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FIRST SUPPLEMENTAL INDENTURE
between
CRESTAR FINANCIAL CORPORATION
and
THE CHASE MANHATTAN BANK
Dated as of December 31, 1996
8.16% Junior Subordinated Deferrable Interest Debentures
due December 15, 2026
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definition of Terms..............................................................2
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE JUNIOR SUBORDINATED DEBENTURES
SECTION 2.01. Designation and Principal Amount.................................................6
SECTION 2.02. Stated Maturity..................................................................6
SECTION 2.03. Form and Payment; Minimum Transfer Restriction...................................6
SECTION 2.04. Exchange and Registration of Transfer of Junior Subordinated
Debentures; Restrictions on Transfers; Depositary......................................7
SECTION 2.05. Interest........................................................................13
ARTICLE 3
REDEMPTION AND PREPAYMENT OF THE JUNIOR SUBORDINATED DEBENTURES
SECTION 3.01. Optional Prepayment by Company..................................................14
SECTION 3.02. Tax Event, Investment Company Event or Capital Treatment
Event Prepayment......................................................................15
SECTION 3.03. Notice of Prepayment............................................................16
ARTICLE 4
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.01. Extension of Interest Period....................................................16
SECTION 4.02. Notice of Extension.............................................................17
ARTICLE 5
EXPENSES
SECTION 5.01. Payment of Expenses.............................................................18
SECTION 5.02. Payment upon Resignation or Removal.............................................18
ARTICLE 6
FORM OF JUNIOR SUBORDINATED DEBENTURE
SECTION 6.01. Form of Junior Subordinated Debenture...........................................19
ARTICLE 7
ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBENTURES
SECTION 7.01. Original Issue of Junior Subordinated Debentures................................19
ARTICLE 8
EXCHANGE OF SECURITIES
SECTION 8.01. Mandatory Tender in Exchange Offer..............................................20
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Ratification of Indenture; First Supplemental Indenture Controls
.....................................................................................20
SECTION 9.02. Trustee Not Responsible for Recitals............................................20
SECTION 9.03. Governing Law...................................................................20
SECTION 9.04. Separability....................................................................20
SECTION 9.05. Counterparts....................................................................21
FIRST SUPPLEMENTAL INDENTURE dated as of December 31, 1996 (the "First
Supplemental Indenture") between Crestar Financial Corporation, a Virginia
corporation (the "Company"), and The Chase Manhattan Bank, as trustee (the
"Trustee") under the Indenture dated as of December 31, 1996 between the Company
and the Trustee (the "Base Indenture" and together with the First
Supplemental Indenture, the "Indenture").
WHEREAS, the Company executed and delivered the Base Indenture to the
Trustee to provide for the future issuance of the Company's unsecured junior
subordinated debentures (the "Debentures") to be issued from time to time in one
or more series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company
desires to provide for the establishment of two separate series of its
Debentures, both to be known as its 8.16% Junior Subordinated Deferrable
Interest Debentures due December 15, 2026 (collectively, the "Junior
Subordinated Debentures"), the form and substance of such Junior Subordinated
Debentures and the terms, provisions and conditions thereof to be set forth as
provided in the Base Indenture and this First Supplemental Indenture;
WHEREAS, the Company desires that (x) the first series of Junior
Subordinated Debentures (the "Private Debentures") be originally issued on
December 31, 1996, pursuant to the Indenture, the Purchase Agreement (as defined
below) and the Trust Agreement (as defined below), the certificates for which
initially shall bear legends in the form set forth in Section 2.04(e) indicating
that they have not been registered under the Securities Act and restricting
transfers thereof , and (y) the second series of Junior Subordinated Debentures
(the "Exchange Debentures") be issuable upon surrender of and in exchange for
the Private Debentures pursuant to Section 8.01;
WHEREAS, Crestar Capital Trust I, a Delaware statutory business trust
(the "Trust"), has offered to the purchasers (the "Purchasers") named in
Schedule I to the Purchase Agreement (the "Purchase Agreement") dated as of
December 20, 1996 among the Purchasers, the Trust and the Company in a private
placement $200,000,000 aggregate liquidation amount of its 8.16% Capital
Securities (the "Capital Securities") representing undivided beneficial
interests in the assets of the Trust and proposes to invest the proceeds from
such offering, together with the proceeds of the issuance and sale by the Trust
to the Company of $6,200,000 aggregate liquidation amount of its Common
Securities, in $206,200,000 aggregate principal amount of the Junior
Subordinated Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture and all requirements necessary to make this
First Supplemental Indenture a valid instrument in accordance with its terms and
to make the Junior Subordinated Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects.
NOW, THEREFORE, in consideration of the purchase and acceptance of the
Junior Subordinated Debentures by the Purchasers, and for the purpose of setting
forth, as provided in the Base Indenture, the form and substance of the Junior
Subordinated Debentures and the terms, provisions and conditions thereof, the
Company covenants and agrees with the Trustee as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definition of Terms. For all purposes of the First
Supplemental Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms which are defined in the Base Indenture have the same
meanings when used in this First Supplemental Indenture;
(b) the terms defined in this Article have the meaning assigned to
them in this Article and include the plural as well as the singular;
(c) all other terms used herein which are defined in the Trust
Indenture Act of 1939, whether directly or by reference therein, have the
meanings assigned to them therein;
(d) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of America
at the date of such computation;
(e) a reference to a Section or Article is to a Section or Article of
this First Supplemental Indenture unless otherwise stated;
(f) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this First Supplemental Indenture as a whole and not to
any particular Article, Section or other subdivision;
(g) headings are for convenience of reference only and do not affect
interpretation;
(h) the term "prepayment" as used herein means "redemption" as such
term is used in the Base Indenture; and
(i) the following terms have the meanings given to them in the Trust
Agreement (as defined herein): (i) Affiliate, (ii) Administrator, (iii) Business
Day, (iv) Clearing Agency, (v) Capital Securities Certificate, (vi) Capital
Treatment Event, (vii) Debenture Exchange and Registration Rights Agreement,
(viii) Delaware Trustee, (ix) Investment Company Event, (x) Property Trustee,
(xi) PORTAL Market, (xii) QIB, (xiii) Registration Rights Agreements, (xiv)
Regulation S, (xv) Rule 144(k), (xvi) Rule 144A, (xvii) Tax Event, (xviii) Trust
Securities and (xix) Capital Securities Exchange and Registration Rights
Agreement.
"Additional Interest" has the meaning specified in Section 2.05.
"Adjusted Treasury Rate" means, with respect to any prepayment date,
the Treasury Rate plus (i) 1.00% if such prepayment date occurs on or before
December 15, 1997 or (ii) 0.50% if such prepayment date occurs after December
15, 1997.
"Capital Securities" has the meaning specified in the fourth recital to
this First Supplemental Indenture.
"Comparable Treasury Issue" means with respect to any prepayment date
the United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the Remaining
Life. If no United States Treasury security has a maturity which is within a
period from three months before to three months after December 15, 2006, the two
most closely corresponding United States Treasury securities shall be used as
the Comparable Treasury Issue, and the Treasury Rate shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest month using such
securities.
"Comparable Treasury Price" means (A) the average of five Reference
Treasury Dealer Quotations for the applicable prepayment date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the
Trustee obtains fewer than three such Reference Treasury Dealer Quotations, the
average of all such Quotations.
"Compounded Interest" has the meaning specified in Section 4.01.
"Coupon Rate" has the meaning specified in Section 2.05(a).
"Deferred Interest" has the meaning specified in Section 4.01.
"Event Prepayment Price" has the meaning specified in Section 3.02.
"Exchange Debenture" has the meaning specified in the third recital to
this First Supplemental Indenture.
"Extension Period" has the meaning specified in Section 4.01.
"Global Debenture" has the meaning specified in Section 2.04(a).
"Global Private Debenture" has the meaning specified in Section
2.04(a).
"Interest Payment Date" has the meaning specified in Section 2.05.
Liquidation Amount" means the stated amount of $1,000 per Capital
Security.
"Minimum Transfer Restrictions" has the meaning specified in Section
2.03(b).
"Non U.S. Person" means a Person other than a U.S. Person, including
dealers or other professional fiduciaries in the United States acting on a
discretionary basis for foreign beneficial owners of Junior Subordinated
Debentures (other than an estate or trust).
"Optional Prepayment Price" has the meaning specified in Section
3.01(a).
"Prepayment Date" has the meaning specified in Section 3.01(a).
"Prepayment Price" means the Optional Prepayment Price and the Event
Prepayment Price, collectively.
"Private Debenture" has the meaning specified in the third recital to
this First Supplemental Indenture.
"Purchase Agreement" has the meaning specified in the fourth recital to
this First Supplemental Indenture.
"Purchasers" has the meaning specified in the fourth recital to this
First Supplemental Indenture.
"Quotation Agent" means Xxxxxx Xxxxxxx & Co. Incorporated.
"Record Date" has the meaning specified in Section 2.05(a).
"Reference Treasury Dealer" means (i) Xxxxxx Xxxxxxx & Co.
Incorporated, Xxxxxx Brothers Inc. and UBS Securities LLC and their respective
successors; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury Dealer;
and (ii) any other Primary Treasury Dealer selected by the Trustee after
consultation with the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any prepayment date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such prepayment date.
"Remaining Life" has the meaning specified in Section 3.02.
"Restricted Security" has the meaning specified in Section 2.04(e).
"Special Interest" has the meaning specified in Section 2.05(c).
"Transfer Restriction Termination Date" means the first date on which
the Junior Subordinated Debentures (other than Junior Subordinated Debentures
acquired by the Company or any Affiliate thereof) may be sold pursuant to Rule
144(k).
"Treasury Rate" means (i) the yield, under the heading which represents
the average for the immediately prior week, appearing in the most recently
published statistical release designated "H.R.(519)" or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on
actively traded United States Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities", for the maturity corresponding
to the Remaining Life (if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Remaining Life shall be determined and the Treasury Rate
shall be interpolated or extrapolated from such yields on a straight-line basis,
rounding to the nearest month) or (ii) if such release (or any successor
release) is not published during the week preceding the calculation date or does
not contain such yields, the rate per annum equal to the semi-annual equivalent
yield to maturity of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such prepayment date. The
Treasury Rate shall be calculated on the third Business Day preceding the
prepayment date.
"Trust Agreement" means the Amended and Restated Trust Agreement dated
as of December 31, 1996 among the Company, as Depositor, The Chase Manhattan
Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee,
and the Administrators named therein (the forms of which Trust Agreement and
related Capital Securities Guarantee Agreement are annexed hereto as Exhibits E
and F).
"U.S. Person" has the meaning given such term in Rule 902(o) of
Regulation S.
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE JUNIOR SUBORDINATED DEBENTURES
SECTION 2.01. Designation and Principal Amount. There is hereby
authorized two series of Debentures, both to be designated the "8.16% Junior
Subordinated Deferrable Interest Debentures due December 15, 2026," limited in
aggregate principal amount to $206,200,000, which amount shall be as set forth
in any written orders of the Company for the authentication and delivery of
Junior Subordinated Debentures pursuant to Section 2.01 of the Base Indenture
and Section 7.01(a).
SECTION 2.02. Stated Maturity. The Stated Maturity of the Junior
Subordinated Debentures is December 15, 2026, and shall not be subject to
extension.
SECTION 2.03. Form and Payment; Minimum Transfer Restriction. (a)
Except as provided in Section 2.01, the Private Debentures shall be issued to
the Trust in fully registered certificated form without coupons in minimum
denominations of $100,000 and integral multiples of $1,000 in excess thereof.
Exchange Debentures shall be issued in minimum denominations of $1,000 and
integral multiples of $1,000 in excess thereof. Principal and interest on the
Junior Subordinated Debentures issued in certificated form will be payable, the
transfer of such Junior Subordinated Debentures will be registrable and such
Junior Subordinated Debentures will be exchangeable for Junior Subordinated
Debentures bearing identical terms and provisions at the principal office of the
Trustee; provided, however, that payment of interest may be made at the option
of the Company by check mailed to the registered holder at such address as shall
appear in the Register. Notwithstanding the foregoing, so long as the registered
holder of any Junior Subordinated Debentures is the Property Trustee, the
payment of the principal of and interest (including Compounded Interest,
Additional Interest and Special Interest, if any) on such Junior Subordinated
Debentures held by the Property Trustee will be made at such place and to such
account as may be designated by the Property Trustee. The Register for the
Junior Subordinated Debentures shall be kept at the principal office of the
Trustee and the Trustee is hereby appointed registrar for the Junior
Subordinated Debentures.
(b) The Private Debentures may be transferred or exchanged only in
minimum denominations of $100,000 and integral multiples of $1,000 in excess
thereof, and any attempted transfer, sale or other disposition of Private
Debentures in a denomination of less than $100,000 shall be deemed to be void
and of no legal effect whatsoever (the foregoing restriction being the "Minimum
Transfer Restriction").
SECTION 2.04. Exchange and Registration of Transfer of Junior
Subordinated Debentures; Restrictions on Transfers; Depositary. If distributed
to holders of Capital Securities pursuant to Section 9.04 of the Trust
Agreement, the Junior Subordinated Debentures will be issued to such holders in
the same form as the Capital Securities that such Junior Subordinated Debentures
replace in accordance with the following procedures:
(a) So long as Junior Subordinated Debentures are eligible for
book-entry settlement with the Depositary, unless otherwise required by law, all
Junior Subordinated Debentures that are so eligible may be represented by one or
more Junior Subordinated Debentures in global form (a "Global Debenture")
registered in the name of the Depositary or the nominee of the Depositary,
except as otherwise specified below. The transfer and exchange of beneficial
interests in any such Junior Subordinated Debenture in global form shall be
effected through
the Depositary in accordance with the Indenture and the procedures of the
Depositary therefor.
Private Debentures that are distributed to QIBs in replacement of
Capital Securities represented by a global Capital Security will be represented
by a global Private Debenture (the "144A Global Debenture"). Private Debentures
that are distributed to Non-U.S. Persons in replacement of Capital Securities
represented by a global Capital Security will be represented by a global Private
Debenture (the "Regulation S Global Debenture"). Each of the 000X Xxxxxx
Xxxxxxxxx and the Regulation S Global Debenture shall be referred to herein as a
"Global Private Debenture." Private Debentures that are distributed to QIBs or
to Non-U.S. Persons in replacement of definitive Capital Securities will be
represented by definitive Private Debentures as set forth in Section 2.04(b). If
Global Private Debentures are issued, transfers of interests in the Private
Debentures between the 000X Xxxxxx Xxxxxxxxx and the Regulation S Global
Debenture will be made in accordance with the standing instructions and
procedures of the Depositary and its participants and in accordance with Section
2.04(d), and the Trustee shall make appropriate endorsements to reflect
increases or decreases in the principal amounts of such Global Private
Debentures to reflect any such transfers.
Except as provided in Section 2.04(e) below, beneficial owners of a
Junior Subordinated Debenture in global form shall not be entitled to have
certificates registered in their names, will not receive or be entitled to
receive physical delivery of certificates in definitive form and will not be
considered registered holders of such Junior Subordinated Debentures in global
form.
(b) Capital Securities held in certificated form, except for
certificates representing Capital Securities held by the Depositary or its
nominee (or any successor Clearing Agency or its nominee), shall upon
presentation to the Trustee by the Property Trustee or by the holder thereof or
by the Property Trustee on behalf of such holders shall be exchanged for Junior
Subordinated Debentures in fully registered certificated form of like aggregate
principal amount and tenor.
(c) So long as the Private Debentures are eligible for book-entry
settlement, and to the extent that beneficial interests in Private Debentures
are held by QIBs or Non-U.S. Persons, as the case may be, in a Global Private
Debenture, or unless otherwise required by law, upon any transfer of a
definitive Private Debenture to a QIB in accordance with Rule 144A or to a
Non-U.S. Person in accordance with Regulation S, and upon receipt of the
definitive Private Debenture or Private Debentures being so transferred, and
subject to Section 2.04(d)(i), the Trustee shall make an endorsement on any 000X
Xxxxxx Xxxxxxxxx or any Regulation S Global Debenture, as the case may be, to
reflect an increase in the aggregate principal amount of the Private Debentures
represented by such Global
Private Debenture in accordance with the standing instructions and procedures of
the Depositary, and the Trustee shall cancel such definitive Private Debenture
or Private Debentures the aggregate principal amount of Private Debentures
represented by such Global Private Debenture to be increased accordingly;
provided that no definitive Private Debenture, or portion thereof, in respect of
which the Company or an Affiliate of the Company held any beneficial interest
shall be included in such Global Private Debenture until such definitive Private
Debenture is freely tradable in accordance with Rule 144(k); provided further
that the Trustee shall, at the written request of the Company, issue Private
Debentures in definitive form upon any transfer of a beneficial interest in the
Global Private Debenture to the Company or any Affiliate of the Company.
Any Global Debenture may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent with the
provisions of the Indenture as may be required by the Depositary, by the New
York Stock Exchange or by the National Association of Securities Dealers, Inc.
in order for the Private Debentures to be tradeable on the PORTAL Market or as
may be required for the Private Debentures to be tradeable on any other market
developed for trading of securities pursuant to Rule 144A or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Junior Subordinated
Debentures may be listed or traded or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Junior Subordinated Debentures are subject.
(d) Prior to the Transfer Restriction Termination Date,
(i) any transfer of a definitive Private Debenture
shall be registered upon the Register only upon receipt by the
Trustee of such Private Debenture accompanied by a duly
completed and executed certificate of transfer in the form
attached to Exhibit A and, in the case of a transfer to an
institutional accredited investor (as defined in Rule
501(a)(1), (2), (3) or (7) under the Act) in a transaction
exempt from the registration requirements of the Act, upon
receipt by the Trustee of a written certificate in the form of
Exhibit B (or other certifications, legal opinions or other
information as the Company may reasonably request to confirm
that such transfer is exempt from the registration
requirements of the Act);
(ii) any transfer pursuant to Rule 144A under the Act
of a beneficial interest in a Regulation S Global Debenture
shall be reflected by an increase in the 000X Xxxxxx Xxxxxxxxx
and a
corresponding decrease in the Regulation S Global Debenture
(in accordance with Section 2.04(a)) only upon receipt by the
Trustee of a written certificate in the form of Exhibit C (or
such other certifications, legal opinions or other information
as the Company may reasonably require to confirm that such
transfer is being made pursuant to Rule 144A); and
(iii) any transfer in accordance with Rule 904 of
Regulation S of a beneficial interest in a 000X Xxxxxx
Xxxxxxxxx shall be reflected by an increase in the Regulation
S Global Debenture and a corresponding decrease in the 144A
Global Debenture (in accordance with Section 2.04(a)) only
upon receipt by the Trustee of a written certificate in the
form of Exhibit D (or such other certifications, legal
opinions or other information as the Company may reasonably
require to confirm that such transfer is being made pursuant
to Rule 904 of Regulation S).
(e) Each Private Debenture that bears or is required to bear the
legend set forth in this Section 2.04(e) (a "Restricted Security") shall be
subject to the restrictions on transfer provided in the legend set forth in this
Section 2.04(e), unless such restrictions on transfer shall be waived by the
written consent of the Company, and the registered holder of each Restricted
Security, by such securityholder's acceptance thereof, agrees to be bound by
such restrictions on transfer. As used in this Section 2.04(e) and in Section
2.04(f), the terms "transfer" encompasses any sale, pledge, transfer or other
disposition of any Restricted Security.
Prior to the Transfer Restriction Termination Date, any certificate
evidencing a Private Debenture shall bear a legend in substantially the
following form, unless otherwise agreed by the Company (with written notice
thereof to the Trustee):
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT)
("INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY
UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION)
RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY EXCEPT (A)
TO CRESTAR FINANCIAL CORPORATION OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO THE CHASE MANHATTAN BANK, AS TRUSTEE, A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE OR
TRANSFER AGENT), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT OR (F) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THE SECURITY EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE
SECURITY EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO
THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE CHASE
MANHATTAN BANK, AS TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S.
PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE CHASE
MANHATTAN BANK, AS TRUSTEE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED AFTER
THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO THE SALES OF THE
SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
Following the Transfer Restriction Termination Date or the sale of a
Private Debenture pursuant to an effective registration statement or Rule 144
(or any successor provision) under the Securities Act, any Private Debenture or
security issued in exchange or substitution therefor (other than Private
Debentures acquired by the Company or any Affiliate thereof since the issue date
of the Capital Securities) may upon surrender of such Private Debenture for
exchange to the Security registrar in accordance with the provisions of this
Section 2.04, be exchanged for a new Private Debenture or Private Debentures, of
like tenor and aggregate principal amount, which shall not bear the restrictive
legend required by this Section 2.04(e).
Notwithstanding any other provisions of the Indenture (other than the
provisions set forth in this Section 2.04(e)), a Junior Subordinated Debenture
in global form may not be exchanged in whole or in part for Junior Subordinated
Debentures registered, and no transfer of a Junior Subordinated Debenture in
global form may be registered, in the name of any person other than the
Depositary or a nominee thereof unless (i) such Depositary (A) has notified the
Company that it is unwilling or unable to continue as Depositary for such Global
Debenture or (B) shall no longer be eligible to so act and a successor
Depositary for such Global Debenture is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, (ii) there shall have occurred and be continuing an Event of
Default, or any event which after notice or lapse of time or both would be an
Event of Default under the Indenture, with respect to such Global Debenture, or
(iii) the Company instructs the Trustee to exchange such Global Debenture for a
Junior Subordinated Debenture that is not a Global Debenture (in which case such
exchange shall be effected by the Trustee).
The Depositary shall be a clearing agency registered under the Exchange
Act. The Company initially appoints The Depository Trust Company to act as
Depositary with respect to the Junior Subordinated Debentures in global form.
Initially, the Global Debentures shall be issued to the Depositary, registered
in the name of Cede & Co., as the nominee of the Depositary, and deposited with
the Trustee, as custodian for Cede & Co.
If at any time the Depositary for the Global Debentures notifies the
Company that it is unwilling or unable to continue as Depositary for such Junior
Subordinated Debentures or if the Depositary ceases to be eligible to so act,
the Company may appoint a successor Depositary with respect to such Junior
Subordinated Debentures. If a successor Depositary for the Junior Subordinated
Debentures is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of an Officers' Certificate for
authentication and delivery of Junior Subordinated Debentures, will authenticate
and deliver, Junior Subordinated Debentures in definitive form, in an aggregate
principal amount equal to the principal amount of the Global Debentures, in
exchange for such Global Debentures.
Definitive Junior Subordinated Debentures issued in exchange for all or
a part of a Global Debenture pursuant to this section 2.04(e) shall be
registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. Upon execution and authentication, the Trustee shall
deliver such definitive Junior Subordinated Debentures to the person in whose
names such definitive Junior Subordinated Debentures are so registered.
At such time as all interests in a Global Debenture have been redeemed,
exchanged, repurchased or canceled, such Global Debenture shall be, upon receipt
thereof, canceled by the Trustee in accordance with standing procedures and
instructions of the Depositary. At any time prior to such cancellation, if any
interest in a Global Debenture is exchanged for definitive Junior Subordinated
Debentures, redeemed by the Company pursuant to Article 3 or canceled, or
transferred for part of a Global Debenture, the principal amount of such Global
Debenture shall, in accordance with the standing procedures and instructions of
the Depositary be reduced or increased, as the case may be, and an endorsement
shall be made on such Global Debenture by, or at the direction of, the Trustee
to reflect such reduction or increase.
(f) Any Private Debenture that, prior to the Transfer Restriction
Termination Date, is purchased or owned by the Company or any Affiliate thereof
may not be resold by the Company or such Affiliate unless registered under the
Securities Act or resold pursuant to an exemption from the registration
requirements of the Securities Act in a transaction which results in such
Private Debentures no longer being "restricted securities" (as defined under
Rule 144).
SECTION 2.05. Interest. (a) Each Junior Subordinated Debenture will
bear interest at the rate of 8.16% per annum (the "Coupon Rate") from December
15, 1996 until the principal thereof becomes due and payable, and will bear
interest
on any overdue principal at the Coupon Rate and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the Coupon Rate, compounded semiannually, payable (subject to the
provisions of Article 4) semiannually in arrears on the fifteenth day of June
and December of each year (each, an "Interest Payment Date"), commencing on June
15, 1997, to the Person in whose name such Junior Subordinated Debenture is
registered at the close of business on the Record Date next preceding such
Interest Payment Date. The "Record Date" for payment of interest will be the
Business Day next preceding the Interest Payment Date, unless such Junior
Subordinated Debenture is registered to a holder other than the Property Trustee
or a nominee of The Depository Trust Company, in which case the Record Date for
payment of interest will be the first day of the calendar month in which the
applicable Interest Payment Date falls or, if such first day of the month is not
a Business Day, then the Business Day next preceding such day. Until
liquidation, if any, of the Trust, each Junior Subordinated Debenture will be
held in the name of the Property Trustee in trust for the benefit of the holders
of the Trust Securities.
(b) The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any date
on which interest is payable on the Junior Subordinated Debentures is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date such payment was originally payable.
(c) If the Company does not comply with certain of its obligations
under the Registration Rights Agreements, the Private Debentures shall, in
accordance with Section 2(c) of the Capital Securities Exchange and Registration
Rights Agreement and Section 2(c) of the Debenture Exchange and Registration
Rights Agreement, bear additional interest ("Special Interest") in addition to
the interest provided for in Section 2.05(a).
ARTICLE 3
REDEMPTION AND PREPAYMENT OF THE JUNIOR SUBORDINATED DEBENTURES
SECTION 3.01. Optional Prepayment by Company. (a) Subject to the
provisions of Section 3.01(b) and to the provisions of Article 3 of the Base
Indenture, except as otherwise may be specified in Section 3.01(b) or elsewhere
in this First Supplemental Indenture, the Company shall have the right to prepay
the Junior Subordinated Debentures, in whole or in part, from time to time, on
or after
December 15, 2006, subject to the Company having received prior approval of the
Federal Reserve, if then required under applicable capital guidelines or
policies of the Federal Reserve, at a prepayment price (the "Optional Prepayment
Price") equal to the percentage of the outstanding principal amount of the
Junior Subordinated Debentures specified below, plus, in each case, accrued and
unpaid interest, including Compounded Interest, Additional Interest and Special
Interest thereon to the date of prepayment (the date of prepayment pursuant to
this Section 3.01 or Section 3.02, as the case may be, the "Prepayment Date");
if prepaid during the period:
December 15, 2006 to December 14, 2007: 104.080%
December 15, 2007 to December 14, 2008: 103.672%
December 15, 2008 to December 14, 2009: 103.264%
December 15, 2009 to December 14, 2010: 102.856%
December 15, 2010 to December 14, 2011: 102.448%
December 15, 2011 to December 14, 2012: 102.040%
December 15, 2012 to December 14, 2013: 101.632%
December 15, 2013 to December 14, 2014: 101.224%
December 15, 2014 to December 14, 2015: 100.816%
December 15, 2015 to December 14, 2016: 100.408%
On or after December 15, 2016: 100.000%
If the Junior Subordinated Debentures are only partially prepaid
pursuant to this Section 3.01, the Junior Subordinated Debentures will be
selected for prepayment by any method utilized by the Trustee. The Optional
Prepayment Price, together with any required interest payment, shall be paid
prior to 12:00 Noon, New York time, on the Prepayment Date provided that the
Company shall deposit with the Trustee an amount sufficient to pay the Optional
Prepayment Price, together with any required interest payment, by 10:00 A.M.,
New York City time, on the date such amounts are to be paid.
(b) If a partial prepayment of the Junior Subordinated Debentures
would result in the delisting of the Capital Securities issued by the Trust from
any national securities exchange or other organization on which the Capital
Securities are then listed, the Company shall not be permitted to effect such
partial prepayment and may only prepay the Junior Subordinated Debentures in
whole.
SECTION 3.02. Tax Event, Investment Company Event or Capital Treatment
Event Prepayment. If a Tax Event, Investment Company Event or Capital Treatment
Event shall occur and be continuing, the Company may, at its option and subject
to receipt of prior approval of the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve, prepay the
Junior Subordinated Debentures in whole (but not in part) at any time
within 90 days of the occurrence of such Tax Event, Investment Company Event or
Capital Treatment Event, at a prepayment price (the "Event Prepayment Price")
equal to the greater of (i) 100% of the principal amount of such Junior
Subordinated Debentures or (ii) as determined by a Quotation Agent, an amount
equal to the sum of the present values of the Optional Prepayment Price that
would be payable pursuant to Section 3.01 with respect to an optional prepayment
of such Junior Subordinated Debentures on December 15, 2006, together with the
present values of scheduled payments of interest on each Interest Payment Date
from the Prepayment Date to December 15, 2006 (the "Remaining Life"), in each
case discounted to the Prepayment Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate,
plus, in each case, accrued interest thereon (including Compounded Interest,
Additional Interest and Special Interest) to but excluding the Prepayment Date,
provided that with respect to any prepayment under this Section 3.02 of Junior
Subordinated Debentures as a result of a Tax Event, Investment Company Event or
Capital Treatment Event that occurs on or after December 15, 2006, the Event
Prepayment Price shall be an amount equal to the Optional Prepayment Price that
would be payable pursuant to Section 3.01 with respect to an optional prepayment
of the Junior Subordinated Debentures on the Prepayment Date (including accrued
interest to the Prepayment Date).
The Company shall give the Trustee notice of the amount of the Event
Prepayment Price promptly after the calculation thereof.
SECTION 3.03. Notice of Prepayment. Subject to Article 3 of the Base
Indenture, notice of any prepayment pursuant to this Article 3 will be mailed at
least 30 days but not more than 60 days before the Prepayment Date to each
holder of Junior Subordinated Debentures to be prepaid at such holder's
registered address. Unless the Company defaults in payment of the Prepayment
Price, on and after the Prepayment Date interest shall cease to accrue on all
Junior Subordinated Debentures called for prepayment on such Prepayment Date.
ARTICLE 4
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.01. Extension of Interest Period. So long as an Event of
Default under Section 6.01 of the Base Indenture shall not have occurred and be
continuing, the Company shall have the right, subject to the provisions of
Section 2.10 of the Base Indenture, at any time and from time to time during the
term of the Junior Subordinated Debentures, to defer payments of interest by
extending the
interest payment period of such Junior Subordinated Debentures for a period not
exceeding 10 consecutive semi-annual periods (an "Extension Period"), during
which Extension Period no interest shall be due and payable; provided that no
Extension Period may end on a date other than an Interest Payment Date or extend
beyond the Stated Maturity or any earlier Prepayment Date. To the extent
permitted by applicable law, interest, the payment of which has been deferred
because of an Extension Period imposed pursuant to this Section 4.01, will bear
interest thereon at the Coupon Rate compounded semi-annually ("Compounded
Interest"). At the end of the Extension Period, the Company shall pay all
interest accrued and unpaid on the Junior Subordinated Debentures, including any
Additional Interest, Special Interest and Compounded Interest (together,
"Deferred Interest") to the holders of the Junior Subordinated Debentures in
whose names the Junior Subordinated Debentures are registered in the Register on
the first Record Date preceding the end of the Extension Period. Before the
termination of any Extension Period, the Company may further extend such period,
provided that such period together with all such further extensions thereof
shall not exceed 10 consecutive semi-annual periods, or extend beyond the Stated
Maturity or any earlier Prepayment Date. Upon the termination of any Extension
Period and upon the payment of all Deferred Interest then due, the Company may
commence a new Extension Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extension Period, except at the end
thereof, but the Company may prepay at any time all or any portion of the
interest accrued during an Extension Period.
SECTION 4.02. Notice of Extension. (a) If the Property Trustee is the
only registered holder of the Junior Subordinated Debentures at the time the
Company selects an Extension Period, the Company shall give written notice to
the Administrators, the Property Trustee and the Trustee of its selection of
such Extension Period at least five Business Days before the earlier of (i) the
next succeeding date on which Distributions on the Trust Securities issued by
the Trust are payable, or (ii) the date the Trust is required to give notice of
the record date, or the date such Distributions are payable, to any applicable
self-regulatory organization or to holders of the Capital Securities issued by
the Trust, but in any event not less than five Business Days before such record
date. An Administrator shall give notice of the Company's election to begin or
extend a new Extension Period to the holders of the Capital Securities.
(b) If the Property Trustee is not the only holder of the Junior
Subordinated Debentures at the time the Company selects an Extension Period, the
Company shall give the holders of the Junior Subordinated Debentures and the
Trustee written notice of its selection of such Extension Period at least 10
Business Days before the earlier of (i) the next succeeding Interest Payment
Date or (ii) the date the Company is required to give notice of the record or
payment
date of such interest payment to any applicable self-regulatory organization or
to holders of the Junior Subordinated Debentures.
(c) The semi-annual period in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.02 shall be counted as one of the 10
consecutive semi-annual periods permitted in the maximum Extension Period
permitted under Section 4.01.
ARTICLE 5
EXPENSES
SECTION 5.01. Payment of Expenses. In connection with the offering,
sale and issuance of the Junior Subordinated Debentures to the Property Trustee
and in connection with the sale of the Trust Securities by the Trust, the
Company, in its capacity as borrower with respect to the Junior Subordinated
Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Junior Subordinated Debentures, including commissions to the
Purchasers payable pursuant to the Purchase Agreement and compensation of the
Trustee under the Indenture in accordance with the provisions of Section 7.06 of
the Base Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
fees and expenses of the Property Trustee and the Delaware Trustee, the costs
and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets);
(c) pay all costs and expenses related to the enforcement by the
Property Trustee of the rights of the registered holders of the Capital
Securities;
(d) be primarily liable for any indemnification obligations arising
with respect to the Trust Agreement; and
(e) pay any and all taxes and all liabilities, costs and expenses with
respect to such taxes of the Trust (but not including withholding taxes imposed
on holders of Preferred Securities or Common Securities of the Trust).
SECTION 5.02. Payment upon Resignation or Removal. Upon termination of
this First Supplemental Indenture or the Base Indenture or the removal or
resignation of the Trustee pursuant to Section 7.10 of the Base Indenture, the
Company shall pay to the Trustee all amounts owed to it under Section 7.06 of
the Base Indenture accrued to the date of such termination, removal or
resignation. Upon termination of the Trust Agreement or the removal or
resignation of the Delaware Trustee or the Property Trustee, as the case may be,
pursuant to Section 8.10 of the Trust Agreement, the Company shall pay to the
Delaware Trustee or the Property Trustee, and their respective counsel, as the
case may be, all amounts owed to them under Section 8.07 of the Trust Agreement
accrued to the date of such termination, removal or resignation.
ARTICLE 6
FORM OF JUNIOR SUBORDINATED DEBENTURE
SECTION 6.01. Form of Junior Subordinated Debenture. The Junior
Subordinated Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the form attached hereto as Exhibit
A.
ARTICLE 7
ORIGINAL ISSUE OF JUNIOR SUBORDINATED DEBENTURES
SECTION 7.01. Original Issue of Junior Subordinated Debentures. (a)
Junior Subordinated Debentures in the aggregate principal amount of up to
$206,200,000 may be executed by the Company and delivered to the Trustee for
authentication by it, and the Trustee shall thereupon authenticate and deliver
said Junior Subordinated Debentures to or upon the written order of the Company,
signed by its Chairman of the Board, or its President or any Vice Chairman or
any Vice President of the Company (whether or not designated by a number or word
or words added before or after the title Vice President) and by its Treasurer or
an Assistant Treasurer or its Secretary or an Assistant Secretary, without any
further corporate action by the Company as follows: (i) $206,200,000 aggregate
principal amount of Private Debentures to be originally issued on the Closing
Date (as defined in the Purchase Agreement) and (ii) $206,200,000 aggregate
principal
amount of Exchange Debentures to be issued upon surrender of and in exchange for
the Private Debentures pursuant to Section 8.01.
(b) Each Exchange Debenture shall be issued only upon surrender of and
in exchange for a like aggregate principal amount of Private Debentures and any
Private Debentures surrendered in exchange for Exchange Debentures shall be
canceled. Accordingly, the aggregate principal amount of Private Debentures and
Exchange Debentures that may be Outstanding at any time shall not exceed
$206,200,000.
ARTICLE 8
EXCHANGE OF SECURITIES
SECTION 8.01. Mandatory Tender in Exchange Offer. The Junior
Subordinated Debentures will not be convertible into any other securities or
property of the Company. The Junior Subordinated Debentures may not be exchanged
for Securities of any other series, except that if the Company effects an
exchange offer pursuant to Section 2(a) of the Debenture Exchange and
Registration Rights Agreement and, if pursuant to such exchange offer, the
Company offers to exchange any Private Debentures for Exchange Debentures, then,
to the extent permitted by law, each holder of the Private Debentures shall be
obligated to tender all the Private Debentures held by such holder in exchange
for a like principal amount of the Exchange Debentures in accordance with the
Company's instructions.
ARTICLE 9
MISCELLANEOUS
SECTION 9.01. Ratification of Indenture; First Supplemental Indenture
Controls. The Indenture, as supplemented by this First Supplemental Indenture,
is in all respects ratified and confirmed, and this First Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided. The provisions of this First Supplemental Indenture shall
supersede the provisions of the Indenture to the extent the Indenture is
inconsistent herewith.
SECTION 9.02. Trustee Not Responsible for Recitals. The recitals herein
contained are made by the Company and not by the Trustee, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this First Supplemental
Indenture.
SECTION 9.03. Governing Law. This First Supplemental Indenture and each
Junior Subordinated Debenture shall be deemed to be a contract made under the
internal laws of the State of New York, and for all purposes shall be governed
by and construed in accordance with the laws of the State of New York, except
that the rights and duties of the Trustee are governed by the laws of the State
of the Trustee's principal place of business.
SECTION 9.04. Separability. In case any one or more of the provisions
contained in this First Supplemental Indenture or in the Junior Subordinated
Debentures shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this First Supplemental Indenture or of the Junior
Subordinated Debentures, but this First Supplemental Indenture and the Junior
Subordinated Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 9.05. Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts each of which shall be an original; but
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first above written.
CRESTAR FINANCIAL CORPORATION
By
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By
---------------------------------
Name:
Title:
Exhibit A
[(FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE)]
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT THE FOLLOWING - -
THIS DEBENTURE IS A GLOBAL DEBENTURE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS DEBENTURE IS EXCHANGEABLE FOR JUNIOR SUBORDINATED
DEBENTURES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDEN TURE, AND NO
TRANSFER OF THIS DEBENTURE (OTHER THAN A TRANSFER OF THIS DEBENTURE AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
DEBENTURE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANS FER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
A - 1
No. CUSIP NO.
CRESTAR FINANCIAL CORPORATION
8.16% JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE DECEMBER 15, 2026
[Up To]* $206,200,000
[Prior to Transfer Restriction Termination Date, INSERT the following
in Private Debentures... THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE REGISTERED HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE
SECURITY EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL
NOT PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY
EXCEPT (A) TO CRESTAR FINANCIAL CORPORATION OR ANY SUBSIDIARY THEREOF, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (D) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
CHASE MANHATTAN BANK, AS TRUSTEE, A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE
SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE), (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT OR (F) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL
--------
* Insert in Global Debentures
A - 2
DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THE SECURITY EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE CHASE MANHATTAN BANK, AS TRUSTEE. IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER
WHO IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE CHASE MANHATTAN BANK, AS TRUSTEE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION AS CRESTAR FINANCIAL CORPORATION MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THIS LEGEND WILL BE REMOVED AFTER THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.]
THIS DEBENTURE IS NOT A DEPOSIT OR OTHER OBLIGATION OF A BANK
AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION
OR ANY OTHER GOVERNMENTAL AGENCY
Registered Holder:
CRESTAR FINANCIAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein referred to as the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to the
registered Holder named above, the principal sum [of ________]** [specified in
the Schedule annexed hereto]***, on December 15, 2026, in such coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debt. The Company further promises to pay to
the registered Holder hereof
--------
** Insert in all Junior Subordinated Debentures other than Global Debentures
*** Insert in Global Debentures
A - 3
as hereinafter provided (a) interest on said principal sum (subject to deferral
as set forth herein) at the rate per annum specified in the title of this
debenture (the "Debenture"), in like coin or currency, semiannually in arrears
on the fifteenth day of June and December (each an "Interest Payment Date")
commencing June 15, 1997, from the Interest Payment Date next preceding the date
hereof to which interest has been paid or duly provided for (unless (i) no
interest has yet been paid or duly provided for on this Debenture, in which case
from December 15, 1996, or (ii) the date hereof is before an Interest Payment
Date but after the related Record Date (as defined below), in which case from
such following Interest Payment Date, provided, however, that if the Company
shall default in payment of the interest due on such following Interest Payment
Date, then from the next preceding Interest Payment Date to which interest has
been paid or duly provided for), until the principal hereof is paid or duly
provided for, plus (b) Additional Interest, as defined in the Indenture, to the
extent permitted by applicable law, on any interest payment that is not made on
the applicable Interest Payment Date, which shall accrue at the rate per annum
specified in the title of this Debenture, compounded semiannually.
The interest so payable will, subject to certain exceptions provided in
the Indenture hereinafter referred to, be paid to the person in whose name this
Debenture is registered at the close of business on the Record Date next
preceding such Interest Payment Date. The Record Date shall be the Business Day
next preceding the Interest Payment Date, unless this Certificate is registered
to a holder other than the Property Trustee or a nominee of The Depository Trust
Company, in which case the Record Date will be the first day of the calendar
month in which such Interest Payment Date falls or, if such first day of the
month is not a Business Day, then the Business Day next preceding such day. This
Debenture may be presented for payment of principal and interest at the offices
of The Chase Manhattan Bank, as agent for the Company, maintained for that
purpose in the Borough of Manhattan, The City of New York, State of New York;
provided, however, that payment of interest may be made at the option of the
Company (i) by check mailed to such address of the person entitled thereto as
the address shall appear on the Register of the Debentures or (ii) by transfer
to an account maintained by the Person entitled thereto as specified in the
Register, provided that proper transfer instructions have been received by the
Record Date. Interest on the Debenture will be computed on the basis of a
360-day year of twelve 30-day months.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right at any time during the term of this Debenture to
defer payment of interest on this Debenture, at any time or from time to time,
for up to ten consecutive semiannual interest payment periods with respect to
each deferral period (each an "Extension Period"), during which Extension
Periods the Company shall have the right to make partial payments of interest on
any Interest Payment Date; provided, however, that no Extension Period shall end
on a date other than an Interest Payment Date or extend beyond December 15, 2026
or any earlier Prepayment Date. At the end of each Extension Period, the Company
shall pay all interest then accrued and unpaid (together with any Additional
Interest, Compounded Interest and Special Interest thereon to the extent
permitted by applicable law). During any such Extension Period, the Company
shall not, and shall not permit any Subsidiary of the Company to, (i) declare or
pay any dividends or
A - 4
distributions or redeem, purchase, acquire or make a liquidation payment with
respect to, any of the Company's capital stock or (ii) make any payment of
principal of, or interest or premium, if any, on or repay, repurchase or redeem
any debt security of the Company that ranks pari passu with or junior in
interest to this Debenture or make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any Subsidiaries of the
Company if such guarantee ranks pari passu with or junior in interest to this
Debenture (other than (a) dividends or distributions in Common Stock, (b) any
declaration of a dividend in connection with the implementation of a Rights
Plan, the issuance of any Common Stock or any class or series of preferred stock
of the Company under any Rights Plan or the redemption or repurchase of any
rights distributed pursuant to a Rights Plan, (c) payments under any Crestar
Guarantee, and (d) purchases of Common Stock related to the issuance of Common
Stock or rights under any of the Company's benefit plans for its directors,
officers or employees). Prior to the termination of any such Extension Period,
the Company may further extend the interest payment period, provided that no
Extension Period shall exceed ten consecutive semiannual periods or extend
beyond December 15, 2026 or any earlier Prepayment Date. At any time following
the termination of any Extension Period and the payment of all accrued and
unpaid interest (including Additional Interest, if any) then due, the Company
may elect to begin a new Extension Period, subject to the above requirements. No
interest shall be due and payable during an Extension Period except at the end
thereof. If the Debentures of this series have been issued to Crestar Capital
Trust I, the Company shall give the Trustee, the Property Trustee and the
Administrators notice of its election to begin or extend any Extension Period at
least one Business Day prior to the earlier of (i) the next succeeding date on
which Distributions on the Trust Securities issued by Crestar Capital Trust I
would be payable but for such election to begin or extend a new Extension Period
or (ii) the date the Administrators are required to give notice to any
securities exchange or other applicable self-regulatory organization or to
holders of such Trust Securities of the record date or the date such
Distributions are payable, but in any event not less than one Business Day prior
to such record date.
This Debenture is issued pursuant to an Indenture, dated as of December
31, 1996, between the Company, as issuer, and The Chase Manhattan Bank, a
banking corporation duly organized and existing under the laws of the State of
New York, as trustee, as supplemented by a First Supplemental Indenture dated as
of December 31, 1996, (as may be further supplemented or amended from time to
time, the "Indenture"). Reference is made to the Indenture for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders (the word "Holder" or
"Holders" meaning the registered holder or registered holders) of the
Debentures. Capitalized terms used herein but not defined shall have the
respective meanings assigned thereto in the Indenture. By acceptance of this
Debenture, the Holder hereof agrees to be bound by the provisions of the
Indenture.
The Debentures are limited to the aggregate principal amount of Two
Hundred Six Million Two Hundred Thousand Dollars ($206,200,000.00)
A - 5
The indebtedness of the Company evidenced by this Debenture, including
the principal thereof and interest thereon, is, to the extent and in the manner
set forth in the Indenture, subordinate and junior in right of payment to its
obligations to Holders of Senior Indebtedness of the Company and each Holder of
this Debenture, by acceptance hereof, agrees to and shall be bound by such
provisions of the Indenture and all other provisions of the Indenture.
This Debenture shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by or on
behalf of the Trustee under the Indenture.
IN WITNESS WHEREOF, CRESTAR FINANCIAL CORPORATION has caused this
instrument to be signed, manually or in facsimile, by its Chairman of the Board
or its President or a Vice President and by its Secretary or an Assistant
Secretary and a facsimile of its corporate seal to be affixed hereunto.
CRESTAR FINANCIAL CORPORATION
By
By
[Seal]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series designated herein, described in the
within-mentioned Indenture.
THE CHASE MANHATTAN BANK
By
Authorized Officer
Dated:
A - 6
REVERSE OF DEBENTURE
As provided in and subject to the provisions of the Indenture, if an
Event of Default with respect to the payment of principal or interest on the
Debentures or with respect to compliance with certain covenants occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of the then-outstanding Debentures may declare the
principal amount of all the Debentures, together with any accrued interest
(including Additional Interest), to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee, if such notice is given by
Holders). If the Debentures have been issued to a Crestar Capital Trust, upon
such an Event of Default, if the Trustee or the Holders of not less than 25% in
principal amount of the outstanding Debentures fails to declare the principal of
all the Debentures to be immediately due and payable, the holders of at least
25% in aggregate liquidation amount of the corresponding Capital Securities of
such Crestar Capital Trust then outstanding shall have such right by a notice in
writing to the Company and the Trustee, and upon any such declaration the
principal amount of and the accrued interest (including any Additional Interest)
on all the Debentures shall become immediately due and payable, provided that
the payment of principal and interest on the Debentures shall remain
subordinated to the extent provided in the Indenture.
If an Event of Default with respect to certain covenants applicable to
all series of securities issued under the Indenture (collectively, the
"Securities"), or with respect to events of bankruptcy, insolvency or
reorganization of the Company or Crestar Bank, a Virginia banking corporation,
occurs and is continuing, then and in every such case the Trustee or the Holders
of not less than 25% in principal amount of all Securities outstanding under the
Indenture (voting as a single class) may declare the principal amount of all
such Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if such notice is given by Holders), provided that,
in the case of Securities of a series issued under the Indenture to a Crestar
Capital Trust, if upon such an Event of Default the Trustee and the Holders of
not less than 25% in principal amount of all outstanding Securities of that
series fail to declare the principal of all the Securities of that series to be
immediately due and payable, the holders of at least 25% in aggregate
liquidation amount of the corresponding Capital Securities of such Crestar
Capital Trust then outstanding shall have such right by a notice in writing to
the Company and the Trustee; and upon any such declaration the principal amount
of and the accrued interest (including any Additional Interest) on all the
Securities of that series shall become immediately due and payable, provided
that the payment of principal and interest shall remain subordinated to the
extent provided in the Indenture.
The Indenture provides that in certain events such declaration that
principal and accrued interest are due and payable, and the consequences of such
declaration, may be rescinded and annulled by the holders of a majority in
principal amount of the Securities then outstanding under the Indenture as to
which such an acceleration of the payment of principal has occurred, voting as
one class. In the case of Securities issued under the Indenture to one or more
Crestar Capital Trusts, should the Holders of such Securities fail to rescind
and annul such declaration and its consequences, the Holders of a majority in
aggregate liquidation amount of the corresponding Capital Securities or
Preferred Securities of such Crestar Capital Trusts shall have such right. The
Indenture also provides that the Holders of a majority in principal amount of
all of the Securities of all series then outstanding as to which an Event of
Default has occurred may, on behalf of all Holders of such Securities, waive any
past default under the Indenture other than (a) a default in the payment of the
principal of or interest on any of the Securities or (b) a default in respect of
a covenant or provision of the Indenture which under the terms of the Indenture
cannot be modified or amended without the consent of each Holder of Securities
so affected. In the case of Securities of one or more series issued to one or
more Crestar Capital Trusts, the Indenture provides that the Holders of a
majority in aggregate liquidation amount of the corresponding Capital Securities
or Preferred Securities issued by such Crestar Capital Trusts shall also have
the right to waive such defaults.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
principal amount of the outstanding Securities of all affected series (voting as
one class), to execute supplemental indentures adding any provisions to or
changing or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying the rights of the holders of the Securities
of each such series; provided, however, that no such supplemental indenture
shall (i) change the fixed maturity of any Securities, or reduce the rate or
extend the time of payment of interest thereon or on any overdue principal
amount, or reduce the principal
A - 7
amount thereof, or reduce any amount payable upon any redemption thereof, or
make the principal thereof or any interest thereon or on any overdue principal
amount payable in any coin or currency other than that herein prescribed without
the consent of the Holder of each security so affected, (ii) reduce the
percentage of Securities, the consent of the Holders of which is required for
any such supplemental indenture, without the consent of all Holders of
Securities then outstanding, (iii) modify certain provisions of the Indenture
relating to waiver of compliance with covenants, waiver of defaults or
modification of the Indenture without the consent of all Holders of Securities
then outstanding, except to increase the percentage of Holders required for such
waiver or modification, or (iv) modify the provisions with respect to the
subordination of outstanding Securities of any series in a manner adverse to the
Holders thereof, without the consent of the Holder of each security so affected;
provided, further, that, in the case of the Securities of a series issued to a
Crestar Capital Trust, so long as any of the corresponding series of Capital
Securities or Preferred Securities issued by such Crestar Capital Trust remains
outstanding, (i) no such amendment shall be made that adversely affects the
holders of such Capital Securities or Preferred Securities in any material
respect, and no termination of this Indenture shall occur, and no waiver of any
Event of Default with respect to such series or compliance with any covenant
with respect to such series under this Indenture shall be effective, without the
prior consent of the holders of at least a majority of the aggregate liquidation
amount of such Capital Securities or Preferred Securities then outstanding,
unless and until the principal (and premium, if any) of the Securities of such
series and all accrued and unpaid interest (including any Additional Interest)
thereon shall have been paid in full and (ii) no amendment shall be made to
Section 6.05 of the Indenture (regarding the right of Holders of Preferred
Securities or Capital Securities to institute a suit directly against the
Company) that would impair the rights of the Holders of Preferred Securities or
Capital Securities provided therein without the prior consent of all Holders of
Preferred Securities and Capital Securities then outstanding, unless and until
the principal (and premium, if any) of the Securities of such series and all
accrued and unpaid interest (including any Additional Interest) thereon have
been paid in full.
This Debenture will be prepayable, in whole or in part, at the option
of the Company at any time on or after December 15, 2006, subject to the Company
having received prior approval of the Board of Governors of the Federal Reserve
System (the "Federal Reserve") if then required under applicable capital
guidelines or policies of the Federal Reserve, at a prepayment price (the
"Optional Prepayment Price") equal to the percentage of the outstanding
principal amount of this Debenture specified below, plus, in each case, accrued
and unpaid interest thereon to the date of prepayment, if prepaid during the
period:
December 15, 2006 to December 14, 2007: 104.080%
December 15, 2007 to December 14, 2008: 103.672%
December 15, 2008 to December 14, 2009: 103.264%
December 15, 2009 to December 14, 2010: 102.856%
December 15, 2010 to December 14, 2011: 102.448%
December 15, 2011 to December 14, 2012: 102.040%
December 15, 2012 to December 14, 2013: 101.632%
December 15, 2013 to December 14, 2014: 101.224%
December 15, 2014 to December 14, 2015: 100.816%
December 15, 2015 to December 14, 2016: 100.408%
On or after December 15, 2016: 100.000%
Upon the occurrence and during the continuation of a Tax Event,
Investment Company Event or Capital Treatment Event in respect of Crestar
Capital Trust I, the Company may, at its option, at any time within 90 days of
the occurrence of such Tax Event, Investment Company Event or Capital Treatment
Event prepay this Debenture, in whole but not in part, at a prepayment price
(the "Event Prepayment Price") equal to the greater of (i) 100% of the principal
amount thereof; or (ii) as determined by a Quotation Agent, an amount equal to
the sum of the present values of the principal amount and premium that would be
payable as part of the Optional Prepayment Price with respect to an optional
prepayment of such Debenture on December 15, 2006, together with the present
values of scheduled payments of interest from the prepayment date to December
15, 2006 (the "Remaining Life"), in each case discounted to the
A - 8
prepayment date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate, plus, in each case, accrued
and unpaid interest to but excluding the date of prepayment, provided that with
respect to any prepayment of this Debenture as a result of a Tax Event,
Investment Company Event or Capital Treatment Event that occurs on or after
December 15, 2006, the Event Prepayment Price shall be the Optional Prepayment
Price that would be payable on optional prepayment of the Debentures on the date
of such prepayment, which includes accrued and unpaid interest to the date of
prepayment.
"Adjusted Treasury Rate" means, with respect to any prepayment date,
the Treasury Rate plus (i) 1.00% if such prepayment date occurs on or before
December 15, 1997 or (ii) 0.50% if such prepayment date occurs after December
15, 1997. "Treasury Rate" means (i) the yield, under the heading which
represents the average for the immediately prior week, appearing in the most
recently published statistical release designated "H.R.(519)" or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities", for the
maturity corresponding to the Remaining Life (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such prepayment date. The Treasury Rate shall be calculated on the third
Business Day preceding the prepayment date.
"Comparable Treasury Issue" means with respect to any prepayment date
the United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the Remaining
Life. If no United States Treasury security has a maturity which is within a
period from three months before to three months after December 15, 2006, the two
most closely corresponding United States Treasury securities shall be used as
the Comparable Treasury Issue, and the Treasury Rate shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest month using such
securities. "Comparable Treasury Price" means (A) the average of five Reference
Treasury Dealer Quotations for such prepayment date, after excluding the highest
and lowest such Reference Treasury Dealer Quotations, or (B) if the Trustee
obtains fewer than three such Reference Treasury Dealer Quotations, the average
of all such Quotations.
"Quotation Agent" means Xxxxxx Xxxxxxx & Co. Incorporated. "Reference
Treasury Dealer" means (i) Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxx Brothers
Inc. and UBS Securities LLC and their respective successors; provided, however,
that if any of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Company
shall substitute therefor another Primary Treasury Dealer; and (ii) any other
Primary Treasury Dealer selected by the Trustee after consultation with the
Company. "Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any prepayment date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such prepayment date.
Any consent or waiver by the Holder of this Debenture given as provided
in the Indenture (unless effectively revoked as provided in the Indenture) shall
be conclusive and binding upon such Holder and upon all future Holders of this
Debenture and of any Debenture issued in exchange, registration of transfer, or
otherwise in lieu hereof irrespective of whether any notation of such consent or
waiver is made upon this Debenture or such other Debentures. No reference herein
to the Indenture and no provision of this Debenture or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this Debenture, at the
places, at the respective times, at the rate and in the coin or currency herein
prescribed.
A - 9
If the Company does not comply with certain of its obligations under
the Registration Rights Agreements (as defined in the Indenture), this Debenture
shall bear additional interest ("Special Interest") in addition to the interest
provided for in Section 2.05(a) of the First Supplemental Indenture to the
Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Debenture may be registered on the Register of
the Debentures upon surrender of this Debenture for registration of transfer at
the offices maintained by the Company or its agent for such purpose, duly
endorsed by the Holder hereof or his attorney duly authorized in writing, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, but without payment of any charge other
than a sum sufficient to reimburse the Company for any tax or other governmental
charge incident thereto. Upon any such registration of transfer, a new Debenture
or Debentures of authorized denomination or denominations for the same aggregate
principal amount will be issued to the transferee in exchange herefor.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, and any agent of the Company or the Trustee
may deem and treat the person in whose name this Debenture shall be registered
upon the Register of the Debentures as the absolute owner of this Debenture
(whether or not this Debenture shall be overdue and notwithstanding any notation
of ownership or other writing hereon) for the purpose of receiving payment of or
on account of the principal hereof and, subject to the provisions on the face
hereof, interest due hereon and for all other purposes; and neither the Company
nor the Trustee nor any such agent shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the principal of or
interest on this Debenture, or for any claim based hereon or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any stockholder, officer, director or employee, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as a part of
the consideration for the issue hereof, expressly waived and released.
The Company and, by acceptance of this Debenture or a beneficial
interest in this Debenture, each holder hereof and any person acquiring a
beneficial interest herein, agree that for United States federal, state and
local tax purposes it is intended that this Debenture constitute indebtedness.
This Debenture shall be deemed to be a contract made under the laws of
the State of New York and for all purposes shall be governed by, and construed
in accordance with, the laws of said State.
A - 10
[Prior to Transfer Restriction Termination Date, INSERT the following in Private
Debentures in Definitive form --]
[FORM OF CERTIFICATE OF TRANSFER]
For value received ________________ hereby sell(s), assign(s)
and transfer(s) unto _______________________________
(Please insert social security or other
taxpayer identification number of assignee.)
the within 8.16% Junior Subordinated Deferrable Interest Debenture (the
"Debenture") and hereby irrevocably constitutes and appoints ____________
attorney to transfer the said security on the books of the Company, with full
power of substitution in the premises.
In connection with any transfer of the within Debenture occurring prior to such
date as restrictions on the transfer of such security imposed by the Securities
Act of 1933, as amended, and the rules and regulations thereunder shall be
terminated in accordance with the Indenture, the undersigned confirms that such
security is being transferred:
o To Crestar Financial Corporation or a subsidiary thereof; or
o Pursuant to and in compliance with Rule 144A under the Securities Act
of 1933, as amended; or o To an Institutional Accredited Investor
pursuant to and in compliance with the Securities Act of 1933,
as amended; or
o Pursuant to and in compliance with Regulation S under the Securities
Act of 1933, as amended; or o Pursuant to and in compliance with Rule
144 under the Securities Act of 1933, as amended;
and unless the box below is checked, the undersigned confirms that such
Debenture is not being transferred to an "affiliate" of the Company as defined
in Rule 144 under the Securities Act of 1933, as amended (an "Affiliate"):
o The transferee is an Affiliate of the Company.
Dated: ___________________
-------------------
-------------------
Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or a member
firm of a major stock exchange.
---------------------------
Signature Guarantee
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Security in every particular without
alteration or enlargement or any change whatever.
A - 11
[Following Transfer Restriction Termination Date, INSERT the following--]
FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
Please insert Social Security or other identifying number of assignee:
(Name and Address of Assignee, including Zip Code,
must be printed or typewritten)
the within Junior Subordinated Deferrable Interest Debenture (the "Debenture"),
and all rights thereunder, hereby irrevocably constituting and appointing
Attorney to transfer said Debenture
on the Register of the Debentures, with full power of substitution in the
premises.
Date: __________________________
-------------------------------
-------------------------------
Signature(s)
Signature(s) must be
guaranteed by a commercial
bank or trust company or a
member firm of a major
stock exchange. NOTICE: The
signature to this
assignment must correspond
with the name as it appears
upon the face of the within
Junior Subordinated
Deferrable Interest
Debenture in every
particular, without
alteration or enlargement
or any change whatever.
A - 12
[For Global Debentures, INSERT the following--]
[FORM OF SCHEDULE FOR ENDORSEMENTS ON GLOBAL DEBENTURE
TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
The initial principal amount evidenced by this Global Debenture is
$____________.
Changes to Principal Amount of Global Debenture
Principal Amount by which this
Global Debenture is to be Reduced Remaining Principal Amount
or Increased, and Reason for Reduction of this Global Debenture Notation
Date or Increase Made by
------- ---------------------- ----------------- -----------
------- ---------------------- ----------------- -----------
------- ---------------------- ----------------- -----------
------- ---------------------- ----------------- -----------
------- ---------------------- ----------------- -----------
------- ---------------------- ----------------- -----------
------- ---------------------- ----------------- -----------
------- ---------------------- ----------------- -----------
A - 13
EXHIBIT B
FORM OF TRANSFER CERTIFICATE --
FOR INSTITUTIONAL ACCREDITED INVESTORS
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Re: Crestar Financial Corporation (the "Company") 8.16% Junior
Subordinated Deferrable Interest Debentures due December 15,
2026 (the "Debentures")
Ladies and Gentlemen:
We represent, warrant and agree with you as follows with regard to the
Debentures purchased by us and described in the confidential Offering Memorandum
dated December 20, 1996 (the "Offering Memorandum").
1. We are an "institutional investor" that is an "accredited
investor" within the meaning of subparagraph (a)(1), (2), (3)
or (7) of Rule 501 under the Securities Act of 1933, as
amended (the "Securities Act"). In addition, if we are buying
for one or more accounts for which we are acting as fiduciary
or agent and we are not a bank (as defined in Section 3(a)(2)
of the Securities Act of 1933, as amended (the "Securities
Act"), or a savings and loan association or other institution
(as defined in Section 3(a)(5)(A) of the Securities Act), each
such account is an institutional investor and an accredited
investor on a like basis.
2. We are acquiring the Debentures for our own account or for an
account for which we are acting as fiduciary or agent in a
minimum amount of not less than $100,000 principal amount for
each such account. We acknowledge and agree that the
Debentures purchased by us will be issued in certificated form
bearing a legend to the effect of paragraph 5 and may not be
exchanged for Debentures in book-entry form. We further
acknowledge and agree that the provisions of this paragraph 2
and those of paragraph 3 below will apply to each Debenture
purchased by us until such times such Debenture is transferred
in compliance with the provisions of paragraph 3.
B - 1
3. We understand that the Debentures have not been registered
under the Securities Act and we agree that the Debentures
purchased by us may be reoffered, resold, pledged or otherwise
transferred only:
(i) (a) to a person who the seller reasonably believes is a
"qualified institutional buyer" within the meaning of Rule
144A under the Securities Act, purchasing for its own account
or the account of a qualified institutional buyer in a
transaction meeting the requirement of Rule 144A;
(b) in an offshore transaction complying with Rule 903 or 904
of Regulation S under the Securities Act;
(c) to an institutional accreditor investor (who delivers a
letter in the form hereof) in a transaction exempt from the
registration requirements of Securities Act;
(d) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 thereunder (if available);
or
(e) pursuant to an effective registration statement under the
Securities Act; and
(ii) in accordance with all applicable securities laws of the
United States and other jurisdictions.
4. We have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits
and risk of an investment in the Debentures, we, and any
accounts for which we are acting are able to bear the economic
risk of purchasing such Debentures and we have received a copy
of the Offering Memorandum.
5. We acknowledge that the Debentures will bear a legend to the
following effect unless the Company determines otherwise
consistently with applicable law:
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT)
("INSTITUTIONAL ACCREDITED INVESTOR") OR (C)
B - 2
IT IS NOT A U.S. PERSON AND IS ACQUIRING THE SECURITY
EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT
IT WILL NOT PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER
RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION) RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED
HEREBY EXCEPT (A) TO CRESTAR FINANCIAL CORPORATION OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (D) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO THE CHASE MANHATTAN BANK, AS
TRUSTEE, A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE
SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM SUCH TRUSTEE OR TRANSFER AGENT), (E) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES
ACT OR (F) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE
SECURITY EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY PRIOR TO THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST
CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE CHASE MANHATTAN BANK, AS TRUSTEE. IF THE
PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR
A PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR
TO SUCH TRANSFER, FURNISH TO THE CHASE MANHATTAN BANK, AS
TRUSTEE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM
THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE
REMOVED AFTER THE EXPIRATION OF THE HOLDING PERIOD
B - 3
APPLICABLE TO THE SALES OF THE SECURITY EVIDENCED HEREBY
UNDER RULE 144(K) UNDER THE SECURITIES ACT. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
6. We acknowledge that Crestar Financial Corporation, you and
others will rely upon our confirmations, acknowledgments and
agreements set forth herein, and we hereby irrevocably
authorize such parties to produce this letter or a copy hereof
to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters
covered hereby.
7. If we are acquiring any Debentures as a fiduciary or agent for
one or more accounts, we represent that we have sole
investment discretion with respect to each such account and
that we have full power to make the foregoing acknowledgments,
representations and agreements with respect to each such
account and as set forth in the Notice to Investors contained
in the Offering Memorandum.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
You, Crestar Financial Corporation and the Purchasers (the
"Purchasers") named in Schedule I to the Purchase Agreement dated December 20,
1996 among the Crestar Capital Trust I, Crestar Financial Corporation and the
Purchasers are entitled to rely upon this letter and are irrevocably authorized
to produce this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Dated:
[Insert Name of Transferee]
By:
--------------------------------
Name:
Title:
(If the registered owner is a
corporation, partnership or
fiduciary, the title of the Person
signing on behalf of such registered
owner must be stated.)
B - 4
EXHIBIT C
FORM OF TRANSFER CERTIFICATE
REGULATION S GLOBAL SECURITY TO 144A GLOBAL SECURITY
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Re: Crestar Financial Corporation (the "Company") 8.16% Junior
Subordinated Deferrable Interest Debentures due December 15,
2026 (the "Debentures")
Reference is hereby made to the Indenture (the "Base Indenture") dated
as of December 31, 1996 between the Company and The Chase Manhattan Bank, as
Trustee (as supplemented by the First Supplemental Indenture (the "Supplemental
Indenture") dated December 31, 1996, the "Indenture") Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to _________________ Private Debentures which are
evidenced by a Regulation S Global Debenture (CUSIP No. ______) and held with
the Depositary indirectly in the name of [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Private Debentures to a Person that will take delivery thereof
in a transaction effected pursuant to and in accordance with Rule 144A under the
United States Securities Act of 1933, as amended (the "Securities Act"), and
accordingly the Transferor does hereby certify that the (i) the Transferor's
interest in the Private Debentures is being transferred in accordance with the
transfer restrictions set forth in the Indenture and in the Private Debenture;
and (ii) the transferee is a person who the Transferor reasonably believes is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act, purchasing for its own account or the account of a qualified
institutional buyer in a transaction meeting the requirements of Rule 144A, in
accordance with all applicable securities laws of the states of the United
States and other jurisdictions.
You, the Company and the Purchasers are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
C-1
Terms used in this certificate and not otherwise defined in the Indenture have
the meanings set forth in Regulation S under the Securities Act.
Dated:
[Insert Name of Transferor]
By:
-----------------------------
Name:
Title:
(If the registered owner is a
corporation, partnership or
fiduciary, the title of the Person
signing on behalf of such registered
owner must be stated.)
C-2
EXHIBIT D
FORM OF TRANSFER CERTIFICATE--
144A GLOBAL TO REGULATION S GLOBAL
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Re: Crestar Financial Corporation (the "Company") 8.16% Junior
Subordinated Deferrable Interest Debentures due December
15, 2026 (the "Debentures")
Reference is hereby made to the Indenture (the "Base Indenture") dated
as of December 31, 1996 between the Company and The Chase Manhattan Bank, as
Trustee (as supplemented by the First Supplemental Indenture (the "Supplemental
Indenture") dated December 31, 1996, the "Indenture") Capitalized terms used but
not defined herein shall have the meanings given to them in the Indenture.
This letter relates to _________________ Private Debentures which are
evidenced by a 000X Xxxxxx Xxxxxxxxx (CUSIP No. ______) and held with the
Depositary in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest in the Private
Debentures to a Person that will take delivery thereof in a transaction effected
pursuant to and in accordance with Rule 904 under the United States Securities
Act of 1933, as amended (the "Securities Act"), and accordingly the Transferor
does hereby further certify that:
The offer of the Private Debentures was not made to a person in the
United States;
(A) either:
(i) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting
on its behalf reasonably believed that the transferee was outside
the United States, or
(ii) the transaction was executed in, or through the facilities of a
designated offshore securities market and neither the Transferor
nor any person acting on its behalf knows that the transaction was
pre-arranged with a buyer in the United States;
(B) no directed selling efforts have been made in contravention of the
requirements of 904(b) of Regulation S, as applicable;
D-1
(C) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(D) we have advised the transferee of the transfer restrictions
applicable to the Private Debentures.
You, the Company and the Purchasers are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
Dated:
[Insert Name of Transferor]
By:
---------------------------------
Name:
Title:
(If the registered owner is a
corporation, partnership or
fiduciary, the title of the Person
signing on behalf of such registered
owner must be stated.)
D-2
EXHIBIT E
[Form of Trust Agreement]
E - 1
EXHIBIT F
[Form of Capital Securities Guarantee Agreement]
F - 1
