$150,000,000
CRESTAR FINANCIAL CORPORATION
Putable/Callable Subordinated Notes
Due January 15, 2018
Putable/Callable January 15, 2008
UNDERWRITING AGREEMENT
January 22, 1998
January 22, 1998
UBS Securities LLC
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
c/o Union Bank of Switzerland
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Crestar Financial Corporation, a Virginia corporation
(the "Company"), proposes to issue and sell to the several
Underwriters named in Schedule I hereto (the "Underwriters")
$150,000,000 principal amount of its 6.50% Putable/Callable
Subordinated Notes Due January 15, 2018 Putable/Callable
January 15, 2008 (the "Securities") to be issued pursuant to
the provisions of an indenture dated as of September 1, 1993
between the Company and Chemical Bank, as Trustee, as
supplemented by the First Supplemental Indenture dated
January 1, 1998 between the Company and The Chase Manhattan
Bank N.A. (collectively, the "Indenture"). Concurrently
with the issuance of the Notes, Union Bank of Switzerland,
London branch and Xxxxxx Xxxxxxx & Co. International Limited
(together with Union Bank of Switzerland, London branch, the
"Callholders") will enter into a Confirmation dated as of
January 27, 1998 (the "Call Option") pursuant to which each
Callholder has the right to purchase its pro rata share of
the Notes at 100% of the aggregate principal amount on
January 15, 2008.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (File
No. 33-50387), including a prospectus, relating to the
Securities. The registration statement, as amended at the
time it (or the most recent post-effective amendment
thereto) became effective, is hereinafter referred to as the
Registration Statement; the prospectus relating to the
Securities, as filed with, or mailed for filing to, the
Commission pursuant to Rule 424 under the Securities Act of
1933, as amended (the "Securities Act"), is hereinafter
referred to as the Basic Prospectus; the prospectus
supplement specifically relating to the Securities, as filed
with, or mailed for filing to, the Commission pursuant to
Rule 424 under the Securities Act is hereinafter referred to
as the Prospectus Supplement; the Basic Prospectus, together
with the Prospectus Supplement, is hereinafter referred to
as the Prospectus (including, in the case of all references
to the Registration Statement, the Basic Prospectus, the
Prospectus Supplement or the Prospectus, documents
incorporated therein by reference).
I.
The Company represents and warrants to each of the
Underwriters that :
(a) The Registration Statement has become effective;
no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for
such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed
pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and incorporated by reference in the
Prospectus complied or will comply when so filed in all
material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii)
each part of the Registration Statement, when such part
became effective, did not contain and each such part, as
amended or supplemented, if applicable, will not contain any
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, (iii) the
Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder, (iv) the
Prospectus does not contain and, as amended or supplemented,
if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not misleading,
except that the representations and warranties set forth in
this paragraph 1(b) do not apply (A) to statements or
omissions in the Registration Statement or the Prospectus
based upon information relating to any Underwriter furnished
to the Company in writing by such Underwriter through you
expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of
Eligibility and Qualification of the Trustee (Form T-1)
under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act") and (v) the consolidated historical
financial statements, together with related schedules and
notes, included or incorporated by reference in the
Prospectus (and any amendment or supplement thereto),
present fairly the consolidated financial position of the
Company and its subsidiaries at the respective dates
indicated and the results of their operations and their cash
flows for the respective periods indicated in accordance
with generally accepted accounting principles consistently
applied throughout such periods; and there has been no
material adverse change not in the ordinary course of
business in the consolidated financial position of the
Company since September 30, 1997, except as disclosed in
the Prospectus.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, is duly registered as
a bank holding company under the Bank Holding Company Act of
1956, as amended, has the corporate power and authority to
own its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) All of the issued and outstanding capital stock of
Crestar Bank, a Virginia banking corporation, has been duly
and validly issued and is fully paid and non-assessable and
all of such capital stock is owned, directly or indirectly,
by the Company, free and clear of any mortgage, pledge,
lien, encumbrance, claim or equity.
(e) Crestar Bank has been duly incorporated, is
validly existing as a banking corporation in good standing
under the laws of the Commonwealth of Virginia, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such
qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries,
taken as a whole.
(f) Each other subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property
requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(g) The Company and its subsidiaries are in compliance
in all material respects with all laws administered by and
regulations of the Board of Governors of the Federal Reserve
System (the "Board"), the Federal Deposit Insurance
Corporation (the "FDIC") and any state bank regulatory
authority with jurisdiction over Crestar Bank, the failure
to comply with which would have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(h) The Company is not 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.
(i) This Agreement has been duly authorized, executed
and delivered by the Company.
(j) The Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration
and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(k) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement,
will be entitled to the benefits of the Indenture, and will
be valid and binding obligations of the Company, enforceable
in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by
equitable principles of general applicability.
(l) The execution and delivery by the Company of, and
the performance by the Company of its obligations under,
this Agreement, the Indenture and the Securities will not
contravene any provision of applicable law or the articles
of incorporation or by-laws of the Company or Crestar Bank
or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any of its
subsidiaries, and no consent, approval, authorization or
order of, or qualification with, any governmental body or
agency is required for the performance by the Company of its
obligations under this Agreement, the Indenture or the
Securities, except such as may be required by the securities
or Blue Sky laws of the various states in connection with
the offer and sale of the Securities.
(m) There has not occurred any material adverse
change, or any development involving a prospective material
adverse change, in the condition, financial or otherwise, or
in the earnings, business or operations of the Company and
its subsidiaries, taken as a whole, from that set forth in
the Prospectus.
(n) There are no legal or governmental proceedings
pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or
the Prospectus and are not so described or any statutes,
regulations, contracts or other documents that are required
to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(o) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material
respects with the Securities Act and the rules and
regulations of the Commission thereunder.
(p) Each of the Company and its subsidiaries has all
necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and
other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to
conduct its business in the manner described in the
Prospectus, except to the extent that the failure to obtain
any such consent, authorization, approval, order,
certificate or permit, or to make any such declaration or
filing, would not have a material adverse effect on the
Company and its subsidiaries taken as a whole.
II.
The Company hereby agrees to sell to the several
Underwriters, and the Underwriters, upon the basis of the
representations and warranties herein contained, but subject
to the conditions hereinafter stated, agree, severally and
not jointly, to purchase from the Company the respective
principal amounts of Securities set forth in Schedule I
hereto opposite their names for the sum of (i) 99.172% of
the principal amount of the securities, if any, (ii)
$1,953,750 which represents the purchase price of the Call
Option to be purchased by the Union Bank of Switzerland,
London Branch and (iii) $1,953,750 which represents the
purchase price of the Call Option to be purchased by Xxxxxx
Xxxxxxx & Co. International Limited (the "Callholders").
III.
The Company is advised by you that the Underwriters
propose to make a public offering of their respective
portions of the Securities as soon after this Agreement has
become effective as in your judgment is advisable. The
Company is further advised by you that the Securities are to
be offered to the public initially at 99.822% of their
principal amount - the public offering price - plus accrued
interest and to certain dealers selected by you at a price
that represents a concession not in excess of 0.40% of
their principal amount under the public offering price, and
that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of 0.125% of their
principal amount, to any Underwriter or to certain other
dealers.
IV.
Payment for the Securities shall be made by electronic
transfer to the order of the Company in Federal same-day
funds at the office of UBS Securities LLC, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., local time, on January
27, 1998. The time and date of such payment are hereinafter
referred to as the Closing Date.
The Securities shall be represented by one or more
global certificates that will be deposited with The
Depository Trust Company ("DTC") and registered in the name
of DTC's nominee. Ownership interests in the Securities
shall be delivered to you in book-entry form through the
book-entry facilities of DTC for the respective accounts of
the several Underwriters or their nominees that are
participants in DTC, with any transfer taxes payable in
connection with the transfer of the Securities to the
Underwriters duly paid, against payment of the purchase
price therefor.
V.
The several obligations of the Underwriters hereunder
are subject to the following conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date,
(i) there shall not have occurred any
downgrading, nor shall any notice have been given of
any intended or potential downgrading or of any review
for a possible change that does not indicate the
direction of the possible change, in the rating
accorded any of the Company's securities by
any "nationally recognized statistical rating
organization," as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or
any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations, of the Company and its
subsidiaries, taken as a whole, from that set forth in
the Registration Statement or incorporated therein by
reference, that, in your judgment, is material and
adverse and that makes it, in your judgment,
impracticable to market the Securities on the
terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the
Closing Date a certificate, dated the Closing Date and
signed by an executive officer of the Company, to the effect
set forth in clause (a)(i) above and to the effect that the
representations and warranties of the Company contained in
this Agreement are true and correct in all material respects
as of the Closing Date and that the Company has complied
with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied on or
before the Closing Date.
The officer signing and delivering such certificate may
rely upon the best of his knowledge as the proceedings
threatened.
(c) You shall have received on the Closing Date an
opinion of Xxxxxx & Xxxxxxxx, counsel for the Company, dated
the Closing Date, to the effect that
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing
under the laws of the jurisdiction of its
incorporation, is duly registered as a bank holding
company under the Bank Holding Company Act of 1956,
as amended, has the corporate power and authority to
own its property and to conduct its business as
described in the Prospectus and is duly qualified to
transact business and is in good standing in Virginia,
Maryland and the District of Columbia to the extent
the conduct of its business or its ownership or
leasing of property requires such qualification,
except to the extent that the failure to be so
qualified or be in good standing would not have a
material adverse effect on the Company and its
subsidiaries, taken as a whole;
(ii) Crestar Bank has been duly incorporated as a
bank in good standing under the laws of the Commonwealth
of Virginia, has the corporate power and authority to own
its property and to conduct its business as described in
the Prospectus and is duly qualified to transact business
and is in good standing in Virginia, Maryland and the
District of Columbia to the extent the conduct of its
business or its ownership or leasing of property requires
such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have
a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(iii) each of Crestar Insurance Agency, Inc.,
Crestar Securities Corporation, Crestar Mortgage
Corporation, and Crestar Asset Management Company,
MORTGAGEWRIGHT, INC. has been duly incorporated, is
validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation,
has the corporate power and authority to own its
property and to conduct its business as described in the
Prospectus;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company;
(v) the Indenture has been duly qualified under
the Trust Indenture Act and has been duly authorized,
executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable in
accordance with its terms except as (a) the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by
equitable principles of general applicability;
(vi) the Securities have been duly authorized
and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to
and paid for by the Underwriters in accordance with
the terms of this Agreement, will be entitled to the
benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable in
accordance with their terms except as (a) the
enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by
equitable principles of general applicability;
(vii) the execution and delivery by the Company
of, and the performance by the Company of its
obligations under, this Agreement, the Securities and
the Indenture will not contravene any provision of
applicable law or the articles of incorporation or
by-laws of the Company or Crestar Bank or, to such
counsel's knowledge, any agreement or other
instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or, to such counsel's
knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction
over the Company or any of its subsidiaries, and no
consent, approval, authorization or order of or
qualification with any governmental body or agency is
required for the performance by the Company of its
obligations under this Agreement, the Securities and
the Indenture, except such as may be required by the
securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities;
(viii) the statements (1) in the Prospectus under
the caption "Description of Notes", "Regulatory
Matters", "Description of Debt Securities" and "Plan of
Distribution" and (2) in the Registration Statement
under Item 15, in each case insofar as such statements
constitute summaries of the legal matters, documents
and proceedings referred to therein, fairly present the
information called for with respect to such legal
matters, documents and proceedings and fairly summarize
the matters referred to therein;
(x) the statements set forth in the Prospectus
Supplement under the caption "Certain Federal Income
Tax Considerations," to the extent that they constitute
matters of law or legal conclusions with respect
thereto, have been reviewed by us and are correct in
all material respects;
(xi) after due inquiry, such counsel does not
know of any legal or governmental proceedings pending or
threatened to which the Company or any of its
subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is
subject that are required to be described in the
Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, contracts or
other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not
described or filed as required; and
(xii) such counsel (1) is of the opinion that each
document filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement
and the Prospectus (except for financial statements and
schedules and other financial and statistical
information as to which such counsel need not express
any opinion) complied when so filed as to form in all
material respects with the Exchange Act and the
applicable rules and regulations of the Commission
thereunder, (2) is of the opinion that the Registration
Statement and Prospectus (except for financial
statements and schedules and other financial and
statistical information included therein as to which
such counsel need not express any opinion) comply as to
form in all material respects with the Securities Act
and the rules and regulations of the Commission
thereunder, (3) believes that (except for financial
statements and schedules and other financial and
statistical information as to which such counsel need
not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1
heretofore referred to) the Registration Statement and
the Basic Prospectus at the time the most recent post-
effective amendment to the Registration Statement
became effective did not contain any 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 (4) believes
that (except for financial statements and schedules
and other financial and statistical information as
to which such counsel need not express any belief) the
Prospectus as of the Closing Date does not contain any
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in light of the circumstances under which they
were made, not misleading.
(d) You shall have received on the Closing Date an
opinion of Xxxxx X. Xxxxxx, Esq., Deputy General Counsel to
the Company, dated the Closing Date, to the effect that
(i) all of the issued and outstanding capital
stock of Crestar Bank has been duly and validly issued
and is fully paid and non-assessable and to such
counsel's knowledge is owned, directly or indirectly,
by the Company, free and clear of any mortgage, pledge,
lien, encumbrance, claim or equity;
(ii) The Company and its subsidiaries are in
compliance in all material respects with all applicable
regulations of the Board of Governors of the Federal
Reserve System (the "Board"), the Federal Deposit
Insurance Corporation (the "FDIC") and any state bank
regulatory authority with jurisdiction over any Crestar
Bank, the failure to comply with which would have a
material adverse effect on the Company and its
subsidiaries, taken as a whole; and
(iii) to the best knowledge of such counsel, each
of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to
conduct its business in the manner described in the
Prospectus, except to the extent that the failure to
obtain any such consent, authorization, approval, order,
certificate or permit, or to make any such declaration
or filing, would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(e) You shall have received on the Closing Date an
opinion of Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx LLP, special
counsel for the Underwriters, dated the Closing Date,
covering the matters referred to in subparagraphs (v), (vi),
(vii), (ix) (plus the statements in the Prospectus
Supplement under "Underwriters") and clause (4) of
subparagraph (xii) of paragraph (c) above.
With respect to subparagraph (xii) of paragraph (c)
above, Xxxxxx & Xxxxxxxx may state that their opinion and
belief are based upon their participation in the preparation
of the Registration Statement and Prospectus and any
amendments or supplements thereto and documents incorporated
therein by reference and review and discussion of the
contents thereof, but are without independent check or
verification except as specified. With respect to clause
(4) of subparagraph (xii) of paragraph (c) above, Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP may state that their opinion
and belief are based upon their participation in the
preparation of the Prospectus Supplement (other than the
documents incorporated by reference), but are without
independent check or verification except as specified. In
addition, in rendering its opinion, Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP may rely upon the opinion of Xxxxxx &
Xxxxxxxx referred to in paragraph (c) above as to all
matters of Virginia law.
The opinion of Xxxxxx & Xxxxxxxx described in paragraph
(c) above shall be rendered to you at the request of the
Company and shall so state therein.
(f) You shall have received on the Closing Date a
letter dated the Closing Date in form and substance
satisfactory to you, from KPMG Peat Marwick LLP, independent
public accountants for the Company, containing statements
and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect
to the financial statements and certain financial
information contained in, or incorporated by reference into,
the Registration Statement and the Prospectus.
(g) The Company shall have delivered the Call Option
to the Callholders.
VI.
In further consideration of the agreements of the
Underwriters herein contained, the Company covenants as
follows:
(a) To furnish you, without charge, six signed copies
of the Registration Statement (including exhibits thereto
and documents incorporated by reference ) and for delivery
to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto but
including documents incorporated by reference) and, during
the period mentioned in paragraph (c) below, as many copies
of the Prospectus, any documents incorporated by reference,
and any supplements and amendments thereto as you may
reasonably request. The terms "supplement" and "amendment"
or "amend" as used in this Agreement shall include all
documents subsequently filed by the Company with the
Commission pursuant to the Exchange Act that are deemed to
be incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of
each such proposed amendment or supplement and not to file
any such proposed amendment or supplement to which you
reasonably object.
(c) If, during such period after the first date of the
public offering of the Securities as in the opinion of your
counsel the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event
shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of your
counsel, it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare, file
with the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses
you will furnish to the Company) to which Securities may
have been sold by you on behalf of the Underwriters and to
any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered
to a purchaser, be misleading or so that the Prospectus, as
amended or supplemented, will comply with law.
(d) To endeavor to qualify the Securities for offer
and sale under the securities or Blue Sky laws of such
jurisdictions as you shall reasonably request and to pay all
expenses (including fees and disbursements of counsel) in
connection with such qualification.
(e) To make generally available to the Company's
security holders and to you as soon as practicable an
earning statement covering the twelve-month period ending
December 31, 1997 that satisfies the provisions of Section
11(a) of the Securities Act and the rules and regulations of
the Commission thereunder.
(f) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any debt
securities of the Company or warrants to purchase debt
securities of the Company substantially similar to the
Securities (other than (i) the Securities and (ii)
commercial paper issued in the ordinary course of business),
without your prior written consent.
VII.
The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses
reasonably incurred by any Underwriter or any such
controlling person in connection with defending or
investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as
amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit
of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Securities,
or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto)
was not sent or given by or on behalf of such Underwriter to
such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the
Securities to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing
indemnity from the Company to such Underwriter, but only
with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter
through you expressly for use in the Registration Statement,
any preliminary prospectus, the Prospectus or any amendments
or supplements thereto.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to either
of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request
of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the
indemnifying party and the indemnified party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in
addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be
designated in writing by UBS Securities LLC, in the case of
parties indemnified pursuant to the second preceding
paragraph, and by the Company, in the case of parties
indemnified pursuant to the first preceding paragraph. The
indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment
for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of
this paragraph, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of
such settlement. 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.
If the indemnification provided for in the first or
second paragraph of this Article VII is unavailable to an
indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the
offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand
and of the Underwriters on the other hand in connection with
the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the
Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the
Securities (before deducting expenses) received by the
Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in
the table on the cover of the Prospectus Supplement, bear to
the aggregate public offering price of the Securities. The
relative fault of the Company on the one hand and of the
Underwriters on the other hand 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 or by the Underwriters
and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Article VII are
several in proportion to the respective principal amounts of
Securities they have purchased hereunder, and not joint.
The Company and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this
Article VII 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 that does not
take account of the equitable considerations referred to in
the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this
Article VII, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price
at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount
of any damages that 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 Securities Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in
this Article VII are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution provisions contained in
this Article VII and the representations and warranties of
the Company contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling
any Underwriter or by or on behalf of the Company and (iii)
acceptance of and payment for any of the Securities.
VIII.
(a) The Company, hereby assigns, transfers, conveys
and sets over to the Callholders, with respect to
$75,000,000 principal amount of Securities to Union Bank of
Switzerland, London branch and with respect to $75,000,000
principal amount of Securities to Xxxxxx Xxxxxxx & Co.
International Limited, its right, title and interest in, to
and under the Call Option under the Securities.
(b) The Company agrees that this assignment is
irrevocable, and that it will not take any action that is
inconsistent with this assignment or make any other
assignment inconsistent herewith. The Company will, from
time to time upon the request of the Indenture Trustee,
execute all instruments of further assurance and all such
supplemental instruments with respect to this assignment as
the Indenture Trustee may specify.
IX.
This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the
execution and delivery of this Agreement and prior to the
Closing Date (i) trading generally shall have been suspended
or materially limited on or by, as the case may be, any of
the New York Stock Exchange, the American Stock Exchange,
the National Association of Securities Dealers, Inc., the
Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York,
Virginia, Maryland or the District of Columbia shall have
been declared by either Federal or New York, Virginia,
Maryland or the District of Columbia authorities or (iv)
there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and
adverse and (b) in the case of any of the events specified
in clauses (a) (i) through (iv) such event singly or
together with any other such event makes it, in your
judgment, impracticable to market the Securities on the
terms and in the manner contemplated in the Prospectus.
X.
This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the
Underwriters shall fail or refuse to purchase Securities
that it or they have agreed to purchase Securities that it
or they have agreed to purchase hereunder on such date, and
the aggregate principal amount of Securities which such
defaulting Underwriter or Underwriters agreed but failed or
refused to purchase is not more than one-tenth of the
aggregate principal amount of the Securities to be purchased
on such date, the other Underwriters shall be obligated
severally in the proportions that the principal amount of
Securities set forth opposite their respective names in
Schedule I bears to the principal amount of Securities set
forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may
specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the
principal amount of Securities that any Underwriter has
agreed to purchase pursuant to Article II be increased
pursuant to this Article X by an amount in excess of one-
ninth of such principal amount of Securities without the
written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse
to purchase Securities and the aggregate principal amount of
Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of
Securities to be purchased on such date, and arrangements
satisfactory to you and the Company for the purchase of such
Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter or the Company. In any
such case either you or the Company shall have the right to
postpone the Closing Date but in no event for longer than
seven days, in order that the required changes, if any, in
the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or
refusal on the part of the Company to comply with the terms
or to fulfill any of the conditions of this Agreement, or if
for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse
the Underwriters or such Underwriters as have so terminated
this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the
offering contemplated hereunder.
This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were
upon the same instrument.
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
Very truly yours,
CRESTAR FINANCIAL CORPORATION
By_____________________________
Accepted, January 22, 1998
UBS Securities LLC
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Acting severally on behalf
of themselves and the
several Underwriters
named herein.
By UBS Securities LLC
By_____________________________
By UBS Securities LLC
By_____________________________
Xxxxxx Xxxxxxx & Co. International Limited
Solely for the purpose of accepting
the assignment or the Call Option as
set forth in paragraph VIII hereof.
By_____________________________
Name:
Title:
Union Bank of Switzerland, London branch
Solely for the purpose of accepting
the assignment or the Call Option as
set forth in paragraph VIII hereof.
By_____________________________
Name:
Title:
By_____________________________
Name:
Title:
SCHEDULE I
Principal Amount
of Securities
Underwriter To Be Purchased
UBS Securities LLC $50,000,000
Xxxxxx Brothers Inc. $50,000,000
Xxxxxx Xxxxxxx & Co. Incorporated $50,000,000
Total. . . . . . . . . . . . . $150,000,000
