic
substances or waste materials (collectively, "Hazardous Materials") on
any of the properties owned by it or any of its subsidiaries, or of (b)
any unlawful spills, releases, discharges or disposal of Hazardous
Materials that have occurred or are presently occurring off such
properties as a result of any construction on or operation and use of
such properties which presence or occurrence would materially adversely
affect the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company or any of its
subsidiaries. In connection with the construction on or operation and
use of the properties owned by the Company or any of its subsidiaries,
the Company represents that it has no knowledge of any material failure
to comply with all applicable local, state and federal environmental
laws, regulations, ordinances and administrative and judicial orders
relating to the generation, recycling, reuse, sale, storage, handling,
transport and disposal of any Hazardous Materials.
(b) Any certificate signed by any officer of the Company and delivered
to you or to counsel for the Underwriters in connection with the offering of the
Underwritten Securities shall be deemed a representation and warranty by the
Company to each Underwriter participating in such offering as to the matters
covered thereby on the date of such certificate and, unless subsequently amended
or supplemented, at the applicable Representation Date subsequent thereto.
Section 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase the
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company may grant, if so provided in the applicable Terms Agreement relating to
the Initial Underwritten Securities, an option to the Underwriters named in such
Terms Agreement, severally and not jointly, to purchase up to the number of
Option Securities set forth therein
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at the same price per Option Security as is applicable to the Initial
Underwritten Securities less an amount equal to any dividend paid by the Company
and payable on the Initial Underwritten Securities and not payable on such
Option Securities. Such option, if granted, will expire 30 days (or such lesser
number of days as may be specified in the applicable Terms Agreement) after the
Representation Date relating to the Initial Underwritten Securities, and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial Underwritten Securities upon notice by you to the
Company setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment and
delivery for such Option Securities. Any such time, date and place of delivery
(a "Date of Delivery") shall be determined by you, but shall not be later than
seven full business days nor earlier than two full business days after the
exercise of said option, nor in any event prior to Closing Time, unless
otherwise agreed upon by you and the Company. If the option is exercised as to
all or any portion of the Option Securities, each of the Underwriters, acting
severally and not jointly, will purchase that proportion of the total number of
Option Securities then being purchased which the number of Initial Underwritten
Securities each such Underwriter has severally agreed to purchase as set forth
in the applicable Terms Agreement bears to the total number of Initial
Underwritten Securities (except as otherwise provided in the applicable Terms
Agreement), subject to such adjustments as you in your discretion shall make to
eliminate any sales or purchases of fractional Underwritten Securities.
(c) Payment of the purchase price for, and delivery of, the
Underwritten Securities to be purchased by the Underwriters shall be made at the
office of Brown & Wood LLP, 58th Floor, One World Trade Center, New York, New
York 10048-0557, or at such other place as shall be agreed upon by you and the
Company, at 10:00 A.M., New York City time, on the third business day (unless
postponed in accordance with the provisions of Section 10 herein) following the
date of the applicable Terms Agreement or, if pricing takes place after 4:30
P.M., New York City time, on the date of the applicable Terms Agreement, on the
fourth business day (unless postponed in accordance with the provisions of
Section 10) following the date of the applicable Terms Agreement or at such
other time as shall be agreed upon by you and the Company (each such time and
date of payment and delivery being referred to herein as the "Closing Time"). In
addition, in the event that any or all of the Option Securities are purchased by
the Underwriters, payment of the purchase price for, and delivery of
certificates representing, such Option Securities, shall be made at the
above-mentioned offices of Brown & Wood LLP, or at
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such other place as shall be agreed upon by you and the Company on each Date of
Delivery as specified in the notice from you to the Company. Unless otherwise
specified in the applicable Terms Agreement, payment shall be made to the
Company by certified or official bank check or checks in New York Clearing House
funds payable to the order of the Company against delivery to you for the
respective accounts of the Underwriters of the certificates for the Underwritten
Securities to be purchased by them. The Underwritten Securities shall be in such
authorized denominations and registered in such names as you may request in
writing at least one business day prior to the Closing Time or Date of Delivery,
as the case may be. The Underwritten Securities, which may be in temporary form,
will be made available for examination and packaging by you on or before 3:00
P.M. on the first business day prior to the Closing Time or the Date of
Delivery, as the case may be.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Underwritten Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to you at Closing Time, for the respective accounts of the
Underwriters, a fee specified in the applicable Terms Agreement for each of the
Underwritten Securities for which Delayed Delivery Contracts are made at the
Closing Time as is specified in the applicable Terms Agreement. Any Delayed
Delivery Contracts are to be with institutional investors of the types described
in the Prospectus. At the Closing Time, the Company will enter into Delayed
Delivery Contracts (for not less than the minimum number of Underwritten
Securities per Delayed Delivery Contract specified in the applicable Terms
Agreement) with all purchasers proposed by the Underwriters and previously
approved by the Company as provided below, but not for an aggregate number of
Underwritten Securities in excess of that specified in the applicable Terms
Agreement. The Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
You shall submit to the Company, at least two business days prior to
the Closing Time, the names of any institutional investors with which it is
proposed that the Company will enter into Delayed Delivery Contracts and the
number of Underwritten Securities to be purchased by each of them, and the
Company will advise you, at least one business day prior to the Closing Time, of
the names of the institutions with which the making of Delayed Delivery
Contracts is approved by the Company and the number of Underwritten Securities
to be covered by each such Delayed Delivery Contract.
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The number of Underwritten Securities agreed to be purchased by the
several Underwriters pursuant to the applicable Terms Agreement shall be reduced
by the number of Underwritten Securities covered by Delayed Delivery Contracts,
as to each Underwriter as set forth in a written notice delivered by you to the
Company; provided, however, that the total number of Underwritten Securities to
be purchased by all Underwriters shall be the total number of Underwritten
Securities covered by the applicable Terms Agreement, less the number of
Underwritten Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company. The Company covenants with you,
and with each Underwriter participating in the offering of Underwritten
Securities, as follows:
(a) If the Company does not elect to rely on Rule 434 under the 1933
Act Regulations, immediately following the execution of the applicable Terms
Agreement, the Company will prepare a Prospectus Supplement setting forth the
number of Underwritten Securities covered thereby and their terms not otherwise
specified in the Prospectus pursuant to which the Underwritten Securities are
being issued, the names of the Underwriters participating in the offering and
the number of Underwritten Securities which each severally has agreed to
purchase, the names of the Underwriters acting as co-managers in connection with
the offering, the price at which the Underwritten Securities are to be purchased
by the Underwriters from the Company, the initial public offering price, if any,
the selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as you and the Company deem appropriate
in connection with the offering of the Underwritten Securities; and the Company
will promptly transmit copies of the Prospectus Supplement to the Commission for
filing pursuant to Rule 424(b) of the 1933 Act Regulations and will furnish to
the Underwriters named therein as many copies of the Prospectus (including such
Prospectus Supplement) as you shall reasonably request. If the Company elects to
rely on Rule 434 under the 1933 Act Regulations, immediately following the
execution of the applicable Terms Agreement, the Company will prepare an
abbreviated term sheet that complies with the requirements of Rule 434 under the
1933 Act Regulations and will provide the Underwriters with copies of the form
of Rule 434 Prospectus, in such number as you shall reasonably request, and, if
necessary, promptly file or transmit for filing with the Commission the form of
Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in
accordance with Rule 424(b) of the 1933 Act Regulations.
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(b) The Company will notify you immediately, and confirm such notice
in writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any Prospectus
Supplement or other supplement or amendment to the Prospectus to be filed
pursuant to the 1934 Act, (iii) the receipt of any comments from the Commission,
(iv) any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (v) 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; and the Company will make every reasonable effort
to prevent the issuance of any such stop order and, if any stop order is issued,
to obtain the lifting thereof at the earliest possible moment.
(c) At any time when the Prospectus is required to be delivered under
the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities, the Company will give you notice of its intention to file or prepare
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus, whether pursuant to the 1933 Act, 1934 Act or otherwise
(including any revised prospectus which the Company proposes for use by the
Underwriters in connection with an offering of Underwritten Securities which
differs from the Prospectus on file at the Commission at the time the
Registration Statement first becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) of the 1933 Act
Regulations, or any abbreviated term sheet prepared in reliance on Rule 434 of
the 1933 Act Regulations), and will furnish you with copies of any such
amendment or supplement or other documents proposed to be used or filed a
reasonable amount of time prior to such proposed filing and, unless required by
law, will not file or use any such amendment or supplement or other documents in
a form to which you or counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to each Underwriter a signed copy of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith and documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act) as you reasonably
request and will also deliver to each Underwriter a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(including documents incorporated by reference but without exhibits).
(e) The Company will furnish to each Underwriter, from time to time
during the period when the Prospectus is required to be delivered under the 1933
Act or the 1934 Act in connection with sales of the Underwritten Securities,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter
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may reasonably request for the purposes contemplated by the 1933 Act, the 1933
Act Regulations, the 1934 Act or the 1934 Act Regulations.
(f) If at any time when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act in connection with sales of the Underwritten
Securities any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters, to amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend or
supplement the Registration Statement or the Prospectus in order to comply with
the requirements of the 1933 Act or the 1933 Act Regulations, then the Company
will promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise,
as may be necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus comply with such requirements.
(g) If applicable, the Company will endeavor, in cooperation with the
Underwriters, to qualify the Underwritten Securities and the Common Stock
issuable upon conversion of the Preferred Stock, if any, for offering and sale
under the applicable securities laws and real estate syndication laws of such
states and other jurisdictions of the United States as you may designate; and in
each jurisdiction in which the Underwritten Securities and the Common Stock
issuable upon conversion of the Preferred Stock, if any, have been so qualified,
the Company will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for so long as may
be required for the distribution of the Underwritten Securities and the Common
Stock issuable upon conversion of the Preferred Stock, if any; provided,
however, that the Company shall not be obligated to qualify as a foreign
corporation in any jurisdiction where it is not so qualified.
(h) With respect to each sale of Underwritten Securities, the Company
will make generally available to its security holders as soon as practicable,
but not later than 90 days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158 of the
1933 Act Regulations) covering a twelve month period beginning not later than
the first day of the Company's fiscal quarter next following the "effective
date" (as defined in such Rule 158) of the Registration Statement.
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(i) The Company will continue to elect to qualify as a "real estate
investment trust" under the Code and will use its best efforts to continue to
meet the requirements to qualify as a "real estate investment trust."
(j) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act or the 1934 Act in connection with sales of the
Underwritten Securities, will file promptly all documents required to be filed
with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the
time periods prescribed by the 1934 Act and the 1934 Act Regulations.
(k) The Company will not, during a period of 90 days from the date of
the applicable Terms Agreement, with respect to the Underwritten Securities
covered thereby, without your prior written consent, offer or sell, grant any
option for the sale of, or enter into any agreement to sell, any securities of
the same class or series or ranking on a parity with such Underwritten
Securities (other than the Underwritten Securities which are to be sold pursuant
to such Terms Agreement), or if such Terms Agreement relates to Preferred Stock
that is convertible into Common Stock, any Common Stock or any security
convertible into Common Stock (except for Common Stock issued pursuant to
reservations, agreements, employee benefit plans, dividend reinvestment plans,
or employee and director stock option plans), except as may otherwise be
provided in the applicable Terms Agreement.
(l) If the applicable Terms Agreement relates to Common Stock, the
Company will cause each officer of the Company who owns Common Stock to agree
not to offer for sale, sell or otherwise dispose of any shares of Common Stock
during the 90 days following the date of such Terms Agreement without your prior
written consent.
(m) If the Preferred Stock is convertible into Common Stock, the
Company will reserve and keep available at all times, free of preemptive rights
or other similar rights, a sufficient number of shares of Common Stock for the
purpose of enabling the Company to satisfy any obligations to issue such shares
upon conversion of the Preferred Stock.
(n) If the Preferred Stock is convertible into Common Stock, the
Company will use its best efforts to list the shares of Common Stock issuable
upon conversion of the Preferred Stock on the New York Stock Exchange or such
other national exchange on which the Company's Common Stock is then listed.
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(o) The Company will use its best efforts to list the Underwritten
Securities on the New York Stock Exchange.
(p) The Company will use the net proceeds received by it from the sale
of the Underwritten Securities in the manner specified in the Prospectus under
the caption "Use of Proceeds."
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement or the
applicable Terms Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the cost of printing, filing and distributing to the Underwriters copies of this
Agreement and the applicable Terms Agreement, (iii) the preparation, issuance
and delivery of the Underwritten Securities to the Underwriters, (iv) the fees
and disbursements of the Company's counsel and accountants, (v) if applicable,
the qualification of the Underwritten Securities and the Common Stock issuable
upon conversion of the Preferred Stock, if any, under securities laws and real
estate syndication laws in accordance with the provisions of Section 3(g),
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey, (vi) the printing and delivery to the Underwriters of
copies of the Registration Statement as originally filed and of each amendment
thereto, and of the Prospectus and any amendments or supplements thereto,
including each abbreviated term sheet delivered by the Company pursuant to Rule
434 of the 1933 Act Regulations, (vii) the cost of reproducing and distributing
to the Underwriters copies of the Blue Sky Survey, (viii) any fees charged by
nationally recognized statistical rating organizations for the rating of the
Underwritten Securities, (ix) the fees and expenses, if any, incurred with
respect to the listing of the Underwritten Securities or the Common Stock
issuable upon conversion of the Preferred Stock, if any, on any national
securities exchange, and (x) the fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers, Inc.
If the applicable Terms Agreement is canceled or terminated by you in
accordance with the provisions of Section 5 or Section 9(b)(i), the Company
shall reimburse the Underwriters named in such Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant to
the applicable Terms Agreement are subject to the accuracy of the
representations and warranties of the Company herein contained, to the accuracy
of the statements of the Company's officers made in any certificate pursuant to
the provisions hereof, to the performance by the Company of all of
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its covenants and other obligations hereunder, and to the following further
conditions:
(a) At Closing Time, (i) no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission and (ii) if
Preferred Stock is being offered, the rating assigned by any nationally
recognized statistical rating organization to any preferred stock of the Company
as of the date of the applicable Terms Agreement shall not have been lowered
since such date nor shall any such rating organization have publicly announced
that it has placed the Company on what is commonly termed a "watch list" for
possible downgrading.
(b) At Closing Time, you shall have received:
(1) The favorable opinion, dated as of Closing Time, of Hunton
& Williams, counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, to the effect that:
(i) The Company has been duly organized and is validly
existing as a corporation and in good standing under the laws
of the Commonwealth of Virginia, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented.
(ii) The Company is duly qualified to transact business in
all jurisdictions in which the conduct of its business
requires such qualification, or in which the failure to
qualify would have a materially adverse effect upon the
business of the Company.
(iii) Each subsidiary of the Company has been duly
organized and is validly existing as a corporation, limited
liability company, limited partnership or real estate
investment trust in good standing under the laws of the
jurisdiction of its incorporation or organization, with power
and authority to own its properties and conduct its business
as described in the Prospectus as amended or supplemented
except where the failure to so be in good standing would not
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as
one enterprise; each such subsidiary is duly qualified to
transact business in all jurisdictions in which the conduct of
its business
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requires such qualification, or in which the failure to
qualify would have a materially adverse effect upon the
business of such subsidiary; all of the issued and outstanding
capital stock of each such corporate subsidiary and all of the
issued and outstanding shares of beneficial interest of each
such real estate investment trust subsidiary have been duly
authorized and validly issued, are fully paid and
non-assessable and are owned by the Company free and clear of
any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; and the Company one such corporate subsidiary
are the only members of the Company's limited liability
company or limited partnership subsidiaries and own the entire
membership or general partnership interest in each such
subsidiary free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(iv) The Company has authorized and outstanding capital
stock as set forth in the Prospectus under "Capitalization"
(except for subsequent issuances, if any, pursuant to
reservations, agreements or the conversion of convertible
securities referred to in the Registration Statement
including, without limitation, the exercise or grant of stock
options pursuant to the Company's stock option plan or the
issuance of shares pursuant to the Company's dividend
reinvestment plan, stock purchase and loan plan or employees'
stock purchase plan); the authorized capital stock of the
Company has been duly authorized; and the outstanding shares
of capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable and are
not subject to preemptive or other similar rights arising by
operation of law or, to the best of such counsel's knowledge,
otherwise.
(v) The applicable Underwritten Securities have been duly
and validly authorized by all necessary corporate action and,
when issued and delivered pursuant to this Agreement against
payment of the consideration therefor specified in the
applicable Terms Agreement or the Delayed Delivery Contracts,
the applicable Underwritten Securities will be validly issued,
fully paid and non-assessable; the Underwritten Securities are
not subject to preemptive or other similar rights arising by
operation of law or, to the best of such counsel's knowledge,
otherwise; and the Preferred Stock, if applicable, conforms to
the provisions of the Articles of Amendment.
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(vi) If applicable, the shares of Common Stock issuable
upon conversion of any of the Preferred Stock have been duly
and validly authorized and reserved for issuance upon such
conversion or exercise by all necessary corporate action and
such shares, when issued upon such conversion or exercise,
will be duly and validly issued and will be fully paid and
non-assessable, and the issuance of such shares upon such
conversion or exercise will not be subject to preemptive or
other similar rights arising by operation of law or, to the
best of such counsel's knowledge, otherwise.
(vii) Each of this Agreement, the applicable Terms
Agreement and the Delayed Delivery Contracts, if any, has been
duly authorized, executed and delivered by the Company.
(viii) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission.
(ix) The Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, as
of their respective effective or issue dates, comply as to
form in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations; it being understood,
however, that no opinion need be rendered with respect to the
financial statements, schedules and other financial and
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus. If applicable, the
Rule 434 Prospectus conforms in all material aspects to the
requirements of Rule 434 under the 1933 Act Regulations.
(x) Each document filed pursuant to the 1934 Act (other
than the financial statements, schedules and other financial
and statistical data included therein, as to which no opinion
need be rendered) and incorporated or deemed to be
incorporated by reference in the Prospectus complied when so
filed (or as when amended prior to the Representation Date) as
to form in all material respects with the 1934 Act and the
1934 Act Regulations.
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(xi) If applicable, the relative rights, preferences,
interests and powers of the Preferred Stock are as set forth
in the Articles of Amendment relating thereto, and all such
provisions are valid under applicable Virginia law; and the
form of certificate used to evidence the Preferred Stock is in
due and proper form under applicable Virginia law, and
complies in all material respects with all applicable
statutory requirements.
(xii) The Underwritten Securities and, if applicable, the
Common Stock issuable upon conversion of the Preferred Stock
conform in all material respects to the statements relating
thereto contained in the Prospectus.
(xiii) To the best of such counsel's knowledge and
information, there are no legal or governmental proceedings
pending or threatened which are required to be disclosed in
the Prospectus, other than those disclosed therein, and all
pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or of which any of the
property of the Company or its subsidiaries is the subject
which are not described in the Prospectus, including ordinary
routine litigation incidental to the business, are, considered
in the aggregate, not material to the business of the Company
and its subsidiaries considered as one enterprise.
(xiv) To the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required
to be described or referred to in the Registration Statement
or the Prospectus or to be filed as exhibits to the
Registration Statement other than those described or referred
to therein or filed as exhibits thereto, the descriptions
thereof or references thereto are correct, and, to the best of
such counsel's knowledge and information, no default exists in
the due performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to or filed which would have
a material adverse effect on the condition, financial or
otherwise, or on the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as
one enterprise.
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(xv) No authorization, approval or consent of any court or
governmental authority or agency is required that has not been
obtained in connection with the consummation by the Company of
the transactions contemplated by this Agreement and the
applicable Terms Agreement, except such as may be required
under the 1933 Act, the 1934 Act and state securities laws or
real estate syndication laws.
(xvi) To the best of such counsel's knowledge and
information, the execution and delivery of this Agreement and
the applicable Terms Agreement and the consummation of the
transactions contemplated herein and therein and compliance by
the Company with its obligations hereunder and thereunder will
not conflict with or constitute a breach of, or default under
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to
which the Company or any of its subsidiaries is a party or by
which they may be bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
nor will such action result in violation of the provisions of
the Articles of Incorporation or By-Laws of the Company or any
law, administrative regulation or court decree.
(xvii) The Company is not required to be registered under
the 1940 Act.
(xviii) The statements under the caption "Description of
Capital Stock" in the Prospectus, insofar as such statements
constitute a summary of documents referred to therein or
matters of law, are accurate summaries and fairly and
correctly present the information called for with respect to
such documents and matters.
(2) The favorable opinion, dated as of Closing Time, of Hunton
& Williams, counsel for the Company, in form and substance satisfactory
to counsel for the Underwriters, to the effect that the Company has
qualified to be taxed as a real estate investment trust pursuant to
Sections 856 through 860 of the Code for its most recently ended fiscal
year and for the four fiscal years immediately preceding such year, and
the Company's organization and contemplated method of operation are
such as to enable it to continue to so qualify for its current fiscal
year.
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(3) The favorable opinion, dated as of the Closing Time, of
Brown & Wood LLP, counsel for the Underwriters, with respect to the due
organization of the Company and the matters set forth in (v) to (ix),
inclusive, and (xii), (xv) and (xviii) of subsection (b)(1) of this
Section. In rendering their opinion, Brown & Wood LLP may rely as to
matters of Virginia law upon the opinion of Hunton & Williams.
(4) In giving their opinions required by subsections (b)(1)
and (b)(3), respectively, of this Section, Hunton & Williams and Brown
& Wood LLP shall each additionally state that nothing has come to their
attention that would lead them to believe that the Registration
Statement or any amendment thereto (excluding the financial statements
and financial schedules included or incorporated by reference therein,
as to which such counsel need express no belief), at the time it became
effective or at the time an Annual Report on Form 10-K was filed by the
Company with the Commission (whichever is later), or at the
Representation Date, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (excluding the
financial statements and financial schedules included or incorporated
by reference therein, as to which such counsel need express no belief),
at the Representation Date or at Closing Time, included or includes an
untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(c) At Closing Time, there shall not have been, since the date of the
applicable Terms Agreement or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business; and you shall have
received a certificate of the President and Chief Executive Officer and the
Senior Vice President and Chief Financial Officer of the Company, dated as of
such Closing Time, to the effect that (i) there has been no such material
adverse change and (ii) the representations and warranties in Section 1 are true
and correct with the same force and effect as though such Closing Time were a
Representation Date. As used in this Section 5(c), the term "Prospectus" means
the Prospectus in the form first used to confirm sales of the Underwritten
Securities.
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(d) At the time of execution of the applicable Terms Agreement, you
shall have received from Ernst & Young LLP a letter dated such date, in form and
substance satisfactory to you, to the effect that (i) they are independent
accountants with respect to the Company and its subsidiaries within the meaning
of the 1933 Act and the 1934 Act and the applicable published rules and
regulations thereunder; (ii) it is their opinion that the consolidated financial
statements and supporting schedules of the Company and its subsidiaries included
or incorporated by reference in the Registration Statement and the Prospectus
and covered by their opinions therein comply in form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1934 Act and
the related published rules and regulations thereunder; (iii) based upon limited
procedures set forth in detail in such letter (which shall include, without
limitation, the procedures specified by the American Institute of Certified
Public Accountants for a review of interim financial information as described in
SAS No. 71, Interim Financial Information, with respect to the unaudited
condensed consolidated financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement), nothing
came to their attention that caused them to believe that (A) any material
modifications should be made to the unaudited financial statements and financial
statement schedules of the Company and its subsidiaries included or incorporated
by reference in the Registration Statement and the Prospectus for them to be in
conformity with generally accepted accounting principles, (B) the unaudited
financial statements and financial statement schedules of the Company included
or incorporated by reference in the Registration Statement and the Prospectus do
not comply as to form in all material respects with the applicable accounting
requirements of the 1934 Act and the related published rules and regulations
thereunder, or (C) at a specified date not more than three days prior to the
date of the applicable Terms Agreement, there has been any change in the capital
stock of the Company or in the notes payable or mortgage notes payable of the
Company or any decrease in the total assets of the Company, as compared with the
amounts shown in the most recent consolidated balance sheet included or
incorporated by reference in the Registration Statement and the Prospectus or,
during the period from the date of the most recent consolidated statement of
operations included or incorporated by reference in the Registration Statement
and the Prospectus to a specified date not more than three days prior to the
date of the applicable Terms Agreement, there were any decreases, as compared
with the corresponding period in the preceding year, in rental income or in the
total or per share amounts of net income or income before gains (losses) on
investments and extraordinary items of the Company, except in all instances for
changes, increases or decreases which the Registration Statement and the
Prospectus
24
<PAGE>
disclose have occurred or may occur; (iv) they have compared the information in
the Prospectus under selected captions with the disclosure requirements of
Regulation S-K and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all material
respects with the disclosure requirements of Items 301, 402 and 503(d) of
Regulation S-K; and (v) in addition to the audit referred to in their opinions
and the limited procedures referred to in clause (iii) above, they have carried
out certain specified procedures, not constituting an audit, with respect to
certain amounts, percentages and financial information which are included or
incorporated by reference in the Registration Statement and the Prospectus and
which are specified by you, and have found such amounts, percentages and
financial information to be in agreement with the relevant accounting, financial
and other records of the Company and its subsidiaries identified in such letter.
(e) At Closing Time, you shall have received from Ernst & Young LLP a
letter dated as of such Closing Time to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the "specified date" referred to shall be a date not more
than three days prior to such Closing Time.
(f) At Closing Time, counsel for the Underwriters shall have been
furnished with such documents and opinions as they may reasonably require for
the purpose of enabling them to pass upon the issuance and sale of the
Underwritten Securities as herein contemplated and related proceedings, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the
Underwritten Securities as herein contemplated shall be satisfactory in form and
substance to you and counsel for the Underwriters.
(g) In the event the Underwriters exercise their option provided in a
Terms Agreement as set forth in Section 2(b) hereof to purchase all or any
portion of the Option Securities, the representations and warranties of the
Company contained herein and the statements in any certificates furnished by the
Company hereunder shall be true and correct as of each Date of Delivery, and you
shall have received:
25
<PAGE>
(1) A certificate, dated such Date of Delivery, of the
President and Chief Executive Officer and the Senior Vice President and
Chief Financial Officer of the Company, in their capacities as such,
confirming that the certificate delivered at Closing Time pursuant to
Section 5(c) hereof remains true and correct as of such Date of
Delivery.
(2) The favorable opinions of Hunton & Williams, counsel for
the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise substantially to the same effect as the
opinions required by Sections 5(b)(1) and 5(b)(2) hereof.
(3) The favorable opinion of Brown & Wood LLP, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Section 5(b)(3) hereof.
(4) A letter from Ernst & Young LLP, in form and substance
satisfactory to you and dated such Date of Delivery, substantially the
same in scope and substance as the letter furnished to you pursuant to
Section 5(e) hereof, except that the "specified date" in the letter
furnished pursuant to this Section 5(g)(4) shall be a date not more
than three days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, the applicable Terms Agreement
may be terminated by you by notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 4 hereof.
Section 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the
information deemed to be a part of the Registration Statement pursuant
to Rule 430A(b) or Rule 434 of the 1933 Act Regulations, if applicable,
or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto)
or the omission, or alleged omission therefrom, of a material fact
necessary in order to make the statements therein, in the
26
<PAGE>
light of the circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission
referred to in subsection (1) above, or any such alleged untrue
statement or omission, if such settlement is effected with the written
consent of the Company; and
(3) against any and all expense whatsoever, as incurred
(including, the fees and disbursements of counsel chosen by you),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceedings by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (1) or (2) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you expressly
for use in the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
27
<PAGE>
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
Section 7. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 6 is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company and the
Underwriters with respect to the offering of the Underwritten Securities shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company and
one or more of the Underwriters in respect of such offering, as incurred, in
such proportions that the Underwriters are responsible for that portion
represented by the percentage that the underwriting discount appearing on the
cover page of the applicable Prospectus Supplement in respect of such offering
bears to the initial public offering price appearing thereon and the Company is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. Notwithstanding the provisions of this
Section 7, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Underwritten Securities
purchased by it pursuant to the applicable Terms Agreement and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay in respect of such losses,
liabilities, claims, damages and expenses. For purposes of this Section 7, each
person, if any, who controls an Underwriter within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company.
28
<PAGE>
Section 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or the applicable Terms Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any termination of this Agreement, or
investigation made by or on behalf of any Underwriter or any controlling person,
or by or on behalf of the Company and shall survive delivery of and payment for
the Underwritten Securities to the Underwriters.
Section 9. Termination of Agreement. (a) This Agreement (excluding the
applicable Terms Agreement) may be terminated for any reason at any time by the
Company or by you upon the giving of 30 days' written notice of such termination
to the other party hereto; provided that this Agreement may not be terminated
prior to the Closing Time set forth in any applicable Terms Agreement.
(b) You may also terminate the applicable Terms Agreement, by notice to
the Company, at any time at or prior to the Closing Time (i) if there has been,
since the date of such Terms Agreement or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii)
if there has occurred any material adverse change in the financial markets in
the United States or any outbreak of hostilities or other calamity or crisis or
escalation of any existing hostilities, the effect of which is such as to make
it, in your judgment, impracticable to market the Underwritten Securities or
enforce contracts for the sale of the Underwritten Securities, or (iii) if
trading in any of the securities of the Company has been suspended by the
Commission or the New York Stock Exchange, or if trading generally on either the
New York Stock Exchange or the American Stock Exchange has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the Commission or any other governmental authority, or if a banking
moratorium has been declared by Federal, New York or Virginia authorities, or
(iv) if Preferred Stock is being offered and the rating assigned by any
nationally recognized statistical rating organization to any preferred stock or
debt of the Company as of the date of the applicable Terms Agreement shall have
been lowered since such date or if any such rating organization shall have
publicly announced that it has placed any preferred stock or debt of the Company
on what is commonly termed a "watch list" for possible downgrading. As used in
this Section 9(b), the term
29
<PAGE>
"Prospectus" means the Prospectus in the form first used to confirm sales of the
Underwritten Securities.
(c) In the event of any such termination, (x) the covenants set forth
in Section 3 with respect to any offering of Underwritten Securities shall
remain in effect so long as any Underwriter owns any such Underwritten
Securities purchased from the Company pursuant to the applicable Terms Agreement
and (y) the covenant set forth in Section 3(h) hereof, the provisions of Section
4 hereof, the indemnity and contribution agreements set forth in Sections 6 and
7 hereof, and the provisions of Sections 8 and 13 hereof shall remain in effect.
Section 10. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time to purchase the
Underwritten Securities which it or they are obligated to purchase under the
applicable Terms Agreement (the "Defaulted Securities"), then you shall have the
right, within 48 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, you shall not have completed
such arrangements within such 48-hour period, then:
(a) if the total number of Defaulted Securities does not exceed 10% of
the total number of Underwritten Securities to be purchased pursuant to such
Terms Agreement, the non-defaulting Underwriters named in such Terms Agreement
shall be obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the total number of Defaulted Securities exceeds 10% of the
total number of Underwritten Securities to be purchased pursuant to such Terms
Agreement, the applicable Terms Agreement shall terminate without liability on
the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default under this Agreement and
the applicable Terms Agreement.
In the event of any such default which does not result in a termination
of the applicable Terms Agreement, either you or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements.
30
<PAGE>
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed c/o [name and address of Representative],
attention of ______________________________; and notices to the Company shall be
directed to it at 10 South 6th Street, Richmond, Virginia 23219, attention of
John P. McCann, President and Chief Executive Officer.
Section 12. Parties. This Agreement and the applicable Terms Agreement
shall inure to the benefit of and be binding upon you and the Company and any
Underwriter who becomes a party to such Terms Agreement, and their respective
successors. Nothing expressed or mentioned in this Agreement or the applicable
Terms Agreement is intended or shall be construed to give any person, firm or
corporation, other than those referred to in Sections 6 and 7 and their heirs
and legal representatives, any legal or equitable right, remedy or claim under
or in respect of this Agreement or such Terms Agreement or any provision herein
or therein contained. This Agreement and the applicable Terms Agreement and all
conditions and provisions hereof and thereof are intended to be for the sole and
exclusive benefit of the parties hereto and thereto and their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
Section 13. Governing Law and Time. This Agreement and the applicable
Terms Agreement shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and to be performed in
said State. Specified times of day refer to New York City time.
Section 14. Counterparts. This Agreement and the applicable Terms
Agreement may be executed in one or more counterparts, and if executed in more
than one counterpart the executed counterparts shall constitute a single
instrument.
31
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between you and the Company in accordance with its terms.
Very truly yours,
UNITED DOMINION REALTY TRUST, INC.
By:
-------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
[Names[s] of Representative[s]]
By:
---------------------------
32
<PAGE>
Exhibit A
_______ Shares
UNITED DOMINION REALTY TRUST, INC.
(a Virginia corporation)
[Title of Securities]
TERMS AGREEMENT
Dated: _____________, 199__
To: United Dominion Realty Trust, Inc.
10 South 6th Street
Richmond, Virginia 23219
Attention: President and Chief Executive Officer
Dear Sirs:
We (the "Representative[s]") understand that United Dominion Realty
Trust, Inc., a Virginia corporation (the "Company"), proposes to issue and sell
the number of its [shares of common stock (the "Common Stock")] [shares of
preferred stock (the "Preferred Stock")] (such [Common Stock]) [Preferred Stock]
being collectively hereinafter [also] referred to as the "Underwritten
Securities"). Subject to the terms and conditions set forth or incorporated by
reference herein, the underwriters named below (the "Underwriters") offer to
purchase, severally and not jointly, the respective numbers of [Initial
Underwritten Securities (as defined in the Underwriting Agreement referred to
below)] set forth below opposite their respective names, and a proportionate
share of Option Securities (as defined in the Underwriting Agreement referred to
below) to the extent any are purchased, at the purchase price set forth below.
Number of Shares
of Initial
Underwriter Underwritten Securities
----------
Total $
==========
A-1
<PAGE>
<TABLE>
<CAPTION>
The Underwritten Securities shall have the following terms:
[Common Stock] [Preferred Stock]
<S> <C>
Title of Securities:
Number of Shares:
[Current Ratings:]
[Dividend Rate: [$ ] [ %], Payable:]
[Stated Value:]
[Liquidation Preference:]
[Ranking:]
Public Offering Price Per Share: $ [, plus accumulated dividends, if any, from , 19 .]
Purchase Price Per Share: $ [, plus accumulated dividends, if any, from , 19 .]
[Conversion Provisions:]
[Redemption Provisions:]
[Sinking Fund Requirements:]
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of Delivery:
Minimum Contract:
Maximum Number of Shares:
Fee:]
Additional co-managers, if any:
Other terms:
Closing time, date and location:
</TABLE>
All the provisions contained in the document attached as Annex A hereto
entitled "United Dominion Realty Trust, Inc.- Common Stock and Preferred
Stock-Underwriting Agreement" are hereby incorporated by reference in their
entirety herein and shall be deemed to be a part of this Terms Agreement to the
same extent as if such provisions had been set forth in full herein. Terms
defined in such document are used herein as therein defined.
A-2
<PAGE>
Please accept this offer no later than o'clock P.M. (New York City
time) on by signing a copy of this Terms Agreement in the space set forth below
and returning the signed copy to us.
Very truly yours,
[NAME[S] OF REPRESENTATIVE[S]
By:_________________________
Acting on behalf of [itself]
[themselves] and the other
named Underwriters.
Accepted:
UNITED DOMINION REALTY TRUST, INC.
By:_________________________
Name:
Title:
A-3
<PAGE>
Exhibit B
UNITED DOMINION REALTY TRUST, INC.
(a Virginia corporation)
[Title of Securities]
DELAYED DELIVERY CONTRACT
_____________, 19__
United Dominion Realty Trust, Inc.
10 South 6th Street
Richmond, Virginia 23219
Attention: President and Chief Executive Officer
Dear Sirs:
The undersigned hereby agrees to purchase from United Dominion Realty
Trust, Inc. (the "Company"), and the Company agrees to sell to the undersigned
on __________, 19__ (the "Delivery Date"), of the Company's [insert
title of security] (the "Securities"), offered by the Company's Prospectus dated
__________, 19__, as supplemented by its Prospectus Supplement dated
___________, 19__, receipt of which is hereby acknowledged, at a purchase price
of [$__________], on the Delivery Date, and on the further terms and conditions
set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase
on the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of ,
on the Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned in definitive form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date shall be subject only to the conditions that
(1) the purchase of Securities to be
B-1
<PAGE>
made by the undersigned shall not on the Delivery Date be prohibited under the
laws of the jurisdiction to which the undersigned is subject and (2) the
Company, on or before __________, 199_, shall have sold to the Underwriters of
the Securities (the "Underwriters") such principal amount of the Securities as
is to be sold to them pursuant to the Terms Agreement dated __________, 199_
between the Company and the Underwriters. The obligation of the undersigned to
take delivery of and make payment for Securities shall not be affected by the
failure of any purchaser to take delivery of and make payments for Securities
pursuant to other contracts similar to this contract. The undersigned represents
and warrants to you that its investment in the Securities is not, as of the date
hereof, prohibited under the laws of any jurisdiction to which the undersigned
is subject and which govern such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary action for the due execution and delivery of this
contract and the payment for and purchase of the Securities has been taken by it
and no further authorization or approval of any governmental or other regulatory
authority is required for such execution, delivery, payment or purchase, and
that, upon acceptance hereof by the Company and mailing or delivery of a copy as
provided below, this contract will constitute a valid and binding agreement of
the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for a number of Securities in excess of ________ and that the
acceptance of any Delayed Delivery Contract is in the Company's sole discretion
and, without limiting the foregoing, need not be on a first-come, first-served
basis. If this contract is acceptable to the Company, it is requested that the
Company sign the form of acceptance on a copy hereof and mail or deliver a
signed copy hereof to the undersigned at its address set forth below. This will
become a binding contract between the Company and the undersigned when such copy
is so mailed or delivered.
B-2
<PAGE>
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
-----------------------------
(Name of Purchaser)
By:__________________________
(Title)
-----------------------------
-----------------------------
(Address)
Accepted as of the date first above written.
UNITED DOMINION REALTY TRUST, INC.
By:__________________________
(Title)
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date may be discussed are as
follows: (Please print.)
Telephone No.
(including
Name Area Code)
B-3
Exhibit 5
Hunton & Williams
RIVERFRONT PLAZA, EAST TOWER
951 EAST BYRD STREET
RICHMOND, VIRGINIA 23219-4074
FILE NO.: 27789.240
DIRECT DIAL: (804) 788-8267
May 15, 1997
Board of Directors
United Dominion Realty Trust, Inc.
10 South Sixth Street
Richmond, Virginia 23219
Registration Statement on Form S-3
$600,000,008 of Offered Securities
Gentlemen:
We are acting as counsel for United Dominion Realty Trust, Inc. (the
"Company") in connection with the registration under the Securities Act of 1933
of debt securities ("Debt Securities"), Preferred Stock, no par value
("Preferred Stock"), and Common Stock, $1 par value ("Common Stock"), of the
Company having an aggregate maximum public offering price of $600,000,000 (the
"Offered Securities"). The Offered Securities are described in the Registration
Statement on Form S-3 of the Company (the "Registration Statement") to be filed
with the Securities and Exchange Commission (the "Commission") on May , 1997. In
connection with the filing of the Registration Statement you have requested our
opinion concerning certain corporate matters.
We are of the opinion that:
1. The Company is a corporation duly organized and validly existing
under the laws of the Commonwealth of Virginia.
2. When the Offered Securities have been sold as described in the
Registration Statement, the Offered Securities (to the extent consisting of
Preferred Stock and/or Common Stock) will be legally issued, fully paid and
nonassessable and (to the extent consisting of Debt Securities) will be legally
issued, fully paid and nonassessable and will be binding obligations of the
Company.
We consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement and to the reference to us in the
Prospectus included therein.
Very truly yours,
HUNTON & WILLIAMS
Exhibit 23(a)
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3, No. 333-00000) and related Prospectus of
United Dominion Realty Trust, Inc. for the registration of $600,000,000 of Debt
Securities, Preferred Stock or Common Stock and to the incorporation by
reference therein of our report dated March 5, 1997, with respect to the
consolidated financial statements and schedule of United Dominion Realty Trust,
Inc. included in its Annual Report (Form 10-K) for the year ended December 31,
1996, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Richmond, Virginia
May 14, 1997
Exhibit 23(b)
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333-00000) and related Prospectus of United
Dominion Realty Trust, Inc. for the registration of $600,000,000 of Debt
Securities, Preferred Stock or Common Stock and to the incorporation by
reference therein of our report dated March 4, 1997, with respect to the
consolidated financial statements of South West Property Trust Inc. included in
United Dominion Realty Trust Inc.'s Current Report (Form 8-K/A) dated March 17,
1997, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Dallas, Texas
May 14, 1997
Exhibit 23(c)
[LETTERHEAD]
L.P. MARTIN & COMPANY
A PROFESSIONAL CORPORATION
CERTIFIED PUBLIC ACCOUNTANTS
4132 INNSLAKE DRIVE
GLEN ALLEN, VIRGINIA 23060
PHONE: (804) 346-2626
FAX: (804) 346-9311
CONSENT OF L.P. MARTIN & COMPANY, P.C. INDEPENDENT AUDITORS
We consent to the reference of our firm under the caption "Experts" in the
Registration Statement (Form S-3) of United Dominion Realty Trust, Inc. for the
registration of $600,000,000 of offered securities and to the incorporation by
reference therein of our report dated June 18, 1996, with respect to the
statement of rental operations of Westland Park Apartments and our report dated
June 20, 1996 with respect to the statement of rental operations of Steeplechase
Apartments included in United Dominion Realty Trust's Current Report on Form 8-K
dated October 31, 1996 for the year ended December 31, 1995, filed with the
Securities and Exchange Commission.
/s/ L.P. MARTIN & COMPANY, P.C.
- -------------------------------
L.P. Martin & Company, P.C.
Certified Public Accountants
Richmond, Virginia
May 14, 1997
Exhibit 23(d)
[LETTERHEAD]
DIXON, ODOM & CO., L.L.P.
Certified Public Accountants
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) of United Dominion Realty Trust, Inc., for the
registration of $600,000,000 of Offered Securities and to the incorporation by
reference therein of our report dated May 16, 1996, with respect to the combined
statement of rental operations of the Properties included in its Current Report
on Form 8-K dated August 15, 1996, filed with the Securities and Exchange
Commission.
/s/ DIXON, ODOM, & CO., L.L.P.
- ------------------------------
Dixon, Odom, & Co., L.L.P.
Greensboro, North Carolina
May 14, 1997
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM T-1
----------------------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a trustee pursuant to
Section 305(b) (2) -----
-----------------------
FIRST UNION NATIONAL BANK OF VIRGINIA
(Exact name of Trustee as specified in its charter)
213 SOUTH JEFFERSON STREET
ROANOKE, VIRGINIA 24011 54-0211320
(Address of principal executive (Zip Code) (I.R.S. Employer
offices) Identification No.)
Dante M. Monakil, (804) 788-9659
901 E. Cary Street, Richmond, Virginia 23219
(Name, address and telephone number of agent for service)
-----------------------
UNITED DOMINION REALTY TRUST, INC.
(Exact name of obligor as specified in its charter)
Virginia 54-0857512
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10 South 6th Street, Suite 203 23219-3802
Richmond, VA (Zip Code)
(Address of principal executive
offices)
Senior Debt Securities
(Title of the indenture securities)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
1. GENERAL INFORMATION.
(a) The following are the names and addresses of each examining or
supervising authority to which the Trustee is subject:
The Comptroller of the Currency, Washington, D.C.
Federal Reserve Bank of Richmond, Richmond, Virginia.
Federal Deposit Insurance Corporation, Washington, D.C.
Securities and Exchange Commission, Division of Market Regulation,
Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust powers.
2. AFFILIATIONS WITH OBLIGOR.
The obligor is not an affiliate of the Trustee.
3. VOTING SECURITIES OF THE TRUSTEE.
Not applicable
(See answer to Item 13)
4. TRUSTEESHIPS UNDER OTHER INDENTURES.
Not applicable
(See answer to Item 13)
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
Not applicable
(See answer to Item 13)
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
Not applicable
(See answer to Item 13)
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR OFFICIALS.
Not applicable
(See answer to Item 13)
8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
Not applicable
(See answer to Item 13)
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
Not applicable
(See answer to Item 13)
2
<PAGE>
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
Not applicable
(See answer to Item 13)
11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON OWNING 50
PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
Not applicable
(See answer to Item 13)
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
Not applicable
(See answer to Item 13)
13. DEFAULTS BY THE OBLIGOR.
A. None
B. None
14. AFFILIATIONS WITH THE UNDERWRITERS.
Not applicable
(See answer to Item 13)
15. FOREIGN TRUSTEE.
Trustee is a national banking association organized under the laws of
the United States.
16. LIST OF EXHIBITS.
(1) Articles of Incorporation. (Incorporated by reference from
Exhibit 25 to Registration 33-57401, filed January 25, 1995.)
(2) Certificate of Authority of the Trustee to conduct business.
(Incorporated by reference from Exhibit 25 to Registration
33-57401, filed January 25, 1995.)
(3) Certificate of Authority of the Trustee to exercise corporate
trust powers. (Incorporated by reference from Exhibit 25 to
Registration 33-57401, filed January 25, 1995.)
(4) By-laws. (Incorporated by reference from Exhibit 25 to
Registration 33-57401, filed January 25, 1995.)
(5) Inapplicable.
(6) Consent by the Trustee required by Section 321(b) of the Trustee
Indenture Act of 1939. Included at Page 4 of this Form T-1
Statement.
(7) Report of condition of Trustee.
(8) Inapplicable.
(9) Inapplicable.
3
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, FIRST UNION NATIONAL BANK OF VIRGINIA, a national
organized and existing under the laws of the United States of America, has
duly caused this statement of eligibility and qualification to be signed on
its behalf by the undersigned, thereunto duly authorized, all in the City of
Richmond, and Commonwealth of Virginia on the 15th day of May, 1997.
FIRST UNION NATIONAL BANK OF VIRGINIA
(Trustee)
BY: /s/ DANTE M. MONAKIL
--------------------------------
Dante M. Monakil, Vice President
EXHIBIT T-1 (6)
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939 and in connection
with the proposed issuance by United Dominion Realty Trust, Inc., of its
Senior Securities, First Union National Bank of Virginia, as the Trustee herein
named, hereby consents that reports of examinations of said Trustee by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
FIRST UNION NATIONAL BANK OF VIRGINIA
BY: /s/ JOHN M. TURNER
----------------------------------
John M. Turner, Vice President and
Managing Director
Dated: May 15, 1997
4
<PAGE>
EXHIBIT T-1 (7)
<PAGE>
Consolidated Report of Income
for the period January 1, 1997-March 31, 1997
All Report of Income schedules are to be reported on a calendar year-to-date
basis in thousands of dollars.
Schedule RI--Income Statement
<TABLE>
<CAPTION>
I380
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------
<S> <C>
1. Interest income: //////////////////
a. Interest and fee income on loans: //////////////////
(1) Loans secured by real estate ........................................................ 4011 89,558 1.a.(1)
(2) Loans to finance agricultural production and other loans to farmers ................. 4024 1,191 1.a.(2)
(3) Commercial and industrial loans ..................................................... 4012 19,833 1.a.(3)
(4) Loans to individuals for household, family, and other personal expenditures: //////////////////
(a) Credit cards and related plans ................................................. 4054 225 1.a.(4)(a)
(b) Other .......................................................................... 4055 22,807 1.a.(4)(b)
(5) Loans to foreign governments and official institutions .............................. 4056 0 1.a.(5)
(6) Obligations (other than securities and leases) of states and political subdivisions //////////////////
in the U.S.: //////////////////
(a) Taxable obligations ............................................................ 4503 0 1.a.(6)(a)
(b) Tax-exempt obligations ......................................................... 4504 2,001 1.a.(6)(b)
(7) All other loans ..................................................................... 4058 1,237 1.a.(7)
b. Income from lease financing receivables: //////////////////
(1) Taxable leases ...................................................................... 4505 1,949 1.b.(1)
(2) Tax-exempt leases ................................................................... 4307 718 1.b.(2)
c. Interest income on balances due from depository institutions(1) .......................... 4115 779 1.c.
d. Interest and dividend income on securities: //////////////////
(1) U.S. Treasury securities and U.S. Government agency obligations ..................... 4027 34,826 1.d.(1)
(2) Securities issued by states and political subdivisions in the U.S.: //////////////////
(a) Taxable securities ............................................................. 4506 0 1.d.(2)(a)
(b) Tax-exempt securities .......................................................... 4507 14 1.d.(2)(b)
(3) Other domestic debt securities ...................................................... 3657 1,386 1.d.(3)
(4) Foreign debt securities ............................................................. 3658 2,724 1.d.(4)
(5) Equity securities (including investments in mutual funds) ........................... 3659 1,227 1.d.(5)
e. Interest income from trading assets ...................................................... 4069 0 1.e.
f. Interest income on federal funds sold and securities purchased under agreements to resell. 4020 505 1.f.
g. Total interest income (sum of items 1.a. through 1.f.) ................................... 4107 180,980 1.g.
</TABLE>
- ----------
1) Includes interest income on time certificates of deposit not held for
trading.
<PAGE>
Schedule RI--Continued
<TABLE>
<CAPTION>
Year-to-date
Dollar Amounts in Thousands RIAD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------
<S> <C>
2. Interest expense: //////////////////
a. Interest on deposits: //////////////////
(1) Transaction account (NOW accounts, ATS accounts, and //////////////////
telephone and preauthorized transfer accounts) ................... 4508 2,546 2.a.(1)
(2) Nontransaction accounts: //////////////////
(a) Money market deposit accounts (MMDAs) ....................... 4509 20,369 2.a.(2)(a)
(b) Other savings deposits ...................................... 4511 3,034 2.a.(2)(b)
(c) Time deposits of $100,000 or more ........................... A517 3,930 2.a.(2)(c)
(d) Time deposits of less than $100,000 ......................... A518 24,068 2.a.(2)(d)
b. Expense of federal funds purchased and securities sold under //////////////////
agreements to repurchase .............................................. 4180 26,002 2.b.
c. Interest on demand notes issued to the U.S. Treasury, trading //////////////////
liabilities, and other borrowed money ................................. 4185 6,884 2.c.
d. Not applicable //////////////////
e. Interest on subordinated notes and debentures ......................... 4200 2,587 2.e.
f. Total interest expense (sum of items 2.a through 2.e) ................. 4073 89,420 2.f.
----------------------
3. Net interest income (item 1.g minus 2.f) .................................. ////////////////// RIAD 4074 91,560 3.
----------------------
4. Provisions: //////////////////
----------------------
a. Provision for loan and lease losses ................................... ////////////////// RIAD 4230 (15) 4.a.
b. Provision for allocated transfer risk ................................. ////////////////// RIAD 4243 0 4.b.
----------------------
5. Noninterest income: //////////////////
a. Income from fiduciary activities ...................................... 4070 5,838 5.a.
b. Service charges on deposit accounts ................................... 4080 14,136 5.b.
c. Trading revenue (must equal Schedule RI, sum of Memorandum //////////////////
items 8.a. through 8.d.) .............................................. A220 0 5.c.
d.-e. Not applicable //////////////////
f. Other noninterest income: //////////////////
(1) Other fee income .................................................. 5407 12,528 5.f.(1)
(2) All other noninterest income* ..................................... 5408 10,244 5.f.(2)
----------------------
g. Total noninterest income (sum of items 5.a through 5.f) ............... ////////////////// RIAD 4079 42,746 5.g.
6. a. Realized gains (losses) on held-to-maturity securities ................ ////////////////// RIAD 3521 2 6.a.
b. Realized gains (losses) on available-for-sale securities .............. ////////////////// RIAD 3196 (1,529) 6.b.
----------------------
7. Noninterest expense: //////////////////
a. Salaries and employee benefits ........................................ 4135 33,740 7.a.
b. Expenses of premises and fixed assets (net of rental income) //////////////////
(excluding salaries and employee benefits and mortgage interest) ...... 4217 11,794 7.b.
c. Other noninterest expense* ............................................ 4092 31,199 7.c.
----------------------
d. Total noninterest expense (sum of items 7.a through 7.c) .............. ////////////////// RIAD 4093 76,733 7.d.
----------------------
8. Income (loss) before income taxes and extraordinary items and other //////////////////
----------------------
adjustments (item 3 plus or minus items 4.a, 4.b, 5.g, 6.a, 6.b, and 7.d) . ////////////////// RIAD 4301 56,061 8.
9. Applicable income taxes (on item 8) ....................................... ////////////////// RIAD 4302 16,877 9.
----------------------
10. Income (loss) before extraordinary items and other adjustments (item 8 //////////////////
----------------------
minus 9) .................................................................. ////////////////// RIAD 4300 39,184 10.
11. Extraordinary items and other adjustments, net of income taxes * .......... ////////////////// RIAD 4320 0 11.
12. Net income (loss) (sum of items 10 and 11) ................................ ////////////////// RIAD 4340 39,184 12.
----------------------
</TABLE>
- ----------
*Describe on Schedule RI-E--Explanations.
4
<PAGE>
Schedule RI--Continued
<TABLE>
<CAPTION> I381
Memoranda Year-to-date
Dollar Amounts in Thousands RIAD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------
<S> <C>
1. Interest expense incurred to carry tax-exempt securities, loans, and leases acquired after //////////////////
August 7, 1986, that is not deductible for federal income tax purposes ....................... 4513 600 M.1.
2. Income from the sale and servicing of mutual funds and annuities (included in //////////////////
Schedule RI, item 8) ......................................................................... 8431 668 M.2.
3. Not applicable //////////////////
4. Number of full-time equivalant employees at end of current period (round to //// Number
nearest whole number) ........................................................................ 4150 3,252 M.4.
5.-6. Not applicable //////////////////
7. If the reporting bank has restated its balance sheet as a result of applying push down //// MM DD YY
accounting this calendar year, report the date of the bank's acquisition ...................... 9106 00/00/00 M.7.
8. Trading revenue (from cash instruments and off-balance sheet derivative instruments) //////////////////
(sum of Memorandum items 8.a through 8.d must equal Schedule RI, item 5.c): //////////////////
a. Interest rate exposures .................................................................. 8757 0 M.8.a.
b. Foreign exchange exposures ............................................................... 8758 0 M.8.b.
c. Equity security and index exposures ...................................................... 8759 0 M.8.c.
d. Commodity and other exposures ............................................................ 8760 0 M.8.d.
9. Impact on income of off-balance sheet derivatives held for purposes other than trading: //////////////////
a. Net increase (decrease) to interest income ............................................... 8761 (1,732) M.9.a.
b. Net (increase) decrease to interest expense .............................................. 8762 0 M.9.b.
c. Other (noninterest) allocations .......................................................... 8763 0 M.9.c.
10. Credit losses on off-balance sheet derivatives (see instructions) ............................ A251 0 M.10.
-------------------
11. Does the reporting bank have a Subchapter S election in effect for federal income tax YES NO
-------------------
purposes for the current tax year? ........................................................... A530 //// X M.11.
-------------------
12. Deferred portion of total applicable income taxes included in Schedule RI, //// Bil Mil Thou
-------------------
items 9 and 11 (to be reported with the December Report of Income) ........................... 4772 N/A M.12.
-------------------
</TABLE>
Schedule RI-A--Changes in Equity Capital
Indicate decreases and losses in parentheses.
<TABLE>
<CAPTION>
I383
Dollar Amounts in Thousands RIAD Bil Mil Thou
- --------------------------------------------------------------------------------------------------------------------------
<S> <C>
1. Total equity capital originally reported in the December 31, 1996, Reports of Condition //////////////////
and Income ..................................................................................... 3215 822,419 1.
2. Equity capital adjustments from amended Reports of Income, net* ................................ 3216 0 2.
3. Amended balance end of previous calendar year (sum of items 1 and 2) ........................... 3217 822,419 3.
4. Net income (loss) (must equal Schedule RI, item 12) ............................................ 4340 39,184 4.
5. Sale, conversion, acquisition, or retirement of capital stock, net ............................. 4346 0 5.
6. Changes incident to business combinations, net ................................................. 4356 0 6.
7. LESS: Cash dividends declared on preferred stock ............................................... 4470 0 7.
8. LESS: Cash dividends declared on common stock .................................................. 4460 0 8.
9. Cumulative effect of changes in accounting principles from prior years* (see instructions for //////////////////
this schedule) ................................................................................. 4411 6,818 9.
10. Corrections of material accounting errors from prior years* (see instructions for this schedule) 4412 0 10.
11. Change in net unrealized holding gains (losses) on available-for-sale securities ............... 8433 (16,960) 11.
12. Other transactions with parent holding company* (not included in items 5, 7, or 8 above) ....... 4415 0 12.
13. Total equity capital end of current period (sum of items 3 through 12) (must equal //////////////////
Schedule RC, item 28) .......................................................................... 3210 851,461 13.
-------------------
</TABLE>
- ----------
Describe on Schedule RI-E--Explanations.
5
<PAGE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for March 31, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
C300
Dollar Amounts in Thousands RCON Bil Mil Thou
- --------------------------------------------------------------------------------------------------------------------------
<S> <C>
ASSETS //////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A:) //////////////////
a. Noninterest-bearing balances and currency and coin(1) ...................................... 0081 698,029 1.a.
b. Interest-bearing balances(2) ............................................................... 0071 330,238 1.b.
2. Securities: //////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A) ................................. 1754 112,675 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) ............................... 1773 2,054,783 2.b.
3. Federal funds sold and securities purchased under agreements to resell ......................... 1350 27,400 3.
4. Loans and lease financing receivables: //////////////////
------------------------
a. Loans and leases, net of unearned income (from Schedule RC-C) ... RCON 2122 6,868,473 ////////////////// 4.a.
b. LESS: Allowance for loan and lease losses ....................... RCON 3123 98,614 ////////////////// 4.b.
c. LESS: Allocated transfer risk reserve ........................... RCON 3128 0 ////////////////// 4.c.
------------------------
d. Loans and leases, net of unearned income, //////////////////
allowance, and reserve (item 4.a minus 4.b and 4.c) ........................................ 2125 6,769,859 4.d.
5. Trading assets (from Schedule RC-D) ............................................................ 3545 0 5.
6. Premises and fixed assets (including capitalized leases) ....................................... 2145 156,623 6.
7. Other real estate owned (from Schedule RC-M) ................................................... 2150 8,217 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Shedule RC-M) ........ 2130 50,360 8.
9. Customers' liability to this bank on acceptances outstanding ................................... 2155 869 9.
10. Intangible assets (from Schedule RC-M) ......................................................... 2143 164,760 10.
11. Other assets (from Schedule RC-F) .............................................................. 2160 198,157 11.
12. Total assets (sum of items 1 through 11) ....................................................... 2170 10,571,970 12.
-------------------
</TABLE>
- ----------
1) Includes cash items in process of collection and unposted debits.
2) Includes time certificates of deposit not held for trading.
9
<PAGE>
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCON Bil Mil Thou
- --------------------------------------------------------------------------------------------------------------------------
<S> <C>
LIABILITIES //////////////////
13. Deposits: //////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E) .................. 2200 7,066,437 13.a.
------------------------
(1) Noninterest-bearing(1) ..................................... RCON 6631 1,586,399 ////////////////// 13.a.(1)
(2) Interest-bearing ........................................... RCON 6636 5,480,038 ////////////////// 13.a.(2)
------------------------
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs .............................. //////////////////
(1) Noninterest-bearing ................................................................... //////////////////
(2) Interest-bearing ...................................................................... //////////////////
14. Federal funds purchased and securities sold under agreements to repurchase ..................... 2800 1,854,412 14.
15. a. Demand notes issued to the U.S. Treasury ................................................... 2840 5,974 15.a.
b. Trading liabilities (from Schedule RC-D) ................................................... 3548 0 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases): //////////////////
a. With a remaining maturity of one year or less .............................................. 2332 350,000 16.a.
b. With a remaining maturity of more than one year ............................................ 2333 147,657 16.b.
17. Not applicable //////////////////
18. Bank's liability on acceptances executed and outstanding ....................................... 2920 869 18.
19. Subordinated notes and debentures(2) ........................................................... 3200 160,000 19.
20. Other liabilities (from Schedule RC-G) ......................................................... 2930 135,160 20.
21. Total liabilities (sum of items 13 through 20) ................................................. 2948 9,720,509 21.
22. Not applicable //////////////////
EQUITY CAPITAL //////////////////
23. Perpetual preferred stock and related surplus .................................................. 3838 0 23.
24. Common stock ................................................................................... 3230 65,164 24.
25. Surplus (exclude all surplus related to preferred stock) ....................................... 3839 729,855 25.
26. a. Undivided profits and capital reserves ..................................................... 3632 78,650 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities ..................... 8434 (22,208) 26.b.
27. Cumulative foreign currency translation adjustments ............................................ //////////////////
28. Total equity capital (sum of items 23 through 27) .............................................. 3210 851,461 28.
29. Total liabilities, limited-life preferred stock, and equity capital //////////////////
(sum of items 21 and 28) ....................................................................... 3300 10,571,970 29.
-------------------
</TABLE>
<TABLE>
<CAPTION>
Memorandum
To be reported only with the March Report of Condition.
<S> <C>
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
------------------
auditors as of any date during 1996 ............................................................ RCON 6724 2 M.1.
------------------
</TABLE>
1 - Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 - Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 - Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 - Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5 - Review of the bank's financial statements by external auditors
6 - Compilation of the bank's financial statements by external auditors
7 - Other audit procedures (excluding tax preparation work)
8 - No external audit work
- ----------
1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
2) Includes limited-life preferred stock and related surplus.
10
Exhibit 25(b) Statement of Eligibility-Crestar Bank
- -------------------------------------------------------------------------------
Securities and Exchange Commission
Washington, DC 20549
--------------
Form T-1
--------------
Statement of Eligibility Under the Trust Indenture Act of 1939 of A
Corporation Designated to Act As Trustee
Check if an application to determine eligibility of a trustee pursuant to
Section 305(b)(2)_____
Crestar Bank
(Exact name of trustee as specified in its charter)
<TABLE>
<S> <C>
Virginia 53-0116200
(State of Incorporation, if not a national bank) (I.R.S. employer identification no.)
</TABLE>
919 East Main Street
Richmond, VA 23219
(Address of principal executive office) (Zip Code)
John C. Clark, III
919 E. Main Street, 18th Floor, Richmond, Virginia 23219
(804)782-7455
(Name, address and telephone number of agent for service)
United Dominion Realty Trust, Inc.
(Exact name of obligor as specified in its charter)
<TABLE>
<S> <C>
Virginia 54-0857512
(State or other jurisdiction of incorporation (I.R.S. employer identification no.)
or organization
</TABLE>
10 South 6th Street, Suite 203
Richmond, VA 23219-3802
(Address of principal executive offices) (Zip Code)
Subordinated Debt Securities
(Title of indenture securities)
- -----------------------------------------------------------------------------
<PAGE>
Item 1. General Information
Furnish the following information as to trustee:
(a) Name and Address of each examining or supervising authority to which it is
subject.
Bureau of Financial Institutions,
State Corporation Commission of Virginia
Richmond, Virginia
The Board of Governors of the Federal Reserve System,
Washington, DC
The Federal Reserve Bank,
Richmond, Virginia
Federal Deposit Insurance Corporation,
Washington, DC
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe such affiliation.
Obligor is not an affiliation of the trustee.
Item 16. List of Exhibits
List below all exhibits filed as part of this Statement of Eligibility.
*Exhibit 1 - A copy of the articles of incorporation of the trustee as now in
effect. (Incorporated by reference from Exhibit 1 filed with T-1 Statement,
Registration Statement No. 33-3984.)
*Exhibit 2 - A copy of the certificate of authority of the trustee to commence
business. (Incorporated by reference from Exhibit 2 filed with T-1 Statement,
Registration Statement No. 33-3984.)
*Exhibit 3 - A copy of the certificate of the authority of the trustee to
exercise corporate trust powers. (Incorporated by reference from Exhibit 3 filed
with T-1 Statement, Registration Statement No. 33-3984.)
<PAGE>
Exhibit 4 - A copy of the existing by-laws of the trustee.
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the trustee required by Section 321(b) of the Act.
Exhibit 7 - A copy of the latest report of the condition of the trustee
published pursuant to law or the requirements of its supervising or examining
authority.
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
*The Exhibits thus designated are incorporated herein by reference. Following
the description of such Exhibits is a reference to the copy of the Exhibits
heretofore filed with the Securities and Exchange Commission, to which there
have been no amendments or changes.
<PAGE>
Signature
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
Crestar Bank, a corporation organized and existing under the laws of the
Commonwealth of Virginia, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of Richmond, and the Commonwealth of Virginia, on the fifteenth day of May,
1997.
Crestar Bank
By: /s/ L.B. BEDELL
- ------------------------------
(L. B. Bedell, Vice President)
<PAGE>
EXHIBIT T-1 (4)
Bylaws
And
Administrative Regulations
Of
Crestar Bank
Incorporated Under The Laws
Of The Commonwealth Of Virginia
Adopted December 20, 1979
(And Including Amendments Adopted
Thereto Through December 20, 1996)
<PAGE>
Index
To
Bylaws
And
Administrative Regulations
Of
Crestar Bank
<TABLE>
<CAPTION>
Article I - Meetings Of Stockholders
<S> <C>
1.1 - Place of Meetings.................................................................................1
1.2 - Annual Meetings...................................................................................1
1.3 - Special Meetings..................................................................................1
1.4 - Notice of Meetings................................................................................1
1.5 - Quorum............................................................................................1
1.6 - Voting............................................................................................1
1.7 - Conduct of Meetings...............................................................................2
1.8 - Inspector.........................................................................................2
Article II - Board Of Directors
2.1 - General Powers....................................................................................2
2.2 - Number of Directors...............................................................................2
2.3 - Election of Directors.............................................................................2
2.4 - Term of Office....................................................................................2
2.5 - Quorum............................................................................................2
2.6 - Meetings of the Board.............................................................................2
2.7 - Compensation......................................................................................3
2.8 - Eligibility.......................................................................................3
Article III - Committees
3.1 - Standing Committees...............................................................................4
3.2 - Executive Committee...............................................................................5
3.3 - Audit Committee...................................................................................5
3.4 - Human Resources and Compensation Committee........................................................6
3.5 - Nominating and Governance Committee...............................................................6
3.6 - Area Boards.......................................................................................6
3.7 - Other Committees..................................................................................7
Article IV - Officers
4.1 - Number and Manner of Election or Appointment......................................................7
4.2 - Term of Office....................................................................................7
4.3 - Removal...........................................................................................8
4.4 - Resignations......................................................................................8
4.5 - Vacancies, New Offices and Promotions.............................................................8
4.6 - Chairman of the Board.............................................................................8
4.7 - President.........................................................................................8
4.8 - Corporate Secretary...............................................................................8
4.9 - Treasurer.........................................................................................9
4.10 - Auditor...........................................................................................9
4.11 - Powers and Duties of Other Officers...............................................................9
4.12 - Bonds.............................................................................................9
Article V - Capital Stock
5.1 - Certificates......................................................................................9
5.2 - Lost, Destroyed and Mutilated Certificates.......................................................10
5.3 - Transfer of Stock................................................................................10
5.4 - Closing of Transfer Books and Fixing Record Date.................................................10
Article VI - Miscellaneous Provisions
6.1 - Seal.............................................................................................10
6.2 - Voting of Stock Held.............................................................................10
6.3 - Fiscal Year......................................................................................11
Article VII - Emergency Bylaws.................................................................................11
Article VIII - Indemnification Of Directors And Officers.......................................................12
Article IX - Amendments........................................................................................13
Administrative Regulation I
Sales, Purchase and Pledge or Deposit of Securities Owned by the Bank
1.1 - Sale, Purchase and Pledge or Deposit of Securities...............................................14
Administrative Regulation II
Exercise of Fiduciary Powers
2.1 - Certification, Authentication, etc. of Securities and Documents..................................14
2.2 - Qualification as Fiduciary.......................................................................15
2.3 - Acceptance of Trusts.............................................................................15
2.4 - Purchase and Sales of Securities.................................................................15
2.5 - Deposit of Securities Under Plans Reorganizations, etc...........................................15
2.6 - Sales, and Leases of Real Estate and Tangible Personal Property:
Foreclosure and Extension of Mortgages...........................................................15
2.7 - All Acts Done Under the Foregoing Paragraphs.....................................................16
2.8 - Voting Stock and Other Securities................................................................16
<PAGE>
Administrative Regulation III
Borrowing Money, Rediscount of Bills and Notes, Buying or Selling Funds
3.1 - Borrowed Money, Security Therefor and Rediscounts................................................16
3.2 - Purchase and Sales of Surplus Funds..............................................................16
Administrative Regulation IV
Release of Encumbrances
4.1 - Sales and Leases of Property.....................................................................17
4.2 - Release Of Encumbrances..........................................................................17
Administrative Regulation V
Checks, Drafts, Orders, etc.
5.1 - Bank - Except Trust..............................................................................17
5.2 - Trust Group......................................................................................17
Administrative Regulation VI
Signature Guarantee, Confirmations, etc.
6.1 - Signature Guarantee..............................................................................17
6.2 - Confirmations....................................................................................18
Administrative Regulation VII
Responsibility of Area Boards
7.1 - Responsibilities of Area Boards..................................................................17
Administrative Regulation VIII
Deposit and Security Accounts
8.1 - Deposit Accounts.................................................................................18
8.2 - Security Accounts................................................................................18
</TABLE>
<PAGE>
-1-
Crestar Bank
Bylaws
Article I
Meetings Of Stockholders
1.1 Place of Meetings. All meetings of the stockholders shall be held at
such place, either within or without the State of Virginia, as may be designated
by the Board of Directors.
1.2 Annual Meeting. The annual meeting of stockholders, for the election of
Directors and transaction of such other business as may come before the meeting,
shall be held at such time and date as designated by the Board of Directors.
1.3 Special Meetings. Special meetings of the stockholders for any purpose
or purposes may be called at any time by the Chairman of the Board, by the
President, or by a majority of the Board of Directors. No business shall be
transacted and no corporate action shall be taken at a special meeting other
than that stated in the notice of the meeting.
1.4 Notice of Meetings. Unless waived in the manner prescribed by law,
notice of each meeting of stockholders shall be given in writing, not less than
ten nor more than sixty days before the day of the meeting, or such other notice
as is required by law, to each stockholder entitled to vote at such meeting and
shall state the place, date and hour of the meeting and, in the case of a
special meeting, the purpose or purposes for which the meeting is called. If
mailed, such notice shall be deemed to have been given when deposited in the
United States mail, with postage thereon prepaid, directed to the stockholder at
his address as it appears on the stock transfer books of the Bank.
1.5 Quorum. Any number of stockholders together holding a majority of the
outstanding shares of capital stock entitled to vote with respect to the
business to be transacted, who shall be present in person or represented by
proxy at any meeting duly called, shall constitute a quorum for the transaction
of business. If less than a quorum shall be in attendance at the time for which
a meeting shall have been called, the meeting may be adjourned from time to time
by a majority of the stockholders present or represented by proxy without notice
other than by announcement at the meeting until a quorum shall attend.
1.6 Voting. At any meeting of the stockholders, each stockholder of a class
entitled to vote on any matter coming before the meeting shall, as to such
matter, have one vote, in person or by proxy, for each share of capital stock of
such class standing in his name on the stock transfer books of the Bank on the
date, not more than seventy days prior to such meeting, as designated by the
Board of Directors, for the purpose of determining stockholders entitled to
vote, as the date on which the stock transfer books of the Bank are to be closed
or as the record date.
Every proxy shall be in writing and signed by the stockholder entitled to vote
or signed by his duly authorized attorney-in-fact. At a meeting where a quorum
is present, the affirmative vote of the majority of the shares represented at
the meeting and entitled to vote shall be the act of the stockholders.
1.7 Conduct of Meetings. At each meeting of the stockholders, the Chairman
of the Board or the President shall act as chairman and preside. In their
absence, the Chairman of the Board may designate another officer of the Bank who
need not be a Director to preside. The Corporate Secretary of the Bank or an
Assistant Corporate Secretary, or in their absence, a person whom the chairman
of such meeting shall appoint, shall act as corporate secretary of such meeting.
1.8 Inspectors. An appropriate number of inspectors for any meeting of
stockholders may be appointed by the chairman of such meeting. Inspectors so
appointed will open and close the polls, will receive and take charge of proxies
and ballots, and will decide all questions as to the qualifications of voters,
validity of proxies and ballots, and the number of votes properly cast.
Article II
Board Of Directors
2.1 General Powers. The business and affairs of the Bank shall be managed
by the Board of Directors and, except as otherwise expressly provided by law, in
accordance with the Articles of Incorporation or these Bylaws.
2.2 Number of Directors. The Board of Directors shall consist of not less
than five nor more than twenty-seven Directors, the exact number to be
designated by the Board, and a majority of whom shall be citizens of the
Commonwealth of Virginia.
2.3 Election of Directors. Directors shall be elected at each annual
meeting of the stockholders. Any vacancy occurring in the Board of Directors,
including a vacancy resulting from an increase by not more than two in the
number of authorized Directors, may be filled by the majority vote of the
remaining Directors, though less than a quorum of the Board, unless the vacancy
is sooner filled by the stockholders.
2.4 Term of Office. Each Director (unless he sooner dies, resigns, or is
removed from office) shall hold office until the next annual meeting of
stockholders or until his successor shall have been elected and qualifies.
2.5 Quorum. A majority of the number of Directors pursuant to these Bylaws
at the time of the meeting, shall constitute a quorum for the transaction of
business. The act of a majority of Directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors. Less than a quorum
may adjourn any meeting.
2.6 Meetings of the Board.
(a) Place of Meetings. Meetings of the Board of Directors shall be held at
such place and at such time, either within or without the State of Virginia as
may be designated by the Board, or upon call of the Chairman of the Board or the
President.
(b) Organizational Meeting. An organizational meeting shall be held as soon
as practicable after the adjournment of the annual meeting of stockholders at
which the Board of Directors is elected, for the purpose of taking the oaths of
the Directors, electing officers, appointing committees for the ensuing year,
and for transacting such other business as may properly come before the meeting.
(c) Regular Meetings. Regular meetings of the Board of Directors shall be
held at such time and place as the Board may designate, or upon call of the
Chairman of the Board, or the President, and no notice thereof need be given.
(d) Special Meetings. Special meetings of the Board of Directors may be
held at any time or place upon the call of the Chairman of the Board or the
President, or any three members of the Board.
Notice of each such meeting shall be given to each Director by mail at his
business or residence address at least forty-eight hours before the meeting, or
by telephoning or telegraphing notice to him at least twenty-four hours before
the meeting. Meetings may be held at any time without notice if all of the
Directors are present, or if those not present waive notice in writing either
before or after the meeting. The notice of meetings of the Board need not state
the purpose of the meeting.
(e) Conduct of Meetings. At each meeting of the Board of Directors, the
Chairman of the Board or the President shall act as chairman and preside. In
their absence, the Chairman of the Board may designate another officer of the
Bank who need not be a Director, to preside. The Corporate Secretary of the Bank
or an Assistant Corporate Secretary, or in their absence, a person whom the
chairman of such meeting shall appoint, shall act as corporate secretary of such
meeting.
Any action required or permitted to be taken by the Board may be taken without a
meeting if all Directors consent in writing to the adoption of a resolution
authorizing the action. The resolution and the written consents of the directors
shall be filed with the minutes of the proceedings of the Board meeting.
2.7 Compensation. Directors, and members of any committee of the Board who
are not officers of the Bank or subsidiaries thereof, shall be paid such
compensation as the Board of Directors from time to time may determine for his
services as Director, or as Chairman or a member of any committee of the Board,
and shall, in addition, be reimbursed for such expenses as shall be incurred by
him in the performance of his duties. Nothing herein shall preclude Directors
and members of any committee of the Board from serving the Bank in other
capacities and receiving compensation therefor.
2.8 Eligibility. No person shall be eligible to serve as a Director unless,
when his term commences, he is not less than twenty-one years of age nor more
than seventy years of age. No Director shall be eligible for reelection after he
has attained the age of 70 or after his separation from the business or
professional organization with which he was primarily associated at the time he
first became a Director, unless elected after becoming associated with another
business or professional organization. Except for the Chief Executive Officer,
no Director who is an officer of the Corporation or any subsidiary shall be
eligible for reelection after he has retired.
Article III
Committees
3.1 Standing Committees.
(a) Number. There shall be three standing committees of the Board of
Directors. The standing committees are as follows: Executive, Audit, and Human
Resources and Compensation. In order to broaden the experience of Directors, it
shall be the policy of the Bank to seek rotation among Directors as members of
the various committees.
At the first meeting of the Board of Directors after the annual meeting of the
stockholders, the Chairman of the Board shall recommend the membership of each
committee and the Board shall elect the membership of each committee, who shall
serve at the pleasure of the Board.
(b) Quorum. A majority of the number of members of any standing committee
shall constitute a quorum for the transaction of business. The action of a
majority of members present at a committee meeting at which a quorum is present
shall constitute the act of the committee.
(c) Conduct of Meetings. Any action required or permitted to be taken by
the committee may be taken without a meeting if all members of the committee
consent in writing to the adoption of a resolution authorizing the action. The
resolution and written consents of the members shall be filed with the minutes
of the proceedings of the committee.
(d) Meetings and Minutes. Subject to the foregoing, and unless the Board
shall otherwise decide, each committee shall fix its rules of procedure,
determine its action and fix the time and place of its meetings. Special
meetings of a committee may be held at any time upon the call of the Chairman of
the Board, the Chairman of the Committee, or any two members of the committee.
Each committee shall keep minutes of all meetings which shall be at all times
available to Directors. Action taken by a committee shall be reported promptly
to the Board but not less frequently than quarterly.
(e) Term of Office. A member of any standing committee shall hold office
until the next organizational meeting of the Board of Directors or until he is
removed or ceases to be a Director.
(f) Vacancies. Should a vacancy occur on any standing committee resulting
from any cause whatsoever, the Board, by resolution, may fill such vacancy at
any time.
(g) Resignation and Removal. A member of a standing committee may resign at
any time by giving written notice of his intention to do so to the Chairman of
the Board or the Corporate Secretary of the Corporation, and may be removed at
any time by the Board of Directors.
3.2 Executive Committee.
(a) How Constituted. The Executive Committee shall consist of not less than
five nor more than nine Directors, including the Chairman of the Board, who
shall be Chairman of the Committee, and the President. If the Chairman of the
Board will not be present at a meeting, the President shall preside, and if the
President will not be present, the Chairman may designate another officer of the
Bank, who need not be a member of the Committee or a Director, to preside at the
meeting.
(b) Primary Responsibilities. The primary responsibilities of the Executive
Committee shall consist of: exercise of all powers of the Board of Directors
between meetings of the Board except as to matters exclusively reserved to the
Board under law; annual review of management's financial goals and business
plan; service as the Board's steering committee on capital, liquidity,
asset/liability and credit issues, as well as the Board's advisor on mergers and
acquisition and corporate structure matters; review of loan policy and
procedure, the quarterly classification of loans and the adequacy of the
allowance for loan loss reserves; review and recommendation to the Board of the
annual capital budget and authorization of capital expenditures within a level
established by the Board; supervision over the exercise of fiduciary powers;
oversight over the Bank's contributions policy, approval of the annual
contributions budget, and authorization or recommendation to the Board of larger
individual contributions as specified by the Board; joint consultation with the
Human Resources and Compensation Committee and recommendation to the Board of
any titling changes and management succession involving the top five officers of
the Bank; and evaluation and recommendation to the Board of nominees for
election as Directors.
3.3 Audit Committee
(a) How Constituted. The Audit Committee shall consist of not less than
five nor more than nine Directors, none of whom shall be officers of the Bank or
any subsidiary thereof. The Chairman of the Committee shall be appointed by the
Board of Directors upon recommendation of the Chairman of the Board. If the
Chairman of the Committee will not be present at a meeting, he may designate any
member of the Committee to preside at the meeting.
(b) Primary Responsibilities. The primary responsibilities of the Audit
Committee shall consist of: recommendation of the selection of independent
accountants and auditors; review of the scope of the accountant's examination
and approval of any non-audit services to be performed by the independent
accountants; review of examination reports by the independent accountants and
regulatory agencies; approval of, and review of the results of, the internal
audit plan; review of the procedures for establishing the allowance for loan
losses and monitoring of the credit process review function; review of Crestar's
Community Reinvestment Act policy, plans and performance; review of internal
programs to assure compliance with laws and regulations and the adequacy of
internal controls; review of the adequacy of insurance coverage; and review of
compliance with the Standards of Conduct.
3.4 Human Resources and Compensation Committee.
(a) How Constituted. The Compensation Committee shall consist of not less
than five nor more than eight Directors, none of whom shall be officers of the
Corporation or any subsidiary thereof. The Chairman of the Committee shall be
appointed by the Board of Directors upon recommendation of the Chairman of the
Board. If the Chairman of the Committee will not be present at the meeting, he
may designate any member of the Committee to preside at the meeting.
(b) Primary Responsibilities. The primary responsibilities of the Human
Resources and Compensation Committee shall consist of: review and approval of
major compensation policies; determination of appropriate performance targets
under the Bank's benefit plans; recommendation to the Board of salaries, and
approval of other compensation to be paid or awarded to, the highest level and
most highly paid officers; recommendation of officers requiring Board approval
and joint consultation with the Executive Committee and recommendation to the
Board of any titling changes and management succession involving the top five
officers of the Bank; review of other matters pertaining to management
structure, succession planning and executive development; approval of election
of Corporate and Group level Executive Vice Presidents requiring Board approval;
review and recommendation for Board approval of new and significant changes to
qualified and non-qualified benefit plans; and recommendation for Board approval
of appropriate changes in Director compensation.
3.5 Nominating and Governance Committee
(a) How Constituted. The Nominating and Governance Committee shall consist
of not less than three nor more than five Directors, none of whom shall have
served as an officer of Crestar Financial Corporation or any subsidiary or
affiliate thereof within the calendar year of appointment or the calendar year
immediately preceding the year of appointment. The Chairman of the Committee
shall be appointed by the Board of Directors upon recommendation of the Chairman
of the Board. If the Chairman of the Committee will not be present at a meeting,
he or she may designate any member of the Committee to preside at the meeting.
(b) Primary Responsibilities. The primary responsibilities of the
Nominating and Governance Committee shall consist of: interpreting the Bylaws
whenever a member's change in circumstance, such as illness, retirement or
modification of primary employment, may impact eligibility for continued Board
service; recommending changes to eligibility requirements as needed to ensure
that the Board consists of highly-qualified persons who can provide constructive
input into the business of the Bank and represent a cross section of Crestar
constituencies; conducting a comprehensive study of board governance practices
of similarly-situated corporations and recommending adoption of Crestar
corporate governance guidelines as appropriate; monitoring effectiveness of such
guidelines and implementing modification as needed; and establishing and
implementing a nomination process to identify and recommend Board nominees as
appropriate.
3.6 Area Boards. The Board of Directors or the Chairman of the Board or his
designee may appoint, from time to time, Area Boards for any one or more of the
Bank's locations, whose members may consist of such persons, including officers
and Directors, as may be deemed proper. Area Boards shall serve at the pleasure
of the Board of Directors or the Chairman of the Board and their duties shall be
those prescribed in the Administrative Regulations as in effect from time to
time.
3.7 Other Committees. The Board of Directors may, by resolution establish
such other committees of the Board as it may deem advisable. The members, terms
and authority of such committees shall be as set forth in the resolutions.
The Chairman of the Board may establish such other committees of the Board of
Directors as he deems advisable, and may appoint the members of such committees.
Any such committees shall have the authority to consider, review, advise and
recommend to the Chairman of the Board with respect to such matters as may be
referred to it by the Chairman of the Board, but shall have no authority to act
for the Bank except with the prior approval of the Board of Directors.
Article IV
Officers
4.1 Number and Manner of Election or Appointment. The officers of the Bank
shall be:
(a) The Chairman of the Board, the President, a Corporate Secretary, a
Treasurer, an Auditor, one or more Regional Presidents, and one or more
Corporate Executive Vice Presidents, and one or more Group Executive Vice
Presidents, each of whom shall be elected by the Board;
(b) one or more local Presidents, Executive Vice Presidents, Corporate
Senior Vice Presidents, and Senior Vice Presidents as appointed by the
appropriate Policy Committee member for the Group, and
(c) such other officers as appointed by an approval officer for each Group
as designated by the appropriate Policy Committee member. Officers of
subsidiaries of the Bank shall be elected and have their compensation set in the
same manner as comparable officers of the Bank. One person may hold more than
one office except that the offices of the President and Corporate Secretary may
not be held by the same person.
4.2 Term of Office. The officers designated in Section 4.1(a) shall be
elected annually by the Board at its organizational meeting. Such officers shall
each hold office until the next organizational meeting of the Board and until
their successors are elected.
The officers designated in Section 4.1(b) shall be elected annually by the Human
Resources and Compensation Committee at its first meeting following the Annual
Meeting of Stockholders. Such officers shall each hold office until the next
such meeting of the Committee and until their successors are elected. The
officers designated in Section 4.1(c) may be appointed at any time by the
appropriate Policy Committee member for the Group. The officers designated in
Section 4.1(d) may be appointed at any time by the approval officer designated
by the appropriate Policy Committee member for each Group.
4.3 Removal. Any officer may be removed from office, with or without cause,
at any time, by the Board of Directors. Any officer elected by the Human
Resources and Compensation Committee may be removed from office by the Committee
with or without cause at any time. Any officer appointed by a Policy Committee
member or approval officer for each Group may be removed from office by him with
or without cause at any time.
4.4 Resignations. Any officer may resign at any time by giving written
notice to the Board, Human Resources and Compensation Committee, Chairman of the
Board, President, or the Corporate Secretary. Such resignation shall be
effective on the date of receipt of such notice or any later date specified
therein, and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
4.5 Vacancies, New Offices and Promotions. A vacancy from any cause in any
office may be filled at any time for the unexpired portion of the term, in the
manner prescribed in these Bylaws for regular election or appointment to such
office. New offices may be created and filled, and the promotions and changes in
officers' titles may be made at any time in the manner prescribed in these
Bylaws for regular election or appointment to such office.
4.6 Chairman of the Board. The Chairman of the Board shall be the Chief
Executive Officer and shall have general supervision of the policies and
operations of the Bank, subject to the direction and control of the Board. He
shall preside at all meetings of the stockholders, the Board of Directors and
the Executive Committee. He shall be responsible for extending lines of credit
and other loan commitments, for making loans and for discounting acceptable
trade paper. All such extensions of credit shall be based on acceptable credit
risk. Subject to his executive authority and control, the Chairman of the Board
may delegate specific loan authority to officers and employees of the Bank. He
shall have the power to sign checks, orders, contracts, leases, notes, drafts
and other documents and instruments in connection with the business of the Bank,
and have such other powers and perform such other duties as shall be designated
by the Board of Directors or as may be incidental to his office. The Chairman of
the Board shall have the authority to appoint officers of the Bank below the
rank of Executive Vice President.
4.7 President. The President shall participate in the supervision of the
policies and management of the Corporation, and may, if so designated by the
Board of Directors, be the chief administrative officer of the Corporation. He
shall perform all duties incidental to the office of President and shall perform
such other duties as may be assigned to him from time to time by the Board of
Directors or the Chairman of the Board. In the absence of the Chairman of the
Board, he shall preside at meetings of stockholders, the Board of Directors and
the Executive Committee. He shall have the same power to sign for the
Corporation and to appoint officers as prescribed in these Bylaws for the
Chairman of the Board.
4.8 Corporate Secretary. The Corporate Secretary shall: a) keep the
minutes of all meetings of the Stockholders, the Board of Directors, the
Executive Committee, and such other Committees as the Board may designate; b)
see that all notices of such meetings are given in accordance with these Bylaws
or as required by law; c) be custodian of the corporate records and of the seal
of the Corporation and have authority to affix the seal to any documents
requiring such seal and to attest the same; d) sign, with the Chief Executive
Officer, certificates for shares of the Corporation, the issuance of which shall
have been authorized by resolution of the Board of Directors; and e) in general
perform all duties incident to the office of Corporate Secretary and such other
duties as from time to time may be assigned to him by the Board of Directors or
the Chief Executive Officer. In the absence of the Corporate Secretary, an
Assistant Corporate Secretary shall act in his stead.
4.9 Treasurer. The Treasurer shall perform such duties with respect to
securities and funds of the Bank as may be prescribed by the Board of Directors
or the Chief Executive Officer, and such other duties as may be incidental to
the office of Treasurer.
4.10 Auditor. The Auditor shall have general supervision over the internal
audit of the Bank and its subsidiaries. He shall be responsible to the Board of
Directors, through the Audit Committee, for independently evaluating the
adequacy, effectiveness, and efficiency of the Bank's systems of internal
control and of employee compliance therewith. He shall have the duty of
reporting his findings and recommendations to the Audit Committee at least
quarterly on any matters concerning the Bank, except those with respect to
credit quality, responsibility for which has been vested in the officer in
charge of credit administration. Should the Auditor deem any matter to be of
special importance or his independence to be in jeopardy, he shall report
immediately to the Chairman of the Audit Committee or, in his absence, any
member of the Committee. The Auditor shall have such other duties and perform
such special audits and examinations as may be prescribed from time to time by
the Audit Committee or the Board of Directors. For administrative purposes, the
Auditor shall be accountable to the Chief Executive Officer.
4.11 Powers and Duties of Other Officers. The powers and duties of all
other officers of the Bank shall be those usually pertaining to their respective
offices, subject to the direction and control of the Board of Directors and as
otherwise provided in these Bylaws, or as prescribed by the Chief Executive
Officer.
4.12 Bonds. Each officer and employee of the Bank shall give bond covering
the honest and faithful performance of his duties. The form and amount of such
bonds, and the name of the company providing the surety, shall be approved
annually by the Board of Directors at its organizational meeting, the premiums
thereon to be paid by the Bank.
Article V
Capital Stock
5.1 Certificates. The shares of capital stock of the Bank shall be
evidenced by certificates in forms prescribed by the Board of Directors and
executed in any manner permitted by law and stating thereon the information
required by law. Transfer agents and/or registrars for one or more classes of
the stock of the Bank may be appointed by the Board of Directors and may be
required to countersign certificates representing stock of such class or
classes. If any officer whose signature or facsimile thereof shall have been
used on a stock certificate shall for any reason cease to be an officer of the
Bank and such certificate shall not then have been delivered by the Bank, the
Board of Directors may evertheless adopt such certificate and it may then be
issued and delivered as though such person had not ceased to be an officer of
the Bank.
5.2 Lost, Destroyed and Mutilated Certificates. Holders of the stock of the
Bank shall immediately notify the Bank of any loss, destruction or mutilation of
the certificate therefor, and the Board of Directors or the Executive Committee
may cause one or more new certificates for the same number of shares in the
aggregate to be issued to such stockholder upon the surrender of the mutilated
certificate or upon satisfactory proof of such loss or destruction, and the
deposit of a bond in such form and amount and with such surety as the Board of
Directors may require.
5.3 Transfer of Stock. The stock of the Bank shall be transferable or
assignable only on the Books of the Bank by the holders in person or by attorney
on surrender of the Certificate for such shares duly endorsed and, if sought to
be transferred by attorney, accompanied by a written power of attorney to have
the same transferred on the books of the Bank. The Bank shall recognize,
however, the exclusive right of the person registered on its books as the owner
of shares to receive dividends and to vote as such owner.
5.4 Closing of Transfer Books and Fixing Record Date. For the purpose of
determining stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of any
dividend, or in order to make a determination of stockholders for any other
proper purpose, the Board of Directors may provide, that the stock transfer
books shall be closed for a stated period but not to exceed in any case, seventy
days.
In lieu of closing the stock transfer books, the Board of Directors may fix in
advance a date as the record date for any such determination of stockholders,
such date in any case to be not more than seventy days prior to the date on
which the particular action, requiring such determination of stockholders, is to
be taken. It the stock transfer books are not closed and no record date is fixed
for the determination of stockholders entitled to notice or to vote at a meeting
of stockholders, or stockholders entitled to receive payment of a dividend, the
date on which notices of the meeting are mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of stockholders.
When a determination of stockholders entitled to vote at any meeting of the
stockholders has been made as provided in this section such determination shall
apply to any adjournment thereof.
Article VI
Miscellaneous Provisions
6.1 Seal. The corporate seal of the Bank shall consist of a flat-face
circular die, on which there shall be engraved the Crestar logogram and the name
of the Bank. Any officer of the Bank designated in writing by the Chief
Executive Officer or Corporate Secretary shall have authority to affix and
attest the seal. Failure to use the corporate seal shall not affect the validity
of any instrument.
6.2 Voting of Stock Held. Unless otherwise provided by resolution of the
Board of Directors or of the Executive Committee, the Chairman of the Board, the
President, or any Executive or Senior Vice President may from time to time
appoint an attorney or attorneys or agent or agents of this Bank, in the name
and on behalf of this Bank, to cast the vote which this Bank may be entitled to
cast as a stockholder or otherwise in any other corporation, any of whose stock
or securities may be held by this Bank, at meetings of the holders of the stock
or other securities of such other corporation, or to consent in writing to any
action by any such other corporation. Such officer shall instruct the person or
persons so appointed as to the manner of casting such votes or giving such
consent and may execute or cause to be executed on behalf of this Bank such
written proxies, consents, waivers or other instruments as may be necessary or
proper. In lieu of an appointment of an attorney or agent, the officer may
himself attend any meetings of the holders of stock of other securities of any
such other corporation and there vote or exercise any or all power of this Bank
as the holder of such stock or other securities of such other corporation.
6.3 Fiscal Year. The fiscal year of the Bank shall be the calendar year.
Article VII
Emergency Bylaws
7.1 The Emergency Bylaws provided in this Article VII shall be operative
during any emergency resulting from an attack of the United States or any
nuclear or atomic disaster, notwithstanding any different provision in the
preceding articles of the Bylaws or in the Articles of Incorporation of the Bank
or in the Virginia Stock Corporation Act (other than those provisions relating
to emergency Bylaws). To the extent not inconsistent with these Emergency
Bylaws, the Bylaws provided in the preceding articles shall remain in effect
during such emergency and upon the termination of such emergency the Emergency
Bylaws shall cease to be operative unless and until another such emergency shall
occur.
During any such emergency:
(a) Any meeting of the Board of Directors may be called by any officer of
the Bank or by any Director. The notice thereof shall specify the time and place
of the meeting. To the extent feasible, notice shall be given only to such of
the Directors as it may be feasible to reach at the time, by such means as may
be feasible at the time, including publication or radio, and at a time less than
twenty-four hours before the meeting if deemed necessary by the person giving
notice. Notice shall be similarly given, to the extent feasible, to the other
persons referred to in (b) below,
(b) At any meeting of the Board of Directors, a quorum shall consist of a
majority of the number of Directors fixed at the time in accordance with Article
II of the Bylaws. If the Directors present at any particular meeting shall be
fewer than the number required for such quorum, other persons present may be
included in the number necessary to make up such quorum, and shall be deemed
Directors for such particular meeting as determined by the following provisions
and in the following order of priority:
(i) Officers designated in Section 4.1(a) of the Bylaws, Executive Vice
Presidents not already serving as Directors, in the order of their seniority of
first election to such offices, or if two or more shall have been first elected
to such offices on the same day, in the order of their seniority in age,
(ii) All other officers of the Bank in the order of their seniority of
first election to such offices, or if two or more shall have been first elected
to such offices on the same day, in the order of their seniority in age; and
(iii) Any other persons that are designated on a list that shall have
been approved by the Board of Directors before the emergency, such persons to be
taken in such order of priority and subject to such conditions as may be
provided in the resolution approving the list.
(c) The Board of Directors, during as well as before any such emergency,
may provide, and from time to time modify, lines of succession in the event that
during such an emergency any or all officers or agents of the Bank shall for any
reason be rendered incapable of discharging their duties.
(d) The Board of Directors, during as well as before any such emergency,
may, effective in the emergency, change the principal office, or designate
several alternative offices. or authorize the officers to do so.
No officer, Director or employee acting in accordance with these Emergency
Bylaws shall be liable except for willful misconduct.
These Emergency Bylaws shall be subject to repeal or change by further action of
the Board of Directors or by action of the stockholders, except that no such
repeal or change shall modify the provisions of the next preceding paragraph
with regard to action or inaction prior to the time of such repeal or change.
Any such amendment of these Emergency Bylaws may make any further or different
provision that may be practical and necessary for the circumstances of the
emergency.
Article VIII
Indemnification Of Directors And Officers
8.1 A. To the full extent that the Virginia Stock Corporation Act, as it
exists on the date hereof or may hereafter be amended, permits the limitation or
elimination of the liability of directors or officers, a Director or officer of
the Bank shall not be liable to the Bank or its stockholders for monetary
damages.
B. To the full extent permitted and in the manner prescribed by the
Virginia Stock Bank Act and any other applicable law, the Bank shall indemnify a
Director or officer of the Bank who is or was a party to any proceeding by
reason of the fact that he is or was such a Director or officer or is or was
serving at the request of the Bank as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise. The Board of Directors is hereby empowered, by majority vote
of a quorum of disinterested Directors, to contract in advance to indemnify any
Director or officer.
C. The Board of Directors is hereby empowered, by majority vote of a quorum
of disinterested Directors, to cause the Bank to indemnify or contract in
advance to indemnify any person not specified in Section B of this Article who
was or is a party to any proceeding, by reason of the fact that he is or was an
employee or agent of the Bank, or is or was serving at the request of the Bank
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, to the same
extent as if such person were specified as one to whom indemnification is
granted in Section B.
D. The Bank may purchase and maintain insurance to indemnify it against the
whole or any portion of the liability assumed by it in accordance with this
Article and may also procure insurance, in such amounts as the Board of
Directors may determine, on behalf of any person who is or was a Director,
officer, employee or agent of the Bank, or is or was serving at the request of
the Bank as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability asserted against or incurred by such person in any such
capacity or arising from his status as such, whether or not the Bank would have
power to indemnify him against such liability under the provisions of this
Article.
E. In the event there has been a change in the composition of a majority of
the Board of Directors after the date of the alleged act or omission with
respect to which indemnification is claimed, any determination as to
indemnification and advancement of expenses with respect to any claim for
indemnification made pursuant to Section A of this Article VIII shall be made by
special legal counsel agreed upon by the Board of Directors and the proposed
indemnitee. If the Board of Directors and the proposed indemnitee are unable to
agree upon such special legal counsel, the Board of Directors and the proposed
indemnitee each shall select a nominee, and the nominees shall select such
special legal counsel.
F. The provisions of this Article VIII shall be applicable to all actions,
claims, suits or proceedings commenced after the adoption hereof, whether
arising from any action taken or failure to act before or after such adoption.
No amendment, modification or repeal of this Article shall diminish the rights
provided hereby or diminish the right to indemnification with respect to any
claim, issue or matter in any then pending or subsequent proceeding that is
based in any material respect on any alleged action or failure to act prior to
such amendment, modification or repeal.
G. Reference herein to Directors, officers, employees or agents shall
include Area Board Directors, former Directors, officers, employees and agents
and their respective heirs, executors and administrators.
Article IX
Amendments
9.1 These Bylaws may be amended, altered, or repealed at any meeting of the
Board of Directors by affirmative vote of a majority of the number of Directors
fixed by resolution of the Board pursuant to these Bylaws. The stockholders
entitled to vote in an election of Directors, however, shall have the power to
rescind, alter, amend or repeal any Bylaws and to enact Bylaws which, if
expressly so provided, may not be amended, altered or repealed by the Board of
Directors.
Administrative Regulation I
Sale, Purchase And Pledge Or Deposit Of Securities Owned
1.1 Sale, Purchase and Pledge or Deposit of Securities. The President, the
Executive Vice President - Investment Bank, the Managing Director
Asset/Liability Management Division, the Managing Director - Funds Management
Division, or such other officers of the Asset/Liability Management Division or
the Funds Management Division as any of the foregoing may designate in writing
(which designation shall be filed with the Corporate Secretary) are authorized
and empowered in its behalf at any time and from to time:
(a) To sell, assign, loan, sell under agreement to repurchase, transfer,
and deliver any and all securities of any description now or at any time
hereafter belonging to the Bank in its own right, or which the Bank is or shall
be authorized and empowered to sell, assign, or transfer as attorney for the
owners or holders thereof.
(b) To make any pledge or deposit of any of the bonds, notes, obligations
or any other securities belonging to the Bank (including any receipts issued by
any other banking institution evidencing the deposit by the Bank of any of its
securities with any other banking institution as custodian) including without
limitation the pledge or deposit with the Treasurer of the United States, or any
other public official or public authority, national, state or local, for the
purpose of securing (i) borrowings from the Federal Reserve Bank, (ii) deposits
for which security is or may be required or permitted by law at any time to be
given, (iii) sureties on surety bonds furnished to secure such deposits, or (iv)
deposits made, whether time or demand, by the Bank as sole or joint fiduciary of
any character. Any officer authorized hereunder to make such pledges or deposits
shall have power to make any endorsement, transfer or assignment of any such
securities, to make substitutions and withdrawals thereof, and to designate the
person or persons to whom on behalf of the Bank any such securities so withdrawn
may be delivered.
(c) To purchase, borrow, or purchase under agreement to resell for the
account of the Bank in its own right such bonds, stocks or other securities as
may be permitted by law.
(d) To do any act and to execute and acknowledge any document necessary to
the exercise of the powers hereby granted and to appoint attorneys-in-fact to do
such acts and execute such documents.
Administrative Regulation II
Exercise Of Fiduciary Powers
2.1 Certification, Authentication, etc., of Securities and Documents. Any
officer or employee of the Trust Group who may be designated from time to time
in writing (which designation shall be filed with the Corporate Secretary) by
either the President, the Executive Vice President for Trusts, any Senior Vice
President, or Vice President in the Trust Group, to act as Special Corporate
Assistant shall have the authority to authenticate or certify, on behalf of the
Bank, any bonds, certificates, or other documents necessary or proper for the
Bank to certify in its capacity as Trustee under any mortgage, deed of trust or
other instrument, and to sign or countersign in the name of the Bank (a) as
Transfer Agent or Registrar the certificates for the capital stock or the bonds
or other securities of any corporation for which the Bank may be at any time
Transfer Agent or Co-Transfer Agent, or Registrar or Co-Registrar, respectively,
and (b) as Depositary the receipts for any securities deposited with the Bank
under any agreement under which it may at any time be Depositary; and any of
said officers or employees authenticating, certifying, signing or countersigning
any of such bonds, certificates, stocks, securities, receipts and documents on
behalf of the Bank may do so under the title or style of "Authorized Officer" or
"Authorized Signature."
2.2 Qualification as Fiduciary. In all cases where the Bank shall be
appointed to act as Trustee, Executor, Administrator (with or without will
annexed), Curator, Guardian, Committee, Receiver, Special Commissioner, or in
any other lawful fiduciary capacity, any one of the following officers, namely:
The President, the Executive Vice President for Trusts, or any officer of the
Trust Group is authorized to take on behalf of the Bank any oath, and to execute
any bond required to be taken or executed, upon the Bank's qualifying to act in
such fiduciary capacity.
2.3 Acceptance of Trusts. The President, the Executive Vice President for
Trusts, or any officer in the Trust Group may accept on behalf of the Bank any
trust and sign his name to any instrument evidencing such acceptance and
acknowledge and deliver the same.
2.4 Purchase and Sales of Securities. Any of the following officers of the
Bank, namely: The President, the Executive Vice President for Trusts, or any
officer in the Trust Group, is authorized in the exercise of powers conferred
upon the Bank as fiduciary or agent, to buy, sell, assign, transfer and deliver
any bonds, stocks and other securities of every description, standing in the
name of this Bank as either sole or joint fiduciary, or in the name of any ward
for whom it is either sole guardian or co-guardian, or of any decedent for whom
it is either the sole personal representative or one of the personal
representatives, or which may be held by it in any fiduciary or representative
capacity whatsoever, either solely or in conjunction with some other person or
persons, whether registered or otherwise (and to exchange registered for bearer
or bearer for registered securities), and any such officer so authorized shall
have authority to appoint one or more attorneys for that purpose and to execute
and deliver on behalf of the Bank all necessary and proper instruments for the
purpose of effectuating the powers hereby conferred.
2.5 Deposit of Securities Under Plans of Reorganizations, etc. Any of the
following officers of the Bank, namely: The President, the Executive Vice
President for Trusts, or any officer in the Trust Group may deposit or authorize
the deposit of the securities referred to in paragraph 2.4 with any Committee or
Depository under any plan of reorganization, consolidation, merger or
readjustment of any individual, corporation, firm or association, and may
approve any such plan, and may execute in the name of the Bank in its
appropriate fiduciary or representative capacity and deliver on its behalf any
protective committee agreement for any of the above mentioned purposes.
2.6 Sales and Leases of Real Estate and Tangible Personal Property:
Foreclosure and Extension of Mortgages. Any of the following officers of the
Bank, namely: The President, the Executive Vice President for Trusts, or any
officer of the Trust Group, in the exercise of powers conferred upon the Bank as
fiduciary or agent are authorized (i) to sell, exchange or lease any real estate
or tangible personal property or any interest therein, which the Bank may hold
in any fiduciary or representative capacity, (ii) to grant options for purchase
thereof, (iii) to cause the foreclosure of any deed of trust or mortgage held by
the Bank in any such fiduciary or representative capacity, or (iv) to consent to
the extension of the maturity of any such deed of trust or mortgage.
2.7 All Acts Done Under the Foregoing Paragraphs numbered 2.2, 2.3, 2.4,
2.5 and 2.6 shall be reported to the Trust Administrative Committees, as may be
appropriate, provided that no action then taken by the Committees shall affect
the rights of third parties.
2.8 Voting Stock and Other Securities. The President, the Executive Vice
President for Trusts, or any officer of the Trust Group shall have the power and
authority to attend any meeting of the stockholders or security holders of any
corporation in which this Bank, as fiduciary or agent, is a stockholder or
security holder, and vote on behalf of this Bank any such stock or securities;
and any of them is hereby authorized and empowered to designate, in writing, any
person or persons as proxy, with power of substitution, to attend and vote at
such meeting such stock or securities on behalf of this Bank; provided, however,
that such proxy shall be empowered by such writing to vote only on the matters
and questions in the manner and to the effect therein specified.
Administrative Regulation III
Borrowing Money, Rediscounts Of Bills And Notes, Buying Or Selling Funds
3.1 Borrowed Money, Security Therefor and Rediscounts. Transactions with
the Federal Reserve Bank, or with any other bank in the nature of borrowings,
pledges or rediscounts by the Bank shall be by the President, the Executive Vice
President - Investment Bank, the Managing Director - Asset/Liability Management
Division, the Managing Director - Funds Management Division, or such other
officers of the Asset/Liability Management Division or the Funds Management
Division as any of the foregoing may designate in writing (which designation
shall be filed with the Corporate Secretary), and any of such officers is
severally authorized in the Bank's behalf at any time and from time to time:
(a) To borrow money for any temporary purpose and on such terms and for
such periods as he may deem wise;
(b) To pledge as security for the sums so borrowed, sell under repurchase
agreement, any and all securities, bills or notes, of every description
belonging to the Bank in its own right, including receipts of any other banking
institution evidencing deposit with it of any securities, bills or notes,
belonging to the Bank; or
(c) To rediscount any bills or notes belonging to the Bank in its own
right.
3.2 Purchase and Sale of Surplus Funds. The President, the Executive Vice
President - Investment Bank, the Managing Director - Asset/Liability Management
Division, the Managing Director - Funds Management Division, or such other
officers of the Asset/Liability Management Division or the Funds Management
Division as any of them may designate in writing (which designation shall be
filed with the Corporate Secretary), are authorized to purchase or sell surplus
funds.
Administrative Regulation IV
Sales And Leases Of Property
4.1 Sales and Leases of Bank-Owned Real Estate and Associated Personal
Property. The President, any officer at the level of Vice President or above in
the Real Estate Division and in the Collections and Foreclosures Division of
Crestar Mortgage Corporation (and who is also a Vice President or above of the
Bank), any managing officer or Senior Vice President of any Special Assets or
loan workout unit, and any Senior Vice President in the Real Estate Finance
Group, are authorized (I) to sell, exchange or lease any Bank-owned real estate
and any associated personal property or any interest therein, (ii) to grant
options for the purchase thereof, and (iii) to do any act and to execute,
acknowledge and deliver any deed, contract and other document necessary or
desirable in connection therewith.
4.2 Release of Encumbrances. Any release, termination statement, or
satisfaction of judgment required by the Bank shall be executed by any officer
of the Bank or by an attorney-in-fact appointed by an officer of the Bank for
the purpose. Whenever the Bank may be lawfully required to consent to the
release of the lien of any deed of trust, its consent may be evidenced by the
execution of such deed of release or any other document on behalf of the Bank by
any officer of the Bank.
Administrative Regulation V
Checks, Drafts, Orders, Etc.
5.1 Bank - Except Trust. All checks, drafts or orders of the Bank for the
payment of money, whether directed to itself or to others (except those drawn on
trust funds), shall be executed or signed on behalf of the Bank by any officer
or, if authorized to sign by any officer (other than a member of the Trust
Group) who is a Division Head, Senior Vice President or above, by any employee
of the Bank, with a copy of such authorization filed with the Corporate
Controller.
5.2 Trust Group. All checks, drafts or orders of the Trust Group for the
payment of money, whether directed to itself or others, shall be executed or
signed on behalf of the Bank by any officer or employee of the Trust Group who
may be authorized so to sign by any officer of the Trust Group who is Senior
Vice President or above, with a copy of such authorization filed with the
corporate Controller.
Administrative Regulation VI
Signature Guarantee, Confirmations, Etc.
6.1 Signature Guarantee. Any officer of the Bank, or any employee of the
Bank who may be designated in writing (which designation shall be filed with the
Corporate Secretary) by the Chairman of the Board, the President, any Executive
Vice President, any Senior Vice President or Division Head, shall have the
authority to guarantee, on behalf of the Bank, the signature of a bank customer
or other person on any stock certificate, bond, note, or other security,
provided that such officer or employee shall know personally:
1. The person signing.
2. That the signature is genuine.
3. That the signer is an appropriate person to endorse or sign.
4. That the signer has legal capacity to sign.
Any such officer or employee guaranteeing any such signature may do so under the
style of "Authorized Officer" or "Authorized Signature".
6.2 Confirmations. The General Auditor or any Vice President Audit is
authorized to certify in the name of, or on behalf of, the Bank in its own right
or in a fiduciary or representative capacity, as to the accuracy and
completeness of any account, schedule of assets, instrument or paper requiring
such certification.
Administrative Regulation VII
Responsibilities Of Area Boards
7.1 Responsibilities of Area Boards. The Area Boards, as provided by
Section 3.7 of the Bylaws, shall, jointly with senior management, assist in the
direction of one or more of the Bank's offices by: 1) selecting and evaluating
the performance of local executive officers, 2) ensuring the adoption of
challenging goals and marketing policies, 3) ensuring a reasonable return on
allocated capital, 4) ensuring a level of profitability that provides for
balanced growth, responsiveness to the credit needs of the community, and high
standards of integrity for all personnel, 5) ensuring an appropriate commitment
of the Bank to a significant role in the local community, 6) ensuring
conformance to applicable statutes & regulations, 7) ensuring a reporting system
that adequately monitors these objectives, 8) promoting the Bank through the
acquisition of business and by personal example and, 9) providing an outside
perspective as a constructive critic and loyal friend.
Administrative Regulation VIII
Deposit And Security Accounts
8.1 Deposit Accounts. The President, the Executive Vice President -
Investment Bank, the Executive Vice President, Controller and Treasurer, the
Managing Director - Asset/Liability Management Division, and the Managing
Director - Funds Management Division are individually authorized and empowered
to open and maintain in the name of the Bank one or more deposit accounts at
other financial institutions. The aforementioned officers shall designate the
personnel authorized to sign for and transact business in such accounts and may
agree to any terms governing such accounts. Any resolutions required of this
Corporation in connection with such accounts may be certified by the Corporate
Secretary as if specifically adopted by the Board of Directors.
8.2 Securities Accounts. The President, the Executive Vice President -
Investment Bank, the Managing Director Asset/Liability Management Division, and
the Managing Director - Funds Management Division are individually authorized
and empowered to open and maintain in the name of the Bank one or more
securities accounts for the purpose of purchasing, selling, reselling,
borrowing, lending, and otherwise dealing in money market instruments and
securities of any and every kind, including agreements or contracts for their
repurchase or future delivery, with banks, brokers, dealers, securities firms,
or other organizations, and to issue written, telephonic, telegraphic, or verbal
orders or instructions for transactions to be carried out in such accounts. The
aforementioned officers shall designate the personnel authorized to sign for and
transact business in such accounts and may agree to any terms governing such
accounts. Any resolutions required of this Bank in connection with such accounts
may be certified by the Corporate Secretary as if specifically adopted by the
Board of Directors.
<PAGE>
EXHIBIT T-1 (6)
Exhibit 6
Consent of Trustee
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of
1939 in connection with the execution of a Indenture among United Dominion
Realty Trust, Inc. and Crestar Bank, as Trustee, we hereby consent that reports
of examinations by federal, state, territorial, or district authorities may be
furnished by such authorities to the Securities Exchange Commission upon request
therefor.
Crestar Bank
By: /s/ L.B. BEDELL
- -----------------------------
(L. B. Bedell, Vice President)
Dated: May 15, 1997
<PAGE>
EXHIBIT T-1 (7)
Federal Financial Institutions Examination Council
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
Expires March 31, 1999
Please refer to page i, Table of Contents, for the required disclosure
of estimated burden.
Consolidated Reports of Condition and Income for
A Bank With Domestic and Foreign Offices - FFIEC 031
Report at the close of business March 31, 1997
(970331)
(RCRI 9999)
This report is required by law: 12 U.S.C. Section 324 (State member banks);
12 U.S.C. Section 1817 (State nonmember
banks); and 12 U.S.C. Section 161 (National banks).
This report form is to be filed by banks with branches and consolidated
subsidiaries in U.S. territories and possessions, Edge or Agreement
subsidiaries, foreign branches, consolidated foreign subsidiaries, or
International Banking Facilities.
NOTE: The Reports of Condition and Income must be signed by an authorized
officer and the Report of Condition must be attested to by not less than
two directors (trustees) for State nonmember banks and three directors for
State member and National banks.
I, Richard G. Tilghman, Chairman and Chief Executive Officer
Name and Title of Officer Authorized to Sign Report
of the named bank do hereby declare that these Reports of Condition and Income
(including the supporting schedules) have been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and are true
to the best of my knowledge and belief.
/s/ RICHARD G. TILGHMAN
- -----------------------
Signature of Officer Authorized to Sign Report
Date of Signature 4/30/97
The Reports of Condition and Income are to be prepared in accordance with
Federal regulatory authority instructions. NOTE: These instructions may
in some cases differ from generally accepted accounting principles.
We, the undersigned directors (trustees), attest to the correctness of this
Report of Condition (including the supporting schedules) and declare that
it has been examined by us and to the best of our knowledge and belief has
been prepared in conformance with the instructions issued by the appropriate
Federal regulatory authority and is true and correct.
/s/ (illegible signature)
- -------------------------
Director (Trustee)
/s/ (illegible signature)
- -------------------------
Director (Trustee)
/s/ GORDON F. RAINEY, JR.
- -------------------------
Director (Trustee)
For Banks Submitting Hard Copy Report Forms:
State Member Banks: Return the original and one copy to the appropriate
Federal Reserve District Bank.
State Nonmember Banks: Return the original only in the special return
address envelope provided. If express mail is used in lieu of the special
return address envelope, return the original only to the FDIC, c/o Quality
Data Systems, 2127 Espey Court, Suite 204, Crofton, MD 21114.
National Banks: Return the original only in the special return address
envelope provided. If express mail is used in lieu of the special return
address envelope, return the original only to the FDIC, c/o Quality Data
Systems, 2127 Espey Court, Suite 204, Crofton, MD 21114.
FDIC Certificate Number
(RCRI 9050)
Crestar Bank
P.O. Box 26665
Richmond, VA 23261
E512430000 55124300000
March 31, 1997 31
Board of Governors of the Federal Reserve System, Federal Deposit Insurance
Corporation, Office of the Comptroller of the Currency
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RI-1
Consolidated Report of Income
for the period January 1, 1997 - March 31, 1997
All Report of Income schedules are to be reported on a calendar year-to-date
basis in thousands of dollars.
Schedule RI--Income Statement
<TABLE>
<CAPTION>
I480
Dollar Amounts in Thousands RIAD Bill Mil Thou
<S> <C> <C> <C>
1. Interest Income:
a. Interest and fee income on loans:
(1) In domestic offices:
(a) Loans secured by real estate 4011 151,474 1.a.(1)(a)
(b) Loans to depository institutions 4019 23 1.a.(1)(b)
(c) Loans to finance agricultural production and other loans to farmers 4024 62 1.a.(1)(c)
(d) Commercial and industrial loans 4012 41,651 1.a.(1)(d)
(e) Acceptances of other banks 4026 0 1.a.(1)(e)
(f) Loans to individuals for household, family, and other personal
expenditures:
(1) Credit cards and related plans 4054 57,989 1.a.(1)(f)(1)
(2) Other 4055 58,978 1.a.(1)(f)(2)
(g) Loans to foreign governments and official institutions 4056 0 1.a.(1)(g)
(h) Obligations (other than securities and leases) of states and political
subdivisions in the U.S.:
(1) Taxable obligations 4503 516 1.a.(1)(h)(1)
(2) Tax-exempt obligations 4504 3,147 1.a.(1)(h)(2)
(i) All other loans in domestic offices 4058 2,939 1.a.(1)(i)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs 4059 0 1.a.(2)
b. Income from lease financing receivables:
(1) Taxable leases 4505 402 1.b.(1)
(2) Tax-exempt leases 4307 0 1.b.(2)
c. Interest income on balances due from depository institutions: (1)
(1) In domestic offices 4105 0 1.c.(1)
(2) In foreign offices, Edge and Agreement subsidiaries, and IBFs 4106 109 1.c.(2)
d. Interest and dividend income on securities:
(1) U.S. Treasury securities and U.S. Government agency and corporation
obligations 4027 62,913 1.d.(1)
(2) Securities issued by states and political subdivisions in the U.S.:
(a) Taxable securities 4506 0 1.d.(2)(a)
(b) Tax-exempt securities 4507 1,012 1.d.(2)(b)
(3) Other domestic debt securities 3657 9,711 1.d.(3)
(4) Foreign debt securities 3658 0 1.d.(4)
(5) Equity securities (including investments in mutual funds) 3659 1,516 1.d.(5)
e. Interest income from trading assets 4069 0 1.e.
</TABLE>
__________
(1) Includes interest income on time certificates of deposit not held for
trading.
3
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RI-2
Schedule RI--Continued
<TABLE>
<CAPTION>
Year-to-date
Dollar Amounts in Thousands RIAD Bil Mil Thou
<S> <C> <C> <C> <C> <C>
1. Interest income (continued)
f. Interest income on federal funds sold and securities purchased under
agreements to resell 4020 1,006 1.f.
g. Total Interest income (sum of items 1.a through 1.f) 4107 393,448 1.g.
2. Interest expense:
a. Interest on deposits:
(1) Interest on deposits in domestic offices:
(a) Transaction accounts (NOW accounts, ATS accounts, and telephone and
preauthorized transfer accounts) 4508 2,411 2.a.(1)(a)
(b) Nontransaction accounts:
(1) Money market deposit accounts (MMDAs) 4509 38,759 2.a.(1)(b)(1)
(2) Other savings deposits 4511 10,608 2.a.(1)(b)(2)
(3) Time deposits of $100,000 or more A517 12,240 2.a.(1)(b)(3)
(4) Time deposits of less than $100,000 A518 49,597 2.a.(1)(b)(4)
(2) Interest on deposits in foreign offices, Edge and
Agreement subsidiaries, and IBFs 4172 104 2.a.(2)
b. Expense of federal funds purchased and securities sold under agreements to
repurchase 4180 32,727 2.b.
c. Interest on demand notes issued to the U.S. Treasury, trading
liabilities, and other borrowed money 4185 11,397 2.c.
d. Not applicable
e. Interest on subordinated notes and debentures 4200 7,153 2.e.
f. Total interest expense (sum of items 2.a through 2.e) 4073 164,978 2.f.
3. Net interest income (item 1.g minus 2.f) RIAD 4074 228,470 3.
4. Provisions:
a. Provision for loan and lease losses RIAD 4230 29,548 4.a.
b. Provision for allocated transfer risk RIAD 4243 0 4.b.
5. Noninterest income:
a. Income from fiduciary activities 4070 12,190 5.a.
b. Service charges on deposit accounts in domestic offices 4080 30,429 5.b.
c. Trading revenue (must equal Schedule RI, sum of Memorandum
items 8.a through 8.d) A220 350 5.c.
d. -e. Not applicable
f. Other noninterest income:
(1) Other fee income 5407 32,781 5.f.(1)
(2) All other noninterest income* 5408 13,580 5.f.(2)
g. Total noninterest income (sum of items 5.a through 5.f) RIAD 4079 89,330 5.g.
6. a. Realized gains (losses) on held-to-maturity securities RIAD 3521 0 6.a.
b. Realized gains (losses) on available-for-sale securities RIAD 3196 4,049 6.b.
7. Noninterest expense:
a. Salaries and employee benefits 4135 94,583 7.a.
b. Expenses of premises and fixed assets (net or rental income)
(excluding salaries and employee benefits and mortgage interest) 4217 26,334 7.b.
c. Other noninterest expense* 4092 57,709 7.c.
d. Total noninterest expense (sum of items 7.a through 7.c) RIAD 4093 178,626 7.d.
8. Income (loss) before income taxes and extraordinary items and other
adjustments (item 3 plus or minus items 4.a, 4.b, 5.g, 6.a, 6.b, and
7.d) RIAD 4301 113,675 8.
9. Applicable income taxes (on item 8) RIAD 4302 41,576 9.
10. Income (loss) before extraordinary items and other adjustments (item 8
minus 9) RIAD 4300 72,099 10.
11. Extraordinary items and other adjustments, net of income taxes* RIAD 4320 0 11.
12. Net income (loss) (sum of items 10 and 11) RIAD 4340 72,099 12.
</TABLE>
__________
*Describe on Schedule RI-E--Explanations.
4
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RI-3
Schedule RI--Continued
<TABLE>
<CAPTION>
I481
Memoranda Year-to-date
Dollar Amounts in Thousands RIAD Bil Mil Thou
<S> <C> <C> <C>
1. Interest expense incurred to carry tax-exempt securities, loans, and leases
acquired after August 7, 1986, that is not deductible for federal income tax
purposes 4513 1,116 M.1.
2. Income from the sale and servicing of mutual funds and annuities in domestic
offices (included in Schedule RI, item 8) 8431 123 M.2.
3.-4. Not applicable
5. Number of full-time equivalent employees at end of current period Number
(round to nearest whole number) 4150 7,992 M.5.
6. Not applicable
7. If the reporting bank has restated its balance sheet as a result of applying
push down accounting this calendar year, report the date of the bank's MM/DD/YY
acquisition 9106 00/00/00 M.7.
8. Trading revenue (from cash instruments and off-balance sheet derivative
instruments) (sum of Memorandum items 8.a through 8.d must equal
Schedule RI, item 5.c): Bill Mil Thou
a. Interest rate exposures 8757 89 M.8.a.
b. Foreign exchange exposures 8758 261 M.8.b.
c. Equity security and index exposures 8759 0 M.8.c.
d. Commodity and other exposures 8760 0 M.8.d.
9. Impact on income of off-balance sheet derivatives held for purposes other
than trading:
a. Net increase (decrease) to interest income 8761 (183) M.9.a.
b. Net (increase) decrease to interest expense 8762 367 M.9.b.
c. Other (noninterest) allocations 8763 0 M.9.c.
10. Credit losses on off-balance sheet derivatives (see instructions) A251 0 M.10.
11. Does the reporting bank have a Subchapter S election in effect for federal YES NO
income tax purposes for the current tax year? A530 x M.11.
12. Deferred portion of total applicable income taxes included in Schedule RI, Bill Mil Thou
items 9 and 11 (to be reported with the December Report of Income) 4772 N/A M.12.
</TABLE>
__________
*Describe on Schedule RI-E--Explanations.
5
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RI-4
Schedule RI-A--Changes in Equity Capital
Indicate decreases and losses in parentheses.
<TABLE>
<CAPTION>
I483
Dollar Amounts in Thousands RIAD Bil Mil Thou
<S> <C> <C> <C>
1. Total equity capital originally reported in the December 31, 1996, Reports
of Condition and Income 3215 1,267,765 1.
2. Equity capital adjustments from amended Reports of Income, net* 3216 0 2.
3. Amended balance end of previous calendar year (sum of items 1 and 2) 3217 1,267,765 3.
4. Net income (loss) (must equal Schedule RI, item 12) 4340 72,099 4.
5. Sale, conversion, acquisition, or retirement of capital stock, net 4346 6,560 5.
6. Changes incident to business combinations, net 4356 333,028 6.
7. LESS: Cash dividends declared on preferred stock 4470 0 7.
8. LESS: Cash dividends declared on common stock 4460 0 8.
9. Cumulative effect of changes in accounting principles from prior years* (see
instructions for this schedule) 4411 0 9.
10. Corrections of material accounting errors from prior years* (see
instructions for this schedule) 4412 0 10.
11. Change in net unrealized holding gains (losses) on available-for-sale
securities 8433 (33,230) 11.
12. Foreign currency transaction adjustments 4414 0 12.
13. Other transactions with parent holding company* (not included in items 5, 7
or 8 above) 4415 0 13.
14. Total equity capital end of current period (sum of items 3 through 13) (must
equal Schedule RC, item 28) 3210 1,646,222 14.
</TABLE>
__________
*Describe on Schedule RI-E--Explanations.
Schedule RI-B--Charge-offs and Recoveries and Changes
in Allowance for Loan and Lease Losses
Part I. Charge-offs and Recoveries on Loans and Leases
Part I excludes charge-offs and recoveries through
the allocated transfer risk reserve.
<TABLE>
<CAPTION>
I486
(Column A) (Column B)
Charge-offs Recoveries
Calendar year-to-date
Dollar Amounts in Thousands RIAD Bil Mil Thou RIAD Bil Mil Thou
<S> <C> <C> <C> <C> <C>
1. Loans secured by real estate:
a. To U.S. addressees (domicile) 4651 1,297 4661 1,629 1.a.
b. To non-U.S. addressees (domicile) 4652 0 4662 0 1.b.
2. Loans to depository institutions and acceptances of other banks:
a. To U.S. banks and other U.S. depository institutions 4653 0 4663 0 2.a.
b. To foreign banks 4654 0 4664 0 2.b.
3. Loans to finance agricultural production and other loans to farmers 4655 0 4665 0 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile) 4645 2,179 4617 826 4.a.
b. To non-U.S. addressees (domicile) 4646 0 4618 0 4.b.
5. Loans to individuals for household, family, and other personal
expenditures:
a. Credit cards and related plans 4656 25,514 4666 1,947 5.a.
b. Other (includes single payment, installment, and all student loans) 4657 7,904 4667 2,646 5.b.
6. Loans to foreign governments and official institutions 4643 0 4627 0 6.
7. All other loans 4644 6 4628 329 7.
8. Lease financing receivables:
a. Of U.S. addressees (domicile) 4658 0 4668 0 8.a.
b. Of non-U.S. addressees (domicile) 4659 0 4669 0 8.b.
9. Total (sum of items 1 through 8) 4635 36,900 4605 7,377 9.
</TABLE>
6
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RI-5
Schedule RI-B--Continued
Part I. Continued
<TABLE>
<CAPTION>
(Column A) (Column B)
Charge-offs Recoveries
Memoranda Calendar year-to-date
Dollar Amounts in Thousands RIAD Bil Mil Thou RIAD Bil Mil Thou
<S> <C> <C> <C> <C> <C>
1-3. Not applicable
4. Loans to finance commercial real estate, construction, and land
development activities (not secured by real estate) included in
Schedule RI-B, part I, items 4 and 7, above 5409 0 5410 0 M.4.
5. Loans secured by real estate in domestic offices (included in
Schedule RI-B, part I, item 1, above):
a. Construction and land development 3582 0 3583 10 M.5.a.
b. Secured by farmland 3584 0 3585 4 M.5.b.
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by 1-4 family residential
properties and extended under lines of credit 5411 341 5412 174 M.5.c.(1)
(2) All other loans secured by 1-4 family residential properties 5413 673 5414 203 M.5.c.(2)
d. Secured by multifamily (5 or more) residential properties 3588 0 3589 7 M.5.d.
e. Secured by nonfarm nonresidential properties 3590 283 3591 1,231 M.5.e.
</TABLE>
Part II. Changes in Allowance for Loan and Lease Losses
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RIAD Bil Mil Thou
<S> <C> <C> <C>
1. Balance originally reported in the December 31, 1996, Reports of Condition
and Income 3124 233,836 1.
2. Recoveries (must equal part I, item 9, column B above) 4605 7,377 2.
3. LESS: Charge-offs (must equal part I, item 9, column A above) 4635 36,900 3.
4. Provision for loan and lease losses (must equal Schedule RI, item 4.a) 4230 29,548 4.
5. Adjustments* (see instructions for this schedule) 4815 35,004 5.
6. Balance end of current period (sum of items 1 through 5)(must equal Schedule RC,
item 4.b) 3213 268,865 6.
</TABLE>
__________
*Describe on Schedule RI-E--Explanations.
7
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RI-6
Schedule RI-D--Income From International Operations
For all banks with foreign offices, Edge or Agreement subsidiaries, or IBFs
where international operations account for more than 10 percent of total
revenues, total assets, or net income.
Part I. Estimated Income from International Operations
<TABLE>
<CAPTION>
I492
Year-to-date
Dollar Amounts in Thousands RIAD Bil Mil Thou
<S> <C> <C> <C>
1. Interest income and expense booked at foreign offices, Edge and Agreement
subsidiaries, and IBFs:
a. Interest income booked 4837 N/A 1.a.
b. Interest expense booked 4838 N/A 1.b.
c. Net interest income booked at foreign offices, Edge and Agreement
subsidiaries, and IBFs (item 1.a minus 1.b) 4839 N/A 1.c.
2. Adjustments for booking location of international operations:
a. Net interest income attributable to international operations booked at
domestic offices 4840 N/A 2.a.
b. Net interest income attributable to domestic business booked at foreign
offices 4841 N/A 2.b.
c. Net booking location adjustment (item 2.a minus 2.b) 4842 N/A 2.c.
3. Noninterest income and expense attributable to international operations:
a. Noninterest income attributable to international operations 4097 N/A 3.a.
b. Provision for loan and lease losses attributable to international operations 4235 N/A 3.b.
c. Other noninterest expense attributable to international operations 4239 N/A 3.c.
d. Net noninterest income (expense) attributable to international operations (item
3.a minus 3.b and 3.c) 4843 N/A 3.d.
4. Estimated pretax income attributable to international operations before
capital allocation adjustment (sum of items 1.c, 2.c, and 3.d) 4844 N/A 4.
5. Adjustment to pretax income for internal allocations to international
operations to reflect the effects of equity capital on overall bank funding
costs 4845 N/A 5.
6. Estimated pretax income attributable to international operations after
capital allocation adjustment (sum of items 4 and 5) 4846 N/A 6.
7. Income taxes attributable to income from international operations as
estimated in item 6 4797 N/A 7.
8. Estimated net income attributable to international operations (item 6 minus 7) 4341 N/A 8.
</TABLE>
<TABLE>
<CAPTION>
Memoranda
Dollar Amounts in Thousands RIAD Bil Mil Thou
<S> <C> <C> <C>
1. Intracompany interest income included in item 1.a above 4847 N/A M.1.
2. Intracompany interest expense included in item 1.b above 4848 N/A M.2.
</TABLE>
Part II. Supplementary Details on Income from International Operations
Required by the Departments of Commerce and Treasury for Purposes of the U.S.
International Accounts and the U.S. National Income and Product Accounts
<TABLE>
<CAPTION>
Year-to-date
Dollar Amounts in Thousands RIAD Bil Mil Thou
<S> <C> <C> <C>
1. Interest income booked at IBFs 4849 N/A 1.
2. Interest expense booked at IBFs 4850 N/A 2.
3. Noninterest income attributable to international operations booked at
domestic offices (excluding IBFs):
a. Gains (losses) and extraordinary items 5491 N/A 3.a.
b. Fees and other noninterest income 5492 N/A 3.b.
4. Provision for loan and lease losses attributable to international operations
booked at domestic offices (excluding IBFs) 4852 N/A 4.
5. Other noninterest expense attributable to international operations booked at
domestic offices (excluding IBFs) 4853 N/A 5.
</TABLE>
8
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RI-7
Schedule RI-E--Explanations
Schedule RI-E is to be completed each quarter on a calendar year-to-date basis.
Detail all adjustments in Schedule RI-A and RI-B, all
extraordinary items and other adjustments in Schedule RI, and all
significant items of other noninterest income and other noninterest
expense in Schedule RI. (See instructions for details.)
<TABLE>
<CAPTION>
I495
Year-to-date
Dollar Amounts in Thousands RIAD Bil Mil Thou
<S> <C> <C> <C>
1. All other noninterest income (from Schedule RI, item 5.f.(2))
Report amounts that exceed 10% of Schedule RI, item 5.f.(2):
a. Net gains (losses) on other real estate owned 5415 0 1.a.
b. Net gains (losses) on sales of loans 5416 0 1.b.
c. Net gains (losses) on sales of premises and fixed assets 5417 5,808 1.c.
Itemize and describe the three largest other amounts that exceed 10% of
Schedule RI, item 5.f.(2):
d. Text 4461 Personalized Check Sales 4461 2,512 1.d.
e. Text 4462 4462 1.e.
f. Text 4463 4463 1.f.
2. Other noninterest expense (from Schedule RI, item 7.c):
a. Amortization expense of intangible assets 4531 3,250 2.a.
Report amounts that exceed 10% of Schedule RI, item 7.c:
b. Net (gains) losses on other real estate owned 5418 0 2.b.
c. Net (gains) losses on sales of loans 5419 0 2.c.
d. Net (gains) losses on sales of premises and fixed assets 5420 0 2.d.
Itemize and describe the three largest amounts that exceed 10% of Schedule RI,
item 7.c.:
e. Text 4464 Communications 4464 8,712 2.e.
f. Text 4467 Professional Fees 4467 6,706 2.f.
g. Text 4468 4468 2.g.
3. Extraordinary items and other adjustments and applicable income tax effect
(from Schedule RI, item 11) (itemize and describe all extraordinary items
and other adjustments):
a. (1) Text 4469 4469 3.a.(1)
(2) Applicable income tax effect RIAD 4486 3.a.(2)
b. (1) Text 4487 4487 3.b.(1)
(2) Applicable income tax effect RIAD 4488 3.b.(2)
c. (1) Text 4489 4489 3.c.(1)
(2) Applicable income tax effect RIAD 4491 3.c.(2)
4. Equity capital adjustments from amended Reports of Income (from Schedule
RI-A, item 2) (itemize and describe all adjustments):
a. Text 4492 4492 4.a.
b. Text 4493 4493 4.b.
5. Cumulative effect of changes in accounting principles from prior years (from
Schedule RI-A, item 9) (itemize and describe all changes in accounting
principles):
a. Text A546 Effect of change to GAAP from previous non-GAAP instructions A546 0 5.a.
b. Text 4495 4495 5.b.
6. Corrections of material accounting errors from prior years (from Schedule
RI-A, item 10 (itemize and describe all corrections):
a. Text 4496 4496 6.a.
b. Text 4497 4497 6.b.
</TABLE>
9
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RI-8
Schedule RI-E--Continued
<TABLE>
<CAPTION>
Year-to-date
Dollar Amounts in Thousands RIAD Bil Mil Thou
<S> <C> <C> <C>
7. Other transactions with parent holding company (from Schedule RI-A,
item 13) (itemize and describe all such transactions):
a. Text 4498 4498 7.a.
b. Text 4499 4499 7.b.
8. Adjustments to allowance for loan and lease losses (from Schedule RI-B,
part II, item 5) (itemize and describe all adjustments):
a. Text 4521 Bank Mergers 4521 35,004 8.a.
b. Text 4522 4522 8.b.
9. Other explanations (the space below is provided for the bank to briefly
describe, at its option, any other significant items affecting the Report
of Income): I498 I499
No comment __ (RIAD 4769)
Other explanations (please type or print clearly):
(Text 4769)
</TABLE>
10
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-1
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for March 31, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
C400
Dollar Amounts in Thousands RCFD Bil Mil Thou
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1) 0081 941,379 1.a.
b. Interest-bearing balances(2) 0071 100,000 1.b.
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) 1754 818,542 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D) 1773 3,782,279 2.b.
3. Federal funds sold and securities purchased under agreements to resell 1350 409,483 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 14,748,358 4.a.
b. LESS: Allowance for loan and lease losses RCFD 3123 268,865 4.b.
c. LESS: Allocated transfer risk reserve RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance,
and reserve (item 4.a minus 4.b and 4.c) 2125 14,479,493 4.d.
5. Trading assets (from Schedule RC-D) 3545 0 5.
6. Premises and fixed assets (including capitalized leases) 2145 416,577 6.
7. Other real estate owned (from Schedule RC-M) 2150 34,173 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M) 2130 1,896 8.
9. Customers' liability to this bank on acceptances outstanding 2155 3,889 9.
10. Intangible assets (from Schedule RC-M) 2143 202,968 10.
11. Other assets (from Schedule RC-F) 2160 631,685 11.
12. Total assets (sum of items 1 through 11) 2170 21,822,382 12.
</TABLE>
__________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
11
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-2
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands Bil Mil Thou
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E,
part I) RCON 2200 15,949,823 13.a.
(1) Noninterest-bearing(1) RCON 6631 3,389,214 13.a.(1)
(2) Interest-bearing RCON 6636 12,560,609 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule
RC-E, part II) RCFN 2200 0 13.b.
(1) Noninterest-bearing RCFN 6631 0 13.b.(1)
(2) Interest-bearing RCFN 6636 0 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase RCFD 2800 2,595,340 14.
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0 15.a.
b. Trading liabilities (from Schedule RC-D) RCFD 3548 0 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
a. With a remaining maturity of one year or less RCFD 2332 598,015 16.a.
b. With a remaining maturity of more than one year RCFD 2333 302,513 16.b.
17. Not applicable
18. Bank's liability on acceptances executed and outstanding RCFD 2920 3,889 18.
19. Subordinated notes and debentures(2) RCFD 3200 335,000 19.
20. Other liabilities (from Schedule RC-G) RCFD 2930 391,580 20.
21. Total liabilities (sum of items 13 through 20) RCFD 2948 20,176,160 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus RCFD 3838 0 23.
24. Common stock RCFD 3230 194,763 24.
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 307,257 25.
26. a. Undivided profits and capital reserves RCFD 3632 1,201,159 26.a.
b. Net unrealized gains (losses) on available-for-sale securities RCFD 8434 (56,957) 26.b.
27. Cumulative foreign currency translation adjustments RCFD 3284 0 27.
28. Total equity capital (sum of items 23 through 27) RCFD 3210 1,646,222 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of
items 21 and 28) RCFD 3300 21,822,382 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the Number
bank by independent external auditors as of any date during 1996 RCFD 6724 2 M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted
in accordance with generally accepted auditing standards by a
certified public accounting firm which submits a report on the
consolidated holding company (but not on a bank separately)
3 = Directors' examination of the bank conducted in accordance with
generally accepted auditing standards by a certified public accounting
firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other external
auditors (may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
__________
(1) Includes total demand deposits and noninterest-bearing time and
savings deposits.
(2) Includes limited-life preferred stock and related surplus.
12
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-3
Schedule RC-A--Cash and Balances Due From Depository Institutions
Exclude assets held for trading.
<TABLE>
<CAPTION>
C405
(Column A) (Column B)
Consolidated Domestic
Bank Offices
Dollar Amounts in Thousands RCFD Bil Mil Thou RCON Bil Mil Thou
<S> <C> <C> <C> <C> <C>
1. Cash items in process of collection, unposted debits, and
currency and coin 0022 905,561 1.
a. Cash items in process of collection and unposted debits 0020 680,469 1.a.
b. Currency and coin 0080 225,092 1.b.
2. Balances due from depository institutions in the U.S. 0082 33,559 2.
a. U.S. branches and agencies of foreign banks
(including their IBFs) 0083 0 2.a.
b. Other commercial banks in the U.S. and other depository
institutions in the U.S. (including their IBFs) 0085 33,559 2.b.
3. Balances due from banks in foreign countries and foreign
central banks 0070 101,717 3.
a. Foreign branches of other U.S. banks 0073 100,000 3.a.
b. Other banks in foreign countries and foreign central banks 0074 1,717 3.b.
4. Balances due from Federal Reserve Banks 0090 542 0090 542 4.
5. Total (sum of items 1 through 4) (total of column A must
equal Schedule RC, sum of items 1.a and 1.b) 0010 1,041,379 0010 1,041,379 5.
</TABLE>
<TABLE>
<CAPTION>
Memorandum RCON Bil Mil Thou
Dollar Amounts in Thousands
<S> <C> <C> <C>
1. Noninterest-bearing balances due from commercial banks
in the U.S. (included in items 2, column B above) 0050 33,559 M.1.
</TABLE>
Schedule RC-B--Securities
Exclude assets held for trading.
<TABLE>
<CAPTION>
C410
Held-to-maturity Available-for-sale
(Column A) (Column B) (Column C) (Column D)
Amortized Cost Fair Value Amortized Cost Fair Value(1)
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1. U.S. Treasury securities 0211 188,227 0213 185,017 1286 499,457 1287 491,011 1.
2. U.S. Government agency
obligations
(exclude mortgage-backed
securities):
a. Issued by U.S. Government
agencies(2) 1289 14,988 1290 14,925 1291 11,760 1293 11,765 2.a.
b. Issued by U.S. Government-
sponsored agencies(3) 1294 4,939 1295 4,941 1297 84,253 1298 81,778 2.b.
</TABLE>
__________
(1) Includes equity securities without readily determinable
fair values at historical cost in item 6.b., column D.
(2) Includes Small Business Administration "Guaranteed Loan
Pool Certificates," U.S. Maritime Administration obligations,
and Export-Import Bank participation certificates.
(3) Includes obligations (other than mortgage-backed securities)
issued by the Farm Credit System, the Federal Home Loan Bank,
System, the Federal Home Loan Mortgage Corporation, the Federal
National Mortgage Association, the Financing Corporation,
Resolution Funding Corporation, the Student Loan Marketing
Association, and the Tennessee Valley Authority.
13
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-4
Schedule RC-B--Continued
<TABLE>
<CAPTION>
Held-to-maturity Available-for-sale
(Column A) (Column B) (Column C) (Column D)
Amortized Cost Fair Value Amortized Cost Fair Value(1)
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
3. Securities issued by states
and political subdivisions
in the U.S.
a. General obligations 1676 7,801 1677 7,753 1678 0 1679 0 3.a.
b. Revenue obligations 1681 39,806 1686 39,785 1690 0 1691 0 3.b.
c. Industrial development
and similar obligations 1694 355 1695 336 1696 0 1697 0 3.c.
4. Mortgage-backed securities
(MBS):
a. Pass-through securities:
(1) Guaranteed by GNMA 1698 2,502 1699 2,641 1701 90,471 1702 86,056 4.a.(1)
(2) Issued by FNMA and FHLMC 1703 31,070 1705 31,289 1706 2,390,395 1707 2,325,261 4.a.(2)
(3) Other pass-through
securities 1709 0 1710 0 1711 0 1713 0 4.a.(3)
b. Other mortgage-backed
securities (include CMOs,
REMICs, and stripped MBS):
(1) Issued or guaranteed by
FNMA, FHLMC, or GNMA 1714 512,839 1715 508,601 1716 95,265 1717 94,120 4.b.(1)
(2) Collateralized by MBS
issued or guaranteed
by FNMA, FHLMC, or GNMA 1718 678 1719 668 1731 129,489 1732 128,250 4.b.(2)
(3) All other mortgage-backed
securities 1733 2,960 1734 2,960 1735 123,376 1736 122,508 4.b.(3)
5. Other debt securities:
a. Other domestic debt
securities 1737 10,147 1738 10,135 1739 327,290 1741 322,566 5.a.
b. Foreign debt securities 1742 2,250 1743 2,250 1744 0 1746 0 5.b.
6. Equity securities:
a. Investments in mutual
funds and other equity
securities with readily
determinable fair values A510 20,652 1748 21,091 6.a.
b. All other equity
securities(1) 1752 97,891 1753 97,891 6.b.
7. Total (sum of items 1 through
6) (total of column A must
equal Schedule RC, item 2.a)
(total of column D must equal
Schedule RC, item 2.b) 1754 818,542 1771 811,301 1772 3,870,299 1773 3,782,297 7.
</TABLE>
__________
(1) Includes equity securities without readily determinable fair values at
historical cost in item 6.c., column D.
14
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-5
Schedule RC-B--Continued
<TABLE>
<CAPTION>
Memoranda C412
Dollar Amounts in Thousands RCFD Bil Mil Thou
<S> <C> <C> <C>
1. Pledged securities(2) 0416 2,014,322 M.1.
2. Maturity and repricing data for debt securities(2),(3),(4) (excluding those in
nonaccrual status):
a. Fixed rate debt securities with a remaining maturity of:
(1) Three months or less 0343 15,287 M.2.a.(1)
(2) Over three months through 12 months 0344 15,396 M.2.a.(2)
(3) Over one year through five years 0345 957,726 M.2.a.(3)
(4) Over five years 0346 3,336,421 M.2.a.(4)
(5) Total fixed rate debt securities (sum of Memorandum items 2.a.(1) through
2.a.(4) 0347 4,324,830 M.2.a.(5)
b. Floating rate debt securities with a repricing frequency of:
(1) Quarterly or more frequently 4544 152,302 M.2.b.(1)
(2) Annually or more frequently, but less frequently than quarterly 4545 4,725 M.2.b.(2)
(3) Every five years or more frequently, but less frequently than annually 4551 0 M.2.b.(3)
(4) Less frequently than every five years 4552 0 M.2.b.(4)
(5) Total floating rate debt securities (sum of Memorandum items 2.b.(1)
through 2.b.(4)) 4553 157,027 M.2.b.(5)
c. Total debt securities (sum of Memorandum items 2.a.(5) and 2.b.(5)) (must
equal total debt securities from Schedule RC-B, sum of items 1 through 5,
columns A and D, minus nonaccrual debt securities included in Schedule RC-N,
item 9, column C) 0393 4,481,857 M.2.c.
3. -5. Not applicable
6. Floating rate debt securities with a remaining maturity of one year or less
(2),(4) (included in Memorandum items 2.b.(1) through 2.b.(4) above) 5519 9,996 M.6.
7. Amortized cost of held-to-maturity securities sold or transferred to
available-for-sale or trading securities during the calendar year-to-date
(report the amortized cost at date of sale or transfer) 1778 0 M.7.
8. High-risk mortgage securities (included in the held-to-maturity and
available-for-sale accounts in Schedule RC-B, item 4.b):
a. Amortized cost 8780 10,249 M.8.a.
b. Fair value 8781 10,047 M.8.b.
9. Structured notes (included in the held-to-maturity and available-for-sale
accounts in Schedule RC-B, items 2, 3, and 5):
a. Amortized cost 8782 0 M.9.a.
b. Fair value 8783 0 M.9.b.
</TABLE>
__________
(2) Includes held-to-maturity securities at amortized cost and
available-for-sale securities at fair value.
(3) Exclude equity securities, e.g., investments in mutual funds, Federal
Reserve stock, common stock, and preferred stock.
(4) Memorandum items 2 and 6 are not applicable to savings banks that must
complete supplemental Schedule RC-J.
15
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-6
Schedule RC-C--Loans and Lease Financing Receivables
Part I. Loans and Leases
Do not deduct the allowance for loan and lease losses from amounts reported in
this schedule. Report total loans and leases, net of unearned income. Exclude
assets held for trading and commercial paper.
<TABLE>
<CAPTION>
C415
(Column A) (Column B)
Consolidated Domestic
Bank Offices
Dollar Amounts in Thousands RCFD Bil Mil Thou RCON Bil Mil Thou
<S> <C> <C> <C> <C> <C>
1. Loans secured by real estate 1410 7,486,476 1.
a. Construction and land development 1415 329,453 1.a.
b. Secured by farmland (including farm residential and other improvements) 1420 15,305 1.b.
c. Secured by 1-4 family residential properties:
(1) Revolving, open-end loans secured by 1-4 family residential properties
and extended under lines of credit 1797 850,551 1.c.(1)
(2) All other loans secured by 1-4 family residential properties:
(a) Secured by first liens 5367 3,859,140 1.c.(2)(a)
(b) Secured by junior liens 5368 255,073 1.c.(2)(b)
d. Secured by multifamily (5 or more) residential properties 1460 134,183 1.d.
e. Secured by nonfarm nonresidential properties 1480 2,042,771 1.e.
2. Loans to depository institutions:
a. To commercial banks in the U.S. 1505 6,650 2.a.
(1) To U.S. branches and agencies of foreign banks 1506 0 2.a.(1)
(2) To other commercial banks in the U.S. 1507 6,560 2.a.(2)
b. To other depository institutions in the U.S. 1517 0 1517 0 2.b.
c. To banks in foreign countries 1510 1,285 2.c.
(1) To foreign branches of other U.S. banks 1513 0 2.c.(1)
(2) To other banks in foreign countries 1516 1,285 2.c.(2)
3. Loans to finance agricultural production and other loans to farmers 1590 2,799 1590 2,799 3.
4. Commercial and industrial loans:
a. To U.S. addressees (domicile) 1763 2,326,506 1763 2,326,506 4.a.
b. To non-U.S. addressees (domicile) 1764 0 1764 0 4.b.
5. Acceptances of other banks:
a. Of U.S. banks 1756 0 1756 0 5.a.
b. Of foreign banks 1757 0 1757 0 5.b.
6. Loans to individuals for household, family, and other personal expenditures
(i.e., consumer loans) (includes purchased paper) 1975 4,340,899 6.
a. Credit cards and related plans (includes check credit and other revolving
credit plans) 2008 1,280,321 6.a.
b. Other (includes single payment, installment, and all student loans) 2011 3,060,578 6.b.
7. Loans to foreign governments and official institutions (including foreign
central banks) 2081 703 2081 703 7.
8. Obligations (other than securities and leases) of states and political
subdivisions in the U.S. (includes nonrated industrial development
obligations) 2107 270,205 2107 270,205 8.
9. Other loans 1563 282,937 9.
a. Loans for purchasing or carrying securities (secured and unsecured) 1545 68,826 9.a.
b. All other loans (exclude consumer loans) 1564 214,111 9.b.
10. Lease financing receivables (net of unearned income) 2165 29,988 10.
a. Of U.S. addressees (domicile) 2182 29,988 10.a.
b. Of non-U.S. addressees (domicile) 2183 0 10.b.
11. LESS: Any unearned income on loans reflected in items 1-9 above 2123 0 2123 0 11.
12. Total loans and leases, net of unearned income (sum of items 1 through 10
minus item 11) (total of column A must equal Schedule RC, item 4.a) 2122 14,748,358 2122 14,748,358 12.
</TABLE>
16
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-7
Schedule RC-C--Continued
Part I. Continued
<TABLE>
<CAPTION>
(Column A) (Column B)
Memoranda Consolidated Domestic
Bank Offices
Dollar Amounts in Thousands RCFD Bil Mil Thou
<S> <C> <C> <C> <C> <C>
1. Not applicable
2. Loans and leases restructured and in compliance with modified terms (included
in Schedule RC-C, part I, above and not reported as past due or nonaccrual in
Schedule RC-N, Memorandum item 1):
a. Loans secured by real estate:
(1) To U.S. addressees (domicile) 1687 0 M.2.a.(1)
(2) To non U.S. addressees (domicile) 1689 0 M.2.a.(2)
b. All other loans and all lease financing receivables (exclude loans to
individuals for household, family, and other personal expenditures) 8691 0 M.2.b.
c. Commercial and industrial loans to and lease financing receivables of
non-U.S. addressees (domicile) included in Memorandum item 2.b. above 8692 0 M.2.c.
3. Maturity and repricing data for loans and leases(1) (excluding those in
nonaccrual status):
a. Fixed rate loans and leases with a remaining maturity of:
(1) Three months or less 0348 2,194,974 M.3.a.(1)
(2) Over three months through 12 months 0349 1,521,645 M.3.a.(2)
(3) Over one year through five years 0356 3,063,112 M.3.a.(3)
(4) Over five years 0357 1,932,662 M.3.a.(4)
(5) Total fixed rate loans and leases (sum of Memorandum items 3.a.(1)
through 3.a.(4)) 0358 8,712,393 M.3.a.(5)
b. Floating rate loans with a repricing frequency of:
(1) Quarterly or more frequently 4554 4,580,579 M.3.b.(1)
(2) Annually or more frequently, but less frequently than quarterly 4555 1,043,546 M.3.b.(2)
(3) Every five years or more frequently, but less frequently than annually 4561 304,633 M.3.b.(3)
(4) Less frequently than every five years 4564 31,638 M.3.b.(4)
(5) Total floating rate loans (sum of Memorandum items 3.b.(1)
through 3.b.(4)) 4567 5,960,396 M.3.b.(5)
c. Total loans and leases (sum of Memorandum items 3.a.(5) and 3.b.(5)) (must
equal the sum of total loans and leases, net, from Schedule RC-C, part I,
item 12, plus unearned income from Schedule RC-C, part I, item 11, minus
total nonaccrual loans and leases from Schedule RC-N, sum of items 1 through
8, column C) 1479 14,672,789 M.3.c.
d. Floating rate loans with a remaining maturity of one year or less
(included in Memorandum items 3.b.(1) through 3.b.(4) above) A246 893,255 M.3.d.
4. Loans to finance commercial real estate, construction, and land development
activities (not secured by real estate) included in Schedule RC-C, part I,
items 4 and 9, column A, page RC-6(2) 2746 0 M.4.
5. Loans and leases held for sale (included in Schedule RC-C, part I, above) 5369 543,177 M.5.
6. Adjustable rate closed-end loans secured by first liens on 1-4 family
residential properties (included in Schedule RC-C, part I, item 1.c.(2)(a), RCON Bil Mil Thou
column B, page RC-6) 5370 1,675,502 M.6.
</TABLE>
__________
(1) Memorandum item 3 is not applicable to savings banks that must complete
supplemental Schedule RC-J.
(2) Exclude loans secured by real estate that are included in Schedule RC-C,
part I, item 1, column A.
17
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-8
Schedule RC-D--Trading Assets and Liabilities
Schedule RC-D is to be completed only by banks with $1 billion or more in total
assets or with $2 billion or more in par/notional amount of off-balance sheet
derivative contracts (as reported in Schedule RC-L, items 14.a through 14.e,
columns A through D).
<TABLE>
<CAPTION>
C420
Dollar Amounts in Thousands Bil Mil Thou
<S> <C> <C> <C>
ASSETS
1. U.S. Treasury securities in domestic offices RCON 3531 0 1.
2. U.S. Government agency and corporation obligations in domestic offices
(exclude mortgage-backed securities) RCON 3532 0 2.
3. Securities issued by states and political subdivisions in the U.S. in
domestic offices RCON 3533 0 3.
4. Mortgage-backed securities (MBS) in domestic offices:
a. Pass-through securities issued or guaranteed by FNMA, FHLMC, or GNMA RCON 3534 0 4.a.
b. Other mortgage-backed securities issued or guaranteed by FNMA, FHLMC, or
GNMA (include CMOs, REMICs, and stripped MBS) RCON 3535 0 4.b.
c. All other mortgage-backed securities RCON 3536 0 4.c.
5. Other debt securities in domestic offices RCON 3537 0 5.
6. Certificates of deposit in domestic offices RCON 3538 0 6.
7. Commercial paper in domestic offices RCON 3539 0 7.
8. Bankers acceptances in domestic offices RCON 3540 0 8.
9. Other trading assets in domestic offices RCON 3541 0 9.
10. Trading assets in foreign offices RCFN 3542 0 10.
11. Revaluation gains on interest rate, foreign exchange rate, and other
commodity and equity contracts:
a. In domestic offices RCON 3543 0 11.a.
b. In foreign offices RCFN 3544 0 11.b.
12. Total trading assets (sum of items 1 through 11) (must equal Schedule RC,
item 5) RCFD 3545 0 12.
</TABLE>
<TABLE>
<CAPTION>
LIABILITIES Bil Mil Thou
<S> <C> <C> <C>
13. Liability for short positions RCFD 3546 0 13.
14. Revaluation losses on interest rate, foreign exchange rate, and other
commodity and equity contracts RCFD 3547 0 14.
15. Total trading liabilities (sum of items 13 and 14) (must equal Schedule
RC, item 15.b) RCFD 3548 0 15.
</TABLE>
18
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-9
Schedule RC-E--Deposit Liabilities
Part I. Deposits in Domestic Offices
<TABLE>
<CAPTION>
C425
Nontransaction
Transaction Accounts Accounts
(Column A) (Column B) (Column C)
Total transaction Memo: Total Total
accounts (including demand deposits nontransaction
total demand (included in accounts
deposits) column A) (including MMDAs)
Dollar Amounts in Thousands RCON BIL Mil Thou RCON Bil Mil Thou RCON Bil Mil Thou
<S> <C> <C> <C> <C> <C> <C> <C>
Deposits of:
1. Individuals, partnerships,
and corporations 2201 3,339,286 2240 3,065,478 2346 12,152,804 1.
2. U.S. Government 2202 28,734 2280 23,544 2520 2,154 2.
3. States and political subdivisions
in the U.S. 2203 119,076 2290 93,438 2530 99,717 3.
4. Commercial banks in the U.S. 2206 128,000 2310 128,000 2550 434 4.
5. Other depository institutions
in the U.S. 2207 39,178 2312 39,178 2349 864 5.
6. Banks in foreign countries 2213 7,608 2320 7,608 2236 0 6.
7. Foreign governments and
official institutions
(including foreign central banks) 2216 0 2300 0 2377 0 7.
8. Certified and official checks 2330 31,968 2330 31,968 8.
9. Total (sum of items 1 through 8)
(sum of columns A and C must
equal Schedule RC, item 13.a) 2215 3,693,850 2210 3,389,214 2385 12,255,973 9.
</TABLE>
<TABLE>
<CAPTION>
Memoranda
Dollar Amounts in Thousands RCON Bil Mil Thou
<S> <C> <C> <C>
1. Selected components of total deposits (i.e., sum of item 9, columns A and C):
a. Total Individual Retirement Accounts (IRAs) and Keogh Plan accounts 6835 1,242,480 M.1.a.
b. Total brokered deposits 2365 0 M.1.b.
c. Fully insured brokered deposits (included in Memorandum item 1.b above):
(1) Issued in denominations of less than $100,000 2343 0 M.1.c.(1)
(2) Issued either in denominations of $100,000 or in denominations greater than
$100,000 and participated out by the broker in shares of $100,000 or less 2344 0 M.1.c.(2)
d. Maturity data for brokered deposits:
(1) Brokered deposits issued in denominations of less than $100,000 with
a remaining maturity of one year or less (included in Memorandum item
1.c.(1) above) A243 0 M.1.d.(1)
(2) Brokered deposits issued in denominations of $100,000 or more with a
remaining maturity of one year or less (included in Memorandum
item 1.b above) A244 0 M.1.d.(2)
e. Preferred deposits (uninsured deposits of states and political subdivisions
in the U.S. reported in item 3 above which are secured or collateralized as
required under state law) 5590 206,809 M.1.e.
2. Components of total nontransaction accounts (sum of Memorandum items 2.a
through 2.d must equal item 9, column C above):
a. Savings deposits:
(1) Money market deposit accounts (MMDAs) 6810 5,619,801 M.2.a.(1)
(2) Other savings deposits (excludes MMDAs) 0352 1,597,757 M.2.a.(2)
b. Total time deposits of less than $100,000 6648 4,016,642 M.2.b.
c. Total time deposits of $100,000 or more 2604 1,021,773 M.2.c.
3. All NOW accounts (included in column A above) 2398 304,635 M.3.
4. Not applicable
</TABLE>
19
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-10
Schedule RC-E--Continued
Part I. Continued
Memoranda (continued)
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCON Bil Mil Thou
<S> <C> <C> <C>
5. Maturity and repricing data for time deposits of less than $100,000
(sum of Memorandum items 5.a.(1) through 5.b.(3) must equal Memorandum
item 2.b above): (1)
a. Fixed rate time deposits of less than $100,000 with a remaining maturity
of:
(1) Three months or less A225 889,608 M.5.a.(1)
(2) Over three months through 12 months A226 1,824,111 M.5.a.(2)
(3) Over one year A227 1,157,510 M.5.a.(3)
b. Floating rate time deposits of less than $100,000 with a repricing
frequency of:
(1) Quarterly or more frequently A228 135,413 M.5.b.(1)
(2) Annually or more frequently, but less frequently than quarterly A229 0 M.5.b.(2)
(3) Less frequently than annually A230 0 M.5.b.(3)
c. Floating rate time deposits of less than $100,000 with a remaining
maturity of one year or less (included in Memorandum items 5.b.(1)
through 5.b.(3) above) A231 76,662 M.5.c.
6. Maturity and repricing data for time deposits of $100,000 or more (i.e., time
certificates of deposit of $100,000 or more and open-account time deposits
of $100,000 or more) (sum of Memorandum items 6.a.(1) through 6.b.(4) must
equal Memorandum item 2.c above): (1)
a. Fixed rate time deposits of $100,000 or more with a remaining
maturity of:
(1) Three months or less A232 531,929 M.6.a.(1)
(2) Over three months through 12 months A233 369,991 M.6.a.(2)
(3) Over one year through five years A234 107,531 M.6.a.(3)
(4) Over five years A235 1,003 M.6.a.(4)
b. Floating rate time deposits of $100,000 or more with a
repricing frequency of:
(1) Quarterly or more frequently A236 11,319 M.6.b.(1)
(2) Annually or more frequently, but less frequently than quarterly A237 0 M.6.b.(2)
(3) Every five years or more frequently, but less frequently than annually A238 0 M.6.b.(3)
(4) Less frequently than every five years A239 0 M.6.b.(4)
c. Floating rate time deposits of $100,000 or more with a remaining maturity
of one year or less (included in Memorandum items 6.b.(1) through
6.b.(4) above) A240 5,706 M.6.c.
</TABLE>
__________
(1) Memorandum items 5 and 6 are not applicable to savings banks that must
complete supplemental Schedule RC-J.
20
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-11
Schedule RC-E--Continued
Part II. Deposits in Foreign Offices (including Edge and Agreement subsidiaries
and IBFs)
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCFN Bil Mil Thou
<S> <C> <C> <C>
Deposits of:
1. Individuals, partnerships, and corporations 2621 0 1.
2. U.S. banks (including IBFs and foreign branches of U.S. banks) 2623 0 2.
3. Foreign banks (including U.S. branches and agencies of foreign banks,
including their IBFs) 2625 0 3.
4. Foreign governments and official institutions (including foreign central
banks) 2650 0 4.
5. Certified and official checks 2330 0 5.
6. All other deposits 2668 0 6.
7. Total (sum of items 1 through 6)(must equal Schedule RC, item 13.b) 2200 0 7.
</TABLE>
<TABLE>
<CAPTION>
Memorandum
Dollar Amounts in Thousands RCFN Bil Mil Thou
<S> <C> <C> <C>
1. Time deposits with a remaining maturity of one year or less (included in
Part II, item 7 above) A245 0 M.1.
</TABLE>
Schedule RC-F--Other Assets
<TABLE>
<CAPTION> C430
Dollar Amounts in Thousands Bil Mil Thou
<S> <C> <C> <C>
1. Income earned, not collected on loans RCFD 2164 109,776 1.
2. Net deferred tax assets (1) RCFD 2148 122,333 2.
3. Interest-only strips receivable (not in the form of a security)(2) on:
a. Mortgage loans RCFD A519 3,902 3.a.
b. Other financial assets RCFD A520 0 3.b.
4. Other (itemize and describe amounts that exceed 25% of this item) RCFD 2168 395,674 4.
a. Text 3549 RCFD 3549 4.a.
b. Text 3550 RCFD 3550 4.b.
c. Text 3551 RCFD 3551 4.c.
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 11) RCFD 2160 631,685 5.
</TABLE>
<TABLE>
<CAPTION>
Memorandum
Dollar Amounts in Thousands Bil Mil Thou
<S> <C> <C> <C>
1. Deferred tax assets disallowed for regulatory capital purposes RCFD 5610 0 M.1.
</TABLE>
Schedule RC-G--Other Liabilities
<TABLE>
<CAPTION> C435
Dollar Amounts in Thousands Bil Mil Thou
<S> <C> <C> <C>
1. a. Interest accrued and unpaid on deposits in domestic offices (3) RCON 3645 23,321 1.a.
b. Other expenses accrued and unpaid (includes accrued income taxes payable) RCFD 3646 159,439 1.b.
2. Net deferred tax liabilities (1) RCFD 3049 0 2.
3. Minority interest in consolidated subsidiaries RCFD 3000 0 3.
4. Other (itemize and describe amounts that exceed 25% of this item) RCFD 2938 208,820 4.
a. Text 3552 Accounts Payable - Trade Date Settlement RCFD 3552 78,794 4.a.
b. Text 3553 RCFD 3553 4.b.
c. Text 3554 RCFD 3554 4.c.
5. Total (sum of items 1 through 4) (must equal Schedule RC, item 20) RCFD 2930 391,580 5.
</TABLE>
__________
(1) See discussion of deferred income taxes in Glossary entry on "income taxes."
(2) Report interest-only strips receivable in the form of a security as
available-for-sale securities in Schedule RC, item 2.b, or as trading assets
in Schedule RC, item 5, as appropriate.
(3) For savings banks, include "dividends" accrued and unpaid on deposits.
21
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-12
Schedule RC-H--Selected Balance Sheet Items for Domestic Offices
<TABLE>
<CAPTION>
C440
Domestic Offices
Dollar Amounts in Thousands RCON Bil Mil Thou
<S> <C> <C> <C>
1. Customers' liability to this bank on acceptances outstanding 2155 3,886 1.
2. Bank's liability on acceptances executed and outstanding 2920 3,889 2.
3. Federal funds sold and securities purchased under agreements to resell 1350 409,483 3.
4. Federal funds purchased and securities sold under agreements to repurchase 2800 2,595,340 4.
5. Other borrowed money 3190 900,528 5.
EITHER
6. Net due from own foreign offices, Edge and Agreement subsidiaries, and IBFs 2163 101,467 6.
OR
7. Net due to own foreign offices, Edge and Agreement subsidiaries, and IBFs 2941 N/A 7.
8. Total assets (excludes net due from foreign offices, Edge and Agreement
subsidiaries, and IBFs) 2192 21,720,915 8.
9. Total liabilities (excludes net due to foreign offices, Edge and Agreement
subsidiaries, and IBFs) 3129 20,176,160 9.
</TABLE>
Items 10-17 include held-to-maturity and available-for-sale securities in
domestic offices.
<TABLE>
<CAPTION>
RCON Bil Mil Thou
<S> <C> <C> <C>
10. U.S. Treasury securities 1779 679,238 10.
11. U.S. Government agency obligations (exclude mortgage-backed
securities) 1785 113,470 11.
12. Securities issued by states and political subdivisions in the U.S. 1786 47,942 12.
13. Mortgage-backed securities (MBS):
a. Pass-through securities:
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA 1787 2,444,889 13.a.(1)
(2) Other pass-through securities 1869 0 13.a.(2)
b. Other mortgage-backed securities (include CMOs, REMICs, and stripped MBS):
(1) Issued or guaranteed by FNMA, FHLMC, or GNMA 1877 606,959 13.b.(1)
(2) All other mortgage-backed securities 2253 254,396 13.b.(2)
14. Other domestic debt securities 3159 332,713 14.
15. Foreign debt securities 3160 2,250 15.
16. Equity securities:
a. Investments in mutual funds and other equity securities with
readily determinable fair values A513 21,091 16.a.
b. All other equity securities 3162 97,891 16.b.
17. Total held-to-maturity and available-for-sale securities (sum of items 10
through 16) 3170 4,600,839 17.
</TABLE>
<TABLE>
<CAPTION>
Memorandum (to be completed only by banks with IBFs and other "foreign" offices)
Dollar Amounts in Thousands RCON Bil Mil Thou
<S> <C> <C> <C>
EITHER
1. Net due from the IBF of the domestic offices of the reporting bank 3051 N/A M.1.
OR
2. Net due to the IBF of the domestic offices of the reporting bank 3059 N/A M.2.
</TABLE>
22
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-13
Schedule RC-I--Selected Assets and Liabilities of IBFs
To be completed only by banks with IBFs and other "foreign" offices.
<TABLE>
<CAPTION>
C445
Dollar Amounts in Thousands RCFN Bil Mil Thou
<S> <C> <C> <C>
1. Total IBF assets of the consolidated bank (component of Schedule RC,
item 12) 2133 N/A 1.
2. Total IBF loans and lease financing receivables (component of Schedule RC-C,
part I, item 12, column A) 2076 N/A 2.
3. IBF commercial and industrial loans (component of Schedule RC-C, part I,
item 4, column A) 2077 N/A 3.
4. Total IBF liabilities (component of Schedule RC, item 21) 2898 N/A 4.
5. IBF deposit liabilities due to banks, including other IBFs (component of
Schedule RC-E, part II, items 2 and 3) 2379 N/A 5.
6. Other IBF deposit liabilities (component of Schedule RC-E, part II, items 1,
4, 5, and 6) 2381 N/A 6.
</TABLE>
Schedule RC-K--Quarterly Averages (1)
<TABLE>
<CAPTION> C455
Dollar Amounts in Thousands Bil Mil Thou
<S> <C> <C> <C>
ASSETS
1. Interest-bearing balances due from depository institutions RCFD 3381 7,255 1.
2. U.S. Treasury securities and U.S. Government agency
obligations(2) RCFD 3382 4,141,931 2.
3. Securities issued by states and political subdivisions in the U.S.(2) RCFD 3383 67,479 3.
4. a. Other debt securities(2) RCFD 3647 588,393 4.a.
b. Equity securities(3) (includes investments in mutual funds and Federal
Reserve stock) RCFD 3648 93,459 4.b.
5. Federal funds sold and securities purchased under agreements to resell RCFD 3365 324,834 5.
6. Loans:
a. Loans in domestic offices:
(1) Total loans RCON 3360 14,505,839 6.a.(1)
(2) Loans secured by real estate RCON 3385 6,622,509 6.a.(2)
(3) Loans to finance agricultural production and other loans to farmers RCON 3386 2,736 6.a.(3)
(4) Commercial and industrial loans RCON 3387 2,250,006 6.a.(4)
(5) Loans to individuals for household, family, and other personal expenditures RCON 3388 4,407,073 6.a.(5)
b. Total loans in foreign offices, Edge and Agreement subsidiaries, and IBFs RCFN 3360 0 6.b.
7. Trading assets RCFD 3401 0 7.
8. Lease financing receivables (net of unearned income) RCFD 3484 26,216 8.
9. Total assets(4) RCFD 3368 21,526,656 9.
LIABILITIES
10. Interest-bearing transaction accounts in domestic offices (NOW accounts,
ATS accounts, and telephone and preauthorized transfer accounts) (exclude
demand deposits) RCON 3485 489,000 10.
11. Nontransaction accounts in domestic offices:
a. Money market deposit accounts (MMDAs) RCON 3486 5,307,080 11.a.
b. Other savings deposits RCON 3487 1,609,951 11.b.
c. Time deposits of $100,000 or more RCON A514 1,019,496 11.c.
d. Time deposits of less than $100,000 RCON A529 3,990,446 11.d.
12. Interest-bearing deposits in foreign offices, Edge and Agreement
subsidiaries, and IBFs RCFN 3404 7,778 12.
13. Federal funds purchased and securities sold under agreements to repurchase RCFD 3353 2,499,864 13.
14. Other borrowed money (includes mortgage indebtedness and obligations
under capitalized leases) RCFD 3355 858,834 14.
</TABLE>
__________
(1) For all items, banks have the option of reporting either (1) an
average of daily figures for the quarter, or (2) an average of weekly
figures (i.e., the Wednesday of each week of the quarter).
(2) Quarterly averages for all debt securities should be based on
amortized cost.
(3) Quarterly averages for all equity securities should be based on
historical cost.
(4) The quarterly average for total assets should reflect all debt
securities (not held for trading) at amortized cost, equity securities
with readily determinable fair values at the lower of cost or fair
value, and equity securities without readily determinable fair values
at historical cost.
23
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-14
Schedule RC-L--Off-Balance Sheet Items
Please read carefully the instructions for the preparation of Schedule
RC-L. Some of the amounts reported in Schedule RC-L are regarded as
volume indicators and not necessarily as measures of risk.
<TABLE>
<CAPTION>
C460
Dollar Amounts in Thousands RCFD Bil Mil Thou
<S> <C> <C> <C>
1. Unused commitments:
a. Revolving, open-end lines secured by 1-4 family residential properties,
e.g., home equity lines 3814 904,169 1.a.
b. Credit card lines 3815 3,077,672 1.b.
c. Commercial real estate, construction, and land development:
(1) Commitments to fund loans secured by real estate 3816 1,353,418 1.c.(1)
(2) Commitments to fund loans not secured by real estate 6550 0 1.c.(2)
d. Securities underwriting 3817 0 1.d.
e. Other unused commitments 3818 4,339,775 1.e.
2. Financial standby letters of credit and foreign office guarantees 3819 303,558 2.
a. Amount of financial standby letters of credit conveyed to others RCFD 3820 498 2.a.
3. Performance standby letters of credit and foreign office guarantees 3821 104,999 3.
a. Amount of performance standby letters of credit conveyed to others RCFD 3822 1 3.a.
4. Commercial and similar letters of credit 3411 52,449 4.
5. Participations in acceptances (as described in the instructions) conveyed to
others by the reporting bank 3428 0 5.
6. Participations in acceptances (as described in the instructions) acquired by
the reporting (nonaccepting) bank 3429 0 6.
7. Securities borrowed 3432 0 7.
8. Securities lent (including customers' securities lent where the customer is
indemnified against loss by the reporting bank) 3433 0 8.
9. Financial assets transferred with recourse that have been treated as sold
for Call Report purposes:
a. First lien 1-to-4 family residential mortgage loans:
(1) Outstanding principal balance of mortgages transferred as of the report
date A521 138,977 9.a.(1)
(2) Amount of recourse exposure on these mortgages as of the report date A522 138,977 9.a.(2)
b. Other financial assets (excluding small business obligations reported
in item 9.c):
(1) Outstanding principal balance of assets transferred as of the report
date A523 0 9.b.(1)
(2) Amount of recourse exposure on these assets as of the report date A524 0 9.b.(2)
c. Small business obligations transferred with recourse under Section 208 of the
Riegle Community Development and Regulatory Improvement Act of 1994:
(1) Outstanding principal balance of small business obligations transferred as
of the report date A249 0 9.c.(1)
(2) Amount of retained recourse on these obligations as of the report date A250 0 9.c.(2)
10. Notional amount of credit derivatives:
a. Credit derivatives on which the reporting bank is the guarantor A534 0 10.a.
b. Credit derivatives on which the reporting bank is the beneficiary A535 0 10.b.
11. Spot foreign exchange contracts 8765 23,497 11.
12. All other off-balance sheet liabilities (exclude off-balance sheet
derivatives) (itemize and describe each component of this item over 25% of
Schedule RC, item 28, "Total equity capital") 3430 1,473,975 12.
a. TEXT 3555 Mortgage servicing with recourse RCFD 3555 1,473,975 12.a.
b. TEXT 3556 RCFD 3556 12.b.
c. TEXT 3557 RCFD 3557 12.c.
d. TEXT 3558 RCFD 3558 12.d.
</TABLE>
24
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-15
Schedule RC-L--Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCFD Bil Mil Thou
<S> <C> <C> <C> <C>
13. All other off-balance sheet assets (exclude off-balance sheet derivatives)
(itemize and describe each component of this item over 25% of Schedule RC,
item 28, "Total equity capital") 5591 0 13.
a. Text 5592 RCFD 5592 13.a.
b. Text 5593 RCFD 5593 13.b.
c. Text 5594 RCFD 5594 13.c.
d. Text 5595 RCFD 5595 13.d.
</TABLE>
<TABLE>
<CAPTION>
C461
(Column A) (Column B) (Column C) (Column D)
Dollar Amounts in Thousands Interest Rate Foreign Exchange Equity Derivative Commodity and
Off-balance Sheet Derivatives Contracts Contracts Contracts Other Contracts
Position Indicators Tril Bil Mil Thou Tril Bil Mil Thou Tril Bil Mil Thou Tril Bil Mil Thou
<S> <C> <C> <C> <C> <C>
14. Gross amounts (e.g., notional amounts)
(for each column, sum of items 14.a
through 14.e must equal sum of items
15, 16.a, and 16.b):
a. Future contracts 0 0 0 0 14.a.
RCFD 8693 RCFD 8694 RCFD 8695 RCFD 8696
b. Forward contracts 774,381 31,193 0 0 14.b.
RCFD 8697 RCFD 8698 RCFD 8699 RCFD 8700
c. Exchange-traded option contracts:
(1) Written options 0 0 0 0 14.c.(1)
RCFD 8701 RCFD 8702 RCFD 8703 RCFD 8704
(2) Purchased options 0 0 0 0 14.c.(2)
RCFD 8705 RCFD 8706 RCFD 8707 RCFD 8708
d. Over-the-counter option contracts:
(1) Written options 29,960 0 0 0 14.d.(1)
RCFD 8709 RCFD 8710 RCFD 8711 RCFD 8712
(2) Purchased options 3,511,960 0 0 0 14.d.(2)
RCFD 8713 RCFD 8714 RCFD 8715 RCFD 8716
e. Swaps 1,097,352 0 0 0 14.e.
RCFD 3450 RCFD 3826 RCFD 8719 RCFD 8720
15. Total gross notional amount of derivative
contracts held for trading 0 31,193 0 0 15.
RCFD A126 RCFD A127 RCFD 8723 RCFD 8724
16. Total gross notional amount of derivative
contracts held for purposes other
than trading:
a. Contracts marked to market 0 0 0 0 16.a.
RCFD 8725 RCFD 8726 RCFD 8727 RCFD 8728
b. Contracts not marked to market 5,410,653 0 0 0 16.b.
RCFD 8729 RCFD 8730 RCFD 8731 RCFD 8732
</TABLE>
25
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-16
Schedule RC-L--Continued
<TABLE>
<CAPTION>
(Column A) (Column B) (Column C) (Column D)
Dollar Amounts in Thousands Interest Rate Foreign Exchange Equity Derivative Commodity and
Off-balance Sheet Derivatives Contracts Contracts Contracts Other Contracts
Position Indicators RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
17. Gross fair values of
derivative contracts:
a. Contracts held for trading:
(1) Gross positive fair value 8733 0 8734 94 8735 0 8736 0 17.a.(1)
(2) Gross negative fair value 8737 0 8738 118 8739 0 8740 0 17.a.(2)
b. Contracts held for purposes
other than trading that
are marked to market:
(1) Gross positive fair value 8741 0 8742 0 8743 0 8744 0 17.b.(1)
(2) Gross negative fair value 8745 0 8746 0 8747 0 8748 0 17.b.(2)
c. Contracts held for purposes
other than trading that are
not marked to market:
(1) Gross positive fair value 8749 40,855 8750 0 8751 0 8752 0 17.c.(1)
(2) Gross negative fair value 8753 18,822 8754 0 8755 0 8756 0 17.c.(2)
</TABLE>
<TABLE>
<CAPTION>
Memoranda Dollar Amounts in Thousands RCFD Bil Mil Thou
<S> <C> <C> <C>
1.-2. Not applicable
3. Unused commitments with an original maturity exceeding one year that are
reported in Schedule RC-L, items 1.a through 1.e, above (report only the
unused portions of commitments that are fee paid or otherwise legally
binding) 3833 4,412,435 M.3.
a. Participations in commitments with an original maturity
exceeding one year conveyed to others RCFD 3834 0 M.3.a.
4. To be completed only by banks with $1 billion or more in total assets:
Standby letters of credit and foreign office guarantees (both financial and
performance) issued to non-U.S. addresses (domicile) included in Schedule
RC-L, items 2 and 3, above 3377 41 M.4.
5. Installment loans to individuals for household, family, and other personal
expenditures that have been securitized and sold without recourse (with
servicing retained), amounts outstanding by type of loan:
a. Loans to purchase private passenger automobiles (to be completed
for the September report only) 2741 N/A M.5.a.
b. Credit cards and related plans (TO BE COMPLETED QUARTERLY) 2742 0 M.5.b.
c. All other consumer installment credit (including mobile home loans) 2743 N/A M.5.c.
(to be completed for the September report only)
</TABLE>
26
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-17
Schedule RC-M--Memoranda
<TABLE>
<CAPTION>
C465
Dollar Amounts in Thousands RCFD Bil Mil Thou
<S> <C> <C> <C>
1. Extensions of credit by the reporting bank to its executive officers,
directors, principal shareholders, and their related interests as of the
report date:
a. Aggregate amount of all extensions of credit to all executive officers,
directors, principal shareholders, and their related interests 6164 31,777 1.a.
b. Number of executive officers, directors, and principal shareholders to whom
the amount of all extensions of credit by the reporting bank (including
extensions of credit to related interests) equals or exceeds the lesser of
$500,000 or 5 percent of total capital as defined for this Number
purpose in agency regulations. RCFD 6165 3 1.b.
2. Federal funds sold and securities purchased under agreements to resell with
U.S. branches and agencies of foreign banks(1) (included in Schedule RC,
item 3) 3405 0 2.
3. Not applicable.
4. Outstanding principal balance of 1-4 family residential mortgage loans
serviced for others (include both retained servicing and purchased
servicing):
a. Mortgages serviced under a GNMA contract 5500 1,360,760 4.a.
b. Mortgages serviced under a FHLMC contract:
(1) Serviced with recourse to servicer 5501 4,575 4.b.(1)
(2) Serviced without recourse to servicer 5502 2,452,268 4.b.(2)
c. Mortgages serviced under a FNMA contract:
(1) Serviced under a regular option contract 5503 108,640 4.c.(1)
(2) Serviced under a special option contract 5504 2,717,952 4.c.(2)
d. Mortgages serviced under other servicing contracts 5505 5,137,676 4.d.
5. To be completed only by banks with $1 billion or more in total assets:
Customers' liability to this bank on acceptances outstanding (sum of items
5.a and 5.b must equal Schedule RC, item 9):
a. U.S. addresses (domicile) 2103 3,889 5.a.
b. Non-U.S. addresses (domicile) 2104 0 5.b.
6. Intangible assets:
a. Mortgage servicing rights 3164 44,191 6.a.
b. Other identifiable intangible assets:
(1) Purchased credit card relationships 5506 0 6.b.(1)
(2) All other identifiable intangible assets 5507 3,863 6.b.(2)
c. Goodwill 3163 154,914 6.c.
d. Total (sum of items 6.a through 6.c) (must equal Schedule RC, item 10) 2143 202,968 6.d.
e. Amount of intangible assets (included in item 6.b.(2) above) that have been
grandfathered or are otherwise qualifying for regulatory capital purposes 6442 801 6.e.
7. Mandatory convertible debt, net of common or perpetual preferred stock
dedicated to redeem the debt 3295 0 7.
</TABLE>
__________
(1) Do not report federal funds sold and securities purchased under agreements
to resell with other commercial banks in the U.S. in this item.
27
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-18
Schedule RC-M--Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands Bil Mil Thou
<S> <C> <C> <C>
8. a. Other real estate owned:
(1) Direct and indirect investments in real estate ventures RCFD 5372 0 8.a.(1)
(2) All other real estate owned:
(a) Construction and land development in domestic offices RCON 5508 0 8.a.(2)(a)
(b) Farmland in domestic offices RCON 5509 0 8.a.(2)(b)
(c) 1-4 family residential properties in domestic offices RCON 5510 1,904 8.a.(2)(c)
(d) Multifamily (5 or more) residential properties in domestic offices RCON 5511 302 8.a.(2)(d)
(e) Nonfarm nonresidential properties in domestic offices RCON 5512 31,967 8.a.(2)(e)
(f) In foreign offices RCFN 5513 0 8.a.(2)(f)
(3) Total (sum of items 8.a.(1) and 8.a.(2)) (must equal Schedule RC, item 7) RCFD 2150 34,173 8.a.(3)
b. Investments in unconsolidated subsidiaries and associated companies:
(1) Direct and indirect investments in real estate ventures RCFD 5374 1,896 8.b.(1)
(2) All other investments in unconsolidated subsidiaries and associated
companies RCFD 5375 0 8.b.(2)
(3) Total (sum of items 8.b.(1) and 8.b.(2)) (must equal Schedule RC, item 8) RCFD 2130 1,896 8.b.(3)
9. Noncumulative perpetual preferred stock and related surplus included in
Schedule RC, item 23, "Perpetual preferred stock and related surplus" RCFD 3778 0 9.
10. Mutual fund and annuity sales in domestic offices during the quarter
(include proprietary, private label, and third party products):
a. Money market funds RCON 6441 308,411 10.a.
b. Equity securities funds RCON 8427 14,996 10.b.
c. Debt securities funds RCON 8428 2,195 10.c.
d. Other mutual funds RCON 8429 12,061 10.d.
e. Annuities RCON 8430 44,750 10.e.
f. Sales of proprietary mutual funds and annuities (included in items 10.a
through 10.e above) RCON 8784 19,030 10.f.
11. Net unamortized realized deferred gains (losses) on off-balance sheet derivative
contracts included in assets and liabilities reported in Schedule RC RCFD A525 0 11.
12. Amount of assets netted against nondeposit liabilities and deposits in foreign offices
(other than insured branches in Puerto Rico and U.S. territories and possessions) on
the balance sheet (Schedule RC) in accordance with generally accepted accounting
principles (1) RCFD A526 0 12.
</TABLE>
<TABLE>
<CAPTION>
Memorandum Dollar Amounts in Thousands
RCFD Bil Mil Thou
<S> <C> <C> <C>
1. Reciprocal holdings of banking organizations' capital instruments
(to be completed for the December report only) 3836 N/A M.1.
</TABLE>
- ------------
(1) Exclude netted on-balance sheet amounts associated with off-balance sheet
derivative contracts, deferred tax assets netted against deferred tax
liabilities, and assets netted in accounting for pensions.
28
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-19
Schedule RC-N--Past Due and Nonaccrual Loans, Leases, and Other Assets
The FFIEC regards the information reported in all of Memorandum item 1, in
items 1 through 10, column A, and in Memorandum items 2 through 4, column A,
as confidential.
<TABLE>
<CAPTION>
C470
(Column A) (Column B) (Column C)
Past due Past due 90 Nonaccrual
30 through 89 days or more
days and still and still
accruing accruing
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
<S> <C> <C> <C> <C> <C> <C> <C>
1. Loans secured by real estate:
a. To U.S. addresses (domicile) 1245 124,753 1246 12,431 1247 64,132 1.a.
b. To non-U.S. addresses (domicile) 1248 0 1249 0 1250 0 1.b.
2. Loans to depository institutions and
acceptances of other banks:
a. To U.S. banks and other U.S. depository
institutions 5377 0 5378 0 5379 0 2.a.
b. To foreign banks 5380 0 5381 0 5382 0 2.b.
3. Loans to finance agricultural production
and other loans to farmers 1594 68 1597 0 1583 0 3.
4. Commercial and industrial loans:
a. To U.S. addresses (domicile) 1251 11,589 1252 10,241 1253 5,138 4.a.
b. To non-U.S. addresses (domicile) 1254 0 1255 0 1256 0 4.b.
5. Loans to individuals for household, family,
and other personal expenditures:
a. Credit cards and related plans 5383 32,953 5384 23,498 5385 0 5.a.
b. Other (includes single payment,
installment and all student loans) 5386 78,841 5387 30,538 5388 2,471 5.b.
6. Loans to foreign governments and official
institutions 5389 0 5390 0 5391 0 6.
7. All other loans 5459 2,005 5460 0 5461 3,828 7.
8. Lease financing receivables:
a. Of U.S. addresses (domicile) 1257 0 1258 0 1259 0 8.a.
b. Of non-U.S. addresses (domicile) 1271 0 1272 0 1791 0 8.b.
9. Debt securities and other assets (exclude
other real estate owned and other
repossessed assets) 3505 0 3506 0 3507 0 9.
</TABLE>
Amounts reported in items 1 through 8 above include guaranteed and unguaranteed
portions of past due and nonaccrual loans and leases. Report in item 10 below
certain guaranteed loans and leases that have already been included in the
amounts reported in items 1 through 8.
<TABLE>
<CAPTION>
RCFD Bil Mil Thou RCFD Bil Mil Thou RCFD Bil Mil Thou
<S> <C> <C> <C> <C> <C> <C> <C>
10. Loans and leases reported in items 1
through 8 above which are wholly or
partially guaranteed by the U.S.
Government. 5612 40,076 5613 26,477 5614 0 10.
a. Guaranteed portion of loans and leases
included in item 10 above. 5615 40,025 5616 26,476 5617 0 10.a.
</TABLE>
29
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-20
Schedule RC-N--Continued
<TABLE>
<CAPTION> C473
(Column A) (Column B) (Column C)
Past due Past due 90 Nonaccrual
30 through 89 days or more
days and still and still
accruing accruing
Memoranda
Dollar Amounts in Thousands RCFD Bil Mil Tho RCFD Bil Mil Thou RCFD Bil Mil Thou
<S> <C> <C> <C> <C> <C> <C> <C>
1. Restructured loans and leases included
in Schedule RC-N, items 1 through 8,
above (and not reported in Schedule RC-C,
part I, Memorandum item 2) 1658 0 1659 0 1661 1,290 M.1.
2. Loans to finance commercial real estate,
construction, and land development
activities (not secured by real estate)
included in Schedule RC-N, items 4
and 7, above 6558 0 6559 0 6560 0 M.2.
</TABLE>
<TABLE>
<CAPTION>
RCON Bil Mil Thou RCON Bil Mil Thou RCON Bil Mil Thou
<S> <C> <C> <C> <C> <C> <C> <C>
3. Loans secured by real estate in domestic
offices (included in Schedule RC-N, item 1,
above):
a. Construction and land development 2759 10,214 2769 0 3492 15,500 M.3.a.
b. Secured by farmland 3493 56 3494 0 3495 75 M.3.b.
c. Secured by 1-4 family residential
properties:
(1) Revolving, open-end loans secured by
1-4 family residential properties and
extended under lines of credit 5398 4,023 5399 884 5400 269 M.3.c.(1)
(2) All other loans secured by 1-4 family
residential properties 5401 76,060 5402 8,184 5403 29,139 M.3.c.(2)
d. Secured by multifamily (5 or more)
residential properties 3499 1,143 3500 0 3501 1,128 M.3.d.
e. Secured by nonfarm nonresidential
properties 3502 33,257 3503 3,363 3504 18,021 M.3.e.
</TABLE>
<TABLE>
<CAPTION>
(Column A) (Column B)
Past due 30 Past due 90
through 89 days days or more
RCFD Bil Mil Thou RCFD Bil Mil Thou
<S> <C> <C> <C> <C> <C>
4. Interest rate, foreign exchange rate, and
other commodity and equity contracts:
a. Book value of amounts carried as assets 3522 0 3528 0 M.4.a.
b. Replacement cost of contracts with a
positive replacement cost 3529 0 3530 0 M.4.b.
</TABLE>
Person to whom questions about the Reports of Condition and Income
should be directed: C477
Natie P. Hennelly (804) 782-5320
- -------------------------- --------------------------------------------
Name and Title (TEXT 8901) Area code/phone number/extenstion (TEXT 8902)
30
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-21
Schedule RC-O--Other Data for Deposit Insurance Assessments
<TABLE>
<CAPTION> C475
Dollar Amounts in Thousands RCON Bil Mil Thou
<S> <C> <C> <C>
1. Unposted debits (see instructions):
a. Actual amount of all unposted debits 0030 N/A 1.a.
OR
b. Separate amount of unposted debits:
(1) Actual amount of unposted debits to demand deposits 0031 0 1.b.(1)
(2) Actual amount of unposted debits to time and savings deposits(1) 0032 0 1.b.(2)
2. Unposted credits (see instructions):
a. Actual amount of all unposted credits 3510 N/A 2.a.
OR
b. Separate amount of unposted credits:
(1) Actual amount of unposted credits to demand deposits 3512 0 2.b.(1)
(2) Actual amount of unposted credits to time and savings deposits(1) 3514 0 2.b.(2)
3. Uninvested trust funds (cash) held in bank's own trust department (not
included in total deposits in domestic offices) 3520 0 3.
4. Deposits of consolidated subsidiaries in domestic offices and in insured
branches in Puerto Rico and U.S. territories and possessions (not included
in total deposits):
a. Demand deposits of consolidated subsidiaries 2211 15,458 4.a.
b. Time and savings deposits(1) of consolidated subsidiaries 2351 0 4.b.
c. Interest accrued and unpaid on deposits of consolidated subsidiaries 5514 0 4.c.
5. Deposits in insured branches in Puerto Rico and U.S. territories and
possessions:
a. Demand deposits in insured branches (included in Schedule RC-E, Part II) 2229 0 5.a.
b. Time and savings deposits(1) in insured branches (included in Schedule
RC-E, Part II) 2383 0 5.b.
c. Interest accrued and unpaid on deposits in insured branches (included in
Schedule RC-G, item 1.b) 5515 0 5.c.
6. Reserve balances actually passed through to the Federal Reserve by the
reporting bank on behalf of its respondent depository institutions that are
also reflected as deposit liabilities of the reporting bank:
a. Amount reflected in demand deposits (included in Schedule RC-E, Part I, item 4 or 5,
column B) 2314 5 6.a.
b. Amount reflected in time and savings deposits(1) (included in Schedule
RC-E, Part I, item 4 or 5, column A or C, but not column B) 2315 0 6.b.
7. Unamortized premiums and discounts on time and savings deposits:(1), (2)
a. Unamortized premiums 5516 0 7.a.
b. Unamortized discounts 5517 0 7.b.
8. To be completed by banks with "Oakar deposits."
a. Deposits purchased or acquired from other FDIC-insured institutions during the quarter
(exclude deposits purchased or acquired from foreign offices other than insured branches
in Puerto Rico and U.S. territories and possessions):
(1) Total deposits purchased or acquired from other FDIC-insured institutions during
the quarter A531 N/A 8.a.(1)
(2) Amount of purchased or acquired deposits reported in item 8.a.(1) above
attributable to a secondary fund (i.e., BIF members report deposits attributable
to SAIF; SAIF members report deposits attributable to BIF) A532 N/A 8.a.(2)
b. Total deposits sold or transferred to other FDIC-insured institutions during the
quarter (exclude sales or transfers by the reporting bank of deposits in foreign
offices other than insured branches in Puerto Rico and U.S. territories and possessions) A533 N/A 8.b.
</TABLE>
__________
(1) For FDIC insurance and FICO assessment purposes, "time and savings deposits"
consists of nontransaction accounts and all transaction accounts other than
demand deposits.
(2) Exclude core deposit intangibles.
31
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-22
Schedule RC-O--Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCON Bil Mil Thou
<S> <C> <C> <C>
9. Deposits in lifeline accounts 5385 9.
10. Benefit-responsive "Depository Institution Investment Contracts" (included in
total deposits in domestic offices) 8432 0 10.
11. Adjustments to demand deposits in domestic offices and in insured branches in Puerto Rico
and U.S. territories and possessions reported in Schedule RC-E for certain reciprocal
demand balances:
a. Amount by which demand deposits would be reduced if the reporting bank's reciprocal
demand balances with the domestic offices of U.S. banks and savings associations
and insured branches in Puerto Rico and U.S. territories and possessions that were
reported in a gross basis in Schedule RC-E had been reported on a net basis 8785 0 11.a.
b. Amount by which demand deposits would be increased if the reporting bank's reciprocal
demand balances with foreign banks and foreign offices of other U.S. banks (other
than insured branches in Puerto Rico and U.S. territories and possessions) that were
reported on a net basis in Schedule RC-E had been reported on a gross basis A181 0 11.b.
c. Amount by which demand deposits would be reduced if cash items in process of
collection were included in the calculation of the reporting bank's net reciprocal
demand balances with the domestic offices of U.S. banks and savings associations and
insured branches in Puerto Rico and U.S. territories and possessions in Schedule RC-E A182 0 11.c.
12. Amount of assets netted against deposit liabilities in domestic offices and in insured
branches in Puerto Rico and U.S. territories and possessions on the balance sheet
(Schedule RC) in accordance with generally accepted accounting principles (exclude amounts
related to reciprocal demand balances):
a. Amount of assets netted against demand deposits A527 0 12.a.
b. Amount of assets netted against time and savings deposits A528 0 12.b.
</TABLE>
Memoranda (to be completed each quarter except as noted)
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCON Bil Mil Thou
<S> <C> <C> <C>
1. Total deposits in domestic offices of the bank (sum of Memorandum items 1.a(1)
and 1.b.(1) must equal Schedule RC, item 13.a):
a. Deposit accounts of $100,000 or less:
(1) Amount of deposit accounts of $100,000 or less 2702 11,312,868 M.1.a.(1)
(2) Number of deposit accounts of $100,000 or less (to be
completed for the June report only) Number
RCON 3779 N/A M.1.a.(2)
b. Deposit accounts of more than $100,000:
(1) Amount of deposit accounts of more than $100,000 2710 4,636,955 M.1.b.(1)
Number
(2) Number of deposit accounts of more than $100,000 RCON 2722 16,265 M.1.b.(2)
2. Estimated amount of uninsured deposits in domestic offices of the bank:
a. An estimate of your bank's uninsured deposits can be determined by
multiplying the number of deposit accounts of more than $100,000 reported
in Memorandum item 1.b.(2) above by $100,000 and subtracting the result from
the amount of deposit accounts of more than $100,000 reported in Memorandum
item 1.b.(1) above.
Indicate in the appropriate box at the right whether your bank has a
method or procedure for determining a better estimate of uninsured Yes No
deposits than the estimate described above 6861 X M.2.a.
b. If the box marked YES has been checked, report the estimate of uninsured RCON Bil Mil Thou
deposits determined by using your bank's method or procedure 5597 N/A M.2.b.
3. Has the reporting institution been consolidated with a parent bank or
savings association in that parent bank's or parent savings association's
Call Report or Thrift Financial Report?
If so, report the legal title and FDIC Certificate Number of the parent bank
or parent savings association: FDIC Cert No.
TEXT A545 N/A RCON A545 N/A M.3.
</TABLE>
32
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-23
Schedule RC-R--Regulatory Capital
This schedule must be completed by all banks as follows: Banks that
reported total assets of $1 billion or more in Schedule RC, item 12,
for June 30, 1996, must complete items 2 through 9 and Memoranda items
1 and 2. Banks with assets of less than $1 billion must complete
items 1 through 3 below or Schedule RC-R in its entirety, depending on
their response to item 1 below.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
1. Test for determining the extent to which Schedule RC-R must be completed.
To be completed only by banks with total assets of less than $1 billion. C480
Indicate in the appropriate box at the right whether the bank has total capital Yes No
greater than or equal to eight percent of adjusted total assets RCFD 6056 1.
</TABLE>
For purposes of this test, adjusted total assets equals total assets
less cash, U.S. Treasuries, U.S. Government agency obligations, and 80
percent of U.S. Government-sponsored agency obligations plus the
allowance for loan and lease losses and selected off-balance sheet
items as reported on Schedule RC-L (see instructions).
If the box marked YES has been checked, then the bank only has to complete
items 2 and 3 below. If the box marked NO has been checked, the bank must
complete the remainder of this schedule.
A NO response to item 1 does not necessarily mean that the bank's actual
risk-based capital ratio is less than eight percent or that the bank is not
in compliance with the risk-based capital guidelines.
NOTE: All banks are required to complete items 2 and 3 below. See optional
worksheet for items 3.a through 3.f.
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCFD Bil Mil Thou
<S> <C> <C> <C>
2. Portion of qualifying limited-life capital instruments
(original weighted average maturity of at least five
years) that is includible in Tier 2 capital:
a. Subordinated debt(1) and intermediate term preferred stock A515 289,000 2.a.
b. Other limited-life capital instruments A516 0 2.b.
3. Amounts used in calculating regulatory capital ratios
(report amounts determined by the bank for its own
internal regulatory capital analyses consistent with applicable
capital standards):
a. Tier 1 capital 8274 1,544,255 3.a.
b. Tier 2 capital 8275 510,041 3.b.
c. Total risk-based capital 3792 2,054,296 3.c.
d. Excess allowance for loan and lease losses (amount that
exceeds 1.25% of gross risk-weighted assets) A222 46,876 3.d.
e. Net risk-weighted assets (gross risk-weighted assets less
excess allowance reported in item 3.d above and all other
deductions) A223 17,712,279 3.e.
f. "Average total assets" (quarterly average reported in
Schedule RC-K, item 9, less all assets deducted from Tier 1
capital) (2) A224 21,112,322 3.f.
</TABLE>
Items 4-9 and Memoranda items 1 and 2 are to be completed by banks that
answered NO to item 1 above and by banks with total assets of $1 billion or
more.
<TABLE>
<CAPTION>
(Column A) (Column B)
Assets Credit Equiv-
Recorded alent Amount
on the of Off-Balance
Balance Sheet Sheet Items(3)
RCFD Bil Mil Thou RCFD Bil Mil Thou
<S> <C> <C> <C> <C> <C>
4. Assets and credit equivalent amounts of off-balance sheet items
assigned to the Zero percent risk category:
a. Assets recorded on the balance sheet: 5163 1,028,163 4.a.
b. Credit equivalent amount of off-balance sheet items 3796 0 4.b.
</TABLE>
__________
(1) Exclude mandatory convertible debt reported in Schedule RC-M, item 7.
(2) Do not deduct excess allowance for loan and lease losses.
(3) Do not report in column B the risk-weighted amount of assets reported in
column A.
33
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-24
Schedule RC-R--Continued
<TABLE>
<CAPTION>
(Column A) (Column B)
Assets Credit Equiv-
Recorded alent Amount
on the of Off-Balance
Balance Sheet Sheet Items(1)
Dollar Amounts in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
<S> <C> <C> <C> <C> <C>
5. Assets and credit equivalent amounts of off-balance
sheet items assigned to the 20 percent risk category:
a. Assets recorded on the balance sheet: 5195 5,427,006 5.a.
b. Credit equivalent amount of off-balance sheet items 3801 28,195 5.b.
6. Assets and credit equivalent amounts of off-balance
sheet items assigned to the 50 percent risk category:
a. Assets recorded on the balance sheet 3802 3,776,699 6.a.
b. Credit equivalent amount of off-balance sheet items 3803 901,891 6.b.
7. Assets and credit equivalent amounts of off-balance sheet
items assigned to the 100 percent risk category:
a. Assets recorded on the balance sheet 3804 11,916,336 7.a.
b. Credit equivalent amount of off-balance sheet items 3805 2,572,267 7.b.
8. On-balance sheet asset values excluded from and deducted in
the calculation of the risk-based capital ratio(2) 3806 (56,957) 8.
9. Total assets recorded on the balance sheet (sum of items
4.a, 5.a, 6.a, 7.a, and 8, column A)(must equal Schedule RC,
item 12 plus items 4.b and 4.c) 3807 22,091,247 9.
</TABLE>
Memoranda
<TABLE>
<CAPTION>
Dollar Amounts in Thousands RCFD Bil Mil Thou
<S> <C> <C> <C>
1. Current credit exposure across all off-balance sheet derivative contracts
covered by the risk-based capital standards 8764 40,855 M.1.
</TABLE>
<TABLE>
<CAPTION>
With a remaining maturity of
(Column A) (Column B) (Column C)
One year or less Over one year Over five years
through five years
RCFD Tril Bil Mil Thou RCFD Tril Bil Mil Thou RCFD Tril Bil Mil Thou
<S> <C> <C> <C> <C> <C> <C> <C>
2. Notional principal amounts of
off-balance sheet derivative
contracts (3):
a. Interest rate contracts 3809 79,214 8766 4,393,083 8767 137,015 M.2.a.
b. Foreign exchange contracts 3812 31,193 8769 0 8770 0 M.2.b.
c. Gold contracts 8771 0 8772 0 8773 0 M.2.c.
d. Other precious metals contracts 8774 0 8775 0 8776 0 M.2.d.
e. Other commodity contracts 8777 0 8778 0 8779 0 M.2.e.
f. Equity derivative contracts A000 0 A001 0 A002 0 M.2.f.
</TABLE>
__________
(1) Do not report in column B the risk-weighted amount of assets
reported in column A.
(2) Include the difference between the fair value and the amortized
cost of available-for-sale debt securities in item 8 and report the
amortized cost of these debt securities in items 4 through 7 above.
For available-for-sale equity securities, if fair value exceeds cost,
include the difference between the fair value and the cost in item 8
and report the cost of these equity securities in items 5 through 7
above; if cost exceeds fair value, report the fair value of these equity
securities in items 5 through 7 above and include no amount in item 8.
Item 8 also includes on-balance sheet asset values (or portions thereof)
of off-balance sheet interest rate, foreign exchange rate, and commodity
contracts and those contracts (e.g., futures contracts) not subject to
risk-based capital. Exclude from item 8 margin accounts and accrued
receivables not included in the calculation of credit equivalent amounts
of off-balance sheet derivatives as well as any portion of the allowance
for loan and lease losses in excess of the amount that may be included
in Tier 2 capital.
(3) Exclude foreign exchange contracts with an original maturity of 14
days or less and all futures contracts.
34
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430 FFIEC 031
Page RC-25
Optional Narrative Statement Concerning the Amounts Reported in the
Reports of Condition and Income
at close of business on March 31, 1997
Crestar Bank Richmond, Virginia
Legal Title of Bank City State
The management of the reporting bank may, if it wishes, submit a brief
narrative statement on the amounts reported in the Reports of
Condition and Income. This optional statement will be made available
to the public, along with the publicly available data in the Reports
of Condition and Income, in response to any request for individual
bank report data. However, the information reported in column A and
in all of Memorandum item 1 of Schedule RC-N is regarded as
confidential and will not be released to the public. BANKS CHOOSING
TO SUBMIT THE NARRATIVE STATEMENT SHOULD ENSURE THAT THE STATEMENT
DOES NOT CONTAIN THE NAMES OR OTHER IDENTIFICATIONS OF INDIVIDUAL BANK
CUSTOMERS, REFERENCES TO THE AMOUNTS REPORTED IN THE CONFIDENTIAL
ITEMS IN SCHEDULE RC-N, OR ANY OTHER INFORMATION THAT THEY ARE NOT
WILLING TO HAVE MADE PUBLIC OR THAT WOULD COMPROMISE THE PRIVACY OF
THEIR CUSTOMERS. Banks choosing not to make a statement may check the
"No comment" box below and should make no entries of any kind in the
space provided for the narrative statement; i.e., DO NOT enter in this
space such phrases as "No statement," "Not applicable," "N/A," "No
comment," and "None."
The optional statement must be entered on this sheet. The statement
should not exceed 100 words. Further, regardless of the number of
words, the statement must not exceed 750 characters, including
punctuation, indentation, and standard spacing between words and
sentences. If any submission should exceed 750 characters, as
defined, it will be truncated at 750 characters with no notice to the
submitting bank and the truncated statement will appear as the bank's
statement both on agency computerized records and in computer-file
releases to the public.
All information furnished by the bank in the narrative statement must
be accurate and not misleading. Appropriate efforts shall be taken by
the submitting bank to ensure the statement's accuracy. The statement
must be signed, in the space provided below, by a senior officer of
the bank who thereby attests to its accuracy.
If, subsequent to the original submission, material changes are
submitted for the data reported in the Reports of Condition and
Income, the existing narrative statement will be deleted from the
files, and from disclosure; the bank, at its option, may replace it
with a statement, under signature, appropriate to the amended data.
The optional narrative statement will appear in agency records and in
release to the public exactly as submitted (or amended as described in
the preceding paragraph) by the management of the bank (except for the
truncation of statements exceeding the 750-character limit described
above). THE STATEMENT WILL NOT BE EDITED OR SCREENED IN ANY WAY BY
THE SUPERVISORY AGENCIES FOR ACCURACY OR RELEVANCE. DISCLOSURE OF THE
STATEMENT SHALL NOT SIGNIFY THAT ANY FEDERAL SUPERVISORY AGENCY
HAS VERIFIED OR CONFIRMED THE ACCURACY OF THE INFORMATION CONTAINED
THEREIN. A STATEMENT TO THIS EFFECT WILL APPEAR ON ANY PUBLIC RELEASE
OF THE OPTIONAL STATEMENT SUBMITTED BY THE MANAGEMENT OF THE REPORTING
BANK.
No comment [ ] (RCON 6979) C471 C472
BANK MANAGEMENT STATEMENT (please type or print clearly):
(TEXT 6980)
_____________________________________ _________________
Signature of Executive Officer of Bank Date of Signature
35
<PAGE>
Legal Title of Bank: Crestar Bank
Address: P.O. Box 26665
City, State Zip: Richmond, VA 23261-6665
FDIC Certificate No.: 12543
Call Date: 3/31/97 ST-BK: 51-2430
THIS PAGE IS TO BE COMPLETED BY ALL BANKS
<TABLE>
<S> <C>
Crestar Bank OMB No. for OCC: 1557-0081
P.O. Box 26665 OMB No. For FDIC: 3064-0052
Richmond, VA 23261 OMB No. For Federal Reserve: 7100-0036
E512430000 55124300000 Expiration Date: 3/31/99
31 SPECIAL REPORT
(Dollar Amounts in Thousands)
March 31, 1997 Close of Business FDIC Certificate Number
Date
3/31/97 12543 C-700
</TABLE>
LOANS TO EXECUTIVE OFFICERS (Complete as of each Call Report Date)
The following information is required by Public Laws 90-44 and 102-
242, but does not constitute a part of the Report of Condition. With
each Report of Condition, these Laws require all banks to furnish a
report of all loans or other extensions of credit to their executive
officers made since the date of the previous Report of Condition.
Data regarding individual loans or other extensions of credit are not
required. If no such loans or other extensions of credit were made
during the period, insert "none" against subitem (a). (Exclude the
first $15,000 of indebtedness of each executive officer under bank
credit card plan.) See Sections 215.2 and 215.3 of Title 12 of the
Code of Federal Regulations (Federal Reserve Board Regulation O) for
the definitions of "executive officer" and "extension of credit,"
respectively. Exclude loans and other extensions of credit to
directors and principal shareholders who are not executive officers.
<TABLE>
<S> <C> <C> <C>
a. Number of loans made to executive officers since the
previous Call Report date RCFD 3561 0 a.
b. Total dollar amount of above loans (in thousands of
dollars) RCFD 3562 0 b.
c. Range of interest charged on above loans
(example: 9 3/4% = 9.75) RCFD 7701 0.00 % to RCFD 7702 0.00 % c.
</TABLE>
<TABLE>
<CAPTION>
SIGNATURE AND TITLE OF OFFICER AUTHORIZED TO SIGN REPORT DATE (Month, Day, Year)
<S> <C>
/s/ PETER C. TOMS, SENIOR VICE PRESIDENT 4/29/97
- ----------------------------------------
NAME AND TITLE OF PERSON TO WHOM INQUIRIES MAY BE DIRECTED (TEXT 8903) AREA CODE/PHONE NUMBER/EXTENSION
(TEXT 8904)
Natie P. Hennelly (804)782-5320
</TABLE>
FDIC 8040/53 (6/95)
36
<PAGE>
