EXHIBIT 4.9
DEBENTURE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
DEBENTURE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated December 31, 1996,
by and among Crestar Capital Trust I, a Delaware business trust (the "Trust"),
Crestar Financial Corporation, a Virginia corporation registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended
("Crestar") and Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxx Brothers Inc. and UBS
Securities LLC (collectively, the "Purchasers"), purchasers of the 8.16% Capital
Securities of the Trust.
1. CERTAIN DEFINITIONS. For purposes of this Exchange and Registration
Rights Agreement, the following terms shall have the following respective
meanings:
(a) "COMMISSION" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(b) "CAPITAL SECURITIES EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" means
the Capital Securities Exchange and Registration Rights Agreement in respect of
the Capital Securities dated December 31, 1996 among Crestar, the Trust and the
Purchasers.
(c) "DEBENTURES" means the 8.16% Junior Subordinated Deferrable Interest
Debentures due December 15, 2026 of Crestar, to be issued pursuant to the
Indenture.
(d) "EFFECTIVE TIME", in the case of (i) an Exchange Offer, means the
date on which the Commission declares the Exchange Offer registration statement
effective or on which such registration statement otherwise becomes effective
and (ii) a Shelf Registration, means the date on which the Commission declares
the Shelf Registration effective or on which the Shelf Registration otherwise
becomes effective.
(e) "EXCHANGE ACT" means the Securities Exchange Act of 1934, or any
successor thereto, as amended from time to time.
(f) "EXCHANGE DEBENTURES" has the meaning set forth in Section 2(a)
hereof.
(g) "EXCHANGE GUARANTEE" has the meaning set forth in Section 2(a)
hereof.
(h) "EXCHANGE OFFER" has the meaning set forth in Section 2(a) hereof.
(i) "EXCHANGE REGISTRATION" has the meaning set forth in Section 3(c)
hereof.
(j) "EXCHANGE SECURITIES" has the meaning set forth in Section 2(a)
hereof.
(k) "GUARANTEE" means the Guarantee of Crestar with respect to the
Securities, to the extent set forth in the Guarantee Agreement.
(l) "GUARANTEE AGREEMENT" means the Guarantee Agreement dated December
31, 1996 between Crestar and The Chase Manhattan Bank, as Guarantee Trustee
(together with its successors and assigns "Guarantee Trustee"), for the benefit
of the holders of the Securities.
(m) "GUARANTEE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" means the
Guarantee Exchange and Registration Rights Agreement in respect of the Guarantee
dated December 31, 1996 among Crestar, the Trust and the Purchasers.
(n) The term "HOLDER" has the meaning set forth in the Capital Securities
Exchange and Registration Rights Agreement; PROVIDED HOWEVER that if all the
Registrable Securities and all the Securities cease to be outstanding, then it
shall mean the Debentures.
(o) "INDENTURE" means the Indenture dated as of December 31, 1996,
between Crestar and The Chase Manhattan Bank, as Debenture Trustee, as
supplemented by the First Supplemental Indenture dated as of December 31, 1996
and as further amended or supplemented from time to time.
(p) "ISSUE DATE" means December 31, 1996.
(q) "LIQUIDATION AMOUNT" means the stated liquidation preference of the
Securities.
(r) "NEW GUARANTEE AGREEMENT" has the meaning set forth in the Guarantee
Exchange and Registration Rights Agreement.
(s) The term "PERSON" means a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
(t) "PURCHASE AGREEMENT" means the Purchase Agreement dated December 20,
1996, among Crestar, the Trust and the Purchasers.
(u) "REGISTRABLE SECURITIES" has the meaning set forth in the Capital
Securities Exchange and Registration Rights Agreement; PROVIDED HOWEVER that if
all the Registrable Securities and all the Securities cease to be outstanding,
then it shall mean the Debentures which have not been sold, directly or
indirectly, pursuant to an effective registration statement under the Securities
Act.
(v) "REGISTRATION DEFAULT" has the meaning set forth in Section 2(c)
hereof.
(w) "REGISTRATION EXPENSES" has the meaning set forth in Section 4
hereof.
(x) "RESALE PERIOD" has the meaning set forth in the Capital Securities
Exchange and Registration Rights Agreement.
(y) "SECURITIES" means, collectively, the $200,000,000 aggregate
Liquidation Amount of the 8.16% Capital Securities, Liquidation Amount $1,000
per Capital Security, of the Trust to
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be issued and sold to the Purchasers, and any securities issued in exchange
therefor or in lieu thereof pursuant to the Trust Agreement; PROVIDED HOWEVER
that if all the Registrable Securities and all the Securities cease to be
outstanding, then it shall mean the Debentures which have been registered under
the Securities Act.
(z) "SECURITIES ACT" means the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
(aa) "SHELF REGISTRATION" has the meaning set forth in Section 2(b)
hereof.
(bb) "SPECIAL INTEREST" has the meaning set forth in Section 2(c)
hereof.
(cc) "TRUST AGREEMENT" means the Amended and Restated Trust Agreement
dated as of December 31, 1996 among Crestar, as Depositor, The Chase Manhattan
Bank, as Property Trustee (together with its successors and assigns, the
"Property Trustee"), Chase Manhattan Bank Delaware, as Delaware Trustee, and the
Administrators named therein.
(dd) "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) If Crestar and the Trust file a registration statement pursuant to
Section 2(a) of the Capital Securities Exchange and Registration Rights
Agreement, then Crestar and the Trust agree, jointly and severally, to include
in such registration statement an offer to exchange (the "Exchange Offer") all
of the Debentures for a like aggregate principal amount of a new series of
junior subordinated deferrable interest debentures of Crestar which are
substantially identical to the Debentures (and which are entitled to the
benefits of the Indenture which will be qualified under the Trust Indenture Act)
except that they have been registered pursuant to an effective registration
statement under the Securities Act and such new debentures will not contain
provisions for Special Interest or provisions restricting transfer in the
absence of registration under the Securities Act (such new debentures
hereinafter called "Exchange Debentures"). Such registration statement shall
also relate to, and the consummation of the Exchange Offer shall be conditioned
upon the consummation of, an offer to exchange the Securities for substantially
identical capital securities of the Trust pursuant to the Capital Securities
Exchange and Registration Rights Agreement (the "Exchange Securities") and to an
offer to exchange the Guarantee for a substantially identical guarantee of
Crestar pursuant to the Guarantee Exchange and Registration Rights Agreement
(the "Exchange Guarantee"). Crestar and the Trust agree,
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jointly and severally, to use their reasonable best efforts to cause such
registration statement to become effective under the Securities Act as soon as
practicable after the filing thereof. The Exchange Offer will be registered
under the Act on the appropriate form. The Exchange Offer shall be deemed to
have been completed upon the completion of the exchange of the Exchange
Debentures for all the Debentures pursuant to the Exchange Offer.
(b) If (i) Crestar and the Trust file a "shelf" registration statement
pursuant to Section 2(b) of the Capital Securities Exchange and Registration
Rights Agreement without also filing a registration statement pursuant to
Section 2(a) thereof or (ii) none of the Securities or the Registrable
Securities is outstanding and the Exchange Offer has not been effected, then in
the case of clause (i), such "shelf" registration statement shall provide for
the registration of the Debentures and, in the case of clause (ii) if none of
the Securities or the Registrable Securities is outstanding and the Exchange
Offer has not been effected, Crestar shall file under the Securities Act, as
soon as practicable, a "shelf" registration statement providing for the
registration of, and the sale on a continuous or delayed basis by the holders
of, all of the Registrable Securities, pursuant to Rule 415 under the Securities
Act and/or any similar rule that may be adopted by the Commission (in each case,
the "Shelf Registration"). In the case of clause (i) only, the Shelf
Registration shall also provide for the registration of the Securities pursuant
to the Capital Securities Exchange and Registration Rights Agreement and for the
registration of the Guarantee pursuant to the Guarantee Exchange and
Registration Rights Agreement. Crestar and, if applicable, the Trust agree,
jointly and severally, to use their reasonable best efforts to cause the Shelf
Registration to become or be declared effective and to keep such Shelf
Registration continuously effective for a period ending on the earlier of (A)
the third anniversary of the Issue Date or (B) such time as there are no longer
any Registrable Securities outstanding. Crestar and, if applicable, the Trust
further agree, jointly and severally, to supplement or make amendments to the
Shelf Registration, as and when required by the rules, regulations or
instructions applicable to the registration form used by Crestar and, if
applicable, the Trust for such Shelf Registration or by the Securities Act or
rules and regulations thereunder for shelf registration, and Crestar and, if
applicable, the Trust agree, jointly and severally, to furnish to the holders of
the Registrable Securities copies of any such supplement or amendment prior to
its being used and/or filed with the Commission.
(c) In the event that (i) Crestar and, if applicable, the Trust have not
filed the registration statement relating to the Exchange Offer (or, if
applicable, the Shelf Registration) on or before the 150th day after the Issue
Date, or (ii) such registration statement (or, if applicable, the Shelf
Registration) has not become effective or been declared effective by the
Commission on or before the 180th day after the Issue Date, or (iii) any of the
Exchange Offer, the exchange offers contemplated by the Capital Securities
Exchange and Registration Rights Agreement and the exchange offer contemplated
by the Guarantee Exchange and Registration Rights Agreement has not been
completed within 210 days after the Issue Date (if the Exchange Offer is then
required to be made) or (iv) any registration statement required by Section 2(a)
or 2(b) is filed and declared effective but shall thereafter cease to be
effective (except as specifically permitted herein) without being succeeded
immediately by an additional registration statement filed and declared effective
(each such event referred to in clauses (i) through (iv), a "Registration
Default"), then interest will accrue (in addition to the stated interest rate on
the Debentures) at
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the rate of 0.25% per annum on the principal amount of the Debentures for the
period from the occurrence of the Registration Default until such time as no
Registration Default is in effect. Such additional interest (the "Special
Interest") will be payable in cash semi-annually in arrears on each June 15 and
December 15 in accordance with, and subject to the deferral provisions of, the
Indenture. Special Interest, if any, will be computed on the basis of a 365 or
366 day year, as the case may be, and the number of days actually elapsed.
(d) Any reference herein to a registration statement shall be deemed to
include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein to any post effective amendment to a
registration statement shall be deemed to include any document incorporated
therein by reference as of a time after such Effective Time.
3. REGISTRATION PROCEDURES.
If Crestar and, if applicable, the Trust file a registration statement
pursuant to Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, Crestar shall qualify the Indenture, the New
Guarantee Agreement, if applicable, and the Trust Agreement, if applicable,
under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of
a new trustee under any of the Indenture, the New Guarantee Agreement or the
Trust Agreement, such new trustee shall be appointed thereunder pursuant to the
applicable provisions thereof.
(c) In connection with the joint and several obligations of Crestar and
the Trust with respect to the registration of the Exchange Securities, the
Exchange Guarantee and the Exchange Debentures, as contemplated by Section 2(a)
(the "Exchange Registration"), if applicable, Crestar and the Trust shall, as
soon as reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable
but no later than 150 days after the Issue Date, a registration statement
with respect to the Exchange Registration on any form which may be
utilized by Crestar and the Trust and which shall permit the Exchange
Offer and resales of Exchange Securities by broker-dealers during the
Resale Period to be effected as contemplated by Section 2(a) hereof, and
use its reasonable best efforts to cause such registration statement to
become effective as soon as practicable thereafter;
(ii) as soon as practicable prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and maintain
the effectiveness of such registration statement for the periods and
purposes contemplated in Section 2(a) hereof and as may be required by
the applicable rules and regulations of the Commission and the
instructions applicable to the form of such registration statement, and
promptly provide each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then
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amended or supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder, as such
broker-dealer reasonably may request prior to the expiration of the
Resale Period, for use in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration
statement, and confirm such advice in writing, (A) when such registration
statement or the prospectus included therein or any prospectus amendment
or supplement or post effective amendment has been filed, and, with
respect to such registration statement or any post effective amendment,
when the same has become effective, (B) of the receipt of any comments by
the Commission and by the Blue Sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration statement
or prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the joint and several
representations and warranties of Crestar and the Trust contemplated by
Section 5 cease to be true and correct in all material respects, (E) of
the receipt by either Crestar or the Trust of any notification with
respect to the suspension of the qualification of the Exchange Securities
and the Exchange Guarantee for sale in any United States jurisdiction or
the initiation or threatening of any proceeding for such purpose, or (F)
at any time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such registration statement,
prospectus, prospectus amendment or supplement or post effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder or
contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing;
(iv) in the event that Crestar and the Trust would be required,
pursuant to Section 3(c)(iii)(F) above, to notify any broker-dealers
holding Exchange Securities, without delay prepare and furnish to each
such holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission promulgated thereunder and shall not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(v) use their best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any post
effective amendment thereto at the earliest practicable date;
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(vi) use their reasonable best efforts to (A) register or qualify
the Exchange Securities and the Exchange Guarantee under the securities
laws or blue sky laws of such jurisdiction as are contemplated by Section
2(a) no later than the commencement of the Exchange Offer, (B) keep such
registrations or qualifications in effect and comply with such laws so as
to permit the continuance of offers, sales and dealings therein in such
jurisdictions until the expiration of the Resale Period and (C) take any
and all other actions as may be reasonably necessary or advisable to
enable each broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; PROVIDED, HOWEVER, that
neither Crestar nor the Trust shall be required for any such purpose to
(1) qualify to do business in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
3(g)(vi), (2) consent to general service of process in any such
jurisdiction or (3) in the case of Crestar, make any changes to its
charter or by-laws or any agreement between it and its stockholders or in
the case of the Trust, make any changes to the Trust Agreement;
(vii) use their reasonable best efforts to obtain the consent or
approval of each United States governmental agency or authority, whether
federal, state or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of Exchange
Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to all holders of Securities as
soon as practicable but no later than eighteen months after the Effective
Time, an earnings statement of Crestar and its subsidiaries complying
with Section 11 (a) of the Securities Act (including, at the option of
Crestar, Rule 158 thereunder).
(d) In connection with the joint and several obligations of Crestar and
the Trust with respect to the Shelf Registration, if applicable, Crestar and, if
applicable, the Trust shall use their reasonable best efforts to cause the Shelf
Registration to become effective to permit the sale of the Registrable
Securities by the holders thereof in accordance with the intended method or
methods of distribution thereof described in the Shelf Registration. In
connection therewith, Crestar and, if applicable, the Trust shall as soon as
reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable,
a registration statement with respect to the Shelf Registration on any
form which may be utilized by Crestar and, if applicable, the Trust and
which shall permit the disposition of the Registrable Securities in
accordance with the intended method or methods thereof, as specified in
writing to Crestar and, if applicable, the Trust by the holders of the
Registrable Securities and use their reasonable best efforts to cause
such registration statement to become effective as soon as practicable
thereafter;
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(ii) as soon as practicable, prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and maintain
the effectiveness of such registration statement for the period specified
in Section 2(b) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the form
of such registration statement and furnish to the holders of the
Registrable Securities copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the
Commission;
(iii) comply with the provisions of the Securities Act applicable
to Crestar or, if applicable, the Trust in connection with the
disposition of all of the Registrable Securities covered by such
registration statement in accordance with the intended methods of
disposition by the holders thereof, set forth in such registration
statement;
(iv) provide (A) the holders of the Registrable Securities to be
included in such registration statement and not more than one counsel for
all the holders of such Registrable Securities, (B) the underwriters
(which term, for purposes of this Exchange and Registration Rights
Agreement, shall include a person deemed to be an underwriter within the
meaning of Section 2(11) of the Securities Act), if any, thereof, (C) the
sales or placement agent, if any, therefor and (D) one counsel for such
underwriters or agents, if any, reasonable opportunity to participate in
the preparation of such registration statement, each prospectus included
therein or filed with the Commission, and each amendment or supplement
thereto;
(v) for a reasonable period prior to the filing of such
registration statement, and throughout the period specified in Section
2(b), make available at reasonable times at Crestar's principal place of
business or such other reasonable place for inspection by the persons
referred to in Section 3(d)(iv) who shall certify to Crestar and, if
applicable, the Trust that they have a current intention to sell the
Registrable Securities pursuant to the Shelf Registration such financial
and other information and books and records of Crestar and, if
applicable, the Trust, and cause the officers, employees, counsel and
independent certified public accountants of Crestar and, if applicable,
the Trust to respond to such inquiries, as shall be reasonably necessary,
in the judgment of the respective counsel referred to in such Section, to
conduct a reasonable investigation within the meaning of Section 11 of
the Securities Act; PROVIDED, HOWEVER, that each such party shall be
required to maintain in confidence and not to disclose to any other
person any information or records reasonably designated by Crestar as
being confidential, until such time as (A) such information becomes a
matter of public record (whether by virtue of its inclusion in such
registration statement or otherwise, except by disclosure by such party
in breach of this Agreement), or (B) such person shall be required so to
disclose such information pursuant to the subpoena or order of any court
or other governmental agency or body having jurisdiction over the matter
(subject to, and only to the extent required by, the requirements of such
order, and only after such person shall have given Crestar prompt prior
written notice of such requirement);
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(vi) promptly notify the selling holders of Registrable
Securities, the sales or placement agent, if any, therefor and the
managing underwriter or underwriters, if any, thereof and confirm such
advice in writing, (A) when such registration statement or the prospectus
included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same has
become effective, (B) of any comments by the Commission and by the Blue
Sky or securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or supplements to
such registration statement or prospectus or for additional information,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any time the
joint and several representations and warranties of Crestar and, if
applicable, the Trust contemplated by Section 3(d)(xv) or Section 5 cease
to be true and correct in all material respects, (E) of the receipt by
either Crestar or the Trust of any notification with respect to the
suspension of the qualification of the Registrable Securities and, if
applicable, the Guarantee, for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose, or (F) at any time
when a prospectus is required to be delivered under the Securities Act,
that such registration statement, prospectus, prospectus amendment or
supplement or post-effective amendment, or any document incorporated by
reference in any of the foregoing, does not conform in all material
respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
promulgated thereunder or contains an untrue statement of a material fact
or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(vii) use their best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or underwriters,
any placement or sales agent or any holder or counsel for the holders of
Registrable Securities, promptly incorporate in a prospectus supplement
or post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such managing
underwriter or underwriters, such agent or such holder specifies should
be included therein relating to the terms of the sale of such Registrable
Securities, including, without limitation, information with respect to
the Liquidation Amount or the principal amount, as the case may be, of
Registrable Securities being sold by any holder or agent or to any
underwriters, the name and description of such holder, agent or
underwriter, the offering price of such Registrable Securities and any
discount, commission or other compensation payable in respect thereof,
the purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable Securities,
to be sold by such holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be incorporated
in such prospectus supplement or post-effective amendment;
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(ix) furnish to each holder of Registrable Securities, each
placement or sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section 3(d)(iv) an
executed copy of such registration statement, each such amendment and
supplement thereto (in each case including all exhibits thereto and
documents incorporated by reference therein) and such number of copies of
such registration statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by
such holder, agent or underwriter, as the case may be) and of the
prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity with
the requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission promulgated thereunder, and
such other documents, as such holder, agent, if any, and underwriter, if
any, may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such holder, offered
or sold by such agent or underwritten by such underwriter and to permit
such holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and each of Crestar and, if
applicable, the Trust hereby consents to the use of such prospectus
(including such preliminary and summary prospectus) and any amendment or
supplement thereto by each such holder and by any such agent and
underwriter, in each case in the form most recently provided to such
party by Crestar and the Trust, in connection with the offering and sale
of the Registrable Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or amendment
thereto;
(x) use their reasonable best efforts to (A) register or qualify
the Registrable Securities to be included in such registration statement
and, if applicable, the Guarantee under such securities laws or blue sky
laws of such jurisdictions as any holder of such Registrable Securities
and each placement or sales agent, if any, therefor and underwriter, if
any, thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
during the period the Shelf Registration is required to remain effective
under Section 2(b) above and for so long as may be necessary to enable
any such holder, agent or underwriter to complete its distribution of
Securities pursuant to such registration statement and (C) take any and
all other actions as may be reasonably necessary or advisable to enable
each such holder, agent, if any, and underwriter, if any, to consummate
the disposition in such jurisdictions of Registrable Securities;
PROVIDED, HOWEVER, that neither Crestar nor, if applicable, the Trust
shall be required for any such purpose to (1) qualify to do business in
any jurisdiction wherein it would not otherwise be required to qualify
but for the requirements of this Section 3(d)(x), (2) consent to general
service of process in any such jurisdiction, (3) in the case of Crestar,
make any changes to its charter or by-laws or any agreement between it
and its shareholders or, if applicable, in the case of the Trust, make
any changes to the Trust Agreement;
(xi) use their reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal, state
or local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable
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the selling holder or holders to offer, or to consummate the disposition
of, their Registrable Securities;
(xii) cooperate with the holders of the Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold, which certificates shall be printed, lithographed or engraved, or
produced by any combination of such methods, and which shall not bear any
restrictive legends; and, in the case of an underwritten offering, enable
such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may request at least two business
days prior to any sale of the Registrable Securities;
(xiii) provide a CUSIP number for all Registrable Securities, not
later than the applicable Effective Time;
(xiv) enter into not more than one underwriting agreement,
engagement letter, agency agreement, "best efforts" underwriting
agreement or similar agreement, as appropriate, including (without
limitation) provisions relating to indemnification and contribution
substantially the same as those set forth in Section 6 hereof, and take
such other actions in connection therewith as any holders of Registrable
Securities aggregating at least 25% in aggregate Liquidation Amount, or
in aggregate principal amount, as the case may be, of the Registrable
Securities at the time outstanding shall reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;
PROVIDED, that Crestar and, if applicable, the Trust shall not be
required to (i) enter into any such agreement more than once with respect
to all of the Registrable Securities and may delay entering into such
agreement until the consummation of any underwritten public offering
which Crestar and, if applicable, the Trust shall have then undertaken or
(ii) enter into any engagement letter, agency agreement, "best effort"
underwriting agreement or similar agreements whatsoever with respect to
the Registrable Securities, and PROVIDED, FURTHER that Crestar and, if
applicable, the Trust shall not be obligated to enter into any such
agreement with a broker-dealer which results in the need for a "qualified
independent underwriter" (within the meaning of the Rules of Fair
Practice and the By-Laws of the National Association of Securities
Dealers, Inc. ("NASD") or any successor thereto, as amended from time to
time (the "Rules and By-Laws of NASD"));
(xv) whether or not an agreement of the type referred to in
Section (3)(d)(xiv) hereof is entered into and whether or not any portion
of the offering contemplated by such registration statement is an
underwritten offering or is made through a placement or sales agent or
any other entity, (A) make such representations and warranties to the
holders of such Registrable Securities and the placement or sales agent,
if any, therefor and the underwriters, if any, thereof substantially the
same as those set forth in Section 1 of the Purchase Agreement and such
other representations and warranties as are customarily made with respect
to the offering of debt securities pursuant to any appropriate agreement
or to a registration statement on the applicable form under the
Securities Act; (B) obtain an opinion or opinions of counsel to Crestar
and, if applicable, the Trust substantially the
11
same as the opinions provided for in Section 5 of the Purchase Agreement
with such additions, substitutions or deletions of such matters as are
customarily covered in opinions for an underwritten offering, addressed
to such holder or holders and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof and dated the effective
date of such registration statement (and if such registration statement
contemplates an underwritten offering of a part or all of the Registrable
Securities, dated the date of the closing under the underwriting
agreement relating thereto) (it being agreed that the matters to be
covered by such opinion shall also include, without limitation, the
absence of governmental approvals required to be obtained in connection
with the Shelf Registration, the offering and sale of the Registrable
Securities, this Exchange and Registration Rights Agreement or any
agreement of the type referred to in Section (3)(c)(xiv) hereof, except
such approvals as may be required under state securities or blue sky
laws; and the compliance as to form of such registration statement and
any documents incorporated by reference therein and of the Indenture, the
Guarantee Agreement, if applicable, and the Trust Agreement, if
applicable, with the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission promulgated
thereunder, respectively); and, such opinion shall also state that such
counsel has no reason to believe that, as of the date of the opinion and
of the registration statement or most recent post-effective amendment
thereto, as the case may be, such registration statement and the
prospectus included therein, as then amended or supplemented, and the
documents incorporated by reference therein (in each case other than the
financial statements and other financial information contained therein)
contains or contained an untrue statement of a material fact or omits or
omitted to state therein a material fact necessary to make the statements
therein not misleading (in the case of such documents, in the light of
the circumstances existing at the time that such documents were filed
with the Commission under the Exchange Act)); (C) obtain a "cold comfort"
letter or letters from the independent certified public accountants of
Crestar and, if applicable, the Trust addressed to the selling holders of
Registrable Securities, the placement or sales agent, if any, therefor
and the underwriters, if any, thereof, dated (i) the effective date of
such registration statement and (ii) the effective date of any prospectus
supplement to the prospectus included in such registration statement or
post-effective amendment to such registration statement; (D) deliver such
other documents and certificates, including officers' certificates, as
may be reasonably requested by any holders of at least 25 % in aggregate
Liquidation Amount, or in aggregate principal amount, as the case may be,
of the Registrable Securities at the time outstanding or the placement or
sales agent, if any, therefor and the managing underwriters, if any,
thereof to evidence the accuracy of the representations and warranties
made pursuant to clause (A) above or those contained in Section 5(a)
hereof and the compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other agreement
entered into by Crestar and, if applicable, the Trust; and (E) undertake
such obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities of
any proposal by Crestar and the Trust to amend or waive any provision of
this Exchange and Registration Rights Agreement pursuant to Section 9(h)
hereof and of any amendment or waiver
12
effected pursuant thereto, each of which notices shall contain the text
of the amendment or waiver proposed or effected, as the case may be;
(xvii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate
as a member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Rules and By-Laws of NASD)
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Rules and By-Laws, including, without limitation, by
(A) if such Rules or By-Laws, including Schedule E thereto (or any
successor thereto), shall so require, engaging a "qualified independent
underwriter" (as defined in such Schedule (or any successor thereto)) to
participate in the preparation of the registration statement relating to
such Registrable Securities, to exercise usual standards of due diligence
in respect thereto and, if any portion of the offering contemplated by
such registration statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Registrable Securities, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters provided
in Section 6 hereof (or to such other customary extent as may be required
by such underwriter), and (C) providing such information to such
broker-dealer as may be required in order for such broker-dealer to
comply with the requirements of the Rules and By-Laws of NASD; and
(xviii) comply with all applicable rules and regulations of the
Commission, and make generally available to its holders of the Securities
as soon as practicable but in any event not later than eighteen months
after the effective date of such registration statement, an earnings
statement of Crestar and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of Crestar, Rule 158
thereunder).
(e) In the event that Crestar and, if applicable, the Trust would be
required, pursuant to Section 3(d)(vi)(F) above, to notify the selling holders
of Registrable Securities, the placement or sales agent, if any, therefor and
the managing underwriters, if any, thereof, Crestar and, if applicable, the
Trust shall without delay prepare and furnish to each such holder, to each
placement or sales agent, if any, and to each underwriter, if any, a reasonable
number of copies of a prospectus supplemented or amended so that, as thereafter
delivered to purchasers of Registrable Securities, such prospectus shall conform
in all material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the Commission
promulgated thereunder and shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances then
existing. Each holder of Registrable Securities agrees that upon receipt of any
notice from Crestar and, if applicable, the Trust pursuant to Section
3(d)(vi)(F) hereof, such holder shall forthwith discontinue the disposition of
Registrable Securities, pursuant to the registration statement applicable to
such Registrable Securities until such holder shall have received copies of such
amended or supplemented prospectus, and if so directed by Crestar and, if
applicable, the Trust, such holder shall deliver to Crestar (at Crestar's
expense) all copies, other than permanent file copies, then
13
in such holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice.
(f) Crestar and, if applicable, the Trust may require each holder of
Registrable Securities as to which any registration is being effected to furnish
in writing to Crestar and, if applicable, the Trust such information regarding
such holder and such holder's intended method of distribution of such
Registrable Securities as Crestar and the Trust may from time to time reasonably
request in writing, but only to the extent that such information is required in
order to comply with the Securities Act. Each such holder agrees to notify
Crestar and, if applicable, the Trust as promptly as practicable of any
inaccuracy or change in information previously furnished by such holder to
Crestar and, if applicable, the Trust or of the occurrence of any event in
either case as a result of which any prospectus relating to such registration
contains or would contain an untrue statement of a material fact regarding such
holder or such holder's intended method of distribution of such Registrable
Securities or omits to state any material fact regarding such holder or such
holder's intended method of distribution of such Registrable Securities required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing, and promptly to furnish to Crestar
and, if applicable, the Trust any additional information required to correct and
update any previously furnished information or required so that such prospectus
shall not contain, with respect to such holder or the distribution of such
Registrable Securities, an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.
Each such holder shall comply with the provisions of the Securities Act
applicable to such holder with respect to the disposition by such holder of
Registrable Securities covered by such registration statement in accordance with
the intended methods of disposition by such holder set forth in such
registration statement.
(g) Until the expiration three years after the Issue Date, Crestar will
not, and will not permit any of its "affiliates" (as defined in Rule 144 under
the Act) to, resell any of the Securities which constitute "restricted
securities" under Rule 144 that have been reacquired by any of them except
pursuant to an effective registration statement under the Act or any exemption
therefrom; PROVIDED, HOWEVER, that, for purposes of this paragraph, "affiliates"
shall not include the Purchasers or any of their affiliates other than Crestar
and its subsidiaries, officers, managers and directors.
4. REGISTRATION EXPENSES.
If Crestar and, if applicable, the Trust file a registration statement
pursuant to Section 2(a) or Section 2(b), the following provisions shall apply:
Crestar agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the performance by Crestar
and, if applicable, the Trust or compliance with this Exchange and Registration
Rights Agreement, including, without limitation, (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Securities and, if applicable, the
Guarantee for offering and sale under the state securities and blue sky laws
referred to in Section 3(d)(x)
14
hereof, including reasonable fees and disbursements of counsel in connection
with such qualifications, (c) all expenses relating to the preparation,
printing, distribution and reproduction of each registration statement required
to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, and
the certificates representing the Securities and all documents relating hereto,
(d) messenger and delivery expenses, (e) fees and expenses of the Debenture
Trustee under the Indenture, the Issuer Trustees under the Trust Agreement and,
if applicable, the Guarantee Trustee under the Guarantee Agreement, if
applicable, and of any escrow agent or custodian, (f) internal expenses
(including, without limitation, all salaries and expenses of Crestar's officers
and employees performing legal or accounting duties), (g) fees, disbursements
and expenses of counsel and independent certified public accountants of Crestar
and, if applicable, the Trust (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance and compliance),
(h) fees, disbursements and expenses of any "qualified independent underwriter"
engaged pursuant to Section 3(d)(xvii) hereof, (i) fees, disbursements and
expenses of one counsel for the holders of Registrable Securities retained in
connection with a Shelf Registration, as selected by the holders of at least a
majority in aggregate Liquidation Amount, or the aggregate principal amount, as
the case may be, of the Registrable Securities being registered, and fees,
expenses and disbursements of any other persons, including special experts,
retained by Crestar or, if applicable, the Trust in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof,
Crestar shall reimburse such person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after receipt of a written
request therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency or brokerage fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above, transfer taxes on
resale of any of the Securities by such holders and any advertising or
solicitation expenses other than expenses specifically referred to above
incurred by or on behalf of such holders in connection with any offers they may
make.
5. REPRESENTATIONS AND WARRANTIES.
Crestar and, if applicable, the Trust, jointly and severally, represent
and warrant to, and agree with, each Purchaser and each of the holders from time
to time of Registrable Securities that:
(a) Each registration statement covering Registrable Securities, the
Guarantee, if applicable, and the Debentures and each prospectus (including any
preliminary or summary prospectus) contained therein or furnished pursuant to
Section 3(d)(ix) hereof and any further amendments or supplements to any such
registration statement or prospectus, when it becomes effective or is filed with
the Commission, as the case may be, and, in the case of an underwritten offering
of Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
applicable requirements
15
of the Securities Act and the Trust Indenture Act, the rules and regulations of
the Commission promulgated thereunder and any such registration statement and
any amendment thereto will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading and any such prospectus or any amendment
or supplement thereto will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing; and at all times subsequent to the Effective Time of any such
registration statement when a prospectus would be required to be delivered under
the Securities Act, other than from (i) such time as a notice has been given to
holders of Registrable Securities pursuant to Section 3(c)(iii)(F) or Section
3(d)(vi)(F) hereof until (ii) such time as Crestar and, if applicable, the Trust
furnish an amended or supplemented prospectus pursuant to Section 3(c)(iv) or
Section 3(e) hereof, as the case may be, each such registration statement, and
each prospectus (including any summary prospectus) contained therein or
furnished pursuant to Section 3(c) or Section 3(d)(ix) hereof, as then amended
or supplemented, will conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission promulgated thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to
Crestar and, if applicable, the Trust by a holder of Registrable Securities or
any placement or sales agent therefor or underwriter thereof expressly for use
therein.
(b) Any documents incorporated by reference in any prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to Crestar and the Trust, if applicable,
by a holder of Registrable Securities expressly for use therein.
(c) The representations and warranties of the Trust, if applicable, and
Crestar contained in Section 1 of the Purchase Agreement are true and correct
with the same force and effect as though expressly made at and as of the date
hereof.
6. INDEMNIFICATION.
(a) Upon the registration of the Registrable Securities pursuant to
Section 2 hereof, and in consideration of the agreements of the Purchasers
contained herein, and as an inducement to the Purchasers to purchase the
Securities, the Trust and Crestar, jointly and severally, agree to indemnify and
hold harmless each of the holders of Registrable Securities to be included in
such
16
registration, and each person who participates as a placement or sales agent or
as an underwriter in any offering or sale of such Registrable Securities and
each person, if any, who controls such holder, or such placement or sales agent,
if any, or such underwriter, if any, within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act (each an "Indemnified Person") as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue
statement of a material fact contained in any registration statement
under which such Registrable Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus contained
therein as furnished by the Trust or Crestar to any such holder, agent or
underwriter (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in such registration statement or such
preliminary, final or summary prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, unless such
untrue statement or omission was made in reliance upon and in conformity
with written information relating to such Indemnified Person furnished to
the Trust and Crestar by, or on behalf of, such Indemnified Person
expressly for use in such registration statement or such preliminary,
final or summary prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission (except as made in reliance upon and
in conformity with information relating to such Indemnified Person
furnished by, or on behalf of, such Indemnified Person as aforesaid), if
such settlement is effected with the written consent of the Trust and
Crestar; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by such Indemnified Person),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement
or omission (except as made in reliance upon and in conformity with
information relating to such Indemnified Person furnished by, or on
behalf of, such Indemnified Person as aforesaid) to the extent that any
such expense is not paid under (i) or (ii) above.
provided, however, that indemnification with respect to any prospectus shall not
inure to the benefit of any holder of Registrable Securities or Exchange
Securities from whom the Person asserting any loss, claim, liability, damage or
expense purchased such Securities, if a copy of the Prospectus (as then amended
or supplemented and furnished by Crestar to such holder) was
17
not sent or given by or on behalf of such holder or to such person if such is
required by law at or prior to the sale of such Registrable Securities or
Exchange Securities, as the case may be, and if the prospectus (as so amended
and supplemented) would have cured the defect giving rise to such loss, claim,
liability, damage or expense.
(b) Crestar may require, as a condition to including any Registrable
Securities in any registration statement filed pursuant to Section 2 hereof and
to entering into any placement or underwriting agreement with respect thereto,
that Crestar shall have received an undertaking reasonably satisfactory to them
from the holder of such Registrable Securities and from each placement agent or
underwriter named in any such placement agreement or underwriting agreement,
severally and not jointly, to indemnify and hold harmless the Trust and Crestar
and each person, if any, who controls the Trust or Crestar within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in any
registration statement under which such Registrable Securities were registered
under the Securities Act, or any preliminary, final or summary prospectus
contained therein as furnished by the Trust or Crestar to any such holder, agent
or underwriter (or any amendment or supplement thereto), in reliance upon and in
conformity with written information relating to such holder, or such placement
or sales agent, if any, or such underwriter, if any, furnished to the Trust and
Crestar by or on behalf of such holder, or such placement or sales agent, if
any, or such underwriter, if any, expressly for use in such registration
statement or such preliminary, final or summary prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances;
provided, however, that when more than one of such holders, such placement or
sales agents, if any, or such underwriters, if any, is an indemnified party each
such holder, placement or sales agent or such underwriter, as the case may be,
shall be entitled to separate counsel (in addition to any local counsel) in each
such jurisdiction to the extent such holder, placement or sales agent or such
underwriter, as the case may be, may have interests conflicting with those of
the other holder, placement or sales agent or such underwriter, as the case may
be. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
18
In order to provide for just and equitable contribution in circumstances
in which the indemnity agreement provided for in this Section 6 is for any
reason held to be unavailable to such holders, such placement or sales agents,
if any, or such underwriters, if any, in accordance with its terms, the Trust,
Crestar and such holders, such placement and sales agents, if any, and such
underwriters, if any, shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the Trust, Crestar and such holders, such placement and
sales agents, if any, and such underwriters, if any, in such proportions as is
appropriate to reflect the relative benefits received by the Trust and Crestar
on the one hand and such holders, such placement and sales agents, if any, and
such underwriters, if any, on the other. The relative benefits received by the
Trust and Crestar on the one hand and such holders, such placement and sales
agents, if any, and such underwriters, if any, on the other shall be deemed to
be in such proportion represented by the percentage that the total commissions
and underwriting discounts received by such holders, such placement and sales
agents, if any, and such underwriters, if any, to the date of such liability
bears to the total sales price (before deducting expenses) received by the Trust
and such holders, such placement and sales agents, if any, and such
underwriters, if any, from the sale of such Securities made to the date of such
liability, and the Trust and Crestar are jointly and severally responsible for
the balance. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if such holders, such placement
and sales agents, if any, and such underwriters, if any, failed to give the
notice required under this subsection (c), then the Trust, Crestar and such
holders, such placement and sales agents, if any, and such underwriters, if any,
shall contribute to such aggregate losses, liabilities, claims, damages and
expenses in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Trust and Crestar on the one hand
and such holders, such placement and sales agents, if any, and such
underwriters, if any, on the other in connection with the statements or
omissions which resulted in such liabilities, claims, damages and expenses, as
well as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Trust and Crestar on the
one hand or is supplied by, or on behalf of, such holders, such placement or
sales agents, if any, and such underwriters, if any, on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Trust, Crestar and such
holders, such placement or sales agents, if any, and such underwriters, if any,
agree that it would not be just and equitable if contributions pursuant to this
paragraph were determined pro rata (even if such holders, such placement or
sales agents, if any, and such underwriters, if any, were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this paragraph.
Notwithstanding the provisions of this paragraph, such holders, such placement
or sales agents, if any, and such underwriters, if any, shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities referred to in the second sentence of this paragraph that were
offered and sold to the public through such holders, such placement or sales
agents, if any, and such underwriters, if any, exceeds the amount of any damages
that such holders, such placement or sales agents, if any, and such
underwriters, if any, have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent
19
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled under this paragraph to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section, each person,
if any, who controls any such holders, such placement or sales agents, if any,
and such underwriters, if any, within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
such holders, such placement or sales agents, if any, and such underwriters, if
any, and each person, if any, who controls the Trust or Crestar within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Trust or Crestar.
7. UNDERWRITTEN OFFERINGS.
(a) SELECTION OF UNDERWRITERS. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by the holders of at least a majority in aggregate Liquidation Amount, or
aggregate principal amount, as the case may be, of the Registrable Securities to
be included in such offering, provided that such designated managing underwriter
or underwriters is or are reasonably acceptable to the Trust, if applicable, and
Crestar.
(b) PARTICIPATION BY HOLDERS. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(c) CONSOLIDATED EARNINGS STATEMENTS. In the event of an underwritten
offering, Crestar agrees to make generally available to holders of Securities as
soon as practicable, but in any event not later than eighteen months after the
effective date of the applicable registration statement (as defined in Rule
158(c) under the Securities Act), a consolidated earnings statement of Crestar
(which need not be audited) complying with Section 11 (a) of the Act and the
rules and regulations of the Commission thereunder (including, at the option of
Crestar, Rule 158 under the Securities Act)
8. RULE 144.
Crestar covenants to the holders of Registrable Securities that to the
extent it shall be required to do so under the Exchange Act, Crestar shall
timely file the reports required to be filed by it under the Exchange Act or the
Securities Act (including, but not limited to, the reports under Section 13 and
15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted
by the Commission under the Securities Act) and the rules and regulations
adopted by the Commission thereunder, and shall take such further action as any
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to make Rule 144 available to such holder for the
sale of Registrable Securities without registration
20
under the Securities Act within the limitations of the exemption provided by
Rule 144 under the Securities Act, as such Rule may be amended from time to
time, or any similar or successor rule or regulation hereafter adopted by the
Commission. Upon the request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, Crestar shall deliver
to such holder a written statement as to whether it has complied with such
requirements.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. Each of the Trust and Crestar represents,
warrants, covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to Registrable Securities or any other
securities which would be inconsistent with the terms contained in this Exchange
and Registration Rights Agreement, the Capital Securities Exchange and
Registration Rights Agreement and the Guarantee Exchange and Registration Rights
Agreement should be construed to be consistent with the terms hereof.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Exchange
and Registration Rights Agreement in accordance with the terms and conditions of
this Exchange and Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.
(c) NOTICES. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: if to the Trust or to
Crestar, then to Crestar Financial Corporation, Crestar Center, 000 Xxxx Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxx, 00000, and if to a holder, to the address of such
holder set forth in the security register or other records of the Trust or of
the Debenture Trustee under the Indenture, as the case may be, or to such other
address as any party may have furnished to the others in writing in accordance
herewith, except that notices of change of address shall be effective only upon
receipt.
(d) PARTIES IN INTEREST. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the respective successors and assigns of
the parties hereto. In the event that any transferee of any holder of
Registrable Securities shall become a holder of Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed a
party hereto for all purposes and such Registrable Securities shall be held
subject to all of the terms of this Exchange and Registration Rights Agreement,
and by taking and holding such Registrable Securities such transferee shall be
entitled to receive the benefits of and be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Exchange and
Registration
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Rights Agreement. If Crestar shall so request, any such successor, assign or
transferee shall agree in writing to acquire and hold the Registrable Securities
subject to all of the terms hereof.
(e) SURVIVAL. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities and the transfer
and registration of Registrable Securities by such holder and/or the
consummation of an Exchange Offer.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
(g) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(h) ENTIRE AGREEMENT; AMENDMENTS. This Exchange and Registration Rights
Agreement and the other agreements referred to herein or delivered pursuant
hereto which form a part hereof contain the entire understanding of the parties
with respect to its subject matter. This Exchange and Registration Rights
Agreement and such other agreements referred to herein supersede all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by Crestar, the Trust
and the holders of at least 66-2/3 percent in aggregate Liquidation Amount or
principal amount, as the case may be, of the Registrable Securities at the time
outstanding. Each holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by any amendment or waiver effected pursuant to this
Section 9(h), whether or not any notice, writing or marking indicating such
amendment or waiver appears on such Registrable Securities or is delivered to
such holder.
(i) INSPECTION. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the registered holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities at the offices of Crestar
at the address thereof set forth in Section 9(c) above.
(j) COUNTERPARTS. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
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(k) TERMINATION. Except for the respective indemnities, representations
and warranties set forth herein, this Agreement shall terminate when all the
Securities, Exchange Securities and Registrable Securities cease to be
outstanding.
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This Agreement is executed as of the day and year first above written.
CRESTAR FINANCIAL CORPORATION
By: _____________________________
Name:
Title:
CRESTAR CAPITAL TRUST I
By: ______________________________
Administrator
XXXXXX XXXXXXX & CO.
As Representative of the Purchasers
Named in Schedule I to the Purchase
Agreement
By: ______________________________
(Xxxxxx Xxxxxxx & Co.)
Acting severally, and not jointly and
severally, on behalf of themselves and
each of the Purchasers named in
Schedule I to the Purchase Agreement
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