GUARANTEE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
GUARANTEE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated December 31, 1996,
by and among Crestar Capital Trust I, a Delaware business trust (the "Trust"),
Crestar Financial Corporation, a Virginia corporation registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended
("Crestar") and Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxx Brothers Inc. and UBS
Securities LLC (collectively, the "Purchasers"), purchasers of the 8.16% Capital
Securities of the Trust.
1. CERTAIN DEFINITIONS. For purposes of this Exchange and
Registration Rights Agreement, the following terms shall have the following
respective meanings:
(a) "COMMISSION" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular purpose.
(b) "DEBENTURE EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" means the
Debenture Exchange and Registration Rights Agreement in respect of the
Debentures dated December 31, 1996 among Crestar, the Trust and the Purchasers.
(c) "DEBENTURES" means the 8.16% Junior Subordinated Deferrable Interest
Debentures due December 15, 2026 of Crestar, to be issued pursuant to the
Indenture.
(d) "Effective Time", in the case of (i) an Exchange Offer, means the
date on which the Commission declares the Exchange Offer registration statement
effective or on which such registration statement otherwise becomes effective
and (ii) a Shelf Registration, means the date on which the Commission declares
the Shelf Registration effective or on which the Shelf Registration otherwise
becomes effective.
(e) "EXCHANGE ACT" means the Securities Exchange Act of 1934, or any
successor thereto, as amended from time to time.
(f) "EXCHANGE DEBENTURES" has the meaning set forth in Section 2(a)
hereof.
(g) "EXCHANGE GUARANTEE" has the meaning set forth in Section 2(a)
hereof.
(h) "EXCHANGE OFFER" has the meaning set forth in Section 2(a) hereof.
(i) "EXCHANGE SECURITIES" has the meaning set forth in Section 2(a)
hereof.
(j) "GUARANTEE" means the Guarantee of Crestar with respect to the
Securities, to the extent set forth in the Guarantee Agreement.
(k) "GUARANTEE AGREEMENT" means the Guarantee Agreement dated December
31, 1996 between Crestar and The Chase Manhattan Bank, as Guarantee Trustee
(together with its successors and assigns, the "Guarantee Trustee"), for the
benefit of the holders of the Securities.
(l) "CAPITAL SECURITIES EXCHANGE AND REGISTRATION RIGHTS AGREEMENT" means
the Capital Exchange and Registration Rights Agreement in respect of the
Securities dated December 31, 1996 among Crestar, the Trust and the Purchasers.
(m) The term "HOLDER" has the meaning set forth in the Capital Securities
Exchange and Registration Rights Agreement.
(n) "INDENTURE" means the Indenture dated as of December 31, 1996,
between Crestar and The Chase Manhattan Bank, as Debenture Trustee, as
supplemented by the First Supplemental Indenture dated as of December 31, 1996,
and as further amended or supplemented from time to time.
(o) "ISSUE DATE" means December 31, 1996.
(p) "LIQUIDATION AMOUNT" means the stated liquidation preference of the
Securities.
(q) "NEW GUARANTEE AGREEMENT" has the meaning set forth in Section 2(a)
hereof.
(r) The term "PERSON" means a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
(s) "PURCHASE AGREEMENT" means the Purchase Agreement dated December 20,
1996, among Crestar, the Trust and the Purchasers.
(t) "REGISTRABLE SECURITIES" has the meaning set forth in the Capital
Securities Exchange and Registration Rights Agreement.
(u) "REGISTRATION EXPENSES" has the meaning set forth in Section 4
hereof.
(v) "RESALE PERIOD" has the meaning set forth in the Capital Securities
Exchange and Registration Rights Agreement.
(w) "SECURITIES" means, collectively, the $200,000,000 aggregate
Liquidation Amount of the 8.16% Capital Securities, Liquidation Amount $1,000
per Capital Security, of the Trust to be issued and sold to the Purchasers, and
any securities issued in exchange therefor or in lieu thereof pursuant to the
Trust Agreement.
(x) "SECURITIES ACT" means the Securities Act of 1933, or any successor
thereto, as the same shall be amended from time to time.
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(y) "SHELF REGISTRATION" has the meaning set forth in Section 2(b)
hereof.
(z) "TRUST AGREEMENT" means the Amended and Restated Trust Agreement
dated as of December 31, 1996 among Crestar, as Depositor, The Chase Manhattan
Bank, as Property Trustee, Chase Manhattan Bank Delaware, as Delaware Trustee
and the Administrators named therein.
(aa) "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
all as amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision
2. REGISTRATION UNDER THE SECURITIES ACT.
(a) If Crestar and the Trust file a registration statement pursuant to
Section 2(a) of the Capital Securities Exchange and Registration Rights
Agreement, then Crestar and the Trust agree, jointly and severally, to include
in such registration statement an offer to exchange (the "Exchange Offer") the
Guarantee for a new guarantee of Crestar to be extended pursuant to a new
guarantee agreement to be entered into by Crestar and the Guarantee Trustee for
the benefit of holders of the Exchange Securities (as defined below), the
Registrable Securities, if any, and the Securities, if any (the "New Guarantee
Agreement"), which will be qualified under the Trust Indenture Act, such new
guarantee to be substantially identical to the Guarantee except that it will
relate to the Exchange Securities, the Registrable Securities, if any, and the
Securities, if any, and it will be registered pursuant to an effective
registration statement under the Securities Act and such new guarantee will not
contain provisions restricting transfer in the absence of registration under the
Securities Act (such new guarantee hereinafter called "Exchange Guarantee").
Such registration statement shall also relate to, and the consummation of the
Exchange Offer shall be conditioned upon the consummation of, an offer to
exchange the Debentures for substantially identical debentures of Crestar
pursuant to the Debenture Exchange and Registration Rights Agreement (the
"Exchange Debentures") and to an offer to exchange the Securities for
substantially identical capital securities of the Trust pursuant to the Capital
Securities Exchange and Registration Rights Agreement (the "Exchange
Securities"). Crestar and the Trust agree, jointly and severally, to use their
reasonable best efforts to cause such registration statement to become effective
under the Securities Act as soon as practicable after the filing thereof. The
Exchange Offer will be registered under the Act on the appropriate form. The
Exchange Offer shall be deemed to have been completed upon the completion of the
exchange of the Exchange Guarantee for the Guarantee pursuant to the Exchange
Offer.
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(b) If Crestar and the Trust file a "shelf" registration statement
pursuant to section 2(b) of the Capital Securities Exchange and Registration
Rights Agreement without also filing a registration statement pursuant to
Section 2(a) thereof, then such "shelf" registration statement shall provide for
the registration of the Guarantee (the "Shelf Registration"). The Shelf
Registration shall also provide for the registration of the Debentures pursuant
to the Debenture Exchange and Registration Rights Agreement and for the
registration of and the sale on a continuous or delayed basis by the holders of,
all of the Securities pursuant to Rule 415 under the Securities Act and/or any
similar rule that may be adopted by the Commission pursuant to the Capital
Securities Exchange and Registration Rights Agreement. Crestar and the Trust
agree, jointly and severally, to use their reasonable best efforts to cause the
Shelf Registration to become or be declared effective and to keep such Shelf
Registration continuously effective for a period ending on the earlier of (A)
the third anniversary of the Issue Date or (B) the later of (i) such time as
there are no longer any Securities outstanding or (ii) as required under the
Debenture Exchange and Registration Rights Agreement. Crestar and the Trust
further agree, jointly and severally, to supplement or make amendments to the
Shelf Registration, as and when required by the rules, regulations or
instructions applicable to the registration form used by Crestar and the Trust
for such Shelf Registration or by the Securities Act or rules and regulations
thereunder for shelf registration.
(c) Any reference herein to a registration statement shall be deemed to
include any document incorporated therein by reference as of the applicable
Effective Time and any reference herein to any post effective amendment to a
registration statement shall be deemed to include any document incorporated
therein by reference as of a time after such Effective Time.
3. REGISTRATION PROCEDURES.
If Crestar and the Trust file a registration statement pursuant to
Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, Crestar shall qualify the Indenture, the New
Guarantee Agreement and the Trust Agreement under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of
a new trustee under any of the Indenture, the New Guarantee Agreement or the
Trust Agreement, such new trustee shall be appointed thereunder pursuant to the
applicable provisions thereof.
(c) In connection with the joint and several obligations of Crestar and
the Trust with respect to the registration of the Exchange Securities, the
Exchange Guarantee and the Exchange Debentures, as contemplated by Section 2(a)
(the "Exchange Registration"), if applicable, Crestar and the Trust shall, as
soon as reasonably possible (or as otherwise specified):
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(i) prepare and file with the Commission, as soon as practicable
but no later than 150 days after the Issue Date, a registration statement
with respect to the Exchange Registration on any form which may be
utilized by Crestar and the Trust and which shall permit the Exchange
Offer and resales of Exchange Securities by broker-dealers during the
Resale Period to be effected as contemplated by Section 2(a) hereof, and
use its reasonable best efforts to cause such registration statement to
become effective as soon as practicable thereafter;
(ii) as soon as practicable prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and maintain
the effectiveness of such registration statement for the periods and
purposes contemplated in Section 2(a) hereof and as may be required by
the applicable rules and regulations of the Commission and the
instructions applicable to the form of such registration statement, and
promptly provide each broker-dealer holding Exchange Securities with such
number of copies of the prospectus included therein (as then amended or
supplemented), in conformity in all material respects with the
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder, as such
broker-dealer reasonably may request prior to the expiration of the
Resale Period, for use in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration
statement, and confirm such advice in writing, (A) when such registration
statement or the prospectus included therein or any prospectus amendment
or supplement or post effective amendment has been filed, and, with
respect to such registration statement or any post effective amendment,
when the same has become effective, (B) of the receipt of any comments by
the Commission and by the Blue Sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration statement
or prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the joint and several
representations and warranties of Crestar and the Trust contemplated by
Section 5 cease to be true and correct in all material respects, (E) of
the receipt by either Crestar or the Trust of any notification with
respect to the suspension of the qualification of the Exchange Securities
and the Exchange Guarantee for sale in any United States jurisdiction or
the initiation or threatening of any proceeding for such purpose, or (F)
at any time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such registration statement,
prospectus, prospectus amendment or supplement or post effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder or
contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
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statements therein not misleading in light of the circumstances then
existing;
(iv) in the event that Crestar and the Trust would be required,
pursuant to Section 3(c)(iii)(F) above, to notify any broker-dealers
holding Exchange Securities, without delay prepare and furnish to each
such holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the
Commission promulgated thereunder and shall not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(v) use their best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any post
effective amendment thereto at the earliest practicable date;
(vi) use their reasonable best efforts to (A) register or qualify
the Exchange Securities and the Exchange Guarantee under the securities
laws or blue sky laws of such jurisdiction as are contemplated by Section
2(a) no later than the commencement of the Exchange Offer, (B) keep such
registrations or qualifications in effect and comply with such laws so as
to permit the continuance of offers, sales and dealings therein in such
jurisdictions until the expiration of the Resale Period and (C) take any
and all other actions as may be reasonably necessary or advisable to
enable each broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; PROVIDED, HOWEVER, that
neither Crestar nor the Trust shall be required for any such purpose to
(1) qualify to do business in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section
3(g)(vi), (2) consent to general service of process in any such
jurisdiction or (3) in the case of Crestar, make any changes to its
charter or by-laws or any agreement between it and its stockholders or in
the case of the Trust, make any changes to the Trust Agreement;
(vii) use their reasonable best efforts to obtain the consent or
approval of each United States governmental agency or authority, whether
federal, state or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of Exchange
Securities by broker-dealers during the Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not
later than the applicable Effective Time; and
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to all holders of Securities as
soon as practicable but no later than eighteen months after the Effective
Time, an earnings statement of Crestar and its
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subsidiaries complying with Section 11 (a) of the Securities Act
(including, at the option of Crestar, Rule 158 thereunder).
(d) In connection with the joint and several obligations of Crestar and
the Trust with respect to the Shelf Registration, if applicable, Crestar and the
Trust shall use their reasonable best efforts to cause the Shelf Registration to
become effective to permit the sale of the Registrable Securities by the holders
thereof in accordance with the intended method or methods of distribution
thereof described in the Shelf Registration. In connection therewith, Crestar
and the Trust shall as soon as reasonably possible (or as otherwise specified):
(i) prepare and file with the Commission, as soon as practicable,
a registration statement with respect to the Shelf Registration on any
form which may be utilized by Crestar and the Trust and which shall
permit the disposition of the Registrable Securities in accordance with
the intended method or methods thereof, as specified in writing to
Crestar and the Trust by the holders of the Registrable Securities and
use their reasonable best efforts to cause such registration statement to
become effective as soon as practicable thereafter;
(ii) as soon as practicable, prepare and file with the Commission
such amendments and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and maintain
the effectiveness of such registration statement for the period specified
in Section 2(b) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the form
of such registration statement and furnish to the holders of the
Registrable Securities copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the
Commission;
(iii) comply with the provisions of the Securities Act applicable
to Crestar or the Trust in connection with the disposition of all of the
Registrable Securities covered by such registration statement in
accordance with the intended methods of disposition by the holders
thereof, set forth in such registration statement;
(iv) provide (A) the holders of the Registrable Securities to be
included in such registration statement and not more than one counsel for
all the holders of such Registrable Securities, (B) the underwriters
(which term, for purposes of this Exchange and Registration Rights
Agreement, shall include a person deemed to be an underwriter within the
meaning of Section 2(11) of the Securities Act), if any, thereof, (C) the
sales or placement agent, if any, therefor and (D) one counsel for such
underwriters or agents, if any, reasonable opportunity to participate in
the preparation of such registration statement, each prospectus included
therein or filed with the Commission, and each amendment or supplement
thereto;
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(v) for a reasonable period prior to the filing of such
registration statement, and throughout the period specified in Section
2(b), make available at reasonable times at Crestar's principal place of
business or such other reasonable place for inspection by the persons
referred to in Section 3(d)(iv) who shall certify to Crestar and the
Trust that they have a current intention to sell the Registrable
Securities pursuant to the Shelf Registration such financial and other
information and books and records of Crestar and the Trust, and cause the
officers, employees, counsel and independent certified public accountants
of Crestar and the Trust to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel referred
to in such Section, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; PROVIDED, HOWEVER, that each
such party shall be required to maintain in confidence and not to
disclose to any other person any information or records reasonably
designated by Crestar as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of its
inclusion in such registration statement or otherwise, except by
disclosure by such party in breach of this Agreement), or (B) such person
shall be required so to disclose such information pursuant to the
subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to, and only to the extent
required by, the requirements of such order, and only after such person
shall have given Crestar prompt prior written notice of such
requirement);
(vi) promptly notify the selling holders of Registrable
Securities, the sales or placement agent, if any, therefor and the
managing underwriter or underwriters, if any, thereof and confirm such
advice in writing, (A) when such registration statement or the prospectus
included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when the same has
become effective, (B) of any comments by the Commission and by the Blue
Sky or securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or supplements to
such registration statement or prospectus or for additional information,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of such registration statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any time the
joint and several representations and warranties of Crestar and the Trust
contemplated by Section 3(d)(xv) or Section 5 cease to be true and
correct in all material respects, (E) of the receipt by either Crestar or
the Trust of any notification with respect to the suspension of the
qualification of the Registrable Securities and the Guarantee for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose, or (F) at any time when a prospectus is required to be
delivered under the Securities Act, that such registration statement,
prospectus, prospectus amendment or supplement or post-effective
amendment, or any document incorporated by reference in any of the
foregoing, does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission promulgated thereunder or
contains an untrue statement of a material fact
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or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(vii) use their best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or underwriters,
any placement or sales agent or any holder or counsel for the holders of
Registrable Securities, promptly incorporate in a prospectus supplement
or post-effective amendment such information as is required by the
applicable rules and regulations of the Commission and as such managing
underwriter or underwriters, such agent or such holder specifies should
be included therein relating to the terms of the sale of such Registrable
Securities, including, without limitation, information with respect to
the Liquidation Amount or the principal amount, as the case may be, of
Registrable Securities being sold by any holder or agent or to any
underwriters, the name and description of such holder, agent or
underwriter, the offering price of such Registrable Securities and any
discount, commission or other compensation payable in respect thereof,
the purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable Securities,
to be sold by such holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be incorporated
in such prospectus supplement or post-effective amendment;
(ix) furnish to each holder of Registrable Securities, each
placement or sales agent, if any, therefor, each underwriter, if any,
thereof and the respective counsel referred to in Section 3(d)(iv) an
executed copy of such registration statement, each such amendment and
supplement thereto (in each case including all exhibits thereto and
documents incorporated by reference therein) and such number of copies of
such registration statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by
such holder, agent or underwriter, as the case may be) and of the
prospectus included in such registration statement (including each
preliminary prospectus and any summary prospectus), in conformity with
the requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission promulgated thereunder, and
such other documents, as such holder, agent, if any, and underwriter, if
any, may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such holder, offered
or sold by such agent or underwritten by such underwriter and to permit
such holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and each of Crestar and the Trust
hereby consents to the use of such prospectus (including such preliminary
and summary prospectus) and any amendment or supplement thereto by each
such holder and by any such agent and underwriter, in each case in the
form most recently provided to such party by Crestar and the Trust, in
connection with the offering and sale of the Registrable Securities
covered by the
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prospectus (including such preliminary and summary prospectus) or any
supplement or amendment thereto;
(x) use their reasonable best efforts to (A) register or qualify
the Registrable Securities to be included in such registration statement
and the Guarantee under such securities laws or blue sky laws of such
jurisdictions as any holder of such Registrable Securities and each
placement or sales agent, if any, therefor and underwriter, if any,
thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
during the period the Shelf Registration is required to remain effective
under Section 2(b) above and for so long as may be necessary to enable
any such holder, agent or underwriter to complete its distribution of
Securities pursuant to such registration statement and (C) take any and
all other actions as may be reasonably necessary or advisable to enable
each such holder, agent, if any, and underwriter, if any, to consummate
the disposition in such jurisdictions of Registrable Securities;
PROVIDED, HOWEVER, that neither Crestar nor the Trust shall be required
for any such purpose to (1) qualify to do business in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(d)(x), (2) consent to general service of
process in any such jurisdiction, (3) in the case of Crestar, make any
changes to its charter or by-laws or any agreement between it and its
shareholders or, in the case of the Trust, make any changes to the Trust
Agreement;
(xi) use their reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal, state
or local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable the selling holder
or holders to offer, or to consummate the disposition of, their
Registrable Securities;
(xii) cooperate with the holders of the Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be
sold, which certificates shall be printed, lithographed or engraved, or
produced by any combination of such methods, and which shall not bear any
restrictive legends; and, in the case of an underwritten offering, enable
such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters may request at least two business
days prior to any sale of the Registrable Securities;
(xiii) provide a CUSIP number for all Registrable Securities, not
later than the applicable Effective Time;
(xiv) enter into not more than one underwriting agreement,
engagement letter, agency agreement, "best efforts" underwriting
agreement or similar agreement, as appropriate, including (without
limitation) provisions relating to indemnification and contribution
substantially the same as those set forth in Section 6 hereof, and take
such
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other actions in connection therewith as any holders of Registrable
Securities aggregating at least 25% in aggregate Liquidation Amount, or
in the aggregate principal amount, as the case may be, of the Registrable
Securities at the time outstanding shall reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities;
PROVIDED, that Crestar and the Trust shall not be required to (i) enter
into any such agreement more than once with respect to all of the
Registrable Securities and may delay entering into such agreement until
the consummation of any underwritten public offering which Crestar and
the Trust shall have then undertaken or (ii) enter into any engagement
letter, agency agreement, "best effort" underwriting agreement or similar
agreements whatsoever with respect to the Registrable Securities, and
PROVIDED, FURTHER that Crestar and the Trust shall not be obligated to
enter into any such agreement with a broker-dealer which results in the
need for a "qualified independent underwriter" (within the meaning of the
Rules of Fair Practice and the By-Laws of the National Association of
Securities Dealers, Inc. ("NASD") or any successor thereto, as amended
from time to time (the "Rules and By-Laws of NASD"));
(xv) whether or not an agreement of the type referred to in
Section (3)(d)(xiv) hereof is entered into and whether or not any portion
of the offering contemplated by such registration statement is an
underwritten offering or is made through a placement or sales agent or
any other entity, (A) make such representations and warranties to the
holders of such Registrable Securities and the placement or sales agent,
if any, therefor and the underwriters, if any, thereof substantially the
same as those set forth in Section 1 of the Purchase Agreement and such
other representations and warranties as are customarily made with respect
to the offering of debt securities pursuant to any appropriate agreement
or to a registration statement on the applicable form under the
Securities Act; (B) obtain an opinion or opinions of counsel to Crestar
and the Trust substantially the same as the opinions provided for in
Section 5 of the Purchase Agreement with such additions, substitutions or
deletions of such matters as are customarily covered in opinions for an
underwritten offering, addressed to such holder or holders and the
placement or sales agent, if any, therefor and the underwriters, if any,
thereof and dated the effective date of such registration statement (and
if such registration statement contemplates an underwritten offering of a
part or all of the Registrable Securities, dated the date of the closing
under the underwriting agreement relating thereto) (it being agreed that
the matters to be covered by such opinion shall also include, without
limitation, the absence of governmental approvals required to be obtained
in connection with the Shelf Registration, the offering and sale of the
Registrable Securities, this Exchange and Registration Rights Agreement
or any agreement of the type referred to in Section (3)(c)(xiv) hereof,
except such approvals as may be required under state securities or blue
sky laws; and the compliance as to form of such registration statement
and any documents incorporated by reference therein and of the Indenture,
the Guarantee Agreement and the Trust Agreement with the requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission promulgated thereunder, respectively); and,
such opinion shall also state that such counsel has no reason to believe
that, as of the date of the
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opinion and of the registration statement or most recent post-effective
amendment thereto, as the case may be, such registration statement and
the prospectus included therein, as then amended or supplemented, and the
documents incorporated by reference therein (in each case other than the
financial statements and other financial information contained therein)
contains or contained an untrue statement of a material fact or omits or
omitted to state therein a material fact necessary to make the statements
therein not misleading (in the case of such documents, in the light of
the circumstances existing at the time that such documents were filed
with the Commission under the Exchange Act)); (C) obtain a "cold comfort"
letter or letters from the independent certified public accountants of
Crestar and the Trust addressed to the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor and the
underwriters, if any, thereof, dated (i) the effective date of such
registration statement and (ii) the effective date of any prospectus
supplement to the prospectus included in such registration statement or
post-effective amendment to such registration statement; (D) deliver such
other documents and certificates, including officers' certificates, as
may be reasonably requested by any holders of at least 25 % in aggregate
Liquidation Amount, or in the aggregate principal amount, as the case may
be, of the Registrable Securities at the time outstanding or the
placement or sales agent, if any, therefor and the managing underwriters,
if any, thereof to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above or those contained in
Section 5(a) hereof and the compliance with or satisfaction of any
agreements or conditions contained in the underwriting agreement or other
agreement entered into by Crestar and the Trust; and (E) undertake such
obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities of
any proposal by Crestar and the Trust to amend or waive any provision of
this Exchange and Registration Rights Agreement pursuant to Section 9(h)
hereof and of any amendment or waiver effected pursuant thereto, each of
which notices shall contain the text of the amendment or waiver proposed
or effected, as the case may be;
(xvii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate
as a member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Rules and By-Laws of NASD)
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Rules and By-Laws, including, without limitation, by
(A) if such Rules or By-Laws, including Schedule E thereto (or any
successor thereto), shall so require, engaging a "qualified independent
underwriter" (as defined in such Schedule (or any successor thereto)) to
participate in the preparation of the registration statement relating to
such Registrable Securities, to exercise usual standards of due diligence
in respect thereto and, if any portion of the offering contemplated by
such registration statement is an underwritten offering or is made
through a placement or sales agent, to
12
recommend the yield of such Registrable Securities, (B) indemnifying any
such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof (or to such
other customary extent as may be required by such underwriter), and (C)
providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the Rules
and By-Laws of NASD; and
(xviii) comply with all applicable rules and regulations of the
Commission, and make generally available to its holders of the Securities
as soon as practicable but in any event not later than eighteen months
after the effective date of such registration statement, an earnings
statement of Crestar and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of Crestar, Rule 158
thereunder).
(e) In the event that Crestar and the Trust would be required, pursuant
to Section 3(d)(vi)(F) above, to notify the selling holders of Registrable
Securities, the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof, Crestar and the Trust shall without delay prepare
and furnish to each such holder, to each placement or sales agent, if any, and
to each underwriter, if any, a reasonable number of copies of a prospectus
supplemented or amended so that, as thereafter delivered to purchasers of
Registrable Securities, such prospectus shall conform in all material respects
to the applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder and shall
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing. Each holder of
Registrable Securities agrees that upon receipt of any notice from Crestar and
the Trust pursuant to Section 3(d)(vi)(F) hereof, such holder shall forthwith
discontinue the disposition of Registrable Securities, pursuant to the
registration statement applicable to such Registrable Securities until such
holder shall have received copies of such amended or supplemented prospectus,
and if so directed by Crestar and the Trust, such holder shall deliver to
Crestar (at Crestar's expense) all copies, other than permanent file copies,
then in such holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice.
(f) Crestar and the Trust may require each holder of Registrable
Securities as to which any registration is being effected to furnish in writing
to Crestar and the Trust such information regarding such holder and such
holder's intended method of distribution of such Registrable Securities as
Crestar and the Trust may from time to time reasonably request in writing, but
only to the extent that such information is required in order to comply with the
Securities Act. Each such holder agrees to notify Crestar and the Trust as
promptly as practicable of any inaccuracy or change in information previously
furnished by such holder to Crestar and the Trust or of the occurrence of any
event in either case as a result of which any prospectus relating to such
registration contains or would contain an untrue statement of a material fact
regarding such holder or such holder's intended method of distribution of such
Registrable Securities or omits to state any material fact regarding such holder
or such
13
holder's intended method of distribution of such Registrable Securities required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing, and promptly to furnish to Crestar
and the Trust any additional information required to correct and update any
previously furnished information or required so that such prospectus shall not
contain, with respect to such holder or the distribution of such Registrable
Securities, an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing. Each such holder
shall comply with the provisions of the Securities Act applicable to such holder
with respect to the disposition by such holder of Registrable Securities covered
by such registration statement in accordance with the intended methods of
disposition by such holder set forth in such registration statement.
(g) Until the expiration three years after the Issue Date, Crestar will
not, and will not permit any of its "affiliates" (as defined in Rule 144 under
the Act) to, resell any of the Securities which constitute "restricted
securities" under Rule 144 that have been reacquired by any of them except
pursuant to an effective registration statement under the Act or any exemption
therefrom; PROVIDED, HOWEVER, that, for purposes of this paragraph, "affiliates"
shall not include the Purchasers or any of their affiliates other than Crestar
and its subsidiaries, officers, managers and directors.
4. REGISTRATION EXPENSES.
If Crestar and the Trust file a registration statement pursuant to
Section 2(a) or Section 2(b), the following provisions shall apply:
Crestar agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the performance by Crestar
and the Trust or compliance with this Exchange and Registration Rights
Agreement, including, without limitation, (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Securities and the Guarantee for
offering and sale under the state securities and blue sky laws referred to in
Section 3(d)(x) hereof, including reasonable fees and disbursements of counsel
in connection with such qualifications, (c) all expenses relating to the
preparation, printing, distribution and reproduction of each registration
statement required to be filed hereunder, each prospectus included therein or
prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, and the certificates representing the Securities and all documents
relating hereto, (d) messenger and delivery expenses, (e) fees and expenses of
the Debenture Trustee under the Indenture, the Issuer Trustees under the Trust
Agreement and the Guarantee Trustee under the Guarantee Agreement, and of any
escrow agent or custodian, (f) internal expenses (including, without limitation,
all salaries and expenses of Crestar's officers and employees performing legal
or accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of Crestar and the Trust (including the
expenses of any opinions or "cold comfort" letters required by or incident to
such performance and compliance), (h) fees, disbursements and expenses of any
"qualified
14
independent underwriter" engaged pursuant to Section 3(d)(xvii) hereof, (i)
fees, disbursements and expenses of one counsel for the holders of Registrable
Securities retained in connection with a Shelf Registration, as selected by the
holders of at least a majority in aggregate Liquidation Amount, or the aggregate
principal amount, as the case may be, of the Registrable Securities being
registered, and fees, expenses and disbursements of any other persons, including
special experts, retained by Crestar or the Trust in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof,
Crestar shall reimburse such person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after receipt of a written
request therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency or brokerage fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above, transfer taxes on
resale of any of the Securities by such holders and any advertising or
solicitation expenses other than expenses specifically referred to above
incurred by or on behalf of such holders in connection with any offers they may
make.
5. REPRESENTATIONS AND WARRANTIES.
Crestar and the Trust, jointly and severally, represent and warrant to,
and agree with, each Purchaser and each of the holders from time to time of
Registrable Securities that:
(a) Each registration statement covering the Exchange Securities, the
Exchange Guarantee and the Exchange Debentures or the Registrable Securities,
the Guarantee and the Debentures and each prospectus (including any preliminary
or summary prospectus) contained therein or furnished pursuant to Section
3(d)(ix) hereof and any further amendments or supplements to any such
registration statement or prospectus, when it becomes effective or is filed with
the Commission, as the case may be, and, in the case of an underwritten offering
of Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act, the
rules and regulations of the Commission promulgated thereunder and any such
registration statement and any amendment thereto will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
any such prospectus or any amendment or supplement thereto will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; and at all times subsequent to the
Effective Time of any such registration statement when a prospectus would be
required to be delivered under the Securities Act, other than from (i) such time
as a notice has been given to holders of Registrable Securities pursuant to
Section 3(c)(iii)(F) or Section 3(d)(vi)(F) hereof until (ii)
15
such time as Crestar and the Trust furnish an amended or supplemented prospectus
pursuant to Section 3(c)(iv) or Section 3(e) hereof, as the case may be, each
such registration statement, and each prospectus (including any summary
prospectus) contained therein or furnished pursuant to Section 3(c) or Section
3(d)(ix) hereof, as then amended or supplemented, will conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission promulgated
thereunder and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing; PROVIDED, HOWEVER, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to Crestar and the Trust by a holder of
Registrable Securities or any placement or sales agent therefor or underwriter
thereof expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred to
in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; PROVIDED, HOWEVER, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to Crestar and the Trust by a holder of
Registrable Securities expressly for use therein.
(c) The representations and warranties of the Trust and Crestar contained
in Section 1 of the Purchase Agreement are true and correct with the same force
and effect as though expressly made at and as of the date hereof.
6. INDEMNIFICATION.
(a) Upon the registration of the Exchange Guarantee or the Guarantee, as
the case may be, pursuant to Section 2 hereof, and in consideration of the
agreements of the Purchasers contained herein, and as an inducement to the
Purchasers to purchase the Securities, the Trust and Crestar, jointly and
severally, agree to indemnify and hold harmless, each of the holders of
Registrable Securities to which the Exchange Guarantee or the Guarantee relates,
and each person who participates as a placement or sales agent or as an
underwriter in any offering or sale of such Registrable Securities and each
person, if any, who controls, such holder, or such placement or sales agent, if
any, or such underwriter, if any, within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act (each an "Indemnified Person") as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever arising out of any untrue statement or
alleged untrue statement of a
16
material fact contained in any registration statement under which
the Exchange Guarantee or the Guarantee were registered under the
Securities Act, or any preliminary, final or summary prospectus
contained therein as furnished by the Trust or Crestar to any such
holder, agent or underwriter (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make
the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained
in such registration statement or such preliminary, final or
summary prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, unless
such untrue statement or omission was made in reliance upon and in
conformity with written information relating to such Indemnified
Person furnished to the Trust and Crestar by, or on behalf of,
such Indemnified Person expressly for use in such registration
statement or such preliminary, final or summary prospectus (or any
amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage
and expense whatsoever to the extent of the aggregate amount paid
in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission (except
as made in reliance upon and in conformity with information
relating to such Indemnified Person furnished by, or on behalf of,
such Indemnified Person as aforesaid), if such settlement is
effected with the written consent of the Trust and Crestar; and
(iii) against any and all expense whatsoever (including
the fees and disbursements of counsel chosen by such Indemnified
Person), reasonably incurred in investigating, preparing or
defending against any litigation, or investigation or proceeding
by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission (except
as made in reliance upon and in conformity with information
relating to such Indemnified Person furnished by, or on behalf of,
such Indemnified Person as aforesaid) to the extent that any such
expense is not paid under (i) or (ii) above.
PROVIDED, HOWEVER, that indemnification with respect to any prospectus shall not
inure to the benefit of any holder of Registrable Securities or Exchange
Securities from whom the Person asserting any loss, claim, liability, damage or
expense purchased such Securities, if a copy of the Prospectus (as then amended
or supplemented and furnished by Crestar to such holder) was not sent or given
by or on behalf of such holder to such person if such is required by law at or
prior to the sale of such Registrable Securities or Exchange Securities, as the
case may be, and if the prospectus (as so amended and supplemented) would have
cured the defect
17
giving rise to such loss, claim, liability, damage or expense.
(b) Crestar may require, as a condition to including any Registrable
Securities in any registration statement filed pursuant to Section 2 hereof and
to entering into any placement or underwriting agreement with respect thereto,
that Crestar shall have received an undertaking reasonably satisfactory to them
from the holder of such Registrable Securities and from each placement agent or
underwriter named in any such placement agreement or underwriting agreement,
severally and not jointly, to indemnify and hold harmless the Trust and Crestar
and each person, if any, who controls the Trust or Crestar within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
and all loss, liability, claim, damage and expense described in the indemnity
contained in subsection (a) of this Section, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in any
registration statement under which such Registrable Securities were registered
under the Securities Act, or any preliminary, final or summary prospectus
contained therein as furnished by the Trust or Crestar to any such holder, agent
or underwriter (or any amendment or supplement thereto), in reliance upon and in
conformity with written information relating to such holder, or such placement
or sales agent, if any, or such underwriter, if any, furnished to the Trust and
Crestar by or on behalf of such holder, or such placement or sales agent, if
any, or such underwriter, if any, expressly for use in such registration
statement or such preliminary, final or summary prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to any local counsel) for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances;
PROVIDED, HOWEVER, that when more than one of such holders, such placement or
sales agents, if any, or such underwriters, if any, is an indemnified party each
such holder, placement or sales agent or such underwriter, as the case may be,
shall be entitled to separate counsel (in addition to any local counsel) in each
such jurisdiction to the extent such holder, placement or sales agent or such
underwriter, as the case may be, may have interests conflicting with those of
the other holder, placement or sales agent or such underwriter, as the case may
be. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
In order to provide for just and equitable contribution in circumstances
in which the
18
indemnity agreement provided for in this Section 6 is for any reason held to be
unavailable to such holders, such placement or sales agents, if any, or such
underwriters, if any, in accordance with its terms, the Trust, Crestar and such
holders, such placement and sales agents, if any, and such underwriters, if any,
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by said indemnity agreement incurred by the
Trust, Crestar and such holders, such placement and sales agents, if any, and
such underwriters, if any, in such proportions as is appropriate to reflect the
relative benefits received by the Trust and Crestar on the one hand and such
holders, such placement and sales agents, if any, and such underwriters, if any,
on the other. The relative benefits received by the Trust and Crestar on the one
hand and such holders, such placement and sales agents, if any, and such
underwriters, if any, on the other shall be deemed to be in such proportion
represented by the percentage that the total commissions and underwriting
discounts received by such holders, such placement and sales agents, if any, and
such underwriters, if any, to the date of such liability bears to the total
sales price (before deducting expenses) received by the Trust and such holders,
such placement and sales agents, if any, and such underwriters, if any, from the
sale of such Securities made to the date of such liability, and the Trust and
Crestar are jointly and severally responsible for the balance. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if such holders, such placement and sales agents, if any, and
such underwriters, if any, failed to give the notice required under this
subsection (c), then the Trust, Crestar and such holders, such placement and
sales agents, if any, and such underwriters, if any, shall contribute to such
aggregate losses, liabilities, claims, damages and expenses in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Trust and Crestar on the one hand and such holders, such
placement and sales agents, if any, and such underwriters, if any, on the other
in connection with the statements or omissions which resulted in such
liabilities, claims, damages and expenses, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Trust and Crestar on the one hand or is
supplied by, or on behalf of, such holders, such placement or sales agents, if
any, and such underwriters, if any, on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Trust, Crestar and such holders, such placement
or sales agents, if any, and such underwriters, if any, agree that it would not
be just and equitable if contributions pursuant to this paragraph were
determined pro rata (even if such holders, such placement or sales agents, if
any, and such underwriters, if any, were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
equitable considerations referred to in this paragraph. Notwithstanding the
provisions of this paragraph, such holders, such placement or sales agents, if
any, and such underwriters, if any, shall not be required to contribute any
amount in excess of the amount by which the total price at which the Securities
referred to in the second sentence of this paragraph that were offered and sold
to the public through such holders, such placement or sales agents, if any, and
such underwriters, if any, exceeds the amount of any damages that such holders,
such placement or sales agents, if any, and such
19
underwriters, if any, have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled under this paragraph to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section, each person, if any, who controls any such holders, such
placement or sales agents, if any, and such underwriters, if any, within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such holders, such placement or
sales agents, if any, and such underwriters, if any, and each person, if any,
who controls the Trust or Crestar within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Trust or Crestar.
7. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. Each of the Trust and Crestar represents,
warrants, covenants and agrees that it has not granted, and shall not grant,
registration rights with respect to the Guarantee or any other securities which
would be inconsistent with the terms contained in this Exchange and Registration
Rights Agreement and that the Debenture Exchange and Registration Rights
Agreement and the Capital Securities Exchange and Registration Rights Agreement
should be construed to be consistent with the terms hereof.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Exchange
and Registration Rights Agreement in accordance with the terms and conditions of
this Exchange and Registration Rights Agreement, in any court of the United
States or any State thereof having jurisdiction.
(c) NOTICES. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows, if to Crestar or the
Trust, to: Crestar Financial Corporation, Crestar Center, 000 Xxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx, 00000, and if to a holder, to the address of such holder set
forth in the security register or other records of the Trust, or to such other
address as any party may have furnished to the others in writing in accordance
herewith, except that notices of change of address shall be effective only upon
receipt.
(d) PARTIES IN INTEREST. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the respective successors and assigns of
the parties hereto. In the event that any transferee of any holder of
Registrable Securities shall become a holder of Registrable Securities, in any
20
manner, whether by gift, bequest, purchase, operation of law or otherwise, such
transferee shall, without any further writing or action of any kind, be deemed a
party hereto for all purposes and such Registrable Securities shall be held
subject to all of the terms of this Exchange and Registration Rights Agreement,
and by taking and holding such Registrable Securities such transferee shall be
entitled to receive the benefits of and be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Exchange and
Registration Rights Agreement. If Crestar shall so request, any such successor,
assign or transferee shall agree in writing to acquire and hold the Registrable
Securities subject to all of the terms hereof.
(e) SURVIVAL. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made by
or on behalf of any holder of Registrable Securities, any director, officer or
partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer. In addition, the
respective indemnities, representations and warranties set forth herein shall
survive the termination hereof.
(f) LAW GOVERNING. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
(g) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(h) ENTIRE AGREEMENT; AMENDMENTS. This Exchange and Registration Rights
Agreement and the other agreements referred to herein or delivered pursuant
hereto which form a part hereof contain the entire understanding of the parties
with respect to its subject matter. This Exchange and Registration Rights
Agreement and such other agreements referred to herein supersede all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by Crestar, the Trust,
and the holders of at least 66-2/3 percent in aggregate principal amount of the
Registrable Securities at the time outstanding. Each holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by any amendment
or waiver effected pursuant to this Section 7(h), whether or not any notice,
writing or marking indicating such amendment or waiver appears on such
Registrable Securities or is delivered to such holder.
21
(i) INSPECTION. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of all the registered holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities at the offices of Crestar
at the address thereof set forth in Section 9(c) above.
(j) COUNTERPARTS. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
(k) TERMINATION. Except for the respective indemnities, representations
and warranties set forth herein, this Agreement shall terminate when all the
Securities, Exchange Securities and Registrable Securities cease to be
outstanding.
22
This Agreement is hereby executed as of the day and year first above
written.
CRESTAR FINANCIAL CORPORATION
By:
---------------------------
Name:
Title:
CRESTAR CAPITAL TRUST I
By:
---------------------------
Administrator
XXXXXX XXXXXXX & CO.
As Representative of the
Purchasers Named in Schedule I
to the Purchase Agreement
By:
---------------------------
(Xxxxxx Xxxxxxx & Co.)
Acting severally, and not
jointly and severally, on behalf
of themselves and each of the
Purchasers named in Schedule I
to the Purchase Agreement
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